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Terms of service AVIX Academy2018-10-09T08:12:15+00:00

Terms of Service AVIX Academy v.1.0

Introduction

  1. To use the AVIX Academy, Customer must accept all applicable terms and conditions and all other operating rules, policies, and other procedures that Bird Control Group may publish on its website from time to time. There is no physical contract to sign. By submitting your contact information and/or using AVIX Academy under the Account of one of Customer’s affiliates, Customer agrees to the creation of its Account and accepts the following terms, conditions, and policies: Bird Control Group AVIX terms of service, and any Customer Location disclaimers, or New Policies published over time, which will take precedence based on their specificity relating to the issue under consideration (collectively, the “Agreement”).
  2. The Bird Control Group software referred to as “AVIX Academy” in the Agreement includes written user instructions; any additional modules purchased; and any modified, updated, or enhanced versions of AVIX Academy that Bird Control Group may make available pursuant to this Agreement. An “Account” is Bird Control Group’s record of important data about a Customer, including Account Administrator name and contact details, Subscription information and history, billing information and history, interaction records, and payment information and history.
  3. This Agreement is entered into by and between Bird Control Systems BV (a subsidiary of Bird Control Group), with its headquarters at Molengraaffsingel 12, 2629 JD Delft, the Netherlands (“BCS”) and the commercial entity agreeing to these terms (“Customer”). This Agreement takes effect on the date Customer submits its Account Registration Form (“Effective Date”) for an initial period of twelve (12) months (“Term”). BCS and Customer are each a “Party” and may be collectively referred to as “Parties”.
  4. The person who submits the Account Registration Form is the Account Administrator. In concluding this Agreement, the Account Administrator represents and warrants they: (i) are an authorized representative of Customer and have full legal authority to bind Customer to this Agreement; (ii) have read and understand this Agreement; and (iii) agree on Customer’s behalf to this Agreement in its entirety. If the Account Administrator does not, or is not able to make the foregoing representations and warranties, they must not click the “I Accept” button as they are prohibited from registering an AVIX Academy Account in Customer’s name.
  5. Modifications. The version of the terms posted on BCS’s website will be the version to govern the Agreement. To reflect changes to the law, or updates in BCS’s product offering, BCS may, from time to time, modify the terms by posting notice of such changes to its website, which will be effective upon posting. If Customer does not agree to the modified terms, it must discontinue use of AVIX Academy without delay. Customer’s continued use of AVIX Academy after a modification takes effect constitutes its acceptance of the modified terms. If Customer does not agree to a Material Change, it must notify BCS at Info@birdcontrolgroup.com within thirty (30) days after the notice of the change is posted. If Customer notifies BCS as required, then it will remain governed by the terms in effect immediately prior to the change until the end of the Term, at which time Customer’s Subscription will renew under the then current version. However, if Customer delivers such an objection notice, BCS shall have the ongoing right to terminate the Agreement by giving Customer thirty (30) days’ written notice and without incurring any further liabilities. A “Material Change” is defined as any change to the terms that would materially reduce Customer’s rights or benefits, or materially increase Customer’s obligations or liability. Customer acknowledges that, from time to time, BCS may also post additional Customer Location disclaimers and new policies on new features, modules, procedures, or legal issues (“New Policies”) and the addition of such Customer Location disclaimers and New Policies to these Terms will not constitute a Material Change.

 

Defintions

Agreement

these Standard Terms of Service, together with the Commercial Terms, any applicable Statements of Work, the Service Level Agreement, the Acceptable Use Policy, and other attachments hereto, all of which are incorporated by reference, and as may be modified, amended, or supplemented from time to time.

Authorised Representative

a person with permission from the Receiving Party to access Disclosing Party’s Confidential Information (e.g. employees, agents, or advisers).

Business Day

08:30 to 18:00 (Amsterdam local time), Monday through Friday (not including national public holidays).

Bird Control Systems (BCS)

the provider of the Product. Includes the contracting entity and all parent and subsidiary companies in the Bird Control Systems organization.

Change of Control

a change in the holder of the right to, directly or indirectly, direct or cause the direction of the management and policies of an entity (whether through the ownership of voting shares, by contract or otherwise), or the acquiring of more than fifty percent (50%) of the shares of that entity or of the voting rights attached to it, including through an initial public offering of more than fifty percent (50%) of the share capital of that entity.

Commercial Terms

the contents of the section of the Agreement entitled “Commercial Terms”.

Confidential Information

any and all non-public information disclosed to the Receiving Party by the Disclosing Party, whether in the past, now or in the future, in any form or format whatsoever, whether tangible or intangible, including Intellectual Property Rights, whether or not subject to or protected by registered or unregistered copyright, patent, trademark, existing now or in the future, that relates to the Disclosing Party or their business, prospective business, finances, budgets, costs, marketing, contracts, suppliers, customers, employees, or investors; technical processes, computer software or programs (including source code and object code), trade secrets, know-how, inventions, applications, documentation, schematics, data, designs, drawings, works in progress, engineering, security reports and information, penetration test reports, formulae, or other test data; correspondence with governmental agencies or authorities; or the terms of any agreement negotiated or entered into between the Parties and the discussions, negotiations, and proposals related to any such negotiation or agreement, where the information is: (i) clearly and conspicuously marked as “confidential” or “proprietary” or with a similar designation; (ii) identified by the Disclosing Party as confidential and/or proprietary before, during, or promptly after presentation or communication; or (iii) disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or “proprietary” or any similar designation is used.

Cure Period

the time frame within which a Party that has defaulted or materially breached its obligations under this Agreement is permitted by the other Party to remedy such default or material breach, such time frame to be set out in this Agreement or the notice itself, as applicable.

Customer Data

all items supplied by Customer or its Authorised Representatives for inclusion in, uploading to, or use in association with the Product. Customer Data includes programs, data, or other software files, documents, tests, pictures, graphics, video, animation, and sound recordings, as well as all the data created by Users and any Personal Data provided by Customer in the context of this Agreement.

