July 2023
The terms and conditions of sale contained herein (“Agreement”) constitute the entire agreement between Aero HygenX Inc. (“Aero Hygenx”) and the individual or company purchasing Aero Hygenx Offerings as defined below (“Customer”). The Agreement is deemed accepted by Customer when Customer places an Order for Aero Hygenx Offerings.
Any terms that are inconsistent with this Agreement are hereby disclaimed by Aero Hygenx and constitute no form of acceptance by Aero Hygenx unless Aero Hygenx has previously accepted them in writing.
These Terms of Sale amend the User License Agreement (“EULA”) between Customer and the applicable Aero Hygenx entity and, together with the EULA, as applicable, and any other applicable Supplemental Terms, form the agreement between the parties (“Agreement”).
Capitalized terms have the meaning as defined elsewhere in the Agreement. The following additional definitions apply to these Terms of Sale:
“Aero Hygenx Hardware” is standard Hardware marketed or branded under the name “Aero Hygenx”.
“AUP” means Aero Hygenx’s Acceptable Use Policy available at https://www.aerohygenx.com/terms/aup and incorporated into this Agreement by this reference.
“Authorized Agents” means individuals who are working on Customer’s premises and require access to Hardware in support of Customer’s internal business as Customer’s consultants, agents, or contractors.
“Authorized Hardware Users” means Customer’s employees and Authorized Agents.
“Cloud Services” means the Hygenx Stream online services platform and associated cloud-based APIs (application programming interfaces) made available by Aero Hygenx under this Agreement, including but not limited to software-as-a-service, platform-as-a-service, cloud hosting services, and online training services, offered alone or in combination with Software. Cloud Services exclude Software, Customer Content, and Third-Party Content.
“Content” means data, text, audio, video, images, models, or software.
“Customer Content” means Content entered by Customer or any user into Cloud Services and any output generated by Customer or any user through use of such Cloud Services based on such Content, excluding any Third-Party Content or other Content owned or controlled by Aero Hygenx or its affiliates or their respective licensors and made available by Aero Hygenx or its affiliates through or within Cloud Services.
“Documentation” means the instructions for use, learning materials, technical and functional documentation, and API information made available by Aero Hygenx with the applicable Offering, in print, online, or embedded as part of a help function, which may be updated by Aero Hygenx from time to time.
“Delivery” will have the meaning defined in Section 3 of these Hardware Terms.
“Entitlements” means, with respect to any Offering, the license and use types, limits, volume, or other measurement or conditions of permitted use for such Offering as set forth in the applicable Order or Supplemental Terms, including but not limited to any limits or restrictions on the number and categories of users authorized to use such Offering, permitted geographic areas, available storage space, computing power, or other attributes and metrics.
“Firmware” means system software (as opposed to application software) included and incorporated into Hardware which provides low-level control of, or a standardized operating environment for, the Hardware in which it is incorporated.
“Hardware” means hardware equipment, devices, accessories, and parts delivered by Aero Hygenx under this Agreement, including firmware incorporated therein.
“Lease” or “Rental” means a grant by Aero Hygenx of non-transferable, temporary and limited rights to use specific Hardware products within the Territory, including Trial and Loan licenses for Hardware as defined in the Trial and Loan Supplemental Terms.
“M&S Services” means the maintenance, and technical support services provided by Aero Hygenx.
“Order” means an order form (Order Form), statement of work (SOW)), or similar ordering document that (i) incorporates the terms of this Agreement and sets forth the Offering(s) ordered by Customer and any associated fees, (ii) has been agreed by Customer by manual or electronic signatures or through an electronic system specified by Aero Hygenx, and (iii) is accepted by Aero Hygenx.
“Offering” means an individual offering, made available by Aero Hygenx and identified in an Order, which consists of Cloud Services, Software, Hardware, or Professional Services, or a combination of any of the foregoing, and any associated maintenance and support services and Documentation.
“Software” means software licensed by Aero Hygenx under this Agreement and made available for download or otherwise delivered to Customer for installation, including updates, modifications, design data, and all copies thereof, associated software-based APIs, scripts, toolkits, libraries, reference or sample code, and similar materials.
“Subscription Term” means the time period specified in the Order for which a term-based Offering is made available to Customer. Any renewal constitutes a new Subscription Term.
“Supplemental Terms” means additional terms and conditions that apply to a particular Offering as attached hereto or set forth or referenced in an Order.
“System” means a combination of Hardware and Software where one cannot operate without the other.
“Territory” means the country in which Customer initially acquires the Hardware, whether through purchase or Lease, as indicated by Customer’s address specified in the Order, unless expressly designated otherwise in the Order.
2.1. Orders
Offerings shall be purchased by the Customer issuing a written purchase Order signed by an authorized representative of the Customer, indicating the relevant Aero Hygenx’s proposal or quotation number, specific Offerings desired, quantity, total purchase price, shipping instructions (including Customer’s tax and importation registrations and account numbers for shipments outside of Canada), and any applicable tax-exempt certifications and any other special instructions. All Orders are subject to prior written acceptance by Aero Hygenx.
2.2. Renewals
If indicated on the Order or otherwise agreed by the parties in writing or in Aero Hygenx’s electronic or online ordering system, Subscription or M&S Services for an applicable paid Product will automatically renew unless either party notifies the other at least 60 days before the end of the then-current term that it has elected not to renew. Any renewal term will be the same length as the preceding term or 12 months, whichever is greater. Any renewed Subscription or M&S Services will be governed by Aero Hygenx’s then current standard terms and conditions applicable to the Product(s) as specified in an Order and available at www.aerohygenx.com/terms. The fees during any renewal will be the same as those charged during the preceding term, unless (i) Aero Hygenx notifies Customer about different future fees at least 90 days before the end of the then-current term or (ii) fees for the renewal are specified on the Order.
