This agreement (the “Agreement”) between Customer (as defined below or “you”) and Aerie LLC, a Delaware limited liability corporation (“Aerie”, “we”, “us” and “our”) governs your use of AerieHub, as defined below, and our related services. It is important that you read and understand the Agreement as it forms a binding contract between you and us.

 

THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I ACCEPT” BUTTON OR BY ACCESSING OR USING THE SERVICES.  BY CLICKING ON THE “I ACCEPT” BUTTON OR BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

 

IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE “I DECLINE” BUTTON BELOW OR DO NOT ACCEPT THE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES. 

 

Notwithstanding anything else stated herein, if Customer and Aerie have executed a SaaS Agreement, then the SaaS Agreement forms part of this Agreement

1.  DEFINITIONS: For purposes of the Agreement, the following definitions apply:

A.       “AerieHub” means the web-based proprietary software known as AerieHub which hosts certain Customer Data, and provides features and functionality including, but not limited to permitting the uploading of Customer Data, accessing and viewing Customer Data, and any other data or information generated under the AerieHub Services.

B.       “AerieHub e-Library” means the cloud repository in AerieHub containing Customer Data.

C.       “Aerie Intellectual Property Rights” has the meaning set out in section 4.

D.       “AerieHub Services” means the following services ordered by Customer and provided by Aerie to Customer: (i) “Software as a Service” or “SaaS”, which consists of activities including system administration, system management and system monitoring that AerieHub performs using software installed on AerieHub systems and servers (“SaaS Services”) along with any optional Library Management Services, and as ordered by Customer; (ii) set-up services (including training) and (iii) any professional services provided on a time and materials basis. AerieHub Services do not include ISP Services or any other services performed by a party other than Aerie, including without limitation, Reseller Services.

E.       “Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the AerieHub Services under the rights granted to Customer pursuant to this Agreement; and (ii) to whom a Customer representative, Aerie or a reseller have supplied a user identification and password to access the SaaS Services.

F.        “Beta Services” has the meaning set out in section 16.

G.       “Confidential Information” has the meaning set out in section 11.

H.       “Content” has the meaning set out in section 13.

I.         “Customer” means the person or entity that entered into a SaaS Agreement with us or a reseller or an affiliate, to purchase Services and, through such agreement and subject to this Agreement, has the right to access, either directly or through an Authorized User, the Customer portion of our website to view Customer Data or to access AerieHub.

J.         “Customer Content” has the meaning set out in section 14.

K.       “Customer Data” means facility information documentation created or aggregated by us, our affiliates, or resellers for the Customer, drawings, photos, files, annotations, and other content provided or generated by the Customer and its designees, and all other content, files and information including, without limitation, photographs, videos, AutoCAD files, floor plans, architectural plans, annotations, and other data, information, text, graphics, images, pictures and media of any kind generated or encountered through use of the Services. Customer Data includes Data as defined in section 20.

L.        “Customer Library Administrator” has the meaning set out in section 17.C

M.     “Documentation” means explanatory materials created by Aerie in printed, electronic or online form that accompany the AerieHub Services or Software.

N.      “Library Management Services” includes technical services required to update Customer Data in AerieHub including, but not limited to scanning, data entry, AutoCAD drafting, and technical writing typically performed by a reseller.

O.      “Malware” means applications, executable code, or malicious content that Aerie deems to be harmful, including, but not limited to: code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

P.       “Non-AerieHub Applications” means a web-based or offline software application that is provided by you or a third party and interoperates with a Service, including, for example, an application that is developed by or for you.

Q.      “Reseller Services” means any services provided by a reseller of AerieHub to Customer.

R.       “Services” means the AerieHub Services and the Reseller Services.

S.        “Software” means the computer programs (including associated Documentation) and upgrades, enhancements, and new releases thereto underlying AerieHub.

T.       “SaaS Agreement” means an agreement where the Customer and Aerie or Customer and a reseller or an affiliate define the Services to be provided, scope, fees, and responsibilities of each party with respect to the Services and any related services to be provided.

U.      “SaaS Services” has the meaning set out in section 1.C.

2.      INTRODUCTION

The Customer contracts through a SaaS Agreement with us or a reseller to create an AerieHub e-Library to house facility information and to obtain access to the AerieHub Services. We provide the AerieHub Services, including AerieHub via our website to the Customer and to Authorized Users. This Agreement governs your access to and use of the AerieHub Services, including the right to access and use AerieHub and additional AerieHub Services.  If this Agreement conflicts in whole or in part with a SaaS Agreement between a Customer and us, an affiliate, or reseller, you acknowledge and agree that this Agreement shall govern and control with respect to the provision of the AerieHub Services by Aerie. This Agreement reflects the current terms and conditions relating to the AerieHub Services and may be amended by Aerie upon posting the changes to AerieHub. Upon such change, you will be presented with the amended Terms of Use Agreement: by clicking “Agree” you accept and agree to the changes.

