This Agreement governs your use of the Services provided by AviLabs, a company formed under the laws of Iceland, registration number 520819-2150, with its place of business at Nóatúni 17, 105 Reykjavík (“AviLabs”). By accepting this Agreement or by accessing or using the Service you acknowledge that you have read, understood, and agree to be bound by this Agreement and will be referred to as “you” or “Customer” in this Agreement. “Party” or “Parties” shall mean individually, Customer or AviLabs as the context requires, and collectively, Customer and AviLabs.

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This Agreement consists of these terms of service in addition to any additional terms applicable to the Services the Customer chooses, including without limitation the Data Processing Addendum, the AviLabs Fee Webpage as it is from time to time or any Pre-Paid Order Form approved by AviLabs in writing.

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This Agreement shall be effective on the earliest of (a) the date Customer clicks a button indicating its agreement with the terms of this Agreement; (b) Customer entering into a written agreement (e.g. by executing a Pre-Paid Order Form) with AviLabs referencing or otherwise incorporating this Agreement; or (c) Customer’s use of the Service. If you are entering into this Agreement on behalf of your organisation, that organisation is deemed to be the Customer and you represent that you have the power and authority bind that organisation to this Agreement.

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BACKGROUND

AviLabs is the company behind the Plan3 product. Avilabs is in the business of providing disruption management software and related services to airlines and develops, maintains, operates, and markets a flight monitoring and disruption handling software for the travel industry called Plan3.

AviLabs makes available various technology services via its application programming interface(s) (“APIs”) which are designed to enable AviLab’s Customers the ability to monitor their flight disruptions and to offer their individual travellers (“End User”) solutions in relation to such disruptions.

Customer is in the business of providing air travel and/or related booking services to individual travellers including facilitating bookings for such travel services.

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Customer wishes to utilize some or all of the Services in order to monitor potential flight disruptions for their End Users and/or to offer their End Users solutions in relation to such flight disruptions.

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1. Definitions
    

“Customer Data” means all information submitted by a Customer to AviLabs through the Service, including End User Personal Data, all associated messages, attachments, files, tasks, project names, team names, channels, conversations, and other similar content.
 

“End User”: means the individual traveller or passenger of the Customer.
 

“Passenger Disruption Management Services”: means the service which allows the Customer, subject to the terms of this Agreement, to decide and create Option Packages, which it can offer its End Users in relation to their flight disruptions.
 

“Passenger Disruption Monitoring Service”: means the service which allows the Customer, subject to the terms of this Agreement, to monitor potential flight disruptions of their End Users.
 

“Plan3 Tool”: means AviLab’s proprietary Plan3 platform, which provides a Customer with a set of tools, functionality and API’s enabling the Customer, subject to the terms of this Agreement, to utilize the Passenger Disruption Management Services and/or the Passenger Disruption Monitoring Service.

“Option Package”: means the Option Package the Customer creates on the Plan3 Tool which consists of various Third Party Service offerings (such as hotel accommodation, transportation and vouchers) the Customer wants to offer to its End User(s) in accordance with the Passenger Disruption Management Services.
 

“Option Package Vendor”: means the provider of any Third Party Services offered or used in providing an Option Package to End Users. This includes but is not limited to hotels, bed banks, online travel agencies (OTA), airlines, airline aggregators, ground transportation service providers, voucher service providers, payment and refund service providers, venue-access aggregators and communications technology providers. For the avoidance of doubt, AviLabs is not an Option Package Vendor.
 

“Set-Up Services” means the customization and integration required for the Customer to be able to use one or more of the Services, as decided by AviLabs.
 

“Service”: means each of the services made available by AviLabs, including the Passenger Disruption management Services, Passenger Disruption Monitoring Service and the Plan3 Tool, including any improvements thereof. Services do not include the Third Party Services.
 

“Third Party Services” means any of the services offered by an Option Package Vendor. For the avoidance of doubt, Third Party Services are not provided by AviLabs.
 

“Website”: means the AviLab’s website located at www.plan3.aero and www.avilabs.is and all related subdomains and any other linked pages, features or content offered from time to time by AviLabs.

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2       The Services

2.1   AviLabs shall make the Services which the Customer ordered on the Website available to the Customer in accordance with the terms of this Agreement, subject to payment of all fees and costs. The Service includes the features and functionality applicable to the version of the Service ordered by the Customer.

 

2.2   The Customer may access and use the Services in accordance with this Agreement. The Customer will comply with the terms of this Agreement and all laws, rules and regulations applicable to his use of the Services. To use the Services, the Customer must have a User Account associated with a valid email address and a valid form of payment.

 

2.3   The Passenger Disruption Management Service enables the Customer to search for Third Party Services (services such as hotel accommodation, transportation or vouchers) from Option Package Vendors (businesses such as hotels, airlines or other businesses which arrange for services for travellers), and allows the Customer to create an Option Package via the Plan3 Tool, to offer to its End User, in order for the Customer to accommodate and assist the End User who has been affected by a flight disruption. AviLabs itself does not provide the services offered to the End Users in the Option Package. AviLabs offers the information, tools and technology to connect the Customer, its End Users and an Option Package Vendors together, but does not and does not intend to provide any Third Party Service (or such services the Option Package Vendors is to provide). As such, AviLabs has no responsibility or any liability whatsoever for any Third Party Service or for any Option Package Vendor which has been offered in an Option Package or otherwise on the Plan3 Tool, nor does AviLabs guarantee the availability or quality of any Third Party Service or any Option Package Vendor.