2.3. Payment
Customer will pay the fees set forth in the applicable Order under the conditions specified in the Order or the Aero Hygenx invoice unless otherwise agreed by the parties. Aero Hygenx will invoice Customer for Professional Services on a monthly basis as charges are incurred. Unless specified otherwise in the applicable Order, Aero Hygenx will invoice Customer for fees related to any other Offerings in advance. Without limiting any other remedies available to Aero Hygenx, Customer will pay applicable fees for any excess use of an Offering at the then-current price for such Offering within 30 days after the invoice date. Except as expressly set forth in this Agreement, all payment obligations are noncancelable, and all fees are non-refundable. If Customer has procured an Offering through an Aero Hygenx authorized solution partner, different terms regarding invoicing and payment may apply as specified between Customer and the solution partner. Aero Hygenx may share information with the solution partner related to Customer’s use and consumption of Offerings for account management and billing purposes. Payments for M&S Services shall be made upfront for the first 12 months of service, and for each subsequent 12 months on the delivery anniversary date thereafter. Offerings offered on a multi-year subscription agreement are billed on the first of every month for the period of that month. Aero Hygenx reserves the right to obtain prior credit approval and request alternative payment terms, at its sole and absolute discretion. If at any time Customer is delinquent in the payment of any invoice or is otherwise in breach of this Agreement, Aero Hygenx may, at its discretion withhold shipment or stop performance of services in respect of any order and may, at its option, require Customer to pre-pay for further shipments or performance. All payments not received when due shall be subject to an additional interest charge of one and a half percent (1.5%) per month (annual rate 18%) of the unpaid amount or the maximum rate permitted by law until the date of payment. Customer grants to Aero Hygenx a security interest in Products (excluding services) purchased under this Agreement to secure payment for those Products purchased. If requested by Aero Hygenx, customer agrees to execute financing statements to perfect such security interest. There is no set-off right for the Customer. Aero Hygenx shall be permitted to apply payments made by Customer on other accounts, including deposits for other Products or services, to delinquent accounts.
2.4. Taxes
All amounts to be paid to Aero Hygenx are exclusive of any taxes and any other charges. Customer agrees to pay or reimburse Aero Hygenx or its authorized solution partner for the payment of any applicable taxes or duties including, but not limited to, sales taxes, value added taxes, goods and services taxes, consumption taxes, or any other charge that is imposed by any government authority on Customer’s use or receipt of, or license to, any Offering. If Customer is exempt from value-added or sales tax, then it must provide a valid, timely, and executed exemption certificate, direct pay permit, or other such government-approved documentation to Aero Hygenx or its authorized solution partner. If Customer is required by law to make any income tax deduction or to withhold income tax, after the application of reductions available under international treaties, from any sum payable directly to Aero Hygenx under this Agreement, Customer will promptly effect payment thereof to the applicable tax authorities, and will also promptly provide Aero Hygenx with official tax receipts or other evidence issued by the applicable tax authorities to support a claim for tax credit relief. Notwithstanding the foregoing, Customer is responsible for, and will indemnify Aero Hygenx for, any taxes, including withholding taxes, resulting from making an Offering available to users in geographic locations outside the country in which Customer is located as per the Order.
Unless agreed otherwise in the applicable Order, Aero Hygenx will make the Hardware available to Customer FCA at Aero Hygenx’ designated warehouse or factory for the relevant product (Incoterms 2020).
Making the Hardware available to Customer in accordance with the Incoterms specified in this Section will constitute “Delivery” hereunder, regardless of Aero Hygenx’ further involvement in any transport arrangements for any Hardware after such Delivery.
Notwithstanding any ‘Incoterms’ specified in this Section, unless expressly agreed otherwise with Customer in writing, Aero Hygenx will (i) choose and appoint the carrier, freight forwarder or shipping service provider for delivery of the Hardware to Customer’s designated place of final delivery, (ii) make the necessary arrangements for transportation with the selected carrier or shipping service provider in accordance with the specified Incoterms, and (iii) charge the costs for shipment or carriage to Customer as specified in the Order.
Risk of loss and damage passes to Customer upon Delivery. Title to purchased Hardware transfers to Customer after payment in full has been received by Aero Hygenx. If applicable law does not allow or recognize retention of title by Aero Hygenx after delivery, title to purchased Hardware and risk of loss will pass to Customer upon Delivery, but Aero Hygenx retains a security interest in the Hardware to secure payment of the purchase price of such Hardware. In such case, Customer agrees to sign any documents that Aero Hygenx reasonably determines to be necessary or convenient for use in filing or perfecting such security interest.
5.1. Hardware Warranty Period
For purchased Aero Hygenx Hardware, Aero Hygenx provides a limited product warranty for a period commencing on the date of Delivery and ending 12 months after the first day of the month following the date of Delivery (“Warranty Period”). The Warranty Period is not extended by the time required to correct or repair defects and malfunctions under warranty.
5.2. Hardware Warranty Scope
During the Warranty Period, Aero Hygenx warrants that the Aero Hygenx Hardware (i) is free from defects in workmanship and materials under normal use; and (ii) materially conforms to the specifications described in the Documentation. As Customer’s exclusive remedy in case of a breach of warranty, and only if Customer returns Aero Hygenx Hardware to Aero Hygenx under the RMA procedure (as defined in subsection 5.5 below), Aero Hygenx will at its sole discretion repair or replace the Aero Hygenx Hardware at no additional charge to Customer. If Aero Hygenx, in its sole discretion, determines it cannot repair the Aero Hygenx Hardware or replace it with another unit of Aero Hygenx Hardware that would perform in accordance with Aero Hygenx obligations hereunder, Aero Hygenx will refund the fees received for the defective Aero Hygenx Hardware based on a straight-line amortization over 60 months from initial Delivery, and accept the return of the Hardware. If such refunded Aero Hygenx Hardware was furnished as part of a System, Aero Hygenx will also accept the return of the Software elements of the System and refund the fees for those Software licenses under the same conditions.