 

3.      RIGHT OF USE AND RESTRICTIONS

 

A.       Right to Access and Use AerieHub Services. Customer may not access or use the AerieHub Services unless a SaaS Agreement is in place between Customer and Aerie or between Customer and one of our resellers.  Subject to the terms of this Agreement, Aerie grants Customer a royalty-free, nonexclusive, nontransferable, limited term right to use the SaaS Services for up to the number of Authorized Users identified on in a SaaS Agreement, solely for Customer’s internal business use. Unless otherwise specified by Aerie, no software will be delivered to the Customer as part of the AerieHub Services. All rights not expressly granted to Customer are reserved by Aerie and its licensors. The use of AerieHub or any part of the AerieHub Services, except as permitted in this Agreement, is strictly prohibited.

B.       Restrictions. Customer may not access the Software or AerieHub Services if Customer is a direct competitor of Aerie, or for monitoring the availability, security, performance, functionality, or for any other benchmarking or competitive purposes without Aerie’s express written permission. Customer will not: (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make the Software or AerieHub Services available to any third party; (ii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Software or AerieHub Services, or any of its components; (iii) use the Software or AerieHub Services to conduct fraudulent activities; (iv) attempt to gain unauthorized access to the Software or AerieHub Services, engage in any denial of service attacks, or otherwise cause immediate, material or ongoing harm to AerieHub, its provision of the Software or AerieHub Services, or others; (v) impersonate or misrepresent an affiliation with a person or entity; (vi) use the Software or AerieHub Services to store or transmit Malware; (vii) use the Software or AerieHub Services for any purpose that violates applicable law or regulation, infringes on the rights of any person or entity, or violates this Agreement; (viii) market, sell, license, sublicense, distribute, publish, display, reproduce, rent, lease, loan, assign, or otherwise transfer to a third party the Software or AerieHub Services or any copy thereof, in whole or in part; or (ix) use the Software or AerieHub Services for third-party training, commercial time-sharing, or service bureau use (each of (i) to (ix) is a “Prohibited Use”).

C.       Right to Use Customer Data. Customer hereby grants Aerie (and its resellers and contractors) a limited, non- exclusive, royalty-free, license for the term of this Agreement to access, use, reproduce, transmit, store, and archive the Customer Data as necessary for Aerie to (i) execute, perform and deliver the AerieHub Services; (ii) provide and improve the Software, AerieHub Services and technical support to Customer during the Term; and (iii) for the aggregation purposes set forth in section 20 below. Customer represents and warrants that it has all rights and consents required to provide the Customer Data to Aerie to provide the AerieHub Services.

D.       Non-AerieHub Applications.  The AerieHub Services may contain features designed to interoperate with Non-AerieHub Applications and software (such as Procore and Multivista systems for example). To use such features, Customer may be required to obtain access to Non-AerieHub Applications from their third party providers and may be required to grant Aerie access to Customer’s account(s) on the Non-AerieHub Applications. If the provider of a Non-AerieHub Application ceases to make the Non-AerieHub Application available for interoperation with the corresponding Service features on reasonable terms, we may cease providing those Service features without entitling Customer to any refund, credit, or other compensation.

E.       Access Rights.  To the extent consent is necessary to perform the AerieHub Services including, without limitation, consent to enter the Customer’s property to perform services, you hereby grant to us and our affiliates and licensees consent to perform the AerieHub Services, including any on-site verification services as applicable. 

4.      PROPRIETARY RIGHTS AND TRADE SECRETS

You acknowledge and agree that Aerie and/or its licensors own all legal right, title and interest in and to all: (i) registered and unregistered trademarks, business names, logos, trading styles and trade dress, (ii) patents, patent applications, and patentable ideas, inventions and improvements, including, without limitation, AerieHub, (iii) registered and unregistered copyrights including, without limitation, AerieHub, the AerieHub site and code base, AerieHub documentation, user interface, scripts, indexing systems, viewing systems, navigation systems, forms, images, graphics, audiovisual displays, text and data; (iv) trade secrets, proprietary information and know-how, and (v) all other intellectual property, proprietary rights, confidential information or other rights which are used, developed, comprising, embodied in, or practiced in connection with any of the AerieHub Services, including AerieHub, (“Aerie Intellectual Property Rights”) and you agree to make no claim of interest in or ownership of any such Aerie Intellectual Property Rights. Except as expressly permitted in this Agreement, you agree that you shall not and that you will not permit any third party, to (a) make, have made, copy, reproduce, modify, adapt, alter, translate, or create derivative works from the Aerie Intellectual Property Rights (b) sublicense, distribute, sell, lease, rent, loan, or otherwise transfer the AerieHub Services, or any part thereof, including the Aerie Intellectual Property Rights, to any third party, (c) reverse engineer, decompile, disassemble, modify, or attempt to reconstruct, identify, or discover all or any portion or feature of the AerieHub Services, including the Aerie Intellectual Property Rights, (d) remove, alter or cover any copyright notices, trademarks, or other proprietary rights notices relating to the AerieHub Services and the Aerie Intellectual Property Rights, or (e) otherwise use the AerieHub Services, including the Aerie Intellectual Property Rights, except as expressly permitted hereunder.

