1.1 This document contains terms and conditions governing the contractual relationship between SchedAero and the Member as created through that certain membership agreement (as replaced, extended or renewed between the parties from time to time, the “Membership Agreement”). The Membership Agreement must be read in conjunction with these General Terms and Conditions to form the entirety of the contractual relationship governing the Member’s membership subscription to the Service.
1.2 These General Terms and Conditions shall remain in effect until superseded by a revised version of General Terms and Conditions, pursuant to Section 7 hereof.
1.3 Any capitalized terms used but not defined herein shall have the meanings ascribed to them in the Membership Agreement.
2. THE SERVICE
2.1 Schedaero provides access to the web-based aircraft and crew scheduling software system via various websites of which the main website is SchedAero.com (the “Site”). The Site is used by SchedAero’s members for the scheduling of crew and aircraft, quoting and invoicing.
2.2 In addition to the Service provided to the Member, Schedaero provides various services to other members over the Site (as further described in the section 6). Schedaero’s complete offering of services (including the Service subscribed to by the Member) are hereinafter referred to as the “Offered Services”.
2.3 SchedAero reserves the right to modify the Site, the Service and the Offered Services, in part or in their entirety, at any time.
3. ACCESS TO THE SERVICE
3.1 AUTHORIZED USE
3.1.1 Access to the Service is granted to the Member on a membership subscription basis. A valid and effective membership subscription requires a valid Membership Agreement and a current account balance. Access to the Service will be activated once a valid Membership Agreement has been signed by both parties and SchedAero has received payment for the first Payment Period.
3.2 MINIMUM REQUIREMENTS
3.2.1 The most current requirements with respect to supported browsers, system limitations and minimum specifications for operating the Service can always be found on the Site.
3.3 USER ID’S AND PASSWORDS
3.3.1 Each user account is associated with a specific user ID and a password.
3.3.2 Each user ID and each password is confidential and the assigned user may not disclose or share it with anyone else, including other employees or representatives of the Member or individuals outside the Member’s organization, and it may not be used for any unauthorized purpose. The Member will use all reasonable efforts to make sure that employees and representatives which are provided with a user ID and a password undertake to keep such information confidential.
3.3.3 The Member is fully responsible for any and all use of the Site and the Service by anyone using a user ID and a password connected to a user account provided to the Member.
3.3.4 The Member hereby acknowledges that the use of the user ID and password together constitutes the Member’s authorization of an individual’s use of the Service and the Site. The Member is thus aware that it will be bound by any action or information submitted through the use of the user ID and password. The Member is consequently aware of the necessity to implement adequate security measures to make sure that its user ID’s and passwords are not disclosed and/or misused.
4.1 USE AND OWNERSHIP
4.1.1 Any and all content, data, graphics, images and other information that the Member transmits through the Site (“Submissions”) shall remain the Member’s sole and exclusive property, and the Member shall be solely responsible for its Submissions.
4.1.3 The Member may only provide the Service with information in the form of text, numbers, pdf documents and digital photos intended to be read and understood by other members.
4.1.4 The Member agrees to maintain and promptly update Submissions in order to keep information that has been posted or communicated through the Service true, accurate, current and complete. The Member undertakes to continuously provide SchedAero, through the Service, with any relevant information about the Member’s business, as it relates to the Service. SchedAero agrees to as promptly as possible remove any Submission made by the Member from displaying through the Offered Services, upon written request from the Member.
4.1.5 By transmitting Submissions to the Service, the Member hereby grants SchedAero and its successors a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, sub-licensable (through multiple tiers) and transferable license to use, copy, display, transmit or otherwise distribute the Member’s Submissions through the Offered Services. The Member also grants each user of the Offered Services a non-exclusive license to access the Member’s Submissions through the Offered Services and to use, copy, display, transmit or otherwise distribute its Submissions in relation to their use of the Offered Services.