Data Protection Legislation

as applicable, the Data Protection Act 2000 (“DPA”) (Wet bescherming persoonsgegevens), Exemption Decree DPA 2001 (Vrijstellingsbesluit Wbp), the Law on Data Breach Notifications (Wet Meldplicht datalekken en uitbreiding bestuurlijke boetebevoegdheid Cbp), the Data Protection Directive (95/46/EC), the Electronic Communications Data Protection Directive (2002/58/EC), and all applicable Regulations relating to the processing of personal data and privacy, including the guidance and codes of practice issued by the Data Protection Authority.

Disclosing Party

the Party disclosing Confidential Information.

Effective Date

the date this Agreement comes into force as agreed in the Execution Top Sheet.

Force Majeure Event

an occurrence beyond the control and without the fault or negligence of the Party affected and which that Party is unable to prevent or mitigate through the exercise of reasonable diligence, including: acts of God, expropriation or confiscation of facilities, any form of Government intervention, war, hostilities, rebellion, terrorist activity, local or national emergency, sabotage or riots, strikes (excluding strikes by BCS personnel), and floods, fires, explosions or other catastrophes, electricity failure, faults effecting the internet, computer network or telecommunication facilities, and failure by secondary suppliers engaged by BCS at Customer’s instruction to duly meet their obligations.

Good Industry Practice

in relation to any undertaking and any circumstances, the exercise of the degree of skill, care, prudence, efficiency, foresight, and timeliness which would be expected from a skilled and experienced person engaged in the same type of undertaking.

Initial Term

the period defined in the Agreement.

Intellectual Property Rights

all and any copyright, know-how, technical information, rights in inventions, patents, trade secrets, trademarks and trade names, business names, logos, service marks, moral rights, design rights, rights in get-up, database rights and rights in data, computer data, generic rights, proprietary information rights, the right to sue for passing off, utility models, domain names, rights in goodwill, and all similar or equivalent rights and in each case, whether registered or not, including any application to protect or register such rights and all renewals and extensions of such rights or applications, whether vested, contingent, or future, and wherever existing.

Invoice Date

the date on each invoice, which is automatically generated on the date the invoice is created, sent to, and received by Customer via e-mail.

Malware

viruses, worms, Trojan horses, or other malware or harmful computer code, files, scripts, agents, or programs.

Material Breach

a failure by one Party that is severe enough to undermine the entire Agreement by depriving the other Party of a core benefit for which the Agreement was entered into, including: failure to make payment when due, breach of confidentiality obligations, infringement of Intellectual Property Rights and failure to remedy such breach in accordance with this Agreement, breach of applicable laws, repeated non-material breaches cumulatively amounting to a material breach, and failure to keep current all billing information to the extent that it interferes with invoicing.

Media Import

the upload of Customer’s digital media files and import of the associated metadata to Customer’s Product.

One-Off Costs

the one-time costs required for the implementation of the Product of the One-Off Deliverables, provided by qualified BCS employees. Costs correspond to the rates set out in the Commercial Terms.

Online Terms

terms applicable to the Agreement, as updated from time to time, and available for review and download at www.birdcontrolgroup.com/legal, including these Standard Terms of Service.

Party

each signatory to this contract (collectively, “Parties”).

Payment Period

the period specified in Subsection 9.3 of these Standard Terms of Service.

Product

BCS software as described in the Agreement, User Instructions (excluding verbal instructions), any additional modules purchased, and any modified, updated, or enhanced versions of such modules that BCS may make available pursuant to this Agreement. The Product is also referred to as “Brand Portal” and the terms can be used interchangeably.

Professional Services

the services provided by qualified BCS employees upon request.

Project

the project for the implementation of the Product detailed in the applicable Statement of Work.

Project Documentation

any document associated with the delivery of the Project.

Project Plan

the document outlining the objectives and time frames of the Project.

Project Start Date

the date on which implementation of the Project commences, as set out in the applicable Statement of Work. This is also the date on which the calculation of the Subscription Fee commences.

Receiving Party

the Party that receives Confidential Information from the Disclosing Party.

Regulations

any law, legislation, instrument, rule, order, regulation, directive, by-law, industry code, or decision which applies to, concerns, or otherwise affects any Party’s obligations under this Agreement, as may be amended or varied from time to time including Data Protection Legislation.

Review Round(s)

review of the Deliverables by Customer, followed by alterations performed by BCS, if necessary.

Service Level Agreement (“SLA”)

the contents of the Service Level Agreement then in force.

Standard Terms of Service

the contents of this document.

Statement of Work

the contents of the Statement of Work in the Agreement, or any subsequent Statement of Work agreed between the Parties.

Subscription Fee

the recurring amount of money, as agreed in the Commercial Terms and any amendment thereto, to be paid by Customer to BCS for the use of the Product.

Subsequent Term

any renewal Term of the Agreement, as stated in the Commercial Terms.

Term

the period of time commencing upon the Project Start Date of the relevant Project, including the Initial Term and any Subsequent Term(s). The Term will end on the date this Agreement expires or terminates or the date the applicable Statement of Work expires or terminates, as applicable.

Third Party Products

a product provided by a company other than BCS.

Uptime

as calculated in the Service Level Agreement.

User

any individual who accesses and/or uses the Product through Customer’s account.

User Account

the permission granted to an individual User to access and use the Product. A User Account may not be shared by multiple Users. In the case of departure, long-term sickness, long-term leave, or retirement), a User Account can be deactivated and a new User Account can be activated to enable Customer to use all User Accounts to which it has subscribed.

User Instructions

written and verbal instructions, including documentation, emails, presentations, and webinars.