Customer agrees, on behalf of itself and its Authorized Users, that it will take no action inconsistent with Aerie’s Intellectual Property Rights. Customer agrees that Aerie has the unrestricted right to use feedback or recommendations provided by Customer in Aerie’s sole discretion, without notice to, payment to or consent from Customer and that such feedback is not subject to the Confidential Information provisions of this Agreement. Customer agrees not to disclose such feedback to any third party without the express written consent of Aerie.

Except as set out in this Agreement, Customer retains all right, title and interest in and to Customer Data.

5.      TECHNICAL REQUIREMENTS FOR USE OF THE SERVICES

Use of the AerieHub Services requires compatible devices, third-party software and Internet access. AerieHub Services may be affected by the performance of these devices, software and type and speed of Internet access. You are solely responsible for meeting these requirements, which may change from time to time.

6.      CHANGING THE SERVICES

We reserve the right to modify the AerieHub Services including, without limitation, AerieHub and any hosting services, or any part thereof, either temporarily or permanently. We may post on our Website or send an email to you to notify you of any material changes to the AerieHub Services. You agree that Aerie and its affiliates and licensees shall not be liable to you or any third-party for any modification of the AerieHub Services.

7.      FEES

Payment for the Services is addressed in the SaaS Agreement between us and Customer or Customer and a reseller. Except as provided in this Agreement or the SaaS Agreement, fees paid to us directly or by our resellers relating to the Services or otherwise are non-refundable.  We may from time to time enhance the features and functionality of or otherwise add to or change the AerieHub Services, including AerieHub and any hosting services.  Upon advance notice to you, we, our affiliates, resellers and designees reserve the right to charge additional fees for such enhancements, additions and changes.

8.      LIMITATIONS ON USE

You agree to use the AerieHub Services only for the purposes of this Agreement and in compliance with applicable laws and regulations. You may not use the AerieHub Services for any purpose that is unlawful or prohibited by this Agreement or any general terms and conditions for use of the Website. You may not use the AerieHub Services in any manner that could damage, disable, overburden, or impair any of Aerie’s or its designee’s servers or the network(s) connected to any of Aerie’s or its designee’s servers, or interfere with any other party’s use and enjoyment of the AerieHub Services or other products and services offered through Aerie’s website. If your use of the AerieHub Services or other actions intentionally or unintentionally threatens our ability to provide the AerieHub Services or other systems, Aerie shall be entitled to take all reasonable steps to protect the AerieHub Services and our systems, which may include suspension of your access to the AerieHub Services or termination of your right to access the AerieHub Services. You may not attempt to gain unauthorized access to any portion or feature of the AerieHub Services through hacking, password mining or any other means. You may not obtain or attempt to obtain through any means any materials or information not intentionally made available to you through the AerieHub Services or any portion or feature of the AerieHub Services.

9.      LINKING

You may not provide links to the AerieHub Services. You may not frame or otherwise incorporate into another website any of the Content or materials relating to the AerieHub Services without our prior written consent.

10.  USE AND PROTECTION OF THE USERNAME AND PASSWORD; NO PUBLIC ACCESS

You acknowledge and agree that access to and use of the AerieHub Services through your account shall be restricted to Authorized Users only, each of whom must be provided with a unique username and password. The unique username and password shall not be shared with other persons or entities, whether or not such other person or entity has been authorized by Customer to access and use the AerieHub Services. Accurate and complete information must be provided for each user and this information must be timely updated if a change occurs. You are responsible for maintaining the confidentiality of your account username and password. The Customer is responsible for all access and use of the AerieHub Services through the Customer’s account, whether or not actually or expressly authorized by the Customer. If there is a breach or threatened breach of the confidentiality of a username or password or any other breach or threatened breach of security or confidentiality relating to the AerieHub Services, then you must notify Aerie immediately by contacting Aerie at Support@AerieHub.com. Upon such breach or threatened breach of the confidentiality of a username or password or other breach or threatened breach of security or confidentiality, we shall be entitled to take all reasonable steps to protect the AerieHub Services, which may include suspension of your access to the AerieHub Services or termination of your right to access the AerieHub Services. You must comply with the access and other security requirements designated by us from time to time. Making access credentials publicly available is prohibited and Customer shall make each approved user aware of Customer’s and each user’s confidentiality and restricted access obligations as a term of use. We cannot and will not be liable for any loss or damage arising from the failure to comply with these username, password, access and other security and confidentiality obligations.

