YELLOW AEROPLANE WEB SOLUTIONS, LLC
Standard Terms and Conditions
Acceptance by Customer of any proposal, quotation or invoice (a "Proposal") issued by Yellow Aeroplane Web Solutions, LLC ("YAWS"), to which these terms and conditions are attached or by reference made a part of, shall constitute an agreement between Customer and YAWS with respect to the responsibilities of YAWS and Customer pursuant to the Proposal (the "Agreement"), which may include items considered by YAWS to be its own proprietary product ("YAWS Technology") or which may constitute a web site ("Web Site") or space on or access to a web server "("Web Server"). The Agreement shall consist of the Proposal and these terms and conditions, together with any modifications made in accordance with the terms hereof. No terms or conditions, other than those stated herein, and no agreement or understanding in any way modifying the terms and conditions stated herein, shall be binding upon YAWS unless made in writing and signed by YAWS' duly authorized officer. Written or verbal acceptance of any Proposal and/or the acceptance of deliverables or services by Customer shall constitute Customer's assent to these exclusive terms and conditions with respect to such Proposal. This order and contract shall be governed exclusively by, and be construed in accordance with, the laws of the State of Ohio (except the conflicts of laws provisions thereof).
1. Scope of Service. YAWS shall provide only those professional services and/or products specified in the Proposal (the "Work"). Customer understands and agrees that unless listed in the Proposal, YAWS is not responsible for any other work or scope of supply or any disclosure, notifications or reports that may be required to be made to third parties, including appropriate governmental authorities. If Customer requests and YAWS agrees to perform any services that are in addition to or outside the scope of Work identified in the Proposal, Customer shall promptly pay YAWS for such services in accordance with the terms and rates shown in the Proposal or, if no such terms or rates are shown in the Proposal, in accordance with YAWS' standard terms and rates for the services performed.
2. Fees. Customer shall pay YAWS for the Work based upon the price or the rates shown in the Proposal.
3. Payment Terms. In the event Customer fails to make payment in full within the time period set forth in the Proposal, such failure to pay on time constitutes a material breach of contract by Customer permitting YAWS to suspend its performance hereunder, and YAWS shall have all other remedies permitted to YAWS by law, equity and these terms. Past due invoices shall bear interest at the rate of one-half percent (1-1/2%) per month, or the highest rate allowed by applicable law, whichever is lower and, if Customer has provided YAWS with a credit card authorization, YAWS shall be entitled to charge the invoice amount and interest against such card. If YAWS must take legal action to collect any amount due hereunder, Customer shall pay all court costs plus attorney's fees incurred by YAWS in bringing such legal action.
4. Standard of Care. The Work shall be carried out by YAWS in a manner consistent with that level of care and skill ordinarily exercised by others currently providing similar services under similar circumstances at the time the services are performed. YAWS shall provide Customer with good title to all goods supplied hereunder, and any such goods will be the make and model represented, or an equivalent substitute as determined by YAWS. NO OTHER WARRANTY, EXPRESS OR IMPLIED, WHETHER CONTAINED IN MATERIALS PROVIDED OR STATEMENTS MADE BY YAWS OR OTHERWISE, IS MADE BY YAWS WITH RESPECT TO THE QUALITY, RESULT, EFFECTIVENESS OR OUTCOME OF THE WORK, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY SUCH ADDITIONAL WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. Customer acknowledges and agrees that it shall be bound by the terms of any Agreement entered into by YAWS with third parties (including shrink wrap or other standard licenses and agreements) for hardware or software provided by YAWS for use by Customer. Customer's sole remedy for a breach of the foregoing warranty is to require YAWS to correct or replace, at YAWS' election, the affected service or deliverable.
5. Limitations of Liability. In no event shall YAWS or any of its owners, officers or employees be liable to Customer, or anyone claiming by, through or under Customer, for any special, incidental, indirect or consequential damages whatsoever arising out of or resulting in any way, directly or indirectly, from the Work or the acts or omissions of YAWS' employees or agents, whether or not any such losses or damages are caused by negligence, professional errors or omissions, strict liability, breach of contract, breach of express or implied warranty or otherwise. In no event shall YAWS be liable to Customer for negligence, professional errors or omissions, strict liability, breach of contract, breach of express or implied warranty or otherwise unless Customer provides YAWS with written notice of the claim within six months of the date the service or deliverable was provided to Customer. YAWS' liability for any claim relating to the Work shall be limited to the amount paid to YAWS by Customer pursuant to the Proposal.
6. Web Site Disclaimers and Restrictions.
6.1. The Web Site is presented by YAWS from within the United States, and YAWS makes no representation that materials in the Web Site are appropriate or available for use in locations outside the United States. Neither the Web Site, nor any underlying software, data, code, information or technology may be used, downloaded or otherwise exported or re-exported into, or to a national or resident of any country to which the United States has embargoed goods (for example, Cuba, Iran, Libya, North Korea, Sudan, Syria) or to anyone on the U.S. Treasury Department's list of Specially Designated Nations or the U.S. Commerce Department's Table of Denial Orders. By downloading or using any element of the Web Site, Customer is agreeing to the forgoing and Customer is certifying that Customer is not located in, under the control of, or a national or resident of any such country or on any such list. In addition, Customer is responsible for complying with any and all local laws in Customer's jurisdiction that may impact Customer's right to use the Web Site or the YAWS Technology.