 

2.4   When utilizing the Passenger Disruption Management Service, the Customer will be the buyer of any Third Party Service offered in an Option Package which is chosen by the End User. As such, the Customer will be in the direct relationship with the relevant Option Package Vendor the End User chooses and shall therefore adhere to the terms governing the applicable Third Party Service, cf. Section 4 of this Agreement. In addition, the Customer acknowledges that it will be charged by the Option Package Vendor for the Third Party Service the End User chooses. Furthermore, in the unlikely event that AviLabs purchases any Third Party Service for the Customer, for any reason whatsoever, the Customer agrees to refund AviLabs any costs it incurs which is associated with such purchase.

 

2.5   The Customer understands and acknowledges that certain Services rely on the Customer providing Customer Data to AviLabs. Where the Customer does not provide AviLabs with the required Customer Data in the format required by AviLabs, AviLabs may be unable to provide such Services to the Customer.

 

2.6   AviLabs shall, if relevant for the Services purchased by the Customer, provide the Customer with Set-Up Services in accordance with the terms of this Agreement and subject to payment of all fees and costs.

 

2.7   During the term of this Agreement, AviLabs may offer from time to time, related value-added functionality or services, professional, consulting, technical and/or premium-level services that may be purchased by the Customer in addition to the Services (“Optional Services”).

 

2.8   The Customer may access a version of the Service on a trial basis (“Trial”) subject to the terms of this Agreement; provided, however, the following additional terms shall apply to such Trial:

2.8.1  The Trial will give the Customer the chance to try a part of the Services, namely it will allow the Customer access the Plan3 Tool and/or to submit Customer Data to AviLabs in order for the Customer to monitor potential flight disruptions for their End Users. However, the Trial will not give the Customer the option of offering their End Users solutions in relation to such flight disruptions.

2.8.2  AviLabs shall have the right to terminate a Trial at any time without notice and for any reason.

2.8.3  AviLabs is providing the Service “as is” and makes no warranties (express or implied) of any kind with respect to the Service during the Trial.

2.8.4  AviLabs shall have no obligation to indemnify the Customer.

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3       License and Restrictions
 

3.1   The Services are protected by copyright, trade secret, and other intellectual property laws. Subject to the provisions of this Agreement and payment of all the applicable fees and costs as specified herein, AviLabs hereby grants the Customer a limited, revocable, non-assignable, non-transferable,  sub-licensable, individual and non-exclusive license and right to access and use the Services pursuant to this Agreement solely for the Customer’s internal business purposes. Except for the rights expressly granted to Customer hereunder, AviLabs reserves all other rights, title and interest in the Services and all underlying AviLabs technology used to provide the Services. Customer acknowledges and agrees that only AviLabs shall have the right to maintain, enhance or otherwise modify the Services and the underlying AviLabs technology, unless specific permissions are granted to Customer in a separate written agreement with AviLabs.

 

3.2   The Customer shall use the Services solely as contemplated in this Agreement. Without limiting any other provision of this Agreement, the Customer agrees that he shall not (and shall not allow any third party to), either directly or indirectly:

3.2.1  use any Service for the benefit of anyone other than the Customer;

3.2.2  make the Service available to anyone other than the Customer or his contracted service providers;

3.2.3  rent, let, license, sublicense, sell, re-sell, lease, assign, transfer, distribute, time share, sub-or similarly exploit the Service, including making the Service available through any method or any application hosting service;

3.2.4  modify, copy, adapt, translate, reverse engineer, decrypt, decompile, decode, disassemble, hack, gain unauthorized access or create derivative works based on the Service or its related systems or networks, or to undertake any benchmark trials using all or any part of the Service;

3.2.5  access the Service, the related documentation, or AviLab’s Confidential Information to build a competitive product or service; or copy any ideas, features, functions or graphics of the Services;

3.2.6  alter or remove, or permit any third party to alter or remove, any proprietary trademark or copyright markings incorporated in, marked on, or affixed to the Service;

3.2.7  engage in any action with the Services that meddles with, disturbs, destroys, or accesses in an unlawful way the server networks, connections, systems, records, or other assets, tools or services of AviLabs or any related third party;

3.2.8  access or use the Service: (i) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights; (ii) in violation of applicable laws or for any unlawful or fraudulent purpose; (iii) to send or store material knowingly or intentionally containing software viruses, worms, Trojan horses or other harmful computer code, files, or scripts; or (iv) in a manner that interferes with or disrupts the integrity or performance of the Service (or the data contained therein).

 
 

4       Third Parties’ Terms & Content
 

4.1   When utilizing the Passenger Disruption Management Service, the Customer (not AviLabs) will be the buyer of any Third Party Services (services such as hotel accommodation, transportation or vouchers) it chooses to offer its End User(s) through an Option Package. The seller and/or the provider of such Third Party Services will be the relevant Option Package Vendor (not AviLabs).

 

4.2   When utilizing the Passenger Disruption Management Service, the Customer will be in a direct relationship with the Option Package Vendor used and must agree to and comply with their terms of service, where applicable. The Customer furthermore understands and acknowledges that certain Third Party Services may rely on the Customer agreeing to the terms or having an agreement with the relevant Option Package Vendor.

 

4.3   Any dealings the Customer (or the Customer’s End User(s)) may have with the Option Package Vendor are between the Customer (or the Customer’s End User(s)) and the Customer agrees that AviLabs is in no way liable for any loss or claim that the Customer (or the Customer’s End User(s)) may have against such Option Package Vendor.