11.  CONFIDENTIALITY

Except as provided in this Agreement, as is necessary to perform the AerieHub Services or with your consent, we will not disclose, publish or otherwise make available the Customer Data or other proprietary information provided by you, either directly or indirectly, to us. You acknowledge, except as provided above, that there is no public access to AerieHub and the AerieHub Services available through AerieHub. You further acknowledge that during the course of your use of the AerieHub Services, you will have access to and learn about confidential, secret and proprietary information of and relating to the AerieHub Services (“Confidential Information”). For purposes of this Agreement, Confidential Information includes, but is not limited to, all information not generally known to the public relating directly or indirectly to the AerieHub Services. You agree not to disclose, publish or otherwise make available the Confidential Information to any person or entity except Authorized Users who agree to be bound by this Agreement and only for the purposes permitted under this Agreement. The confidentiality obligations hereunder do not apply to any information that, as can be demonstrated with written records, is or subsequently becomes publicly available without breach of any obligation under this Agreement.

12.  PUBLIC OR SHARED EMAIL DOMAINS

You understand that to limit the access to and use of the AerieHub Services to the Customer and Authorized Users, you may not use a public or shared email domain (i.e., an email domain that is generally available for any member of the public to join or access) to access or use the AerieHub Services. In the event that you use a public or shared email domain to access or use the AerieHub Services, or if we reasonably believe that you are using a public or shared email domain, we will deactivate your access to the AerieHub Services.

13.  OWNERSHIP OF DOCUMENTS; RIGHT TO USE FOR MARKETING AND PROMOTION

You acknowledge and agree that all content prepared by us, our affiliates or licensees to create your AerieHub e-Library  (“Content”) are, and shall remain, the property of Aerie, our affiliates or licensees, as applicable, including all intellectual property rights therein, until such time as the Services are paid for in full by the Customer at which time their ownership, subject to applicable law and this Agreement, shall pass to the Customer. Notwithstanding the foregoing, AerieHub and related “know how” used to create the Content, including all Aerie Intellectual Property Rights associated therewith, shall at all times remain the sole property of Aerie. We reserve the right to use Customer logo and limited scrubbed samples of the Content, media and system service prepared for Customer for our marketing and promotional purposes. We may also utilize Customer statements, cost savings and ROI examples derived from Customer’s use of the Services. Anonymity will be observed if requested. Customer owns all worldwide right, title and interest (including all associated intellectual property rights) in and to Customer’s trademarks, logos, and other intellectual property. This Agreement is not to be construed to grant and does not grant to Aerie any right or license with respect to any invention, patent, copyright, trade secret, know-how, information, trademark, logo or other proprietary right of Customer except as may be expressly set out herein.

14.  CONTENT AND REMOVAL OF CONTENT

You acknowledge and agree that you, not us, our affiliates or licensees, are responsible for any content you upload, download, post, email, transmit, store or otherwise make available directly or indirectly through your use of the AerieHub Services, including without limitation, any Customer Data (collectively, “Customer Content”).   You agree that you will not use the AerieHub Services to: (i) upload, download, post, email, transmit, store or otherwise make available any Customer Content that is unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, violent, obscene, vulgar, invasive of another’s privacy or publicity rights, hateful, racially or ethnically offensive or otherwise objectionable or (ii) engage in any copyright infringement or other intellectual property infringement or disclose any trade secret or confidential information in violation of any agreement.  We, our affiliates and licensees do not control the Customer Content posted by you or content posted by third parties via the AerieHub Services, nor do we guarantee the accuracy, integrity or quality of such Customer Content or third party content.  Further, you acknowledge and agree that we, our affiliates and licensees are not responsible or liable in any way for any Customer Content stored in AerieHub.  We, our affiliates and licensees have no duty to pre-screen or otherwise review Customer Content. However, we reserve the right to determine whether Customer Content is appropriate and in compliance with this Agreement, and may pre-screen, screen, move, refuse, modify and remove Customer Content at any time, in our sole discretion, if any Customer Content is found in violation of this Agreement or is otherwise objectionable. To the extent you provide, own or claim ownership in any Customer Content, you grant us and our designees a world-wide, royalty free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, perform and display such Customer Content in connection with performance of the AerieHub Services and the related services under the SaaS Agreement, as permitted under this Agreement and for such other purposes for which the Customer Content was submitted or posted.  You agree that any Customer Content submitted or posted by you, directly or indirectly, shall be your sole responsibility, shall not infringe or violate the rights of any third party or violate any laws, or otherwise be obscene or objectionable.  We, our affiliates and licensees shall not be liable to you or third persons for any loss or liability resulting, directly or indirectly, from your failure to comply with the foregoing.

