Effective: 24 July 2020
Thanks for being a customer of Aerofiler Pty Ltd (“Aerofiler“). Please read these Terms of Service (“Terms“) carefully as they describe your rights and responsibilities regarding your use of Aerofiler’s services.
These Terms constitute a legally binding agreement between you and Aerofiler concerning the provision of Services to you and your access to and use of any Site. “Services” means the services offered by Aerofiler that are ordered by you on an Order Form or through a Site. An “Order Form” is an order form or similar document, duly executed by the parties, that references, incorporates, and is made under these Terms. “Site” means any Aerofiler website, including www.aerofiler.com, or other online channel managed by Aerofiler through which Aerofiler sells its services or makes its services available.
You indicate your agreement to these Terms by clicking on a button indicating your acceptance of them, by executing an Order Form, or by accessing or using the Services.
In these Terms, “you” refers to the entity or individual entering into these Terms with Aerofiler.
1.1. Provision of Services. Aerofiler will provide the Services to you in accordance with these Terms, which include any Order Forms and applicable Service Terms.
1.2. Order Forms. From time to time, the parties may enter into Order Forms under these Terms.
1.3. Changes to Services. Aerofiler provides many of its Services under the software-as-a-service model and continually seeks to improve and update them. You agree that Aerofiler may alter functionality from its Services at any time without prior notice, provided that Aerofiler provides you with reasonable prior written notice if such an alteration would result in a material decrease in core functionality used by Aerofiler’s general customer base.
2.1. Subscriptions. Each Service is sold by Aerofiler as a subscription unless otherwise specified or unless the nature of the Service requires otherwise. Services sold as subscriptions are subject to the following terms, unless otherwise agreed:
(a) Right to Use. Subject to these Terms, Aerofiler grants you a non-exclusive, non-transferable worldwide right to access and use the Services during the subscription term.
(b) Subscription Term. Unless otherwise specified on an Order Form or a Site in connection with the subscription you purchase, the initial term of a subscription is 12 months. Subscriptions will automatically renew at the end of each subscription term for additional periods of 12 months, unless either party gives the other written notice of non-renewal at least 30 days before the end of the then-current subscription term. You may also be able to cancel automatic renewal at any time through your online account management page.
2.2. Free Trial Periods. Certain subscriptions may include a limited free trial period. You will not be billed for the subscription while the free trial is in progress. At the end of the free trial period, you will be billed and required to pay the applicable fees in order to continue using the subscription. If you elect not to pay the applicable fees, your subscription may be suspended, limited, terminated, or downgraded at Aerofiler’s discretion. The free trial period for a subscription is part of the subscription term and is not in addition to the subscription term.
3. Fees and Payment
3.1. Fees. You agree to pay Aerofiler all applicable fees for the Services specified in each Order Form or on the Site, as presented to you when purchasing a Service. Except as otherwise agreed or required by applicable law, payment obligations are non-cancelable and fees paid are non-refundable.
3.2. Payment. Where applicable, you will be billed using the billing method you have specified on your online account management page. If you have chosen to pay fees by credit card, you: (a) represent and warrant that you are authorized to use such credit card for such purpose and that credit card information you provide is correct, current, and valid; and (b) authorize Aerofiler to charge such credit card for any such fees.
3.3. Invoicing and Payment Terms. Unless otherwise agreed in an Order Form:
(a) fees for subscriptions are due in advance of the applicable Services being provided, subject to any different invoicing schedule and payment terms specified in an Order Form; and
(b) if the billing method we agree is by invoice, invoices are due for payment by you within 30 days of the invoice date.
3.4. Currency. Unless otherwise specified in an Order Form or on a Site in connection with the Services you purchase, all monetary amounts in these Terms are in United States dollars. You must pay fees in the same currency as they are billed.