 

4.4   The Services may entail that the Customers (or the Customer’s End User(s)) comes across content from third parties, such as links or other sites and resources on the Internet (by way of an example, on the Plan3 Tool or from the Option Package Vendor). AviLabs has no control over such sites and resources and is not responsible for and does not endorse such sites or resources. The Customer acknowledges and agrees that AviLabs will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resources.

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5       Processing of Personal Data

 

5.1   This Section 5 shall apply if Customer Data includes personal data as defined by EU Regulation 2016/679 the General Data Protection Regulation or “GDPR” (“Personal Data”).

 

5.2   This Section 5 incorporates the AviLabs GDPR Data Processing Addendum (“DPA”),[MÁ.3]  when the GDPR applies to the Customers use of the Services. AviLab’s Data Processing Addendum may be accessed here.

 

5.3   The Parties acknowledge that in respect of End Users’ Personal Data processed in connection with the Services, the Customer acts as Controller and AviLabs acts as Processor appointed by Customer.

 

5.4   The Customer acknowledges that he is responsible for providing legally adequate privacy notices and obtaining necessary consents for the processing of the End User data and agrees that he shall, via its privacy notices, bring to the attention of End Users the purposes of Personal Data processing relating to the provision of the Services under this agreement. The Customer represents to AviLabs that it has provided all the necessary privacy notices and obtained all necessary consent from the End User.

 

5.5   Each Party shall be solely responsible for any liability arising from such Party’s compliance with its respective obligations and responsibilities under the applicable Privacy Laws and, in particular, GDPR, relating to the processed End Users’ Personal Data.

 

5.6   Each Party declares that it has put in place and maintains reasonable and appropriate technological and organizational security measures to protect Personal Data from unlawful and unauthorized use and disclosure, and it ensures secure processing of such data in conformity with the Applicable Laws and applicable industry standards.

 

5.7   The Customer acknowledges and agrees that AviLabs, including its personnel and third party subcontractors, shall:

 

5.7.1  process End Users’ Personal Data on Customer’s behalf and may transmit End Users’ Personal Data to and from Customer and third-party providers (including but not limited to Option Package Vendors) for the purpose of providing the Services;

 

5.7.2  process End Users’ Personal Data for the provision, support, management, and regulatory compliance of the Services; and

 

5.7.3  use and/or disclose End Users’ Personal Data, with prior notification to Customer (unless such notification is prohibited by subpoena or other order of a court of law, law enforcement agency or regulatory body), to comply with any subpoena or other order of a court of law, law enforcement agency or regulatory body.

 

5.8   In providing the Services under this Agreement AviLabs shall process any End Users’ Personal Data in accordance with this Agreement and the Data Processing Addendum. Furthermore, AviLabs shall adhere to the following general principles:

5.8.1  not collect more End Users’ Personal Data than is reasonably necessary for the purpose of providing the Services;

5.8.2  not use End Users’ Personal Data for any other purposes than those required to perform its obligations under this Agreement;

5.8.3  not knowingly collect and process any Special Categories of Personal Data of End Users;

5.8.4  promptly report any Personal Data Breach in its area of responsibility hereunder to Customer (at all times, within such timeframes as to allow Customer to meet the applicable reporting obligations set out in the Applicable Laws) and provide reasonable assistance requested by Customer in investigating and reporting such Personal Data Breach; and

5.8.5  assist Customer in its capacity as Controller to respond to any End User’s or supervisory authority’s request to exercise any of the End User’s or supervisory authority’s rights set forth in the applicable Privacy Laws.

 

5.9   When creating an account for a Customer to use the Services (“User Account”), AviLabs will collect certain information, including Personal Data, from the Authorized Staff, such as name and email address. AviLabs represents and warrants that it will Process such Personal Data of Authorized Staff only for the purposes of:

 

5.9.1  performing its obligations under this Agreement;

 

5.9.2  pursuing its legitimate business interests in order to ensure the security and integrity of the Services; and

 

5.9.3  monitoring Customer’s compliance with the terms of this Agreement. AviLabs shall process the Personal Data of Authorized Staff in accordance with the applicable Privacy Laws. Customer undertakes to inform the Authorized Staff of AviLabs’s processing of their Personal Data as set forth herein.

 

5.10    AviLabs shall have the right to generate anonymised data (“Anonymised Data”) derived from, or based on, End Users’ Personal Data so that End Users are no longer, directly or indirectly, personally identifiable from such data, and combine or incorporate such Anonymised Data with or into other similar data or information acquired from other users or derived from other users’ use of AviLabs’s products and/or services (“Anonymised Aggregate Data”). AviLabs may use the Anonymised Data and Anonymised Aggregate Data for any business purpose both during and after the Term, including, but not limited to:

5.10.1   providing, supporting and improving the Services;

5.10.2   conducting analytical research, compiling statistical reports and performance tracking, including sharing certain Anonymised Data and/or Anonymised Aggregate Data with Customer for the purpose of Customer conducting transaction risk analysis and/or compiling internal statistical reports;

5.10.3   developing and/or improving other AviLabs’s services and products;

5.10.4   developing value-added services provided on a commercial basis; and

5.10.5   sharing such Anonymised Data and/or Anonymised Aggregate Data with AviLabs’s affiliates, agents and/or Subcontractors. For the avoidance of doubt, AviLabs does not, and shall not, resell Anonymised Data and/or Anonymised Aggregate Data.

5.11 To the extent Customer has access to any Anonymised Data and/or Anonymised Aggregate Data via the Services, Customer shall have the right to use such data for the purpose of conducting transaction risk analysis, compiling statistical reports, efficiency measurement, tracking and comparison, and decision-making. This Section 5.11 shall not be construed as setting an obligation on AviLabs to share Anonymised Data and/or Anonymised Aggregate Data with the Customer.