 

2. Grant of Subscription

  1. Subject to Customer’s continued observance of the terms of this Agreement and, for paid Customers, subject to Customer’s timely payment of the Subscription Fee, BCS will provide to Customer a subscription during the applicable Term to access and use AVIX Academy according to the terms of the Agreement and exclusively for Customer’s internal business purposes (“Subscription”).
  2. Professional use only. By registering for AVIX Academy, Customer explicitly indicates and accepts that this is a business transaction to which consumer rules do not apply. BCS’s direct competitors are prohibited from accessing or using AVIX Academy, except with BCS’s explicit prior consent.
  3. “User” is defined as any individual who accesses and/or uses AVIX Academy. A “User Account” refers to the permission granted to an individual User to access and use AVIX Academy. A User Account may not be shared by multiple Users.
  4. Customer acknowledges that BCS may access and monitor Customer’s Account, AVIX Academy portal, and Customer Data for support, maintenance, diagnostic, security, and business purposes. Customer is prohibited from interfering with such access and monitoring. BCS may suspend AVIX Academy access without notice for Users or Customers that it reasonably suspects are acting in violation of this Agreement until such suspected violation has been disproven or resolved.

 

3. Ownership of Intellectual Property Rights and Licenses

  1. Except as expressly stated in this Agreement, no license is granted by either Party to the other with respect to its intellectual property rights. There are no implied licenses granted under this Agreement and nothing in the Agreement shall be construed to grant to either Party any ownership or other interest. Joint development, if any, will be subject to a separate written agreement between the Parties.
  2. BCS retains ownership of all intellectual property rights it holds in the software and services it provides. Rights to the source code are always exclusively owned by BCS or its licensors. BCS grants to Customer the licenses required for Customer to use the software and services in accordance with the terms of this.
  3. AVIX Academy may contain open source software and components distributed under third-party licenses that impose terms and conditions of use (“Open Source License Terms”), which are separate to this Agreement and will govern Customer’s use of the open source software and components to the extent of any conflict with this Agreement. In accordance with these Open Source License Terms, BCS offers Customer and its Users the licenses required for it to use the open source software and components in accordance with the terms of this Agreement. BCS agrees to make such Open Source License Terms available to Customer upon Customer’s written request to info@birdcontrolgroup.com and in the manner required by the Open Source License Terms, and Customer agrees to comply with such Open Source License Terms. Customer acknowledges that BCS will have no liability and offers no warranties or indemnities with respect to claims of infringement or misappropriation of third party intellectual property arising from such open source software and components.
  4. Feedback. We welcome feedback, comments, and ideas for ways to improve, which Customer and its Users may provide in response to surveys, communications with BCS, or otherwise in the course of using AVIX Academy (“Feedback”). By providing Feedback, Customer agrees that such disclosures are gratuitous, unsolicited, and without restriction; BCS is not under any fiduciary or other obligation to Customer; and BCS owns and is free to use Feedback without offering any attribution or compensation whatsoever.

 

4. BCS Role & Responsibilities

  1. BCS will perform its obligations under this Agreement with reasonable skill and care, and in accordance with good industry practice and all applicable laws and regulations.
  2. Any timelines or dates specified by BCS or agreed between the Parties are non-binding target dates, though BCS will make reasonable efforts to meet any such timelines or dates.
  3. Technological specifications and designs are not binding for BCS, unless expressly stated otherwise by BCS and included in a written agreement between the Parties.

 

5. Customer Responsibilities

  1. Customer shall be fully responsible and liable for all access to and use of AVIX Academy by Users or otherwise through Customer’s Account, except for responsibility and liability resulting from willful misconduct (“opzet”) or intentional recklessness (“bewuste roekeloosheid”) of BCS or its management (“bedrijfsleiding”). Customer understands and acknowledges that the right of its Users to access and use AVIX Academy is always subject to each User’s acceptance and continued observance of BCS’s Acceptable Use Policy (“AUP”), which can be accessed and downloaded directly at birdcontrolgroup.com/legal/acceptable-use-policy.
  2. Customer must treat access or identification codes and certificates provided to Customer by or because of BCS as Confidential Information, which may only be disclosed in accordance with this Agreement. Customer shall take all reasonable security measures necessary to ensure that Users are limited to natural persons who need access to AVIX Academy to perform their professional duties to Customer.
  3. Customer shall not outsource, rent, resell, or sublicense AVIX Academy or any related intellectual property rights, nor permit concurrent use or time-sharing of any User Account.
  4. Customer will cooperate with BCS as is reasonably required to maintain AVIX Academy and Customer’s Account. In particular, Customer will, without delay: (i) cooperate as reasonably requested by BCS; (ii) provide, as reasonably requested by BCS, relevant documents, data, and information; (iii) grant BCS access to Customer’s systems, as necessary and subject to BCS’s strict observance of Customer’s applicable information security policies; and (iv) notify BCS of any discovery of errors in AVIX Academy or the Customer Data.
  5. Customer is responsible for maintaining the integrity of its Customer Data (including errors, corruption, or incompleteness) up until the point at which the Customer Data is uploaded into AVIX Academy. It is Customer’s responsibility to verify the accuracy and completeness of the results of and data generated via its AVIX Academy portal. If Customer suffers data loss or corruption through no fault of BCS or AVIX Academy, it may request that BCS make commercially reasonable efforts to rectify the data corruption or loss and BCS will invoice Customer on a time and materials basis for work to fulfil any such request.
  6. If a certain date is set for Customer’s cooperation, and Customer fails to comply with the deadline, BCS will notify Customer as soon as BCS becomes aware of this failure. The notice will state that the overdue cooperation must be received by BCS within five (5) business days of receipt of the notice. If not, BCS will be entitled to curtail or suspend Customer’s rights under the Agreement without further notice.
  7. Customer shall comply with all applicable laws and regulations with regards to: economic sanctions; export controls; import/export laws and regulations; and trade embargoes (“Sanctions”), including those of the European Union and United States. Customer acknowledges that it is: (i) not a person, entity, or organization targeted by Sanctions; and (ii) it is not otherwise owned or controlled by or acting on behalf of any person, entity, or organization targeted by Sanctions. Further, Customer acknowledges that it will not download or otherwise export or re-export the software or any related technical data, directly or indirectly to any person targeted by Sanctions, and will not download or otherwise use BCS’s software and services for any end-use that is prohibited or restricted by Sanctions.
  8. Customer agrees that BCS may collect and use technical information and usage statistics systematically gathered as part of BCS’s support, maintenance, and product improvement.
  9. Registration Information. Customer shall ensure that the information in its Account Registration Form, including legal entity name, email address, and payment information (“Registration Information”), is always accurate and complete. Customer will notify BCS without delay of any changes in its Registration Information and will verify its Registration Information upon BCS’s request.
  10. If, pursuant to a valid request or order of a government agency or in connection with a legal obligation resulting from BCS’s commercial relationship with Customer, BCS performs work relating to Customer Data, Customer employees, or Users, Customer shall bear all related costs.