3.5. Overdue Payments. Aerofiler may charge you interest on overdue payments at the rate of 1.0% per month (or the highest rate permitted by law, if lower) on the amount overdue. If any amount owed by you is overdue by 30 days or more, Aerofiler may accelerate all of your unpaid fee obligations under these Terms and limit functionality or suspend provision of Services to you until such amounts are paid in full.
3.6. Taxes. All amounts payable by you under these Terms are exclusive of any applicable taxes, levies, duties, or similar governmental assessments of any nature (including value-added, sales, use, and withholding taxes, but excluding taxes based on Aerofiler’s income, property, or employees) (“Taxes“) that may arise in connection with your purchases under these Terms. If any such Taxes arise, you will pay them in addition to all other amounts payable under these Terms, unless you provide Aerofiler with a valid tax exemption certificate or other documentary proof, issued by an appropriate taxing authority, that no tax should be charged. If you are required by law to withhold any Taxes from your payments to Aerofiler, you must provide Aerofiler with an official tax receipt or other appropriate documentation to support such payments.
4. Customer Obligations
4.1. Customer Responsibilities.
(a) Responsibility for End Users. “End Users” means your employees, agents, independent contractors and other individual authorized by you to access and use the Services. You are responsible for ensuring that your End Users comply with these Terms and interact with the Services in a manner consistent with your obligations under these Terms. You, and not Aerofiler, are responsible for the acts and omissions of your End Users (including breaches of these Terms caused by your End Users) and any activity occurring in your End User accounts, even if not authorized by you (other than activity directly engaged in by Aerofiler that was not carried out at your request or instruction).
(b) Account Security. You are responsible for protecting the confidentiality and security of your account access credentials (including passwords and devices used for two-factor authentication purposes) used by you and your End Users to access the Services. You will use commercially reasonable efforts to prevent unauthorized use of the Services. If you become aware of any unauthorized use of the Services or access to your Service accounts, you will terminate such use (if practicable) and promptly notify Aerofiler.
(c) Account Sharing. End User accounts and access credentials may not be shared and accounts may only be used by one individual per account.
(d) Responsibility for Customer Data. “Customer Data” means all data that is provided to Aerofiler by, or on behalf of, you through your use of the Services, and any data that third parties submit to you through the Services. You are responsible for any actions you take with respect to Customer Data, including uploading it to the Services or using the Services to share or otherwise make available such Customer Data to third parties. You are responsible for ensuring that you have all the rights and permissions needed to use Customer Data in connection with the Services.
(e) Accuracy of Your Details. Aerofiler sometimes sends notices to End Users using the email address registered with their accounts. You must keep, and procure that your End Users keep, your contact details (including of any billing contacts) and payment details associated with your user accounts current and accurate. You will notify Aerofiler in writing (including via your online account management page) of any changes to such details.
4.2. Customer Restrictions.
(a) Minors. The Services are not intended for use by individuals who are under the age of 13. If you are under the age of 13, or under the age required in your jurisdiction for you to have the capacity to contract (“Minors“), you may not use the Services. You may not permit a Minor to access the Services.
(b) Regulated Content. If your use of the Services requires you to comply with industry-specific regulations or rules applicable to such use, you will be solely responsible for such compliance, unless Aerofiler has agreed with you otherwise. You may not use the Services in a way that would subject Aerofiler to those industry-specific regulations without obtaining Aerofiler’s prior written agreement. For example, you may not use the Services to collect, process, or otherwise handle: (i) “protected health information” (as defined in 45 C.F.R. §160.103 under United States federal regulations) without entering into a separate business associate agreement with Aerofiler that permits you to do so; or (ii) “cardholder data” (as defined by the Payment Card Industry Data Security Standard).
(c) Prohibited Persons. You represent and warrant that you are not barred by any applicable laws from being supplied with the Services. You may not purchase or use the Services in any country that is subject to an embargo by the United States or European Union applicable to the Services, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals. You will ensure that: (a) your End Users do not use the Services in violation of any export restriction or embargo by the United States; and (b) you do not provide access to the Services to persons or entities on the lists specified above.4.3. Acceptable Uses. You are responsible for your conduct, Customer Data, and communications with others in connection with your use of the Services. You will comply with the following requirements in connection with your use of the Services:
(a) You may not purchase, use, or access the Services for the purpose of building or improving a competitive product or service, or for any other competitive purposes.