5.3. Warranty Exclusions
The warranty will not cover defects or malfunctions resulting from: (i) improper use or installation, misuse, improper site preparation, or site or environmental conditions that do not conform to Aero Hygenx’ site specifications or to standards of care generally applicable to the type of Hardware, (ii) software, interfaces or hardware supplied by Customer or a third party, (iii) non-compliance with Aero Hygenx`s specifications and instructions regarding the operation, care, or storage of the Hardware, (iv) normal wear and tear which does not affect the functionality of the system (such as, but not limited to, cosmetic damage, scratches, and dents), (v) neglect, accident, or improper or inadequate maintenance or calibration, (vi) modifications, enhancements, repairs, or unauthorized alterations made by anyone other than Aero Hygenx or its authorized representatives, and (vii) exposure to water, fire, or other hazards.
5.4. Refurbished Parts
Aero Hygenx does not warrant that all Hardware or any part thereof furnished hereunder is new. Hardware may contain parts refurbished to an “as new” condition that meet all Aero Hygenx quality specifications and are eligible for warranty and services.
5.5. Return Material Authorization (RMA)
Aero Hygenx will only accept Products returned under the Aero Hygenx Return Material Authorization (“RMA”) process. Customer shall obtain an RMA number from Aero Hygenx prior to returning any Product. Upon the issuance of an RMA, Customer shall diligently return the Product with prepaid shipping arrangements and sufficient insurance against the loss or further damage to the Product, to Aero Hygenx’s facility. Any Product which has been returned to Aero Hygenx, but which is found to meet the applicable specification for the Product and not defective in workmanship and material, may be subject to Aero Hygenx’s standard examination charge in effect at the time and may be charged to the Customer, at Aero Hygenx’s sole discretion.
5.6. Cloud Services Warranty
Aero Hygenx warrants that Cloud Services will perform substantially in accordance with the features and functionalities described in the Documentation. To the extent permissible under applicable law, as Aero Hygenx’s entire liability and Customer’s sole and exclusive remedy for a breach of this warranty, at Aero Hygenx’s option (i) Aero Hygenx will use commercially reasonable efforts to restore the non-conforming Cloud Services so that they comply with this warranty, or (ii) if such restoration would not be commercially reasonable, Aero Hygenx may terminate the Order for the non-conforming Offering and refund any prepaid fees for such Offering on a pro-rata basis for the remainder of the Subscription Term for that Offering. The warranty for Cloud Services excludes (a) No-Charge Offerings and Previews, and (b) issues, problems, or defects arising from Customer Content, Third Party Content, or use of Cloud Services not in accordance with the terms of this Agreement.
5.7. Disclaimers
Aero Hygenx makes only the limited warranties expressly stated in this Agreement, and disclaims all other warranties including, without limitation, the implied warranties of merchantability and fitness for a particular purpose. Aero Hygenx does not warrant or otherwise guarantee that (i) reported errors will be corrected or support requests will be resolved to meet Customer’s needs, (ii) Offerings or any Third Party Content will be uninterrupted, error free, fail-safe, fault-tolerant, or free of harmful components, or (iii) any Content, including Customer Content and Third Party Content, will be secure or not otherwise lost or damaged. Representations about Offerings or features or functionality in any communication with Customer constitute technical information, not a warranty or guarantee. Customer is responsible for assessing the suitability of each Offering for Customer’s intended use, selecting the Offering necessary to achieve Customer’s intended results, and for the use of Offerings. By using an Offering, Customer agrees that such Offering meets Customer’s requirements to enable compliance with applicable laws. Customer will obtain, at its own expense, any rights, consents, and permits from vendors of software and services used by Customer in connection with any Offering which are required for such use. Customer agrees that Orders are not contingent on any future features or functionality of Offerings.
6.1. Firmware License
Under these Hardware Terms, Aero Hygenx grants Customer a non-exclusive, non-transferable (except if transferred with the Hardware the Firmware is incorporated in) license to use the Firmware incorporated in the Hardware for the operation of the Hardware. The Firmware may only be used in connection with the Hardware in which it is incorporated. Any other use of the Firmware will be a material breach of the Agreement. Customer is prohibited from (a) decompiling, changing or modifying the Firmware, or deriving other programs from the Firmware, and from (b) modifying or deleting property rights, copyrights, or marks on the Firmware. The Software license and Software Maintenance Services terms set forth in the Agreement will not apply to Firmware.
6.2. Third Party Technology
Hardware may contain third-party software, technology, and other materials, including open-source software, licensed by third parties (“Third-Party Technology”) under separate terms (“Third-Party Terms”). Third-Party Terms are specified in the Documentation, Supplemental Terms, “read me” files, header files, notice files or similar files. In the event of a conflict with the terms of this Agreement, the Third-Party Terms control with respect to Third-party Technology. If Third-Party Terms require Aero Hygenx to furnish Third-Party Technology in source code form, Aero Hygenx will provide it upon written request and payment of any shipping charges.