 

6. Integrations

  1. BCS Applications. Please note that integrations developed by BCS (“BCS Applications”) connect AVIX Academy with other software and are not required to use AVIX Academy. BCS has no control over the product roadmap and development of such other software. Even so, BCS will make reasonable efforts to keep BCS Applications compatible with the other software. By using BCS Applications, Customer acknowledges that they are provided “as is”, without warranty of any kind, whether express or implied. BCS will have no liability whatsoever, including indemnification for damages, losses, or claims that arise from BCS Applications, including from any modification, combination, or development of BCS Applications that are not performed by BCS.
  2. Non-BCS Applications. Customer acknowledges that certain software features may be available that integrate with AVIX Academy which are developed, provided, or offered by third party providers (“Non-BCS Applications”). Such Non-BCS Applications are not required to use AVIX Academy. BCS does not warrant and is not responsible or liable for any aspect of Non-BCS Applications, regardless of whether they are designated or promoted by BCS as “certified,” “approved”, “recommended”, or similar; offered via its app marketplace; or discussed during any promotion or sales process. The terms and conditions of Customer’s use of Non-BCS Applications are strictly between Customer and the third party provider. Customer agrees that, if it chooses to use Non-BCS Applications, BCS may grant third party providers access to the Customer Data to the extent required for the interoperation of such Non-BCS Applications with AVIX Academy, and BCS shall not be responsible for any resulting or related disclosure, modification, or deletion of Customer Data.
  3. Integrations Support. For BCS Applications, BCS will provide the level of support included in Customer’s Subscription. For Non-BCS Applications, BCS will not be obligated to provide support beyond maintaining the basic information and Customer will seek support from that third party directly.

 

7. Data Processing

  1. To the extent that it acts as a Data Processor in performing its obligations under this Agreement, BCS will process any Personal Data contained in the Customer Data in accordance with Customer’s reasonable and lawful instructions, and will employ appropriate technical and organizational measures to protect such Personal Data. “Data Processor” is defined as a natural or legal person, public authority, agency, or any other body which processes Personal Data on behalf of the controller. “Personal Data” is any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier, such as a name, identification number, location data, online identifier, or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that person.
  2. By using AVIX Academy, Customer consents to BCS’s transfer of Personal Data to its affiliates located outside the EU (e.g. in the U.S.).
  3. IT IS NOT NECESSARY FOR CUSTOMER TO SUBMIT SENSITIVE PERSONAL DATA TO BCS. THEREFORE, THE PARTIES ACKNOWLEDGE CUSTOMER IS SOLELY LIABLE, AND BCS IS IN NO WAY LIABLE, FOR ANY RISK, DAMAGES, OR OTHER HARM RESULTING FROM ITS DECISION TO SUBMIT SENSITIVE PERSONAL DATA TO BCS. IF CUSTOMER NEVERTHELESS SUBMITS SENSITIVE PERSONAL DATA TO BCS, CUSTOMER EXPLICITLY CONSENTS TO BCS COLLECTING, RETAINING, DISCLOSING, AND TRANSFERRING THE SENSITIVE PERSONAL DATA ON THE TERMS AND FOR THE SAME PURPOSES AS DESCRIBED IN BCS’S PRIVACY POLICY. “Sensitive Personal Data” is personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership; data concerning health or sex life, and sexual orientation; and genetic or biometric data.
  4. Customer acknowledges that its use of AVIX Academy requires the transmission of electronic data over the internet and various other networks that are not owned, operated by BCS, or otherwise under its control (“External Networks”), and therefore that BCS cannot guarantee or ensure such transmissions will be secure from unauthorized access by third parties. Except as explicitly set out in this Agreement, BCS shall not be not responsible or liable for any delay, loss, alteration, or interception of Customer Data in the course of its transmission through and between External Networks.

 