(b) You may not use any method (whether manual or automated) to extract or scrape data from the Sites or Services.
(c) You may not use automated methods, including bots, to create Aerofiler accounts.
(d) You may not sell, resell, or lease any Service without Aerofiler’s written consent.
(e) You may not reverse engineer any Service, nor assist anyone else to do so, to the extent this prohibition is permitted by law.
(f) You may not circumvent or attempt to circumvent any limitations that Aerofiler imposes on your account in accordance with these Terms (such as account suspensions for non-payment).
(g) You may not attempt to access the Services other than through the interfaces and instructions that we provide to you.
(h) You may not probe, scan, or test for vulnerabilities in the Services or of any Aerofiler system or network, without Aerofiler’s prior written consent.
(i) You may not use the Services to store or transmit any code, agents, software, or links to such materials that are intended to do harm, such as viruses, worms, Trojan horses, and malware.
(j) You may not use the services for any unlawful purposes or unlawful activities, including storing, making available, or transmitting infringing, defamatory, or otherwise unlawful or tortious material.
(k) You may not engage in abusive or excessive use of the Services, which is use significantly in excess of average use patterns that materially adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users.
4.4. Third Party Requests. If Aerofiler receives a request from a third party for records related to your use of the Services (including Customer Data) (“Third Party Request“), Aerofiler will provide details of such Third Party Request to you if Aerofiler is permitted to do so. In such a case, you agree that you, and not Aerofiler, are responsible for responding to the Third Party Request, provided that Aerofiler will assist you to the extent that you cannot otherwise respond to the request without Aerofiler’s help. Third Party Requests include search warrants, subpoenas, and other forms of legal process.
4.5. Suspension of Services. Aerofiler may limit or suspend the Services from time to time for maintenance or security purposes at its discretion (for example, to perform scheduled maintenance), or if we reasonably believe that the Services are being used by you or your End Users in violation of applicable law or in breach of these Terms). If the circumstances reasonably permit, Aerofiler will give you reasonable advance notice of any limitation or suspension. There may be some situations, such as security emergencies, where it is not practicable for Aerofiler to give such advance notice. Aerofiler will use commercially reasonable efforts to narrow the scope and duration of the limitation or suspension as is needed to resolve the issue that prompted such action.
5.Intellectual Property & Customer Data
5.1. Definition. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, design rights, trade secret, trademark, moral rights, and other similar rights, whether registered or unregistered.
5.2. Customer IP. As between the parties, you retain ownership of all Intellectual Property Rights in the Customer Data. You grant Aerofiler and its affiliates a worldwide, royalty-free, non-exclusive limited license to use, host, copy, transmit, modify, display, and distribute Customer Data for the limited purposes of exercising Aerofiler’s rights and fulfilling Aerofiler’s obligations under these Terms and applicable law, which includes the purposes of Aerofiler providing, maintaining, and improving the Services.
5.3. Aerofiler IP. As between the parties, Aerofiler retains ownership of the Services, the Sites, and all related Intellectual Property Rights. No licenses or rights are granted to you by Aerofiler, other than as expressly provided for in these Terms. These Terms do not grant you any right to use Aerofiler’s trademarks or other brand elements.
5.4. Customer Feedback. If you provide Aerofiler with feedback about the Services, Aerofiler may use that feedback and incorporate it into Aerofiler’s products and services without any obligation to you.
5.5. Customer Lists. Aerofiler may identify you by name and logo as an Aerofiler customer on Aerofiler’s Sites and on other promotional materials. Any goodwill arising from the use of your name and logo will inure to your benefit.