4.1.6 Except as set forth in Section 4.1.5, nothing in the Membership Agreement or these General Terms and Conditions shall be construed as conveying any ownership, license, or any other interest whatsoever in or to any of the Member’s intellectual property (including without limitation the Member’s or the Member’s affiliates’ logos, trademarks, copyrighted or patented material, photographs of the Member’s or the Member’s clients’ aircraft or any other marketing material). SchedAero may only create derivative works of the Member’s submission in order to mask unique identifying data, such as removing the tail number from a submitted photo.
4.1.7 Information provided through Submissions that is used, transmitted, distributed or displayed by SchedAero for other purposes than as part of the Offered Services shall only be used, transmitted, distributed or displayed in the form of generic statistical data (for the purpose of these General Terms and Conditions, “generic statistical data” means anonymized aggregated data gathered from at least three different member companies).
4.2 ACCURACY OF AND RESPONSIBILITY FOR INFORMATION
4.2.1 SchedAero undertakes to use commercially reasonable efforts to ensure that the Site will accurately relay any information provided by members to the Member without corruption or distortion.
4.2.2 All information provided through the Site is provided by members of SchedAero’s services. SchedAero has no control over, and fully disclaims any form of responsibility or liability with respect to, the quality, accuracy, legality, truth or completeness of any information provided by its members, the ability of members to provide such information, the ability of members to pay for any services rendered through use of such information, the quality or legality of the services provided by its members, or the terms and conditions of any transaction between members.
5.1 The Member may not enter any form of data, device, software or routine that could pose a threat to the security or functionality of the Site or the Offered Services, including but not limited to HTML, ASP, XML, viruses, trojans, hyperlinks, auto responders, time bombs or cancel bots.
5.2 The Member may not damage or interfere with the proper working of the Site or surreptitiously intercept or expropriate any system, data or information from the Site.
5.3 The Member may not take any action which imposes an unreasonable or disproportionately large load on the Site, the Service or any infrastructure connected therewith, including but not limited to “spam”, denial of service attacks, unsolicited mass e-mailing and other techniques.
5.4 The Member must not reproduce, reverse engineer, decompile, disassemble, modify or create derivative works with respect to the Service, the Site or any other services provided by SchedAero, regardless of platform.
5.5 Any breach by the Member of this Section 5 shall for all purposes be regarded as a “material breach” of the Membership Agreement and these General Terms and Conditions.
6. OFFERED SERVICES
6.1 Schedaero provides a range of different services to its members. For additional fees, the Member may elect to include additional Offered Services not already included in the Service subscribed to by the Member. Such additional services require an updated Membership Agreement with separate product and price for each additional service subscribed to by the Member. Once added through an updated and signed Membership Agreement, the term “Service” as used herein and in the Membership Agreement will include also such additional services, and their use will be governed by the provisions of the Membership Agreement and these General Terms and Conditions.
7. CHANGES AND AMENDMENTS
7.1 THE GENERAL TERMS AND CONDITIONS
7.1.1 SchedAero reserves the right to change or update the General Terms and Conditions with sixty (60) days’ prior notice, by sending such notice via e-mail to the address provided by the Member for e-mail notices in the Membership Agreement. Attached to such e-mail notice shall be a copy of the new version of the General Terms and Conditions. Should the Member not be willing to accept the revised General Terms and Conditions, the Member’s sole remedy is to give SchedAero a notice of termination in accordance with Section 8. If SchedAero has not received a notice of termination from the Member within the sixty (60) days following the Member’s receipt of the notice of revised General Terms and Conditions, the Member hereby agrees that the new and revised General Terms and Conditions shall replace and supersede the previous version and be effective as of the sixty first (61st) day following the Member’s receipt of SchedAero’s notice with revised General Terms and Conditions.
7.2 THE MEMBERSHIP AGREEMENT
7.2.1 The Membership Agreement may be amended, modified or supplemented by one party sending a requested change to the other party, in accordance with the notice provisions of the Membership Agreement, and the other party confirming the requested change in writing or via email. The Member may also unilaterally remove products from the Services by giving SchedAero at least ten (10) days written notice, such removal to be effective from the first day of the following month. However, notwithstanding the foregoing, no product may be unilaterally removed by the Member until and unless it has been active for at least ninety (90) days (or six (6) months with respect to Apps). If ten (10) days written notice to remove a product is received by SchedAero before the minimum active time has elapsed, the removal will be effective as of the first day following the end of such 90 days (or 6 months with respect to Apps).