15.  ACCESS AND DELAYS IN SERVICES

We reserve the right to interrupt the AerieHub Services, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction or other changes and to modify or change the AerieHub Services, or any portion thereof.

AerieHub Services may be subject to limitations, delay and other problems inherent in the use of the internet and electronic communications. Aerie is not responsible for any delays, delivery failures or damages resulting from such problems.

16.  BETA RELEASES

Aerie reserves the right to materially change or discontinue software or services in beta stage at any time and without notice to Customer. Access or use of software or services identified as not generally available for commercial use, such as “Beta” or “Pre-Release” (“Beta Services”), is restricted to Customer’s internal performance evaluation of the Beta Services. Beta Services are for evaluation purposes and not for production use, are not considered “AerieHub Services” under this Agreement, are not supported, and may be subject to additional terms. Customer’s access to the Beta Services may be interrupted during maintenance periods. Aerie is not obligated to finally release any version of the Beta Services. Customer will report to Aerie unusual, unplanned, or out of the ordinary events observed in the Beta Services. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE BETA SERVICES MAY CONTAIN BUGS, ERRORS AND DEFECTS AND ARE NOT EXPECTED TO FUNCTION WITHOUT INTERRUPTION. AERIE IS NOT LIABLE FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES.

17.  CLIENT OBLIGATIONS

 

A.       Customer is responsible for all activity by its Authorized Users and activity occurring under Customer’s Software, AerieHub Services and support accounts and will ensure that Authorized Users comply with this Agreement. Customer will provide Aerie with all information and assistance required to supply the Software or AerieHub Services or enable Customer’s use of the same. Customer will immediately notify Aerie upon Customer becoming aware of any: (i) unauthorized account use or other suspected security breach; (ii) unauthorized use, copying or distribution of Software, accompanying documentation or Customer Data; and (iii) unusual performance of the SaaS Services observed by Customer. All messages transmitted by Authorized Users to Aerie or through AerieHub should correctly identify the sender. Customer may not alter the attribution of origin in electronic mail messages or postings. Customer must not attempt to undermine the security or integrity of any Aerie system or network and must not attempt to gain unauthorized access to any system or network through Aerie resources or servers.

 

B.       Customer represents and warrants that: (i) Customer has the legal rights and applicable consents to provide Customer Data to AerieHub and to Aerie, (ii) Customer complies with all applicable laws for processing and transferring Customer Data to AerieHub, (iii) Customer retains adequate back-ups of Customer Data, and (iv) Customer is solely responsible for Customer Data, the servers and such network on which such data is stored and transmitted. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. The AerieHub Services rely on Customer Data as supplied by Customer, as well as the servers and network used by Customer, and Aerie is not liable for the content of Customer Data or Customer’s servers and other equipment and personal property. Aerie does not assume any duty or obligation to correct or modify Customer Data, servers, equipment, or personal property.

C.       Customer will provide Aerie contact information for Customer’s library administrator, who is authorized to provide the information required to configure and manage the AerieHub Services (“Customer’s Library Administrator”). Aerie will provide Customer with a confidential access code to the administration tool, which may only be accessed by the Customer Library Administrator.

 

D.       Customer agrees to provide current and complete account Authorized Users’ information as necessary for Aerie to manage Customer’s account. Customer agrees to accept Aerie emails relevant to Customer’s receipt of the AerieHub Services at the e-mail address specified by its Customer Library Administrator.

E.       Customer agrees that Aerie may rely on all information provided to Aerie by the Customer from the designated e-mail addresses. Aerie may provide all notices, statements, and other communications arising under this Agreement to Customer through either e-mail, posting on the AerieHub Services or other electronic transmission.

18.  AERIE OBLIGATIONS

A.       Aerie will use commercially reasonable efforts to provide the AerieHub Services in substantial conformance with this Agreement and the applicable SaaS Agreement if between Aerie and Customer.

 

B.       Aerie has, and will follow, its own proprietary Disaster Recovery and Business Continuity Plan (“Plan”) to address business continuity for AerieHub. The Plan will be tested periodically.  No more than once a year, Customer may request, in writing, a copy of any audit or testing results developed in accordance with the testing of the Plan by Aerie.

 

C.       Aerie will use commercially reasonable efforts to provide access to the AerieHub server provided that Customer acknowledges access is also dependent on Internet availability so that Aerie cannot make any guarantee on server availability.

 

D.       Unless instructed by Customer, when access to AerieHub ceases for Customer, Customer Data will remain in AerieHub in an inactive status for five (5) years.   After five (5) years of inactivity, the entire contents of Customer’s AerieHub Library may be deleted from AerieHub and any back-up files of Customer Data may be deleted from Aerie’s server. If Customer requests Customer Data to be returned to the Customer, Aerie will charge Customer for this work at Aerie’s time and materials rate for such services.