5.6. Content Review. You acknowledge that, in order to ensure compliance with Aerofiler’s legal obligations, Aerofiler may be required to review certain content submitted to the Services to determine whether it is illegal or whether it complies with these Terms (such as when unlawful content is reported to us). You agree that we may perform such review and take action to mitigate any illegal or non-compliant activity, including modifying, blocking, or deleting content we believe to be illegal or non-compliant. However, Aerofiler has no obligation under these Terms to monitor or review any content submitted to the Services.
5.7. Software. Aerofiler may make software applications and components available (including mobile applications and browser extensions), via app stores or other channels, as part of the Services. Aerofiler grants you a non-sublicensable, non-transferable, non-exclusive, limited license for you and your End Users to use the object code version of these components, but solely as necessary to use the Services and in accordance with these Terms. The foregoing license will terminate upon termination of your right to use the applicable Services. All of Aerofiler’s rights not expressly granted by the foregoing license are hereby retained.
6. Security and Privacy
6.1. Security. Aerofiler has implemented and will maintain appropriate technical, physical, and organizational measures designed to protect Customer Data against unauthorized or unlawful processing, and against accidental loss of, or damage to, such Customer Data.
6.3. Customer Privacy Obligations. You warrant and represent that you are entitled to transfer Customer Data to Aerofiler for the purposes of Aerofiler processing any personal data contained in the Customer Data in accordance with these Terms. You will ensure that any relevant data subjects have been informed of, and have given their consent to, such processing as required by applicable data protection laws.
7.1. Definitions. “Confidential Information” means information disclosed by one party (“Discloser“) to the other party (“Recipient“) in connection with the use or provision of the Services that is either marked as confidential, or would reasonably be considered as confidential under the circumstances. Your Confidential Information includes Customer Data. Aerofiler’s Confidential Information includes any non-standard pricing or payment terms offered to you, and any security information we share about the Services other than through publicly accessible sections of the Sites. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes public through no fault of Recipient; (b) Recipient already lawfully knew; (c) was rightfully given to Recipient by an unaffiliated third party without restriction on disclosure; or (d) was independently developed by Recipient without reference to Discloser’s Confidential Information.
7.2. Confidential Information. Recipient will: (a) protect Discloser’s Confidential Information using a reasonable degree of care; (b) use Discloser’s Confidential Information only as permitted by these Terms, including to exercise Recipient’s rights and to fulfill Recipient’s obligations under these Terms; and (c) not disclose Discloser’s Confidential Information without Discloser’s prior written consent, except to affiliates, contractors, agents, and professional advisors (collectively, “Representatives“) who need to know it and have agreed in writing (or, in the case of professional advisors, are otherwise bound) to keep it confidential on terms at least as protective as those under this Section, and Recipient will be liable for its Representatives’ failure to do so. Recipient may disclose Discloser’s Confidential Information in response to a valid order by a court or other governmental or regulatory body or as otherwise required by law or legal process, provided that, to the extent permitted by applicable law, Recipient will provide prompt prior written notice thereof to Discloser to provide Discloser (at its expense) the opportunity to seek a protective order or otherwise prevent such disclosure.
7.3. Markings. Recipient will not remove any proprietary markings from Confidential Information without Discloser’s written consent.
8. Term and Termination
8.1. Term. These Terms start on the date you first accept them and continue until the earlier of: (a) the date on which all subscriptions ordered under these Terms have terminated and all Order Forms have been terminated or completed; and (b) the date on which these Terms are terminated. If these Terms are terminated, all subscriptions and Order Forms will also immediately terminate. Subscriptions will continue until terminated.
8.2.Termination for Cause. A party may terminate these Terms, a subscription, or any Order Form for cause upon written notice: (a) if 30 days have elapsed following written notice to the other party of its material breach of these Terms and such breach remains uncured at the end of such 30 day period; or (b) if the other party ceases its business operations or becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, administration, liquidation, or assignment for the benefit of creditors. Use of the Services in violation of applicable law is deemed to be a material breach of these Terms.