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6       User Accounts
 

6.1   In order for the Customer access to use the Services, the Customer must create a user account on the Website (“User Account”). Such User Accounts will be created by the Customer’s personnel acting on the Customer’s behalf and under the Customer’s control, who is authorized by Customer to access, purchase, and use the Services. As such, the Customer acknowledges that it retains administrative control over to whom it grants access to the Customer Data hosted in the Service.

 

6.2   The Customer must ensure that each individual who is given access credentials for use of the Services treats them as confidential to him/her and does not share them with anyone else, whether an employee or agent of the Customer or otherwise. In addition, Customer shall be responsible for protecting the security and integrity of such access credentials.  

 

6.3   The Customer must specify a User Account to be the billing owner and one or more User Accounts to be administrators (each an “Administrator”) to manage all of the Customer’s User Accounts. AviLabs is entitled to rely on communications from an Administrator when servicing the Customer.  Depending on the version purchased by Customer, the User Accounts may have the ability to access, monitor, use, and/or export End User Data. Customer is responsible for maintaining the security of User Accounts and passwords.

 

6.4   Customer agrees and undertakes:

6.4.1  to access and use the Services only through its User Accounts;

6.4.2  that it is responsible for its and its users’ compliance with, and breach of, this Agreement;

6.4.3  to be solely responsible for maintaining the security and confidentiality of the User Accounts;

6.4.4  to assume full responsibility for any actions performed with or via the Services using the User Accounts; all such actions shall be deemed to be performed and authorized by Customer; and

6.4.5  to comply with any changes in the access authentication requirements that AviLabs may reasonably apply at any time and from time to time, with at least thirty (30) days’ advance written notice to Customer whenever feasible, by changing or adding authentication methods and/or criteria, in order to enhance the security of the AviLabs Services and/or comply with new security or technical requirements arising from the Applicable Laws. Customer acknowledges that the foregoing advance written notice is not feasible when the changes are due to circumstances beyond AviLabs’s reasonable control (e.g., security or technical changes arising from regulatory or legal requirements), in which case the written notice to Customer will be provided as soon as reasonably practicable.

 

6.5   The Customer is responsible and liable for use of the Service by its User Accounts and for the compliance of its personnel with this Agreement.

 

6.6   AviLabs may decide to suspend the account of any user who (a) violates this Agreement or (b) is using the Service in a manner that AviLabs reasonably believes may cause a security risk, a disruption to others’ use of the Service, or liability for AviLabs.

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7       Changes to the Services
 

7.1   AviLabs retains the exclusive right, at any time and from time to time and in its sole discretion, to alter, modify, update and/or upgrade the Services (including its functionality), to terminate or add specific services, features, functionality or parts thereof delivered, including, without limitation, in order to ensure compliance with changes in the Applicable Laws or regulatory requirements, to enhance the Services, to address technical, security, maintenance, administrative or functional problems or requirements or for other reasonable business reasons.

 

7.2   If AviLabs decides to discontinue a Service, or make material changes to the functionality of a Service the Customer is using, AviLabs, will provide you with at least 1 month prior notice, except that this notice will not be required if the notice period (a) would pose a security or intellectual property issue to AviLabs or the Services, (b) is economically or technically burdensome, or (c) would cause us to violate legal requirements.

 

7.3   Customer agrees that any purchases under this Agreement are not contingent on the delivery of any future feature or functionality or dependent on any oral or written public or private comments made by AviLabs regarding future features or functionality. AviLabs may release Improvements and other features and functionality in its discretion. Some features and functionality may be available only with certain versions of the Service.

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8       Parties’ Obligations
 

8.1   The Customer’s Obligations: Without limiting any other Customer’s obligations set forth in this Agreement, Customer hereby undertakes to:

 

8.1.1  access and use the Services solely as set forth in this Agreement;

8.1.2  secure the User Accounts against any unauthorised access, use or disclosure. If Customer reasonably suspects that the access credentials for its User Accounts have been stolen, compromised or been made known to any unauthorised third party, Customer shall report the issue immediately to AviLabs;

8.1.3  provide, where appropriate, reasonable assistance to AviLabs in investigating any suspicious activity, fraud or other illegal actions within the Plan3 Platform and/or Services attributed to an User Account;

8.1.4  provide all cooperation and assistance as AviLabs may reasonably request to enable AviLabs to exercise its rights and perform its obligations under with this Agreement;

8.1.5  promptly communicate to AviLabs all changes to Customer’s Systems, resources and software, that impact or may impact AviLabs’s provision or making available of the Services;

8.1.6  be solely responsible for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data. The Customer shall ensure that it is entitled to transfer the relevant Customer Data to AviLabs so that AviLabs and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf;

8.1.7  be solely responsible for, except to the extent caused by AviLab’s breach of this Agreement, all activities that occur under your User Accounts. The Customer explicitly understands and agrees that it is responsible for all actions undertaken on its User Accounts and that it must ensure that the use of the Services do not violate any applicable law;

8.1.8  be responsible for taking appropriate action to secure, protect and backup Customer Data.

8.1.9  to the extent reasonably practicable, notify AviLabs without undue delay of any significant deviations from normal operational parameters that Customer has identified or been made aware of with respect to AviLabs Services availability or performance;  

8.1.10   neither directly or indirectly engage in any behaviour that could harm the technical infrastructure or systems of the Services or engage in any activities that could result in disruption of the Services;

8.1.11   implementing and maintaining industry-standard security measures in order to ensure that its systems are secure and maintained in such a way as to protect the Services provided by AviLabs and the data processed thereon from the risk of penetration by, or exposure to, a third party;

8.1.12   make due payments for the Services in accordance with the terms set forth in this Agreement.