 

19.  SUSPENSION OF SERVICE

Aerie may suspend the AerieHub Services: (a) if Aerie deems it necessary to prevent or terminate any Prohibited Use; or (b) upon notice to Customer if: (i) Customer commits a material breach of this Agreement; or (ii) if Aerie receives credible notice from a third party that Customer is in material breach of the Agreement. Suspension of AerieHub Services shall be without prejudice to any rights or liabilities accruing prior to or during the suspension, including Customer’s obligation to pay fees.

 

Aerie may temporarily suspend the AerieHub Services for maintenance purposes. Aerie will use commercially reasonable efforts to minimize any such disruption of AerieHub Services. Upon suspension for any reason, Aerie will provide Customer with written notice specifying the reason for the suspension.

20.  PRIVACY

Aerie reserves the right to use and store aggregated and anonymized Customer Data to maintain or improve the AerieHub Services. Some such information may be shared with third parties as a part of a larger set of statistics (for example, statistics that indicate amount of traffic, success rates, and size of Aerie’s customers). Customer agrees that such aggregated and anonymized Customer Data is not Confidential Information. The Software or AerieHub Services may employ applications and tools to collect personally identifiable, sensitive or other information about Customers and Authorized Users of the Software and AerieHub Services, their computers, files stored on their computers, or their computers’ interactions with other computers (including, information regarding network, licenses used, hardware type, model, hard disk size, CPU type, number of cores, disk type, RAM size, operating system, versions, BIOS data, scanners, database size, system telemetry, device ID, IP address, location, content, components, processes, updates, upgrades, usage patterns and services information, information about third party products installed, extracts of logs created by Aerie or its resellers or agents, (collectively, “Data”). AerieHub may use cookies to store user session information, access codes and application settings to ease site navigation processes for the purposes of providing the AerieHub Services hereunder.

The collection of this Data may be necessary to provide Customers with the relevant support or AerieHub Services as ordered, improve overall security for Customers and Authorized Users of the AerieHub Services. Customer may be required to disable support or its AerieHub Services to stop further Data collection that supports these functions.

By entering into this Agreement, or using the AerieHub Services, Customer agrees to the Aerie Data Protection Addendum on the AerieHub web site (http://www.AerieHub.com) and to the collection, processing, copying, backup, storage, transfer and use of Data by Aerie and its service providers, in, from and to the United States or other countries or jurisdictions, potentially outside of the Customer or User’s own, as part of the delivery of services. Customer is solely responsible for securing any privacy-related rights and permissions from its Authorized Users as may be required by local law. Aerie will treat personally identifiable information in accordance with Aerie’s Data Protection Addendum. [https://about.aeriehub.com/data-protection-agreement/}

 

21.  LIMITED WARRANTY, REMEDIES AND DISCLAIMER

A.       LIMITED WARRANTY. Aerie warrants that (a) this Agreement accurately describes the applicable administrative, physical, and technical specifications of the AerieHub Services and Software; and (b) the AerieHub Services will substantially conform with this Agreement.  Aerie shall only provide the foregoing warranty where the Customer has an active subscription to the AerieHub Services. Customer expressly agrees that use of the server offered by Aerie is at Customer’s sole risk. None of Aerie, its employees, affiliates, agents, merchants, licensors or the like, warrant that the server service will be uninterrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the server service or as to the accuracy, reliability or content of any information in or provided through AerieHub.

B.       LIMITATION OF REMEDY. The sole and exclusive remedy for any claim for breach of warranty under this Agreement is for Aerie to modify the AerieHub Services to conform with the Agreement. If Aerie is unable to do so, Aerie may, in its own discretion: (1) allow monthly Customers to terminate the Agreement; or (2) for annual Customers, provide an extension of the Services by thirty (30) days upon renewal of the annual Agreement.

C.       DISCLAIMER. THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF AND AERIE HEREBY WAIVES RELEASES AND RENOUNCES, ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (a)  ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR OTHERWISE; (b)  ANY IMPLIED WARRANTY OR CONDITION ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (c) ANY IMPLIED WARRANTY OR CONDITION OF DURABILITY OR DESCRIPTION; OR (d) ANY REPRESENTATION, WARRANTY OR CONDITION AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, USEFULNESS OR EFFECTIVENESS OF ANY OUTPUT GENERATED BY THE AERIEHUB SERVICES OR ANY CONTENT DISPLAYED OR OTHERWISE MADE KNOWN ON OR VIA AERIEHUB.  Without limitation to the extent permitted by applicable law, Aerie does not warrant that: the AerieHub Services will operate in all selected combinations; Operation of the AerieHub Services will be uninterrupted or error free or that any AerieHub service errors will be corrected; that THE AERIEHUB E-LIBRARY IS SECURE or that operation of the AerieHub Services will meet  customer’s requirements.  AERIE PROVIDES NO WARRANTY WHATSOEVER WITH RESPECT TO THE ACCURACY OR RELIABILITY OF CUSTOMER DATA OR WITH RESPECT TO RESELLER SERVICES.