8. CANCELLATION AND TERMINATION
8.1 Either party may terminate the Membership Agreement at once in the event that the other party is in default or breach of any material provision of the Membership Agreement or these General Terms and Conditions and such default or breach has not been cured within ten (10) days after written notice thereof (if at all possible to be cured within ten (10) days).
8.2 Either party may terminate the Membership Agreement for any reason by providing sixty (60) days written notice. The termination will take effect the first (1st) day of the month following expiration of the sixty (60) day notice period.
8.3 Upon receipt of a revised version of the General Terms and Conditions in accordance with Section 7, the Member shall have the right to terminate the Membership Agreement as of the expiration of the sixty (60) day notice period, provided that SchedAero has received the Member’s written termination notice before the expiration of such notice period.
8.4 The first time Member enters into a Membership Agreement, it may cancel its membership with immediate effect within seven (7) business days of the agreement start date. A request for cancellation must be submitted in writing.
9. REFUNDS AND CREDIT NOTES
9.1 Refunds or credit notes will only be issued for pre-paid future services. No refunds will be given for periods that have already passed.
9.2 Should a first-time Member choose to cancel within the first seven (7) days of membership, SchedAero will issue a refund for any pre-paid amounts, less one month’s fees and any applicable one-time set up fees.
9.3 If due to any revision of the Membership Agreement a balance is owed to the Member, SchedAero will issue a credit for the Member. The credit will then be applied to the next invoice.
9.4 Should the Member choose to terminate or not renew the Membership Agreement, a refund will be issued to the Member for any pre-paid amounts.
9.5 If the Member terminates the Membership Agreement in accordance with Section 8.1, the Member is entitled to a refund of any remaining pre-paid amounts. If SchedAero terminates the Membership Agreement in accordance with Section 8.1, no refund will be given.
10. SCHEDAERO’S RESPONSIBILITY
10.1 SchedAero shall use all commercially reasonable efforts to keep the Site and the Service available twenty four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, SchedAero reserves the right to make the Site and the Service unavailable from time to time in order to install new releases, to perform maintenance, or to undertake activities to protect the Site, the Service or the information provided through them. SchedAero will make all reasonable efforts to notify members of planned system changes three (3) days in advance by posting clear notices on the Site and/or by sending an e-mail notification to the Member at the address provided by the Member for e-mail notices in the Membership Agreement. Furthermore, SchedAero does not assume responsibility for unavailability and downtime caused by force majeure or other events and circumstances beyond SchedAero’s control, it being understood that failure in the transfer of data, problems inherent in the use of communication facilities and failures caused by the Member not adhering to SchedAero’s instructions or policies will always be considered circumstances beyond SchedAero’s control.
10.2 The Member acknowledges that SchedAero is not a broker nor an operator of charter flights. SchedAero is not a party to transactions or contractual arrangements that may arise between its members. Because SchedAero’s members are independent companies with their own operating policies, procedures and processes, and because they operate independently of SchedAero, SchedAero cannot and will not control or monitor their actions. Nor does SchedAero assume any responsibility for any of its members’ errors or omissions. Any agreements entered into by the Member with other members as a result of the use of the Services are at the sole discretion and risk of the Member, and each member bears the full responsibility for the payment and performance of all arrangements and agreements entered into with other members.
BY SIGNING THE MEMBERSHIP AGREEMENT, OF WHICH THESE GENERAL TERMS AND CONDITIONS IS AN INTEGRAL PART, THE MEMBER ACKNOWLEDGES AND AGREES THAT SCHEDAERO SHALL NOT BE RESPONSIBLE FOR, AND SHALL NOT INCUR ANY LIABILITY TOWARDS THE MEMBER AS A RESULT OF, ANY LOSS OR DAMAGE CAUSED BY THE ACTS OR OMISSIONS OF OTHER MEMBERS, REGARDLESS OF IF SCHEDAERO FACILITATED THE UNDERLYING TRANSACTIONS AND REGARDLESS OF THE BASIS OF SUCH CLAIMS, AND THE MEMBER HEREBY WAIVES AND RENOUNCES ANY RIGHT IT MAY OTHERWISE HAVE TO CLAIM INDEMNIFICATION FROM SCHEDAERO IN SUCH RESPECT.