6.3. Trade Secrets
Aero Hygenx Offerings are trade secrets of Aero Hygenx. Customer (i) will not, except as otherwise permitted by applicable law, reverse engineer, disassemble, or otherwise attempt to discover the technology used in the Hardware, or allow access to or use of Hardware by anyone except Authorized Users whose job performance requires access, (ii) will take appropriate action to protect the confidentiality of Hardware, and (iii) will not remove or obscure any notice or legend affixed to Hardware.
6.4. No Further Rights
The Firmware license in these Hardware Terms will not apply to any software other than Firmware installed on the Hardware or delivered in conjunction with or related to the Hardware furnished hereunder. No copyrights, patents, trademarks, trade secrets, or other intellectual property rights or rights to use Aero Hygenx’ confidential or proprietary information are granted to Customer under these Hardware Terms, unless explicitly stated otherwise herein or otherwise agreed in writing.
6.5. Survival
The provisions of this Section 6 survive termination or expiration of the Agreement.
If a defect or malfunction of Aero Hygenx Hardware occurs after the Warranty Period has expired or if such defect is for any reason not covered by the applicable warranty specified under Section 4 of these Hardware Terms or by a Maintenance Service or Support Service package purchased for the Aero Hygenx Hardware, Customer may request Aero Hygenx to attempt to repair such defect or malfunction. However, repair services are not offered for all Aero Hygenx Hardware and, even if they are offered, Aero Hygenx does not represent or warrant that all such defects can or will be repaired or that Aero Hygenx will agree to perform such repair. For such repairs and repair attempts, Customer agrees to pay for Aero Hygenx’ services at Aero Hygenx’ then-current rates plus any reasonable out-of-pocket expenses.
8.1. General Maintenance
Maintenance, enhancement, and technical support services for Hardware (“Maintenance Services”) are governed by the General Maintenance Services Terms found at https://www.aerohygenx.com/terms/ms and incorporated by this reference. The General Maintenance Services Terms are amended by the Specific Maintenance Terms below.
8.2. Specific Maintenance Terms
8.2.1. Maintenance Types.
The following Maintenance Services related to Aero Hygenx Hardware are available for separate purchase by Customer (each a “Maintenance Type”), unless the Order expressly states that the respective Maintenance Type is already included. Not all Maintenance Types are available for each Aero Hygenx Hardware product. Some Maintenance Types may be offered only in combination with Maintenance Services for Software which form a “System” together with the Aero Hygenx Hardware.
Installation. This Maintenance Type includes the installation of the System by Aero Hygenx one time during the Installation Service Type term. Prior to the parties scheduling the installation, Customer will notify Aero Hygenx it has received the System. Installation will occur during normal working hours at the location specified in the Order or as otherwise agreed by the parties. Aero Hygenx will not be obligated to install the System if (i) the System has been modified without Aero Hygenx’ written consent; or (ii) the System has been subject to unusual physical or environmental stress, misuse, or other damage.
Hardware Maintenance (or “MS”). This Maintenance Type includes repair and replacement of defective Aero Hygenx Hardware as described in Section 4.2 of these Hardware Terms for the period of time described in the Order. This Maintenance Type includes Calibration if Calibration is made generally available for purchase for that specific Aero Hygenx Hardware.
Support Service Type (or “SUP”). This Maintenance Type includes Hardware Maintenance and technical support provided to Customer by telephone or e-mail for (i) the use of the Aero Hygenx Hardware and (ii) the correction or troubleshooting of any errors, defects, or malfunctions of the Aero Hygenx Hardware.
8.2.2. Special Conditions for Hardware Maintenance Services.
Upgrades. Upgrades of Hardware, components, or modules are not included in any Service Packs and are always charged separately. A module or component is considered upgraded when, after the (re)delivery of the relevant Aero Hygenx Hardware to Customer, it has a new product identification number that corresponds to a different entry on the Aero Hygenx pricelist. Upgrades are performed only under a separate Order.
Location of Performance. The purchased Maintenance Services are by default performed at the regional office designated by Aero Hygenx. Each party will bear the costs for shipping the Aero Hygenx Hardware to the other party’s address for the performance of the Maintenance Services. If the parties agree to an on-site visit, Customer will pay any travel expenses for the visit.
Relocation. Customer will notify Aero Hygenx prior to relocating any Aero Hygenx Hardware with an active Maintenance Type that requires on-site visits by Aero Hygenx personnel. If the new location is outside Aero Hygenx’ normal on-site service area, Aero Hygenx will have the right to cancel any applicable Maintenance Services.
Access. Aero Hygenx may request remote log-in access to Aero Hygenx Hardware for the purpose of running diagnostics to detect failures. Customer will not unreasonably withhold its consent. Aero Hygenx may establish and test the remote system log-in access during installation or when performing Maintenance Services.
Return and Replacement. Hardware (including Hardware parts) that is defective or has been replaced through Maintenance Services are the property of Aero Hygenx. If Customer does not return replaced Hardware or parts within 30 days from receipt of the replacement, Aero Hygenx will invoice Customer and Customer will pay the current list price for the Hardware or part not returned. For some products or service options, Customer will replace the malfunctioning part with the appropriate part included in the standard maintenance kit provided by Aero Hygenx with the replacement Hardware, and Customer will return the defective part to Aero Hygenx for replacement.
8.2.3. Other terms.
Conditions. If Customer orders Maintenance Types after expiration of the Warranty Period or the prior Maintenance Type term, Aero Hygenx reserves the right in its sole discretion to (i) perform a system check and provide a quote for repair before Customer can purchase Calibration, Hardware Maintenance, or Support Maintenance Types or (ii) charge a fee equal to the number of Maintenance Service Types that would have been necessary to cover the term from the expiration date of the initial Warranty Period or the last Maintenance Type of the same type, whichever is later.