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8.2   AviLabs’s Obligations: Without limiting any other AviLabs’s obligations set forth in this Agreement, AviLabs hereby undertakes to:  

 

8.2.1  provide the Services in compliance with this Agreement;

8.2.2  use adequate security measures and techniques in accordance with applicable industry standards in order to ensure the integrity, availability and security of the AviLabs Services;  

8.2.3  process any Personal Data acquired, collected or accessed in connection with the provision of Services in accordance with the applicable Privacy Laws;

8.2.4  notify the Customer of any: (i) planned or emergency maintenance performed on the AviLabs Services; (ii) material changes implemented by AviLabs to the Services; and (iii) new releases of the Services;  

8.2.5  to the extent reasonably practicable, notify Customer without undue delay of any significant deviations from normal operational parameters that AviLabs has identified or been made aware of with respect to Customer use of the Services or with respect to Customer Data;

8.2.6  provide, where appropriate, reasonable assistance to Customer in investigating any suspicious activity, fraud or other illegal actions within the Plan3 Platform and/or Services attributed to an User Account;
 

 

9       Performance and Disclaimer
 

9.1   AviLabs shall provide the Services in a manner consistent with good industry practice (i.e., the standards, practices, methods and procedures conforming to the Applicable Laws and the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged in a similar type of undertaking under the same or similar circumstances). AviLabs warrants that it shall not willingly materially decrease the functionality of the Service.

 

9.2   Except as expressly provided for in this Section and to the fullest extent permitted by law , the services are provided on an “as is” and “as available” basis without any warranties of any kind, and AviLabs expressly disclaim any and all warranties, whether express or implied, including but not limited to the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Customer acknowledges that AviLabs does not warrant that the service will be uninterrupted, timely, secure, or error-free nor does it make any warranty as to the results that may be obtained from the use of the services, including without limitation the quality, availability or nature of any option package vendor. AviLabs is not responsible for and disclaims all liability related to delays, delivery failures, interception, alteration, or other damage resulting from matters outside of its control, including problems inherent in the use of the internet, mobile and personal computing devices, transmission of electronic communications over the internet or other networks, and related to end user(s), option package vendors or other third party providers or third party hosting providers.

 

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10    Fees, Costs and Payment
 

10.1   In consideration of the Services to be provided by AviLabs under this Agreement, Customer shall pay to AviLabs the Fees in the amounts and currency specified from time to time on the AviLabs Fee Webpage  unless otherwise set forth in the applicable Pre-Paid Order Form specifically agreed between the Customer and AviLabs.

 

10.2   The volume of Fees due by Customer to AviLabs are based on the number of Option Packages the Customer creates. An Option Package shall be considered to have been created when the Customer clicks “Publish” on the Plan3 Tool.

 

10.3   The Fees become immediately due upon the creation of an Option Package and AviLabs may charge Customer in accordance with the Customer’s selected payment method under Section 10.6. The Customer acknowledges that AviLabs may charge the Customer’s selected payment method for the Fees daily (or more often); the frequency of such to be decided by AviLabs based upon the volume of Option Packages created by the Customer.

 

10.4   All Fees are exclusive of any applicable communications service or telecommunication provider (e.g., carrier) fees, surcharges, costs (collectively, “Communications Charges”) incurred in sending any communications (including but not limited to the Option Packages) to the Customer’s End User(s). The Customer will pay all Communications Charges to AviLabs associated with its use of the Services.

 

10.5   The Customer acknowledges and agrees that all payment obligations are non-cancellable and all amounts paid under this Agreement are non-refundable, in whole or in part, even if this Agreement is terminated for any reason whatsoever.

 

10.6   The Customer acknowledges that AviLabs preferred payment method is through credit card and authorizes AviLabs to charge any Fees, Communications Charges or other amounts due under this Agreement to any credit card the Customer has provided through the Plan3 Tool. As such, AviLabs may, by way of an example, charge amounts due to AviLabs to a credit card the Customer has primarily used on the Plan3 Tool for the purposes of paying Option Package Vendors.

 

10.7   The Customer represents and warrants to AviLabs that the given information in relation to the chosen payment method is true and that the individual giving the information has been authorised by the Customer to use the payment instrument. Furthermore, the Customer agrees and acknowledges that the Customer will promptly update its payment information when necessary (for example, if the chosen payment method stops working).

 

10.8   If the chosen payment method by the Customer does not work or ceases to work, e.g. if the Customer utilized a credit card as a payment method which expired while the Customer was using the Services, and the Customer was able to continue to use the Services, the Customer will not be relieved his obligations to pay any amounts under this Agreement during such periods.

 

10.9   AviLabs reserves the right to a) invoice the Customer for any Fees or charges and/or b) recalculate the total number of Option Packages for End Users the Customer has created and/or c) reassess any Communication Charges under Section 10.4 at any time, and if the number of Option Packages and/or Communication Charges exceed what the Customer has already paid for, then AviLabs may charge the Customer for such fees and/or Communication Charges missing.

 

10.10   The Customer shall pay any fees and any other expenses due under this Agreement in full amount at the times and in the applicable as set forth in this Section 10. In case of non-payment or late payment, the Customer shall be responsible for all costs incurred by AviLabs for the collection of invoices, including, but not limited to, reasonable attorney’s charges, collection agency costs and all court costs or related fees.