8.3. Termination without Cause. You may terminate your free subscriptions at any time upon written notice. You may terminate your subscriptions at any time during a free trial period upon written notice. Aerofiler may terminate your free subscriptions for any reason upon 30 days’ prior written notice.
8.4. Consequences of Termination.
(a) Any Termination. Upon termination of an Order Form or subscription, you will remain liable to pay any fees payable to us for the period prior to the effective date of termination.
(b) Termination for Aerofiler Breach. If an Order Form or subscription is terminated by you due to Aerofiler’s material breach, Aerofiler will provide you with a pro rata refund of any fees prepaid by you applicable to the period following the effective date of termination of that Order Form or subscription.
(c) Termination for Your Breach; Your Termination without Cause. If an Order Form or subscription is terminated by Aerofiler due to your material breach, or is terminated by you without cause, Aerofiler will invoice, and you will pay, any accrued but unbilled fees and any unpaid fees covering the remainder of the term of that Order Form or subscription had it not been terminated.
8.5. Survival. The following Sections will survive termination of these Terms: 3.4 (Currency), 3.5 (Overdue Payments), 3.6 (Taxes), 7 (Confidentiality) (for 12 months only), and 8 (Term and Termination) to 12 (General).
9.1. Mutual Warranties. Each party represents and warrants that: (a) it has full power and authority to enter into these Terms; and (b) it will comply with all laws and regulations applicable in connection with its provision or use of the Services, as applicable.
9.2. Disclaimers. Except as expressly provided in these Terms, and to the extent permitted by applicable law, Aerofiler makes no warranties of any kind, express, implied, statutory, or otherwise, including those of merchantability, fitness for a particular purpose, and non-infringement. Aerofiler provides the Services and the Sites on an “as is” basis and, except as expressly provided in these Terms, and to the extent permitted by applicable law, makes no representations regarding the availability, reliability, or accuracy of the Services, or regarding any Customer Data. You are responsible for making, maintaining, and protecting backups of Customer Data and, except as required by law, Aerofiler will not be liable for any failure to store, or for loss or corruption of, Customer Data.
10.1. By You. You will indemnify, defend, and hold harmless Aerofiler, its directors, officers, employees, agents, and affiliates, from and against all liabilities, damages, expenses and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim (collectively “Claims“) regarding or in connection with: (a) Customer Data, including Claims that Customer Data infringes or misappropriates a third party’s Intellectual Property Rights or violates applicable law; or (b) any content or data provided by you or End Users.
10.2. Indemnification Procedures. A party seeking indemnification under these Terms will promptly notify the other party of the claim and reasonably cooperate with the other party in defending the claim. If permitted by applicable law, the indemnifying party will have full control and authority over the defence, except that: (a) any settlement requiring the indemnified party to admit liability, perform any act or to pay any money will require that indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed); and (b) the indemnified party may join in the defense with its own counsel at its own expense. The indemnities in these Terms are a party’s sole and exclusive remedy under these Terms for violations by the other party of a third party’s Intellectual Property Rights, and are still subject to any limitations of liability set forth in these Terms.
11.1. Exclusion of Certain Liability. To the extent permitted by applicable law, in no event will Aerofiler be liable under or in connection with these Terms for: (a) any indirect, consequential, special, incidental, punitive, or exemplary damages, under any theory of law, including tort, or (b) loss of use, data, business, revenues, or profits (in each case whether direct or indirect), even if the party knew or should have known that such damages were possible, and even if a remedy fails of its essential purpose.
11.2. Liability Cap. To the extent permitted by applicable law, Aerofiler’s aggregate liability arising out of or in connection with these Terms for all claims of any kind will not exceed the amounts paid by you to Aerofiler under these Terms during the 12 months prior to the event giving rise to the liability; provided, however, that the foregoing limitation of liability will not apply to liability for: (a) fraud or wilful misconduct, (b) death or personal injury, or (c) infringement of a third party’s Intellectual Property Rights.