Exclusions. Maintenance Services do not cover defects or malfunctions in Aero Hygenx Hardware resulting from any actions, situations, or events which are excluded from warranty or cause the warranty to be voided, as provided in the then-current applicable terms and conditions for the Hardware.
Warranty. Aero Hygenx’ sole representation and warranty for Hardware Maintenance Services is that the services will be performed in a professional and workmanlike manner.
Subcontractors. Aero Hygenx may subcontract some or all of its obligations to provide Hardware Maintenance Services to a third party, who will have the same rights and obligations as Aero Hygenx hereunder.
Term and Termination of Maintenance Services. A Maintenance Type’s term starts on the effective date specified in the Order and continues for a period of one year, or such longer period of time as agreed by the parties in the Order. Purchased Maintenance Services can only be terminated under the termination provisions in the Agreement. Termination will not affect the rights of the parties which have accrued prior to termination.
The terms and conditions of this Section 9 apply to any Lease.
9.1. Lease
All Leases are subject to availability of the Hardware at the time of the Order. No title to or ownership of Hardware is transferred to Customer. Title to the Hardware will remain with Aero Hygenx or third parties from whom Aero Hygenx has obtained the right to rent out the Hardware.
9.2. Lease term and fees
The right to use the Hardware is limited to a period of time mutually agreed by Aero Hygenx and Customer in the Order. Unless explicitly specified otherwise in the Order, the Lease term begins on the day of delivery of the Hardware to Customer. The parties may agree in a separate Order to renew the Lease term for an additional limited term or terms following expiration of the initial Lease term. Upon expiration of the initial or renewal term, if applicable, or upon termination pursuant to these Hardware Terms or the Agreement or any specific Lease, Customer’s right to use the Hardware will terminate and Customer must cease any further use and immediately return the Hardware to the originating Aero Hygenx facility. Lease fees are payable in advance, are non-refundable, and will be invoiced as specified by the parties in the Order.
9.3. Condition of Hardware
Upon arrival of the Hardware at Customer’s premises, Customer will examine the Hardware to confirm it is secure and in good working condition. Failure to object in writing to the condition of the Hardware within 3 business days after receipt will be deemed conclusive that all Hardware was in working condition when delivered.
9.4. Customer Responsibilities.
Proper Use. Customer will use the Hardware in a normal and customary way, for the purpose for which it is intended, in accordance with the Documentation for that Hardware. Customer will at all times (i) treat the Hardware with a reasonable level of care, (ii) ensure that it is kept clean, and (iii) take all reasonable precautions to protect it from dust and other contaminants, subject to reasonable wear and tear. Customer will ensure its users have read the Documentation for the Hardware before using it and are trained in the normal and safe operation of similar equipment as the Hardware.
Transfer and Encumbrance of Hardware. Except as specifically provided in these Hardware Terms, Customer may not pledge or encumber, distribute, sublease, loan, rent, sell, or otherwise transfer possession (whether by exchange, gift, operation of law or otherwise) all or any portion of the Hardware to any other person without the prior written consent of Aero Hygenx.
Modifying the Hardware. Customer will not modify, alter, adapt, embed, or merge the Hardware.
Location and Territory. Customer may not use the Hardware outside of the Territory. Customer will inform Aero Hygenx of the exact location of Hardware upon Aero Hygenx’s request.
Property Markings. The Hardware may be tagged or marked to indicate that it is the property of Aero Hygenx and Customer may not remove any such tags, plaques, or marks.
Audit Right. Aero Hygenx may, during regular business hours and upon reasonable advance notice, enter Customer’s premises where the leased Hardware is stored or used to locate and inspect the state and condition of the Hardware and conduct an audit to determine Customer’s compliance with these Hardware Terms.
9.5. Return of Hardware
Upon expiration or termination of the Lease, Customer will return all Hardware in the same condition as it was upon arrival at Customer’s premises and in working condition. Except for normal wear and tear, Customer agrees to pay for any damage to or loss of the Hardware, regardless of cause. Hardware returned from Customer that is inoperable, damaged, or with missing components will be repaired to original working order by Aero Hygenx at Customer’s expense. Any Hardware which (i) is returned damaged or inoperable and cannot be repaired, or (ii) cannot be returned to Aero Hygenx for whatever reason, will be invoiced to Customer at its then-current commercial list price.
9.6. Limited Warranty and Disclaimers
Unless expressly stated otherwise in the Order, the Hardware will be covered by Maintenance Services, so the provisions of Section 9 apply to the Hardware for the entire term of the Lease.
9.7. Shipping and Freight Charges and Risk
Unless agreed otherwise in the Order, each party will bear the costs and risks related to shipping the Hardware to the other party’s specified delivery address, DAP (Incoterms 2020).
9.8. Liability and Indemnity
Customer is liable for all damage to the Hardware not covered by the express warranties made in these Hardware Terms. Customer will indemnify Aero Hygenx against any third party claims, damages, fines, and cost (including increased taxes, attorney’s fees, and expenses) relating in any way to the use of or negligence with regard to the Hardware. The provisions of this Section will survive the expiration or termination of the Agreement for any reason.
9.9. Termination and Recovery
If either party materially breaches these Hardware Terms or the Agreement and fails within 5 business days after written notice of the breach to commence curing the default and continue with reasonable diligence to substantially cure the default, the other party may, by giving written notice, terminate any Lease with immediate effect and without prejudice to any right for indemnification or other remedies which such party may have. Except as may be prohibited by applicable bankruptcy and insolvency law, in the event of a party's insolvency or inability to pay debts as they become due, voluntary or involuntary bankruptcy proceedings by or against that party, or appointment of a receiver or assignee for the benefit of creditors, the other party may terminate any Lease by written notice. If Customer is in default of any Hardware return obligations under these Hardware Terms, Aero Hygenx’ personnel, agents and representatives may at any time, at Customer’s risk, cost and expense, enter Customer’s premises where the Hardware is stored or used in order to recover the Hardware.