 

10.11   Any fees, expenses and charges provided for in this Agreement are exclusive of taxes. Except for those taxes based on AviLabs’s net income, Customer shall be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Any amounts payable by Customer under this Agreement are payable in full without offset or deduction for taxes. Customer shall be solely responsible for, and shall pay at its own expense, any taxes, however designated, levied or based, imposed on amounts payable by Customer hereunder.

 

 

11    Receipts

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11.1   The receipts for the fees and costs under Section 10 will be either be, as decided by AviLabs, (i) generated automatically on the Plan3 Tool; or (ii) sent by email to Customer at the end of each month at the email address provided by the Customer in the User Account designated as the billing owner in accordance with Section 6.3. In the event Customer identifies any errors or discrepancies in a receipt submitted by AviLabs, Customer shall communicate the same to AviLabs within one (1) month as of receiving the receipt, failing which the receipt shall be deemed to be correct as issued and accepted by Customer. If AviLabs determines that the amount is incorrect as evidenced by Customer’s and/or AviLabs’s records, AviLabs shall issue an applicable credit note based on the correct records.

 

 

12    Overdue Payments

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12.1   Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at AviLabs’s discretion, late charges in the amount of interest calculated at the rate of the maximum late payment penalty interest rate permitted by Icelandic law, applied on the outstanding balance from the date such payment was due until the date paid.

 

12.2   If Customer fails to make payment when due (except with respect to charges then under reasonable and good faith dispute), AviLabs reserves the right, in addition to all of its other available rights and remedies, to suspend with written notice to Customer (email or notification on the Plan3 Tool to suffice):

12.2.1   all licenses and rights granted to Customer under this Agreement;

12.2.2   any User Account and Customer’s access to the Plan3 Tool and the Customer’s use of the Services; and

12.2.3   all related maintenance and support services.

which suspension shall take effect immediately, and shall continue until the Customer has paid all outstanding amounts.

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13    Changes to Payment Terms and Fees

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13.1 AviLabs reserves the right to modify in its sole discretion, at any time and from time to time, the payment terms and/or Fees on the Fee Webpage by providing at least thirty (30) days’ prior written notice to Customer (email or notification on the Plan3 Tool to suffice). For the avoidance of doubt, if the Customer and AviLabs have agreed on a Pre-Paid Order Form, the terms of such Pre-Paid Order Form shall remain unaffected by any fee change under this Section for the period of the Pre-Paid Order Form.

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14    Blocking and Denial of Access

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14.1   The Customer acknowledges and agrees that AviLabs may in its sole reasonable discretion block temporarily or permanently or otherwise deny the Customer (or specific User Accounts) right to access the Plan3 Tool and/or the Services, to the Customer immediately upon notice (when feasible) if AviLabs determines that:

14.1.1   the Customer or its User Account use of the Service (i) poses a security risk to the Service or any third party, (ii) could adversely impact AviLab‘s systems, AviLab‘s Services, the Plan3 Tool or the data of any other Customer; (iii) could subject AviLabs or any third party to liability, (iv) could be fraudulent; or (v) if AviLabs considers there is an emergency, such as if a critical security vulnerability is discovered;

14.1.2   the Customer is in breach of this Agreement or Applicable Laws.

 

14.2   Any suspension effected by AviLabs pursuant to Section 12.2 or 14.1 shall be without prejudice to AviLabs’s right to terminate this Agreement for breach pursuant to Section 15 and it shall not relieve the Customer’s obligation to pay amounts due and the Customer will not be entitled to any service credits under any Service Level Agreements (if applicable). Furthermore, AviLabs shall have no responsibility or liability for any liabilities, losses, lost profits, potential lost business opportunities or damages that might arise in relation to AviLabs’s blocking or denial of access.

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15    Term and Termination

 

15.1   This Agreement commences on the earliest of (a) the date Customer clicks a button indicating its agreement with the terms of this Agreement; (b) Customer enters into a written agreement (e.g. by executing a Pre-Paid Order Form) with AviLabs referencing or otherwise incorporating this Agreement; or (c) Customer’s use of the Service, and shall remain in effect until the Agreement has been terminated in accordance with this Section 15.

 

15.2   AviLabs may terminate this Agreement for convenience at any time on provision of at least sixty (60) days’ prior written notice to the Customer. Customer may terminate this Agreement for convenience at any time on provision of at least thirty (30) days’ prior written notice to AviLabs. Notwithstanding the above, the Customer may always cease its use of the Services with immediate effect without notice to AviLabs. For the avoidance of doubt, AviLab’s fees are structured in such a manner that the Customer only pays Fees and associated costs associated with creation of Option Packages. There are no minimums or monthly subscription fees. Without prejudice to anything contrary in this Agreement, if the Customer ceases to utilize the Passenger Disruption Management Services, no fees or costs will accrue to the Customer.

 

15.3   Either Party may terminate this Agreement for cause immediately if the other Party:

15.3.1   commits a material breach of this Agreement which is capable of remedy and the Party in breach fails to remedy the breach within thirty (30) days of written notice requiring such Party to remedy the breach;

15.3.2   commits a material breach of this Agreement which cannot be remedied;

15.3.3   is repeatedly in breach of this Agreement and has been given prior notice in writing that  further breach of this Agreement will result in its termination; or

15.3.4   is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or if it goes into either voluntary (other than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over its assets, or if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs;

 

15.4   AviLabs may terminate this Agreement if the Customer fails to make payment when due, and continues to be in default for five (5) days after receiving written notice from AviLabs (email to suffice)

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16    Effects of Termination

 

16.1   Any termination of this Agreement (howsoever occasioned) shall not affect any rights or liabilities of either Party accrued prior to such termination. In particular, all payment obligations incurred prior to any expiration or termination of this Agreement (including under any Pre-Paid Order form) will survive such expiration or termination.