8. Confidentiality

  1. “Confidential Information” is defined as any information disclosed by BCS to the other Party in any manner or form that the disclosing Party identifies as confidential or proprietary, or which reasonably appears to be confidential or proprietary because of legends, markings, the circumstances of disclosure, or the nature of the information itself. For the avoidance of doubt, Customer Data, software originating from BCS, and any pricing, whether quoted or set out in an agreement are Confidential Information.
  2. The receiving Party shall not at any time during the Term and for a period of two (2) years after termination of this Agreement, publish, disclose, or otherwise divulge any Confidential Information of the disclosing Party to any third party, except to those of the receiving Party’s authorized representatives who have a need to know such Confidential Information and who are bound by confidentiality obligations no less stringent than those contained in this Agreement. The receiving Party shall instruct its authorized representatives of its obligations under this Agreement and shall be responsible for any breach of this Agreement by its authorized representatives, Users, employees, agents, and similar personnel.
  3. The receiving Party shall: (i) keep the Confidential Information in the strictest confidence; (ii) use the Confidential Information only for the purpose of performing its obligations or exercising its rights under this Agreement; (iii) store the Confidential Information with the same degree of care as the receiving Party uses to protect its own information of a similar nature, and no less than a reasonable degree of care; (iv) store the Confidential Information so as to prevent any use of Confidential Information in violation of this Agreement and/or unauthorized communication of Confidential Information; and (v) store the Confidential Information in accordance with any particular and reasonable information security requirements of the disclosing Party for the transmission, storage, or handling of the Confidential Information.
  4. This Agreement imposes no obligation upon a receiving Party with respect to Confidential Information which: (i) the receiving Party can demonstrate was already in the receiving Party’s possession or knowledge and which the receiving Party lawfully acquired other than from the disclosing Party; (ii) is or becomes publicly available through no fault of the Receiving Party; (iii) is independently developed by the receiving Party without a breach of this Agreement, and which can be demonstrated as such by documentary evidence; (iv) is disclosed by the receiving Party with the disclosing Party’s prior written consent; (v) is disclosed to the receiving Party by another party other than the disclosing Party without any duty of confidentiality attached to it; or (vi) is required by law to disclose.
  5. Upon termination of this Agreement, the receiving Party shall: (i) immediately stop using all Confidential Information; (ii) upon the disclosing Party’s request and without delay, return to the disclosing Party all tangible documents, copies, or other materials containing Confidential Information; or (iii) upon the disclosing Party’s request, destroy all Confidential Information and any copies thereof, subject to Section 9.6.
  6. To the extent that a Party’s computer back-up procedures automatically create copies of any Confidential Information, the receiving Party may retain such copies in its regular archival or back-up computer storage system(s) for the period that such archives or back-ups are normally kept by the receiving Party. All archived or backed-up Confidential Information shall be subject to the confidentiality and non-use restrictions in this Agreement.
  7. The receiving Party acknowledges that unauthorized disclosure of any Confidential Information may give rise to irreparable injury to the disclosing Party, which may be inadequately compensable in damages. Accordingly, the disclosing Party may seek injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available.
  8. Should BCS be required by a competently issued order of a government agency or other legal obligation to perform a service specifically in relation to Customer Data, BCS shall provide prompt notice of such order or obligation to Customer, unless prohibited from doing so by law, so that Customer may seek a protective order or remedy. If a protective order or remedy is not obtained, BCS may furnish that portion of Customer Data that is subject to the request and will exercise its best efforts to obtain reliable assurance that any Confidential Information so furnished will be treated as confidential.

 

9. Publicity

  1. At any time after signature of this Agreement, BCS may publish or use Customer’s name and logo on: (i) BCS’s website; (ii) marketing collateral; (iii) online advertisement banners; and (iv) in BCS’s sales presentations.
  2. BCS will obtain Customer’s written permission prior to publication for each of the following: (i) press release; (ii) case study or white paper on BCS’s website and marketing collateral (and discussion of case study or white paper during sales presentations); and (iii) Customer quote on BCS’s website.

 

10. Warranties & Disclaimers

  1. Without limiting any other provision of the Agreement, Customer represents and warrants to BCS that: (i) it has the power and authority to enter into and perform its obligations under this Agreement; (ii) it shall comply with all applicable laws and regulations applicable to its performance of its obligations under this Agreement; (iii) it is not a party to any pending or ongoing litigation, arbitration, or other dispute which, if decided unfavorably to it, would reasonably be expected to have a materially adverse effect on its ability to fulfil its obligations under this Agreement; (iv) it is not relying upon any statements, commitments, representations, or warranties other than those expressly set forth in the Agreement; (v) it is a registered commercial entity and is procuring AVIX Academy for its own internal business use only and not as agent or on behalf of any third party; (vi) it has obtained all third-party consents, licenses, authorizations, and/or permits required in connection with its use of AVIX Academy and the Customer Data, including consents and permission to use any Personal Data or intellectual property contained therein; (vii) its purchases from BCS are not contingent on the delivery of any future functionality or features; (viii) it accepts responsibility for ensuring the Customer Data is complete prior to upload into AVIX Academy.
  2. Subject to Section 3.5, BCS warrants that it has the right to grant the AVIX Academy Subscription to Customer in accordance with the terms of this Agreement.
  3. EXCLUSIVE REMEDY. Notwithstanding Section 13, Customer’s exclusive remedy for breach of warranty in Section 11.2 is repair, replacement, credit, or refund, to be determined at BCS’s discretion.
  4. WARRANTY DISCLAIMER. THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS”, AND THE ENTIRE RISK AS TO SATISFACTORY USE LIES WITH CUSTOMER. EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT, AND TO THE GREATEST EXTENT PERMITTED BY LAW, BCS DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF PERFORMANCE, SATISFACTORY QUALITY, MERCHANTABILITY, OR RESULTS CUSTOMER MAY OBTAIN BY USING AVIX ACADEMY. BCS DOES NOT WARRANT THAT AVIX ACADEMY WILL MEET CUSTOMER REQUIREMENTS OR PURPOSES OR THAT USE WILL BE UNINTERRUPTED OR ERROR FREE. BCS DOES NOT GUARANTEE 100% UP TIME AND MAINTENANCE MAY OCCUR ON AVIX ACADEMY AT ANY TIME.
  5. CUSTOMER ACKNOWLEDGES THAT IT HAS CARRIED OUT INDEPENDENT RESEARCH AND ANALYSIS AS TO THE APPROPRIATENESS OF BCS’S SOFTWARE AND SERVICES FOR ITS REQUIREMENTS, HAS RELIED UPON ITS OWN INDEPENDENT RESEARCH TO MAKE AN INFORMED DECISION TO SELECT BCS TO PROVIDE THE SOFTWARE AND SERVICES, AND WAIVES ANY CLAIMS OF RELIANCE UPON ANY ORAL OR WRITTEN REPRESENTATIONS BY BCS’S EMPLOYEES OR AGENTS THAT ARE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.
  6. Customer Location disclaimer for use of AVIX Academy in restricted regions. BCS and its suppliers shall have no liability whatsoever to Customer for any damages for the non-functioning of AVIX Academy or any module or features due to unavailability of the internet or due to changes in legislation or technical restrictions that are beyond BCS’s control in certain countries. In the event of a change in laws or regulations in any of the countries in which Customer has Users, including changes to laws and regulations on cloud computing services, data protection and privacy, or Software as a Service, which impacts BCS’s ability to offer AVIX Academy or any modules or features, Customer accepts that BCS may limit the availability of AVIX Academy or affected modules or features, in a manner to be determined in BCS’s sole discretion, and Customer releases BCS from any liability relating to such limitation. BCS makes no warranties or guarantees whatsoever in relation to the availability of AVIX Academy in China. Any service level agreement applicable to Customer’s use of a BCS product shall not apply for Users within China.