11. MEMBER’S REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES
11.1 By entering into the Membership Agreement, including these General Terms and Conditions, and by using the Service, the Member represents, undertakes and warrants that upon execution of the Membership Agreement and at any given time after that (as applicable):
(a) the Member is a duly incorporated and validly existing company, corporation or similar legal entity under the laws of its place of registration or incorporation;
(b) the execution, delivery and performance of the Membership Agreement and these General Terms and Conditions is duly authorized by the Member and has been duly executed and delivered for and on behalf of the Member by persons authorized to do so;
(c) all information provided by or on behalf of the Member to SchedAero or through the Site, is and will be true, correct and not misleading and it is the Member’s responsibility to control such information before the use of the Service;
(d) any person that is provided with a user account, and the user ID and the password associated to such account, has the right and authority to act through the Service and the Site on behalf of the Member;
(e) the Member owns and/or has the necessary licenses, rights, consents, and permissions to use and authorize SchedAero to use all patent, trademark, trade secret, copyright or proprietary rights in and to any and all Submissions to enable inclusion and use of the Submissions by the Site and the Offered Services;
(f) the Member is not insolvent, has not gone into liquidation, has not had a receiver appointed for any or all of its assets, has not entered into receivership, is not declared bankrupt, has not taken general measures to cease payments of its debts, has not entered into negotiations for a general agreement with its creditors, has not entered into composition, reorganization or similar arrangements with its creditors;
(g) when submitting any aircraft availability through the Offered Services with the intent to be displayed to other Members through the Offered Services, the Member represents and warrants that (i) the relevant aircraft is available for charter as detailed, (ii) the aircraft has a valid Air Operation Certificate or Part 135 Certificate, and (iii) the registration number provided is valid and relates to the aircraft offered; and
(h) the Member shall comply with all applicable laws, statutes, ordinances and regulations, as well as all material industry standards, including obtaining all necessary permits and/or approvals necessary to perform its obligations under the Membership Agreement and the marketing, selling and/or operation of charter flights.
12. SCHEDAERO’S REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES
By entering into the Membership Agreement, including these General Terms and Conditions, and by providing the Service, SchedAero represents, undertakes and warrants that upon execution of the Membership Agreement and receipt of the Membership Fee, and at any given time after that (as applicable):
(a) SchedAero Inc. and SchedAero AB are duly incorporated and validly existing under the laws of their respective jurisdiction of incorporation;
(b) the execution, delivery and performance of the Membership Agreement and these General Terms and Conditions is duly authorized by SchedAero and has been duly executed and delivered for and on behalf of SchedAero by persons authorized to do so;
(c) the Service is developed, produced or provided to the Member under the Membership Agreement without infringing upon any intellectual property rights of any other person or entity; and
(d) SchedAero shall comply with all applicable laws, statutes, ordinances and regulations, as well as all material industry standards, including obtaining all necessary permits and/or approvals necessary to perform its obligations under the Membership Agreement.
SCHEDAERO PROVIDES THE SITE AND THE SERVICE AS IS, WHERE IS, AND AS AVAILABLE. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, SCHEDAERO MAKES ABSOLUTELY NO WARRANTY OR CONDITION OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY. SCHEDAERO SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SCHEDAERO MAKES NO WARRANTY REGARDING THE ACCURACY OF ANY DATA PROVIDED BY OTHER MEMBERS. FURTHERMORE, SCHEDAERO DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SITE AND THE SERVICE, AND THE MEMBER IS HEREBY PUT ON NOTICE THAT OPERATION OF THE SITE AND THE SERVICE MAY BE INTERFERED WITH AND INTERRUPTED BY NUMEROUS FACTORS OUTSIDE SCHEDAERO’S CONTROL.