12.1. Amendments. These Terms may only be amended if authorized representatives of each party agree in a signed writing.
12.2. Assignment. Neither party may assign these Terms without the other party’s prior written consent (such consent not to be unreasonably withheld). Notwithstanding the foregoing, Aerofiler may assign these Terms without notice to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of Aerofiler’s assets or of the Aerofiler business line to which the subject matter of these Terms relates. Any other attempt to transfer or assign is void.
12.3. Counterparts. These Terms may be executed in any number of counterparts, each of which will be deemed to be an original and all of which taken together will comprise a single instrument.
12.4. Dispute Resolution. Aerofiler would like to address all disputes without resorting to formal legal proceedings. Before filing a claim, each party agrees to try to resolve a dispute by formally notifying the other party in writing that it wishes to negotiate a dispute. If a dispute is not resolved within 30 days of such notice, either party may start legal action or proceedings. Except if prohibited by applicable law, in relation to any legal action or proceedings to enforce these Terms or arising out of or in connection with these Terms, each party irrevocably submits to the exclusive venue and personal jurisdiction of the courts located in New South Wales, Australia. In any legal proceeding instituted by a party to enforce these Terms, the prevailing party shall have the right to collect from the other party the reasonable costs and expenses incurred by the prevailing party in conducting the legal proceeding, including reasonable attorneys’ fees and disbursements, and court costs.
12.5. Entire Agreement. These Terms (including any documents incorporated herein by reference, and any Order Form), constitute the entire agreement between you and Aerofiler and they supersede any other prior or contemporaneous agreements or terms and conditions, written or oral, concerning their subject matter. Any terms appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void.
12.6. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, or governmental action) that was beyond the party’s reasonable control.
12.7. Governing Law. These Terms are governed by the laws of the State of New South Wales, Australia, without giving effect to any of its conflict of laws principles.
12.8. Interpretation. The use of the words “includes,” “including,” “such as,” “for example,” and similar terms are deemed not to limit what else might be included.
12.9. No Waiver. A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.
(a) How to Provide Notice. All notices must be in writing and will be deemed given when: (i) personally delivered; (ii) verified by written receipt, if sent by postal mail with verification of receipt service or courier; (iii) received, if sent by postal mail without verification of receipt; or (iv) verified by automated receipt, electronic logs, or a non-automated reply email, if sent by email.
(b) Notices to Aerofiler. Notices to Aerofiler must be sent to Aerofiler, 100 Harris St, Level 3 Wework, Pyrmont NSW 2009, Australia or legalnotices [at] aerofiler.com and marked to the attention of the Legal Department. Email is insufficient for providing non-routine legal notices (including indemnification claims, breach notices, and termination notices) to Aerofiler (“Non-Routine Legal Notices“). You may grant approvals, consents, extensions, and permissions by email.
(c) Notices to You. Notices to you may be sent to the email address associated with your designated account administrator (or primary administrator, if applicable) for the relevant Service (“Account Admin“). Billing-related notices (including notices of overdue payments) may be sent to the relevant billing contact designated by you (or your Account Admin, if a separate billing contact has not been designated). If you have provided contact details for legal notices in these Terms, any Non-Routine Legal Notices will be provided to such contact instead, with a copy of the email address associated with your Account Admin. Aerofiler may send notices to an End User by email to the email address associated with that End User’s account.
12.11. Precedence. If a conflict exists among the following documents, the order of precedence will be: (1) any applicable Order Form, (2) these Terms, (3) any Service Terms, and (4) any other applicable terms incorporated by reference.
12.12. Relationship. The relationship between you and Aerofiler is that of independent contractors and not legal partners, employer/employee, joint venturers, or agents of each other.
12.13. Severability. If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.
12.14. Third Party Beneficiaries. There are no third party beneficiaries to these Terms. Your End Users are not third party beneficiaries to your rights under these Terms.