 

16.2   Upon termination of this Agreement, all licenses and rights granted by AviLabs under this Agreement shall immediately terminate, and AviLabs may immediately deactivate Customer’s account(s) associated with the Agreement. In no event will any termination relieve Customer of the obligation to pay any amounts accrued or payable to AviLabs under this Agreement.

 

16.3   Upon termination of this Agreement, if requested by either Party, the other Party shall within ten (10) Business Days of such request return all Confidential Information of the other Party in the first Party’s possession and any copies thereof or, at the other Party’s choice, securely destroy all such information, and provide written confirmation of the same.

 

16.4   The Customer shall be solely responsible for complying with its obligations as a Controller under the applicable Privacy Laws with respect to the retention, deletion and, if applicable, further processing of any End Users’ Personal Data acquired or made available in connection with the Services.

 

16.5   Subject to Section 16.6  below, upon termination of this Agreement, but in any event not later than within ten (10) Business Days of such termination, AviLabs shall securely destroy all Customer’s End Users’ Personal Data processed by AviLabs in connection with the provision of Services.

 

16.6   Following termination of the Agreement, AviLabs shall have the right to retain End Users’ Personal Data or portions thereof: (i) in backup files on its backup servers for a period of up to one (1) month from the date of deletion from the production servers in order to ensure compliance with its business continuity and disaster recovery plan; and (ii) in technical log files in order to comply with the requirements of the Applicable Laws, to establish, exercise or defend (ongoing) legal claims in connection with this Agreement, and to meet audit or statutory requirements. The retention period for Personal Data retained in technical log files shall be a minimum of five (5) years from the date of deletion from the production servers, or such longer period as required by the Applicable Laws, unless subject to statutory or regulatory change.

 

16.7  All terms and provisions of this Agreement which, by their express terms or nature and context are intended to survive termination of this Agreement, will survive any such termination. For greater certainty, all payment obligations incurred prior to any termination of this Agreement, and Sections 3.2, 8.1.7, 9, 16, 17, 18, 19, 20 and 22.

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17    Confidentiality

 

17.1   “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information includes Customer Data.  Disclosing Party’s Confidential Information does not include information that is (a) already known to or independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information; (b) publicly available through no wrongful act of Receiving Party; or (c) received by Receiving Party from a third party who was free to disclose it without confidentiality obligations.

 

17.2   Receiving Party hereby agrees that during the term of this Agreement and at all times thereafter it will not: (a) disclose Confidential Information of the Disclosing Party to any person, except to its own personnel and service providers having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement; (b) use Confidential Information of the Disclosing Party except to exercise its license rights or perform its obligations under this Agreement; or (c) alter or remove from any Confidential Information of the Disclosing Party any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as great as the precautions that the Receiving Party takes to protect its own Confidential Information of a similar type.

 

17.3   Notwithstanding Section 17.2, Receiving Party may disclose Disclosing Party’s Confidential Information: (a) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party to seek an appropriate protective order; or (b) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.

 

17.4   If Confidential Information is required to be disclosed pursuant to a requirement of a governmental authority, such Confidential Information may be disclosed pursuant to such requirement so long as the Party required to disclose the Confidential Information, to the extent possible, provides the other Party with timely prior notice of such requirement and coordinates with the other Party in an effort to limit the nature and scope of such required disclosure.

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18    Indemnification

 

18.1   Each Party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and its officers, directors, personnel, agents, subcontractors, successors, permitted assigns and representatives (collectively, the “Indemnified Party”) harmless, both during the term and after termination or expiration of this agreement, from all direct losses, damages, claims, fines, penalties, costs and expenses (including all legal and other professional fees, expenses and disbursements) incurred or suffered by the indemnified party due to the indemnifying party’s gross negligence or wilful misconduct (including, without limitation, fraud or any other unlawful act) in performing its obligations under this Agreement.

 

18.2   Customer agrees to indemnify, defend and hold AviLabs  and its officers, directors, personnel, agents, subcontractors, successors, permitted assigns and representatives (collectively, the “Indemnified Party”) harmless, both during the term and after termination or expiration of this agreement, from all direct losses, damages, claims, fines, penalties, costs and expenses (including all legal and other professional fees, expenses and disbursements) incurred or suffered by the Indemnified Party arising (i) from allegations that the processing or use of Customer’s Data pursuant to Customer’s instructions infringes a third party’s Intellectual Property Right or privacy right, or (ii) from allegations by End Users or Option Package Vendors arising in as a result of Customer’s actions performed with the User Account, or (iii) from any allegations in relation to a compensation scheme or travel disruption rules which may apply to the Customer  (including but not the EU 261/2014 compensation scheme or the US DOT “Tarmac Delay” scheme) (iv) in connection with an unauthorized payment transaction initiated through the Services, the non-execution, defective or late execution of a payment transaction and/or  incorrect payment order data, unless such liability arises directly from a breach by AviLabs of this Agreement, a technical breakdown or other deficiency of the services for which AviLabs is responsible.