The following additional terms apply to any Cloud Services contained within an Offering:
10.1. Service Level Agreements
During the Subscription Term, Aero Hygenx will comply with the applicable service level agreements for Cloud Services as set forth in any applicable Supplemental Terms.
10.2. Changes to Cloud Services
Cloud Services may be modified, discontinued, or substituted by Aero Hygenx from time to time. During a Subscription Term, Aero Hygenx will not materially degrade core features or functionalities of Cloud Services or discontinue Cloud Services without making available substitute Cloud Services, except as necessary to address (i) new legal requirements, (ii) changes imposed by Aero Hygenx’s vendors or subcontractors (e.g. the termination of Aero Hygenx’s relationship with a provider of software or services which are required for the provision of such Cloud Services), or (iii) security risks that cannot be resolved in a commercially reasonable manner. Aero Hygenx will notify Customer of any such material degradation or discontinuation of Cloud Services as soon as reasonably practicable, and Customer may terminate the Order for the applicable Offering by providing Aero Hygenx with written notice within 30 days after Customer’s receipt of notice of degradation or discontinuation. In the event of such termination or discontinuation of Cloud Services, Aero Hygenx will refund any prepaid fees for the applicable Offering on a pro-rata basis for the remainder of the Subscription Term for that Offering.
10.3. Out of Scope
Any contractual relationship regarding Third Party Content is solely between Customer and the relevant third-party vendor and may be governed by separate terms made available by Aero Hygenx with or as part of Third Party Content. Aero Hygenx will have no responsibility for Third Party Content or Customer’s use of such Third-Party Content. Cloud Services specifically exclude (i) access to the internet or any other network, (ii) suitable connectivity or any other resources necessary for accessing or using Cloud Services, and (iii) the transmission of Content to and from the exit of the wide area network of the data centers used by Aero Hygenx to provide Cloud Services.
10.4. Acceptable Use Policy; Indemnity
Customer will comply, and ensure that all users of any Offering comply, with the AUP. Customer will indemnify Aero Hygenx, its affiliates, its subcontractors, and their representatives against any claims, damages, fines, and cost (including attorney’s fees and expenses) relating in any way to (i) any violation of the AUP by Customer or any user, (ii) any violation of laws, regulations, or rights of others by Customer’s or any user’s use of any Offering, or (iii) Customer Content.
10.5. Ownership and Use of Customer Content
Aero Hygenx will not acquire any title to or ownership of Customer Content by virtue of this Agreement. Aero Hygenx and its subcontractors will use Customer Content only for the purpose of providing Offerings, or as otherwise permitted by this Agreement or agreed by the parties. Customer is responsible for the content, management, transfer, use, accuracy, and quality of Customer Content and the means by which Customer acquires such Customer Content. Aero Hygenx recommends that Customer confirms the geographic area in which Customer Content will be stored, which may be outside the country in which Customer is located. Customer will ensure that Customer Content can be processed and used as contemplated by this Agreement without violating any rights of others or any laws or regulations.
10.6. Protection of Customer Content
Cloud Services will be provided using processes and safeguards designed to protect the integrity and confidentiality of Customer Content. Customer remains responsible for taking appropriate steps regarding protection, deletion, and retrieval of Customer Content, including by maintaining backup copies. Some Cloud Services may provide features that allow Customer to share Customer Content with third parties or make Customer Content public through use of certain Cloud Services. If Customer elects to use such features, Customer Content may be accessed, used, and shared by third parties to whom Customer provides such access or shares such Customer Content, and Customer’s election to use such features is at its sole discretion and risk.
In addition to the limitation of liability provisions contained in the Agreement, the following applies to Hardware and any related services:
11.1. Aero Hygenx will not be liable for (i) any loss or damage partially or entirely caused by the failure to observe any and all instructions related to the Hardware or Service Pack provided by Aero Hygenx, (ii) any loss or damage caused by Hardware which has been modified or maintained by parties other than Aero Hygenx, or (iii) any loss or damage caused by data generated by the Hardware or the use thereof.
11.2. Customer will indemnify and hold Aero Hygenx harmless from any and all claims, losses (financial or otherwise), damages, liabilities, costs, increased taxes or expenses (including without limitation, court costs and reasonable attorneys’ fees), which may be incurred or which may be claimed by any person arising out of or related to the manner in which the Hardware-related services were performed if such manner results from instructions of Customer or its authorized representative.
The provisions of this Section 11 will survive the expiration or termination of the Agreement.
12.1. General
Customer shall comply with all applicable sanctions, embargoes and (re-)export control, laws, and regulations, and, in any event, with those of Canada, the United States of America, the European Union, and any locally applicable jurisdiction (collectively “Export Regulations”).