14.1 Subject to the limitations set forth below and elsewhere in these General Terms and Conditions, the parties agree to indemnify, defend and hold each other harmless from and against any and all losses, claims, expenses and damages (including attorney’s fees) resulting from its own breach of any provisions of the Membership Agreement and/or these General Terms and Conditions.
14.2 The Member agrees that SchedAero shall not be liable for any losses or damages arising out of or in connection with any interruption, suspension or termination of the Site or the Service.
14.3 The Member assumes full responsibility for, and SchedAero shall not indemnify the Member for, loss or damage resulting from the Member downloading and/or using third party files, information, communications, content, or other material (including without limitation software) accessed through or obtained by means of the Site or the Service.
14.4 In no event shall either party, or an officer, affiliate, director, shareholder, agent or employee thereof be liable to the other for any indirect, consequential, incidental, special, punitive or exemplary damages, including but not limited to lost profits, loss of data or otherwise out of or in connection with this agreement, unless such loss or damage is caused by the gross negligence or wilful misconduct of such party, its officers, employees, agents or representatives.
14.5 The cumulative liability for either party under this agreement to the other party shall in no event exceed an amount corresponding to the Membership Fee for one year of membership, regardless of whether such party knew or should have known of the possibility of such damage.
14.6 The Member acknowledges that it is entering into the Membership Agreement only with the Avinode entity that signed the Membership Agreement and that each Avinode entity is operating on a stand-alone basis, and the Member further acknowledges and agrees that any claims against SchedAero shall only be made against the Avinode entity that signed the Membership Agreement (or such Avinode Group entity to which the Membership Agreement has been transferred or assigned in accordance with Section 20). SchedAero expressly disclaims and renounces any form of cross-guaranties or similar intra-group responsibility between any Avinode entities, which the Member acknowledges by entering into the Membership Agreement with the contracting SchedAero entity only.
15. PRIVACY AND DATA PROTECTION
15.1 The objective of the Service is to store, analyze and exchange information. Hence, by using the Service the Member agrees and acknowledges that SchedAero may obtain and collect information in a variety of ways. Such information includes, but is not limited to, information about the Member or provided by the Member, information regarding activities on the Site and the use of the Service, as well as messages sent or received by the Member through the Service.
15.2 Upon issuing a user account, including a user ID and password, SchedAero will process the personal data, such as name and contact details, of the Member’s employees or representatives. SchedAero may use such personal data as well as any other information submitted to SchedAero for the provision of the Service, for the performance of usage analyses and for statistics purposes. The Member hereby accepts and agrees to such use of personal data, and undertakes to inform all employees or representatives affected by SchedAero’s processing of their personal data, and to obtain the consent of each such employee or representative to such processing.
16. USE OF CUSTOMER DATA
16.1 To be able to provide the Service SchedAero is processing information, such as personal data, regarding the Member’s customers (the “Customers”) provided by the Member, in order to fulfil SchedAero’s obligations under the Membership Agreement and these General Terms and Conditions and for other purposes related to the Offered Services. The Member therefore agrees to ensure that the Customers’ personal data may be transferred to SchedAero and used by SchedAero within the Offered Services and as contemplated by the Membership Agreement and these General Terms and Conditions.
16.2 For the purpose of this Section 16, “SchedAero” shall mean any company within the Avinode group of companies, in which Avinode Holding AB, a Swedish company, is the parent company.
17.1 Nothing in the Membership Agreement or these General Terms and Conditions shall mean that any of SchedAero’s ownership, license rights, or the like, or part thereof, is assigned, sub-licensed or transferred to the Member.
17.2 With respect to ownership of data and information on the Site and available through the Offered Services, each member only owns the information provided through its own Submissions, subject to the provisions of Section 4. All other data, source code, and any other code and information is owned by SchedAero, and the Member agrees to not reproduce, reverse engineer, decompile, disassemble, modify or create derivative works of such data and information.
17.3 The Service, as well as the data and information provided through the Offered Services, may only be used for the Member’s internal purposes within the scope of the Member’s business.