 

18.3   AviLabs agrees to indemnify, defend and hold Customer and its officers, directors, personnel, agents, subcontractors, successors, permitted assigns and representatives (collectively, the “Indemnified Party”) harmless, both during the term and after termination or expiration of this agreement, from all direct losses, damages, claims, fines, penalties, costs and expenses (including all legal and other professional fees, expenses and disbursements) incurred or suffered by the Indemnified Party arising from a third party alleging that the use of the Services under this agreement infringe the Intellectual Property Rights of such a third party; provided, however, in no event will AviLabs have any obligations or liability under this Section 18.3 to the extent a such a claim against an Indemnified Party arises from: the Customer‘s use of the Service other than as permitted under this Agreement; or (b) use of the Service in a modified form or in combination with products, services, content, or data not furnished to Customer by AviLabs.

 

18.4   If any of the Services become, or in AviLabs’s reasonable judgment is likely to become, the subject of a claim of infringement, then AviLabs may in its sole discretion: (a) obtain the right, at AviLabs’s expense, for the Customer to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Service so that it is no longer infringing. If AviLabs, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then AviLabs may suspend or terminate Customer’s use of the Service, in which case AviLabs’s liability (in addition to its obligations under Section 18.3) shall be subject to Section 19.

 

18.5   The Party seeking indemnification shall provide prompt notice to the indemnifying party concerning the existence of an indemnifiable claim and shall promptly provide the indemnifying party with all information and assistance reasonably requested and otherwise cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations under this Agreement only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party shall have full control and authority over the defense of any claim; provided, however, that any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent, not to be unreasonably withheld or delayed.

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19    Limitation of Liability

 

19.1   In no event shall either Party or its affiliates have any liability to the other party for any lost profits, revenues, or loss of use, or for any indirect, special, incidental, consequential, exemplary, or punitive damages however caused, whether in contract, tort or under any other theory of liability and whether or not a party has been advised of the possibility of such damages, and even if a remedy fails of its essential purpose. The foregoing disclaimer shall not apply to the extent prohibited by Applicable Law.

 

19.2   In no event shall AviLab’s liability arising out of or related to this Agreement (whether in contract, tort, negligence or under any other theory of liability) exceed the total amount paid or payable by the Customer hereunder in the 6 months immediately preceding the first event giving rise to liability. This limitation of liability shall not apply to any claims, losses, costs, damages and liabilities in connection with fraud, gross negligence, wilful or reckless misconduct by AviLabs

 

19.3   The provisions of this Section 19 allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement.

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20    Intellectual Property Rights

 

20.1   All right, title and interest in and to the Services and the Plan3 Tool, the underlying AviLabs technology, Metadata, and AviLabs’s Confidential Information, including all Intellectual Property Rights therein and all corrections, bug fixes, enhancements, improvements, modifications, updates, upgrades and new versions thereof, are and will remain with AviLabs and its licensors. Customer acknowledges and agrees that Customer has no right, license or authorization, by any sort of implication, estoppel or otherwise, with respect to any of the foregoing, except as expressly set forth in this Agreement. All other rights in and to the AviLabs Services are expressly reserved by AviLabs and its licensors.

 

20.2   Customer owns all right, title, and interest in and to Customer Confidential Information and Customer Data, including all related Intellectual Property Rights. Customer grants AviLabs a worldwide, non-exclusive license to host, copy, access, process, transmit, and display Customer Data: (a) to maintain, provide, and improve the Service and perform under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; (c) at Customer's direction or request or as permitted in writing by Customer. AviLabs acknowledges and agrees that AviLabs has no right, license or authorization, by any sort of implication, estoppel or otherwise, with respect to the foregoing, except as expressly set forth in this Agreement.

 

20.3   Each Party (the “Recipient”) may freely use any feedback, suggestions and/or ideas that may be provided by the other Party (the “Provider”) in connection with the Recipient’s products or services (in the case of AviLabs, the Services and the Plan3 Tool) (collectively, “Feedback”). Provider agrees that all Feedback is and shall be given entirely voluntarily. Provider hereby grants to Recipient a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, and royalty-free license to use the Feedback for any business purpose both during and after the Term, regardless of the reason for termination of this Agreement. Recipient may put the Feedback to various uses, including, but not limited to, developing, modifying and improving its current and future services/products. Recipient reserves the right to incorporate the Feedback into its services and/or products (such incorporated Feedback, “Modified Feedback”) and, if so and as incorporated, the Modified Feedback shall form part thereof and shall become Recipient’s intellectual property. Provider hereby expressly disclaims any liability and responsibility for any damages whatsoever (including, without limitation, direct, indirect, incidental, consequential, or punitive damages of any kind or nature) arising from Recipient’s use of or reliance upon, or any decisions made by Recipient based on, the Feedback.

 

 

21    Trademarks and Naming

 

21.1   During the Term, AviLabs may refer to Customer on the AviLabs or Plan3 Website, in AviLabs’s press-releases, and customer lists in marketing materials for the Services and advertising resources in any medium. AviLabs may use Customer’s corporate name and logo for the foregoing purposes. AviLabs shall not use the Customer’s marks for any other purpose without Customer’s prior written consent. The Customer may revoke AviLabs rights under this Section at any time without cause.

 

21.2   AviLabs hereby grants Customer a limited, non-exclusive, non-transferable, sub-licensable, royalty-free, and revocable license during the Term to use the AviLabs marks (the AviLabs company name and logo, as well as any name or logos used by AviLabs for the Services, including but not limited the Plan3 name and logo) on Customer’s website and in Customer’s packaging, marketing resources, sales promotion and Internet pages.

 

21.3   Each Party reserves all right, title and interest in and to its marks. All rights of a Party not expressly granted under this Agreement to the other Party are expressly reserved by the former Party.