D.       Use of any information  or Customer Data stored in AerieHub is at the Customer’s own risk, and Aerie specifically disclaims any responsibility for the accuracy or quality of information obtained through its AerieHub Services.  Further, Aerie provides no warranty for hardware, whether Customer provided, or Aerie supplied. Aerie is not responsible for any hardware failures and all hardware upgrades or repairs are solely the responsibility of Customer. Aerie does not represent guarantees of speed or availability of end-to-end connections. Aerie expressly limits its damages to the Customer for any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability. Aerie specifically denies any responsibilities for any damages arising as a consequence of such unavailability.

E.       Customer understands that Aerie does not provide ISP (Internet Service Provider) services and that the Customer must obtain their own Internet connection at their own, separate cost.

F.        The AerieHub Services and Software may include programs or code that are licensed under an Open Source Software (“OSS”) license model. OSS programs and code are subject to the terms, conditions and obligations of the applicable OSS license, and are SPECIFICALLY EXCLUDED FROM ALL WARRANTY AND SUPPORT OBLIGATIONS DESCRIBED ELSEWHERE IN THIS AGREEMENT.

 

22.  THIRD PARTIES

The Software and AerieHub Services may contain independent third-party products and rely upon them to perform certain functionality. Aerie makes no warranties, representations, or agreements of any kind regarding, and Customer releases Aerie from all liability arising from or related to, any third-party product and services.

23.  SECURITY

No data transmission over the Internet can be guaranteed to be secure. While Aerie deploys security precautions such as encryption of data, Aerie is not responsible for any interception or interruption of any communications through the Internet or networks or systems outside Aerie’s control. Customer is responsible for maintaining the security of its networks, servers, applications, and access codes.

24.  LIMITATIONS OF LIABILITY

A.      LIMITATION ON AMOUNT OF DAMAGES.  the maximum liability of Aerie to ANY PERSON, INCLUDING Customer AND AUTHORIZED USERS, under this Agreement and for the aeriehub services, Including without limitation, all matters ancillary or relating to this Agreement, and WHETHER BASED ON breach or rescission of contract (including without limitation, fundamental breach or breach of a fundamental term), restitution, tort (including negligence), breach of trust or fiduciary duty or otherwise will be limited, in aggregate, to the (A) lesser of the amounts actually received from customer or; (b) the amount (as reasonably calculated and determined by Aerie) equal to, for monthly customers, the average fees paid by customer for two months of aeriehub services and for annual customers, the average fees paid by customer for four months of aeriehub services.

B.       limitation on damages.  Aerie will not be liable TO ANY PERSON for any other loss or damage however caused and even if foreseeable by Aerie including without limitation:  special, indirect or consequential loss;  economic loss, such a loss of profits, loss of use of profits, loss of business or business interruption, loss of revenue, loss of goodwill or loss of anticipated savings;  loss of or damage to Customer DATA, or a third party’s data;  loss arising from any claim made against Customer by a third party; loss or damage arising from Customer’s failure to fulfil Customer responsibilities or obligations to any other party or any matter under Customer control or the control of a third party; or losses suffered by authorized users, whether ANY OF the FOREGOING IS based on breach or rescission of contract (including without limitation, fundamental breach or breach of a fundamental term), restitution, tort (including negligence), breach of trust or fiduciary duty or otherwise, even if aerie has or had been advised of the possibility of such damages or such damages could reasonably have been foreseen by aerie. The parties agree that these limitations of liability will survive in full force and effect despite the expiration or earlier termination of this Agreement for any reason. 

25.  INDEMNIFICATION

 

A.       Indemnification By Customer. Customer agrees to indemnify, defend, and hold Aerie harmless from all claims, liabilities, damages, fines, penalties, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any: (i) Customer or Authorized User’s engagement in a Prohibited Use; (ii) Customer Data passing to or from Customer through the AerieHub Services or Aerie’s network; (iii) taxes arising from the Software and AerieHub Services whether now in effect or imposed in the future (excluding taxes based on Aerie’s income); (iv) failure by Customer to obtain all necessary consents related to Customer Data; (v) claims by third parties arising from Customer’s use of the Software or AerieHub Services (excluding claims that the Software or AerieHub Services, as provided by Aerie, infringing third party intellectual property rights); (vi) any and all acts or omissions of Customer or its Authorized Users; and (vii) any reasonable costs and attorneys’ fees required for Aerie to respond to a subpoena, court order or other official government inquiry regarding Customer Data or Customer’s use of the Software or AerieHub Services.