 

11. Indemnities

  1. BCS indemnities. If an injunction against BCS is issued and not dismissed within thirty (30) days, or if a court of competent jurisdiction issues a judgment from which no appeal is taken that, by providing AVIX Academy, BCS has infringed upon the intellectual property rights of a third party, BCS shall: (i) obtain for Customer the right to continue using AVIX Academy or the affected modules or features; (ii) replace or modify AVIX Academy or the affected modules or features to cure such infringement and render them free to be used by Customer; or (iii) if BCS is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of (i) or (ii), BCS shall terminate the Agreement and reimburse to Customer any prepaid fees that relate to the infringement beginning from the date on which the injunction was issued or the date on which the right to seek leave to appeal expired, as applicable. BCS will have no liability to indemnify Customer under this Section if the liability arises from: (x) Customer Data; (y) Non-BCS Applications; or (z) any modification, combination, or development of AVIX Academy that is not performed by BCS, including API usage.
  2. Customer indemnities. Customer agrees to defend, indemnify, and hold harmless BCS, its affiliates, and their respective directors, officers, employees, and agents from and against any and all indemnifiable claims, including damages, claims, actions, demands, suits, costs, liabilities, losses, and expenses (including reasonable attorney fees, disbursements, and court costs) arising out of its: (i) illegal use of AVIX Academy; (ii) Customer Data; (iii) breach of this Agreement (and any Customer Location disclaimers, New Policies, or additional applicable terms); or (iv) violation of any law or the rights of a third party, including any claim brought by a Data Subject arising from BCS following Customer’s instructions in good faith.
  3. In order for either Party to be entitled to an indemnity under this Agreement, it must: (i) provide the indemnifying Party with prompt written notice within thirty (30) days of becoming aware of the claim; (ii) give the indemnifying Party sole control and authority over the defense or settlement of the claim; (iii) provide the indemnifying Party with proper and full information and reasonable assistance to defend and/or settle the claim; and (iv) take reasonable steps to mitigate its loss following the claim.
  4. Neither Party shall, without the other Party’s prior written consent, accept any settlement that imposes any restrictions or obligations on the other Party or requires the other Party to make an admission, or imposes on the other Party liability not covered by the indemnities.
  5. Section 12 states the entire obligations and liability of the indemnifying Party and the indemnities in these provisions shall be the exclusive remedy for claims for any indemnity.

 

12. Limitation of liability

  1. To the greatest extent permitted by law, neither Party will be liable to the other in relation to this Agreement for any indirect or consequential damages, including costs and loss of profits, delay, business, savings, or loss or corruption of data, even if advised of the possibility of these damages, and regardless of whether arising from breach of warranty, contract, negligence, or any other form or theory of liability. For Customers with paid Subscriptions, BCS will not be liable for any direct losses or damages exceeding the total fees paid by Customer to BCS (excluding VAT) during the one (1) month period immediately preceding the final event giving rise to the claim for liability. For Customers with free Subscriptions, BCS will not be liable for any direct losses or damages exceeding fifty EUR (€50). BCS and its suppliers shall have no liability whatsoever to Customer for any damages for the non-functioning of AVIX Academy due to unavailability of the internet.
  2. THE LIMITATION OF LIABILITY SHALL APPLY ON A CUMULATIVE BASIS (RATHER THAN PER INCIDENT) AND THEREFORE THE EXISTENCE OF SIMILAR OR RELATED CLAIMS SHALL NOT ENLARGE THIS LIMITATION.
  3. THE PARTIES ACKNOWLEDGE THAT THIS SECTION FAIRLY ALLOCATES THE RISKS UNDER THIS AGREEMENT AS BETWEEN THEM, THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SOFTWARE OR SERVICES AVAILABLE TO CUSTOMER, AND THAT, WERE BCS TO ACCEPT FURTHER LIABILITY, SUCH FEES WOULD NECESSARILY BE SET SIGNIFICANTLY HIGHER.
  4. BETA SERVICES. From time to time, BCS may make versions of services, features, or functionalities available prior to a general release (“Beta Services”). Beta Services are intended for evaluation purposes only, are not for production use, and are not supported by BCS. Beta Services are not governed by this Agreement and may be subject to additional terms. BCS will have no liability in any form arising out Customer’s use of a Beta Service.