18.1 The parties undertake to keep confidential the terms of the Membership Agreement and these General Terms and Conditions, including but not limited to information regarding prices and payment terms.
18.2 Notwithstanding Section 18.1, the parties may disclose any information that it is otherwise required to keep confidential under this clause:
(a) to such employees, professional advisers, consultants or officers of either party as are reasonably necessary to advise either party in relation to the Membership Agreement, if the disclosing party ensures that the people to whom the information is disclosed keep it confidential as if they were themselves bound by these provisions; or
(b) to the extent that the disclosure is required:
(i) by law; or
(ii) by a regulatory body, tax authority or securities exchange; or
(iii) to make any filing with, or obtain any authorization from, a regulatory body, tax authority or securities exchange; or
(iv) to protect either party’s interest in any legal proceedings, but the parties shall in each case set forth in subsection (b) above use reasonable endeavors to consult the non-disclosing party and take into account any reasonable requests the non-disclosing party may have in relation to the disclosure before the disclosing party makes it.
18.3 This Section 18 shall survive termination or expiration of any Membership Agreement and remain in effect for a period of two (2) years thereafter.
19. LEGAL STATUS
SchedAero and the Member are both independent contractors. No agency, partnership, joint venture or any other relationship of such kind is intended or created by the Member’s entry into the Membership Agreement or the Member’s use of the Site, the Service, or the information exchanged by such means.
20. ENTIRETY OF THE AGREEMENT
21.1 SchedAero may assign the Membership Agreement (together with these General Terms and Conditions), to another party within the group of companies in which Avinode Holding AB, reg. no SE556692332101, is the parent company.
21.2 The Member may not assign the Membership Agreement (and hence not these General Terms and Conditions) to any other party without the prior written consent of SchedAero, such consent not to be unreasonably withheld or delayed.
22.1 The headings of the Membership Agreement and these General Terms and Conditions are for convenience only and shall not affect the interpretation of any provision of the Membership Agreement and these General Terms and Conditions.
22.2 The provisions of Membership Agreement and these General Terms and Conditions shall be construed according to their fair meaning and neither for nor against the party which caused such provisions to be drafted.
22.3 In the event of conflict between the provisions of the Membership Agreement and these General Terms and Conditions, the provisions of the Membership Agreement shall prevail.
23. PARTIAL INVALIDITY AND WAIVER
23.1 If any provision of the Membership Agreement, or these General Terms and Conditions, or the application of them, is declared or deemed void, invalid or unenforceable in whole or in part for any reason, the parties shall amend the Membership Agreement and/or these General Terms and Conditions, as shall be necessary to give effect to the spirit and purpose of the Membership Agreement and these General Terms and Conditions, as far as possible. If the parties fail to amend the Membership Agreement and/or these General Terms and Conditions, the provision which is void, invalid or unenforceable shall be deleted and the remaining provisions of the Membership Agreement and these General Terms and Conditions shall continue in full force and effect.
23.2 Waiver by one party of strict performances of any provision of the Membership Agreement or General Terms and Conditions will not be a waiver of or prejudice to such party’s right to require strict performance of the same provision in the future or of any other provision.
24. GOVERNING LAW AND DISPUTES
24.1 FOR MEMBERS INCORPORATED OR FORMED IN THE AMERICAS
24.1.1 The Membership Agreement and these General Terms and Conditions shall be interpreted and construed according to, and governed by, the substantive laws of the state of New York, excluding any such laws that might direct the application of the laws of another jurisdiction.
24.1.2 Any controversy or claim arising out of or relating to the Membership Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The seat of arbitration shall be New York City, New York, USA. The language to be used in the arbitral proceedings shall be English.
24.2 FOR MEMBERS INCORPORATED OR FORMED IN ALL OTHER REGIONS
24.2.1 The Membership Agreement and these General Terms and Conditions shall be interpreted and construed according to, and governed by, the substantive laws of Sweden, excluding any such laws that might direct the application of the laws of another jurisdiction.
24.2.2 Any controversy or claim arising out of or relating to the Membership Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English.