 

B.       Indemnification by Aerie. Aerie shall defend and hold Customer harmless from any claim by a third party that the Software or SaaS Services infringe any patent, copyright or trade secret of that third party. The foregoing obligation of Aerie does not apply with respect to Software, SaaS Services or portions or components thereof: (i) not supplied by Aerie; (ii) used in a manner not expressly authorized by this Agreement or the accompanying Documentation; (iii) made in accordance with Customer’s specifications including use of Customer Data or other information or materials provided by Customer to Aerie; (iv) modified by anyone other than Aerie, if the alleged infringement relates to such modification; (v) combined with other products, processes or materials not provided by Aerie where the alleged infringement would not exist but for such combination; or (vi) where Customer continues the allegedly infringing activity after being notified thereof and provided with modifications that would have avoided the alleged infringement. In the event the Software or SaaS Services are held by a court of competent jurisdiction to constitute an infringement or use of the Software or SaaS Services is enjoined, Aerie shall, at its sole option, do one of the following: (i) procure the right to continued use; (ii) modify the Software or SaaS Services so that their use becomes non-infringing; (iii) replace the Software or SaaS Services with substantially similar products in functionality and performance; or (iv) if none of the foregoing alternatives is reasonably available to Aerie, Aerie shall refund the pro-rata unused portion of the software or services.

C.       The Parties may request indemnification under this provision, provided they: (a) promptly give written notice of the claim to the indemnifying party; (b) give sole control of the defense and settlement to the indemnifying party (provided any settlement relieves the indemnified party of all liability in the matter); (c) provide all available information and reasonable assistance; and (d) have not previously compromised or settled such claim.

D.       This section states Aerie’s entire liability and client’s sole and exclusive remedy for infringement and misappropriation claims.

26.  WAIVER

Any waiver of rights under this Agreement must be in writing. Failure to exercise or enforce any right under this Agreement will not be deemed a waiver of that party’s right nor bar the exercise or enforcement of it at any time thereafter.

27.  JURISDICTION/GOVERNING LAW

This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of South Carolina. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The federal courts of United States District Court for the District of South Carolina or the state courts located in Greenville County, as applicable, shall have the exclusive jurisdiction over all disputes relating to this Agreement.

28.  NOTICES

Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim). Billing-related notices to you shall be addressed to the relevant billing contact designated by you in the SaaS Agreement. All other notices to you shall be addressed to the relevant Customer Library Administrator designated by you.

 

All legal notices to Aerie under this Agreement must be addressed to:

Aerie LLC

1200 Woodruff Road, C6

Greenville, South Carolina, 29607

29.  BINDING EFFECT AND ASSIGNMENT

This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Aerie retains the right to assign this Agreement in its sole discretion. Customer may not assign this Agreement without the prior written permission of Aerie.

 

30.  SURVIVAL

Rights and obligations in sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21,  22, 23, 24, 25, 26, 27, 28, 29, 30, 34, 35, and 36 will survive the termination or expiration of this Agreement.

 

31.  EXPORT

Customer acknowledges that the SaaS Services and Software provided by Aerie are subject to U.S. and when applicable non-US export regulations. Customer shall comply with applicable export and import laws and regulations for the jurisdiction in which the SaaS Services will be imported, exported and/or provided. Customer shall not export the SaaS Services or Software to any individual, entity or country prohibited by applicable law or regulation. Customer is responsible, at Customer’s own expense, for any local government permits, licenses or approvals required for importing and/or exporting the SaaS Services and/or Software provided by Aerie.

32.  NOTICE TO U.S. GOVERNMENT END USERS

Aerie provides the SaaS Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the SaaS Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data –Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Aerie to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

 

33.  FORCE MAJEURE

Aerie is not liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused by forces of nature or any other cause beyond its reasonable control.

34.  ENTIRE AGREEMENT AND SEVERABILITY

This Agreement and the SaaS Agreement (if between Aerie and Customer) represents the entire agreement between the parties and expressly supersedes and cancels any other communication, representation or advertising whether oral or written, on the subjects herein. This Agreement supersedes and controls over any conflicting terms contained in any Customer purchase order. If any provision of this Agreement is declared invalid or unenforceable by a court or administrative agency of competent jurisdiction, the remaining provisions hereof shall remain in full force and effect and this Agreement shall be construed and performed as if it did not contain the invalid or unenforceable provision.

35.  RELATIONSHIP

The parties to this Agreement are independent contractors. Neither party will be deemed to be or hold itself out as a partner, joint venturer or agent of the other party. Under no circumstances will Aerie’s employees or contractors be considered employees or contractors of Customer.  In the event the IRS or any other governmental agency shall, at any time, question or challenge the independent contractor status of Aerie, its employees or contractors, Customer and Aerie, upon receipt by either one of them of notice from the IRS or any other governmental agency, shall promptly notify the other party.

 

36.  THIRD PARTIES

No term of this Agreement shall be enforceable by a person who is not a party to the Agreement.