12.2. Checks for Goods and Services
Prior to any transaction by Customer concerning goods (including Hardware, Documentation and technology) delivered by Aero Hygenx, or services (including Professional Services, maintenance and technical support) performed by Aero Hygenx to a third party, Customer shall check and certify by appropriate measures that (i) the Customer’s use, transfer, or distribution of such goods and services, the brokering of contracts or the provision of other economic resources in connection with goods and SISW UCA version 1.1 (April 1, 2023) Unrestricted 6/8 services will not be in violation of any Export Regulations, also taking into account any prohibitions to circumvent these (e.g., by undue diversion); (ii) the goods and services are not intended or provided for prohibited or unauthorized non-civilian purposes (e.g. armaments, nuclear technology, weapons, or any other usage in the field of defense and military); (iii) Customer has screened all direct and indirect parties involved in the receipt, use, transfer, or distribution of the goods and services against all applicable restricted party lists of the Export Regulations concerning trading with entities, persons and organizations listed therein; and (iv) goods and services within the scope of items-related restrictions, as specified in the respective annexes to the Export Regulations, will not, unless permitted by the Export Regulations, be (a) exported, directly or indirectly (e.g., via Eurasian Economic Union (EAEU) countries), to Russia or Belarus, or (b) resold to any third party business partner that does not take a prior commitment not to export such goods and services to Russia or Belarus.
12.3. Non-Acceptable Use of Software and Cloud Services
Customer shall not, unless permitted by the Export Regulations or respective governmental licenses or approvals, (i) download, install, access or use the Software or Cloud Services from or in any location prohibited by or subject to comprehensive sanctions or subject to license requirements according to the Export Regulations; (ii) grant access to, transfer, (re-)export (including any ‘deemed (re-) exports’), or otherwise make available the Software or Cloud Services to any entity, person, or organization identified on a restricted party list of the Export Regulations, or owned or controlled by a listed party; (iii) use the Software or Cloud Services for any purpose prohibited by the Export Regulations (e.g. use in connection with armaments, nuclear technology or weapons); (iv) upload to the Cloud Services platform any Customer Content unless it is non-controlled (e.g. in the EU: AL = N; in the U.S.: ECCN = N or EAR99); or (v) facilitate any of the aforementioned activities by any user. Customer shall provide all users with all information necessary to ensure compliance with the Export Regulations.
12.4. Information
Upon request by Aero Hygenx, Customer shall promptly provide Aero Hygenx with all information pertaining to users, the intended use, and the location of use, or the final destination (in the case of Hardware, Documentation and technology) of the Offerings. Customer will notify Aero Hygenx prior to Customer disclosing any information to Aero Hygenx that is defense-related or requires controlled or special handling pursuant to applicable government regulations and will use the disclosure tools and methods specified by Aero Hygenx.
12.5. Indemnification
Customer will indemnify and hold harmless Aero Hygenx, its affiliates, subcontractors, and their representatives against any claims, damages, fines, and costs (including attorney’s fees and expenses) relating in any way to Customer’s noncompliance with this Section 12, including Customer’s and its users’ and third party business partners’ violation or alleged violation of any Export Regulations and Customer will compensate Aero Hygenx for all losses and expenses resulting thereof.
12.6. Reservation
Aero Hygenx shall not be obligated to fulfill this Agreement if such fulfillment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions. Customer acknowledges that Aero Hygenx may be obliged under the Export Regulations to limit or suspend access by Customer and/or users to the Offerings.
13.2. Exclusions
The obligations in Section 13.1 will not apply to any Confidential Information that (i) is or becomes generally available to the public other than as a result of disclosure by the receiving party in violation of this Agreement, (ii) becomes available to the receiving party from a source other than the disclosing party, provided that the receiving party has no reason to believe that such source is itself bound by a legal, contractual, or fiduciary obligation of confidentiality, (iii) was in the receiving party’s possession without an obligation of confidentiality prior to receipt from the disclosing party, (iv) is independently developed by the receiving party without the use of, or reference to, the disclosing party’s Confidential Information, or (v) is required to be disclosed by a government authority or law, so long as the receiving party promptly provides the disclosing party with written notice of the required disclosure, to the extent such notice is permitted by law, and cooperates with the disclosing party to limit the scope of such disclosure.
13.1. Confidential Information
“Confidential Information” means all information disclosed by one party or any of its affiliates or subcontractors to the other party under this Agreement that is marked as confidential or the confidential nature of which is evident to a reasonable person. Aero Hygenx Confidential Information includes the terms of this Agreement and any Order, Offerings, Systems Information, Aero Hygenx IP, and any information Customer derives from benchmarking any Offering. The receiving party will (i) not disclose Confidential Information, except (a) on a need-to-know basis to its and its affiliates’ employees, consultants, contractors, and financial, tax, and legal advisors that are bound by confidentiality obligations and use restrictions at least as restrictive as those in this Agreement, or (b) as otherwise authorized by the disclosing party or this Agreement, (ii) use Confidential Information only as required to exercise or enforce rights or perform obligations under this Agreement, and (iii) use reasonable care to protect against unauthorized use and disclosure of the disclosing party’s Confidential Information. The receiving party will be liable for compliance with Section 13 by each of its recipients. Aero Hygenx and its affiliates may name Customer as a customer on their websites and in customer lists and other marketing materials.
13.2. Exclusions
The obligations in Section 13.1 will not apply to any Confidential Information that (i) is or becomes generally available to the public other than as a result of disclosure by the receiving party in violation of this Agreement, (ii) becomes available to the receiving party from a source other than the disclosing party, provided that the receiving party has no reason to believe that such source is itself bound by a legal, contractual, or fiduciary obligation of confidentiality, (iii) was in the receiving party’s possession without an obligation of confidentiality prior to receipt from the disclosing party, (iv) is independently developed by the receiving party without the use of, or reference to, the disclosing party’s Confidential Information, or (v) is required to be disclosed by a government authority or law, so long as the receiving party promptly provides the disclosing party with written notice of the required disclosure, to the extent such notice is permitted by law, and cooperates with the disclosing party to limit the scope of such disclosure.