 

13.  Renewals, Suspension and Termination

  1. Renewals. The Agreement automatically renews for twelve (12) month periods at the end of any Term, unless Customer provides written notice to BCS of its intention not to renew more than ninety (90) days prior to the end of the Term.
  2. Suspension. Without limiting BCS’s rights or remedies under this Agreement, BCS may suspend some or all of the Subscription if it determines, in its reasonable judgement, that Customer is using AVIX Academy: (i) in breach of this Agreement; (ii) in a fraudulent or illegal manner; or (iii) in a manner that is likely to cause material damage to, disrupt, or compromise the integrity or security of BCS’s system, the systems of a BCS supplier or partner, or the systems or privacy of other BCS customers or users, but only for as long as reasonably necessary to mitigate the risk of such harm. Except where facing imminent damage, and if practicable, BCS will attempt to notify Customer prior to suspension, and will otherwise notify Customer without delay thereafter. During any period of suspension, this Agreement will remain in full effect. If BCS determines that Customer did not breach the Agreement in relation to a suspension, Customer will receive credit for the full suspension period on its next invoice. Notwithstanding the foregoing, BCS may, at its discretion and at any time, suspend your right and license to use any or all software and services in the Subscription by providing Customer with sixty (60) days’ notice, and Customer will receive credit for the full suspension period on its next invoice.
  3. Grounds for Termination. Except as otherwise provided in this Agreement or prohibited by law, either Party may terminate the Agreement by giving notice to the other Party as follows:
  4. Monthly Subscription Plans. If Customer is on a monthly Subscription plan, either Party may terminate the Agreement at any time by giving one (1) full billing cycle’s written notice. The termination will be effective on the last day of the monthly billing cycle after the notice was given, or such later month as may be specified in the notice.
  5. Annual Subscription Plans. If Customer is on an annual Subscription plan, either Party may terminate the Agreement at any time by giving thirty (30) days’ written notice. The termination will be effective on the last day of the notice period, or such later date as may be specified in the notice.
  6. Free Subscription Plans. If Customer is on a free Subscription plan, either Party may terminate the Agreement at any time by giving thirty (30) days’ written notice. The termination will be effective on the last day of the notice period, or such later date as may be specified in the notice.
  7. Material Breach. Either Party may terminate the Agreement in the event of a material breach of the Agreement by the other Party, provided such breach (if capable of cure) is not cured within thirty (30) days of receipt of notice from the non-breaching Party, or in accordance with other cure mechanisms set out in the Agreement. For the avoidance of doubt, the following shall amount to material breach: (a) Customer’s failure to make timely payment of an amount not disputed in accordance with Section 8.5; and (b) Customer’s breach of any representation or warranty.
  8. Bankruptcy, etc. Either Party may terminate the Customer Agreement with immediate effect if: (i) the other Party dissolves or becomes insolvent or bankrupt; (ii) the other Party makes any assignment for the benefit of creditors; or (iii) any bankruptcy, reorganization, insolvency, or similar proceedings is instituted by or against the other Party and not dismissed within thirty (30) days.
  9. Change of Control to Competitor. In the event that Customer undergoes a change of control (representing an accumulation of more than 50% of voting or decision-making rights in Customer or its parent company) is in favour of, is acquired by, or sells substantially all of its assets to a direct competitor of BCS, BCS may terminate this Agreement effective immediately upon the date of the change of control.
  10. Compliance with Law. BCS may terminate its provision of the software and services to a Customer Location if BCS determines, in good faith, that such termination is necessary to comply with a court order, governmental action, or other applicable law in that Customer Location, and provided that BCS shall refund any unused prepaid Subscription Fees in respect of the terminated or affected modules.
  11. To give notice of termination, please direct email communications to info@birdcontrolgroup.com

 

14. Effects of termination

  1. Upon termination of this Agreement BCS shall immediately cease providing AVIX Academy to Customer and any subscriptions or licenses granted to Customer will automatically terminate. Upon termination of the Agreement, BCS may immediately suspend the relevant User Account(s) and shall be entitled to delete such User Account(s) and Customer Data from AVIX Academy after six (6) months, unless otherwise required to retain them by law or regulation, and subject to automatic back-up procedures.
  2. All payment obligations under the Agreement are non-cancellable, except where the Agreement is terminated: (i) by Customer due to BCS’s material breach or BCS’s Force Majeure Event, or (ii) fully or in part by BCS for convenience or in relation to a Customer Location, in which case Customer will receive a refund of pre-paid amounts, pro-rated until the end of the current billing cycle. CUSTOMER ACKNOWLEDGES THAT THE SERVICE FEE RATES OFFERED TO CUSTOMER ARE BASED UPON CUSTOMER’S AGREEMENT TO BCS’S NO REFUND POLICY AND WOULD HAVE BEEN SUBSTANTIALLY HIGHER ABSENT SUCH AGREEMENT.
  3. Termination of this Agreement for any reason shall not affect the accrued rights of the Parties arising hereunder, including the right to recover damages against the other Party. All clauses which by their nature should logically survive termination of this Agreement shall survive and remain in force and effect.

 

15. Governing Law and Dispute Resolution

  1. This Agreement, including its constituent documents, are governed by the laws of the Netherlands.
  2. All dispute resolution discussions shall be confidential and without prejudice to the rights of each Party.
  3. Prior to initiating arbitration under this Section 16, the Parties shall refer any dispute for at least one (1) negotiation session and each Party shall use all reasonable endeavours to participate in good faith to resolve the dispute. If within sixty (60) days of the first negotiation session, the Parties have not resolved the dispute, they shall refer the matter for arbitration in accordance with Section 16.4.
  4. The Parties agree that all disputes arising out of or related to this Agreement and not resolved under Section 16.3 shall be submitted for final and binding arbitration pursuant to the Arbitration Rules of the Netherlands Arbitration Institute (NAI) in effect on the date of commencement of arbitration, as modified by this Agreement. The arbitral tribunal shall consist of one (1) arbitrator, unless the amount of claim as specified in the arbitration exceeds EUR four-hundred thousand (€400,000), in which case the arbitral tribunal shall consist of three (3) arbitrators. The place of arbitration will be Amsterdam, the Netherlands, and will be conducted in English.
  5. For any court proceedings in aid of or ancillary to arbitration, if the subject matter of a dispute does not legally permit the Parties to use the dispute resolution procedures set forth in this Section, or if such dispute resolution procedures are deemed unenforceable, each Party submits to the exclusive jurisdiction of the competent court of Amsterdam, the Netherlands. Each Party waives any right it has to object to such a proceeding being brought in those courts, including by claiming that an action, suit, or proceeding has been brought in an inconvenient forum or that the court lacks jurisdiction.
  6. No Class Actions. Customer agrees that it may only resolve disputes with BCS on an individual basis and therefore that it may not bring or participate in any class, consolidated, or representative action against BCS or any BCS employees, affiliates, or subcontractors.
  7. Unless the Agreement has been terminated, throughout any dispute settlement process BCS will continue to provide AVIX Academy and perform its obligations and Customer will continue to pay all fees due.
  8. Customer agrees that any claim related to this Agreement must be filed no later than one (1) year after the date of the triggering event or be forever barred from doing so.