14.1. Aero Hygenx Affiliates and Subcontractors
Aero Hygenx’s ultimate parent company or companies directly or indirectly owned or controlled by Aero Hygenx’s ultimate parent company may exercise Aero Hygenx’s rights and fulfill Aero Hygenx’s obligations under this Agreement. Aero Hygenx’s may use resources in various countries to provide Offerings, including unaffiliated subcontractors. Aero Hygenx remains responsible for its obligations under this Agreement.
14.2. Assignment
This Agreement will extend to and be binding upon the successors, legal representatives, and permitted assignees of the parties. However, this Agreement and the rights granted under this Agreement may not be assigned, sublicensed, or otherwise transferred (by operation of law or otherwise) by Customer without the prior written consent of Aero Hygenx. Any attempted assignment in violation of this Section will be void. SISW UCA version 1.1 (April 1, 2023) Unrestricted 7/8
14.3. License Rights Applicable to the U.S. Government
Offerings are commercial products that were developed exclusively at private expense. If Offerings are acquired directly or indirectly for use by the U.S. Government, then the parties agree that such are considered ‘Commercial Items’ and ‘Commercial Computer Software’ or ‘Computer Software Documentation’, as defined in 48 C.F.R. §2.101 and 48 C.F.R. §252.227-7014(a)(1) and (a)(5), as applicable. Offerings may only be used under the terms of this Agreement as required by 48 C.F.R. §12.212 and 48 C.F.R. §227.7202. The U.S. Government will only have the rights set forth in this Agreement, which supersedes any conflicting terms or conditions in any government order document, except for provisions which are contrary to applicable mandatory federal laws. Aero Hygenx will not be required to obtain a security clearance or otherwise be involved in accessing U.S. Government classified information.
14.4. Feedback
If Customer provides any ideas or feedback regarding any Offering, including suggestions for changes or enhancements, support requests (including any related information), and error corrections (collectively “Feedback”), Feedback may be used by Aero Hygenx without condition or restriction.
14.5. Force Majeure
Neither party will be liable for delay or failure to perform any obligations under this Agreement (except with respect to any payment obligations) due to any cause beyond its reasonable control. The delayed party will promptly notify the other party of any such event.
14.6. Information Obligations; Audit
Customer will provide information or other materials that Aero Hygenx reasonably requests to verify Customer’s compliance with this Agreement. Upon reasonable advance notice, Aero Hygenx may conduct an audit of Customer’s compliance with this Agreement. To minimize Customer disruption, Aero Hygenx may conduct remote audits using scanning tools operated by Customer to collect audit information. At Aero Hygenx’s discretion, Customer will permit Aero Hygenx or its authorized agents to access facilities, workstations, and servers and take all commercially reasonable actions to assist Aero Hygenx in the audit. Aero Hygenx and its agents will comply with reasonable security procedures communicated to Aero Hygenx while on Customer’s premises.
14.7. Notices
Aero Hygenx may notify Customer under this Agreement by (i) posting a notification on Cloud Services or on the administrative user account that Customer maintains with Aero Hygenx to manage subscriptions to Offerings (“Subscription Console”), (ii) sending an email or other text message to the address or contact number provided by Customer for business contact or then-associated with the Subscription Console, or (iii) sending an email to relevant users. It is Customer’s responsibility to regularly visit Cloud Services and the Subscription Console and to always provide Aero Hygenx with current email addresses of Customer representatives. If Customer does not comply with such obligation or if Customer’s receipt of a notice fails because of technical issues related to equipment or services which are under Customer’s or Customer subcontractors’ control, notices will be deemed to have been provided to Customer three days following the date of such notice. Notwithstanding the foregoing, notices regarding claims or disputes will always be sent to the party’s address as specified in the applicable Order. A party may change its address for receipt of notice by delivery of written notice to the other party.
14.8. Language
If Aero Hygenx provides a translation of the English language version of this Agreement, the English language version of this Agreement will control in the event of any conflict.
14.9. Governing Law and Jurisdiction
This Agreement will be subject to the applicable laws set forth in the table below, as set forth therein, without reference to any conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any dispute arising out of or in connection with this Agreement will be resolved as set forth in the table below:
The applicable law will be:
Any dispute arising out of or in connection with these terms of sale will be:
The United States
The laws of the State of New York
subject to the jurisdiction of the courts of the State of New York, USA. Each party hereby irrevocably submits itself to the personal jurisdiction of the relevant court of the State of New York for any such disputes.
Any other country
The laws of Ontario, Canada
subject to the jurisdiction of the courts of the State of New York, USA. Each party hereby irrevocably submits itself to the personal jurisdiction of the relevant court of the State of New York for any such disputes.
If Customer is purchasing Offerings
with destination in:
14.10. No Waiver; Validity and Enforceability
The failure to enforce any provision of this Agreement will not be construed as a waiver of such provision. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will not be affected, and such provision will be deemed to be restated to reflect the original intentions of the parties as nearly as possible in accordance with applicable law. The parties agree that electronic signatures or acceptance of this Agreement via an electronic system specified by Aero Hygenx will have the same force and effect as manual signatures.
14.11. Entire Agreement
This Agreement constitutes the full and complete agreement between the parties with respect to the subject matter thereof and supersedes any previous or contemporaneous agreements or communications, whether written or verbal, relating to such subject matter. The reference to a document that refers to another document will be deemed to also include such other document, unless otherwise stated therein. This Agreement may not be varied except as set out in any Supplemental Terms or otherwise in writing executed by manual signatures or electronic signatures of authorized representatives of both parties or via an online mechanism, if so provided explicitly for such purpose by Aero Hygenx. No other terms and conditions will apply. The terms of any purchase order or similar Customer document are excluded and such terms will not apply to any Order and will not supplement or modify this Agreement irrespective of any language to the contrary in such document.
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