 

16. Other Terms

  1. Assignment. Customer’s rights or obligations under this Agreement may not be assigned or delegated without BCS’s written consent. BCS may, with notice but without needing Customer’s consent, assign all its rights and delegate all its obligations under this Agreement to an entity: (i) which it owns or controls; (ii) by which it is owned or controlled; or (iii) to which it transfers substantially all its assets relating to its performance of this Agreement. This Agreement will inure to the benefit of and be binding upon the respective successors and assignees, if any, of the Parties. Nothing in this paragraph will be construed to permit any attempted assignment which would be unauthorized pursuant to any other provision of this Agreement. For the avoidance of doubt, and unless otherwise prohibited by law, BCS may subcontract any of its rights and obligations to its affiliates, including the performance of this Agreement.
  2. No waiver. Except as otherwise stated in this Agreement, any failure or neglect by either Party to enforce any of the terms of this Agreement at any time shall not be construed as or deemed to be a waiver of that Party’s rights hereunder.
  3. Notices. The Parties agree that any notice to be given under these Terms may be provided by email. Email notices to BCS can be sent to info@birdcontrolgroup.com. Customer’s address for notice shall be the email address specified by Customer in its initial Registration Form, which can be changed in Customer’s Account. Notices shall be deemed effective on the day they are sent by email, if on a business day before 6pm Amsterdam local time, and otherwise 9am Amsterdam local time on the next business day.
  4. Force majeure. Except for payment obligations, and only for so long as those conditions persist, neither Party will be liable for any delay or failure to perform a contractual obligation to the other Party where the delay or failure is caused by a Force Majeure Event, which is defined as: (i) natural disasters and acts beyond human control (i.e. “acts of God”); (ii) strike, lock out, or other industrial action, including those by a third party service provider, other than those specifically caused by or arising from the affected Party’s action or inaction; (iii) war, riot, insurrection, terrorism, vandalism, sabotage, or epidemic; and (iv)
law, rule, or regulation of any government or governmental agency and executive or administrative order or act of general or particular application. The affected Party must, within fifteen (15) business days of the start of a Force Majeure Event: (x) notify the other Party of its occurrence; (y) indicate the foreseeable duration, if possible; and (z) indicate the measures taken or contemplated to mitigate the consequences. If the Force Majeure Event continues for a period longer than sixty (60) days, either Party may terminate this Agreement immediately upon written notice without incurring further liability.
  5. Interpretation. The headings of the sections of this Agreement have been inserted for reference only and shall in no way impact its interpretation. If this Agreement is ever translated into any other language, it will be for Customer’s convenience only and the English language version of this Agreement will exclusively prevail. In this Agreement: (i) the singular includes the plural and vice versa; (ii) references to any statute, enactment, order, law, regulation, or other similar instrument shall be construed as a reference to each of the same as amended by any subsequent statute, enactment, order, law, regulation, or instrument or as contained in any subsequent re-enactment thereof; (iii) the words “day”, “month”, and “year” mean calendar day, calendar month, and calendar year, unless otherwise stated; and (iv) the word “including” (or any analogous word or phrase) means “including and without limitation”.
  6. Entire Agreement. This Agreement represents the entire agreement between the Parties and replaces and supersedes all previous or contemporaneous oral or written agreements, understandings, or arrangements between the Parties with respect to this subject matter. The applicability of any of Customer’s purchasing or other conditions is expressly rejected and may only be deemed to apply if the Parties conclude a written agreement explicitly stating their intention to override this Section 17.6.
  7. Execution & Counterparts. This Agreement may be agreed to online or executed by electronic signature, both of which shall be sufficient to legally bind the Parties. Customer acknowledges that this Agreement is a contract between Customer and BCS, even though it may be electronic and not physically signed by representatives of each Party.
  8. Amendment. This Agreement may only be modified or amended: (i) in writing signed in hard or electronic copy by an authorized representative of both Parties; (ii) by acceptance of updated online terms by Customer’s Account Administrator; (iii) by operation of Section 1.5; and (iv) as otherwise agreed by the Parties.
  9. Severability. Should any provision of this Agreement be determined to be void, invalid, or otherwise unenforceable by any court of competent jurisdiction, then the Parties shall agree to a suitable and equitable provision to be substituted to carry out, so far as may be valid and enforceable, the intent and purpose of the impugned provision, and the remainder of this Agreement shall not be affected.
  10. Independent contractor status. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
  11. Third Party Rights. This Agreement is made for the benefit of the Parties, and is not intended to benefit or be enforceable by any third party. The rights of the Parties to terminate, rescind, or amend this Agreement, or to reach any settlement relating to this Agreement, are not subject to the consent of any third party.
  12. Customer Affiliates. If BCS permits, at its discretion, an affiliate of Customer to order an AVIX Academy subscription under this Agreement, Customer shall be jointly liable for the actions and omissions of such affiliate under the Customer Agreement, including all payment obligations.

This Terms of Service was last updated on: November 3, 2017.