6.2. There may be links on the Web Site that allow Customer and users to visit the web sites of third parties. Neither these sites nor the companies to whom they belong are controlled by YAWS. YAWS makes no representations concerning the information provided or made available on such sites nor the quality or acceptability of the products or services offered by any persons or entities referenced in any such sites. YAWS has not tested and makes no representations regarding the correctness, performance or quality of any software found at any such sites. Customer should research and assess the risks that may be involved in accessing and using any software on the Internet before using it.
6.3. YAWS does not warrant that the YAWS TECHNOLOGY, Web site or Web server CAN OR will be maintained free of viruses or other harmful code. YAWS ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, CUSTOMER'S COMPUTER EQUIPMENT OR OTHER PROPERTY AS A RESULT OF CUSTOMER'S ACCESS TO, USE OF, OR VIEWING OF THE WEB SITE OR ANY DOWNLOADING OF DATA, TEXT, IMAGES OR SOFTWARE FROM THE WEB SITE.
6.4. YAWS makes no warranties that the information presented on the Web site is current, up-to-date, or accurate. The entire risk as to the quality, accuracy, adequacy, completeness, correctness and validity of any data rests with Customer.
6.5. YAWS MAY AT ANY TIME MAKE IMPROVEMENTS AND/OR CHANGES IN THE YAWS TECHNOLOGY AND/OR THE WEB SITE BUT YAWS ASSUMES NO OBLIGATION TO CORRECT ANY ERROR, INACCURACY OR DEFECT IN THE WEB SITE OR YAWS TECHNOLOGY WIthin any specific timeframe.
6.6. YAWS DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM YAWS' NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). YAWS CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY YAWS DISCLAIMS ANY AND ALL WARRANTY OR OTHER LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
6.7. YAWS SHALL NOT BE LIABLE FOR ANY LOSS OF DATA RESULTING FROM DELAYS, CORRUPTION OF DATA, NON-DELIVERIES, MIS-DELIVERIES OR SERVICE INTERRUPTIONS. EXCEPT TO THE EXTENT OF YAWS'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER YAWS NOR ITS THIRD PARTY SERVICES PROVIDERS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO YAWS' OR CUSTOMER'S TRANSMISSION FACILITIES OR EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF YAWS' OR THIRD PARTY SERVICES PROVIDERS' NEGLIGENCE.
6.8. All information submitted on the Web Server(s) shall be considered publicly accessible. Customer should protect important and private information. YAWS is not liable for any errors or omissions in the Customer Web site content nor is YAWS liable for legal disputes resulting from opinions or facts expressed in the Customer Web site content.
6.9. Customer is expressly prohibited from using the Web Site or other YAWS Technology to send unsolicited bulk mail messages (i.e., "junk mail" or "Spam") or malicious or threatening messages. This includes, but is not limited to, bulk mailing of commercial advertising, information announcements, and political tracts. Such material may only be sent to those who have specifically requested it through registration and otherwise in compliance with the U.S. CAN-Spam Act and other similar federal, state and local laws. Customer agrees that YAWS may use industry standard methods to monitor, scan and delete email communications that are of this nature and Customer can not hold YAWS responsible for any errors or omissions with respect to the filtering or monitoring of email communications.
6.10. Each party does hereby represent to the other and unconditionally guarantee that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished by such providing party or by third parties on behalf of such party for inclusion in the Customer Web site are owned by the providing party, or the providing party has permission from the rightful owner to use each of these elements, and the providing party will indemnify, hold harmless, protect, and defend the other party from any claim or suit arising from the use of such materials. Whichever party creates or modifies the Web site content containing such elements will label it with Copyright information and include any Legal/Privacy statements requested by the owner thereof. Customer unconditionally guarantees that it will not use Copyrighted or Trademarked materials or content without first notifying YAWS and receiving the necessary permissions.
7. Third Party Products. YAWS may provide Customer access to other third party software and/or services ("Third Party Products") through reseller relationships or other service agreements or end-user licenses YAWS has established with certain commercial vendors ("Third Party Vendors"). Customer shall not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Third Party Product or that appear during use of any Third Party Product. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CUSTOMER'S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM YAWS OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER YAWS NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT.
8. Ownership and Right to Use. YAWS agrees to grant Customer a limited, personal, non-transferable, and non-exclusive right to use license for YAWS Technology delivered to or used by Customer pursuant to this Agreement, subject to the following conditions. This license shall be for Customer's internal use only and Customer is expressly prohibited from assigning, sub-licensing, selling or otherwise exploiting such right to use in any manner at any time. This license is non-exclusive, meaning that YAWS reserves all right, title and interest in and to such YAWS Technology, including the right to use, sell, license, transfer, assign or otherwise exploit the same. YAWS shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer, and YAWS reserves, in its sole discretion, the right to change or remove any and all IP numbers and addresses. Customer shall own the publicly viewable content of the Web Site such as Web page content text and graphic images, logos and other graphic images designed for Customer by YAWS, news articles, blogs, frequently asked questions, community forums, and streaming media files subject to the license(s) and restrictions imposed by third parties for any of the Web site content and the terms and conditions contained herein; provided, however, Customer shall not have any ownership rights in any YAWS Technology. "YAWS Technology" means YAWS' proprietary technology, including any and all software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by YAWS or licensed to YAWS from a third party), and specifically including any derivatives, improvements, enhancements or extensions thereof conceived, reduced to practice, or developed during the term of this Agreement by either YAWS or Customer that are not uniquely applicable to Customer or that have general applicability in the art.
9. Termination.
9.1. This Agreement may be terminated by either party at any time during any ongoing term for any or no reason upon either party giving to the other no less than ninety (90) days' prior written notice of termination. If Customer terminates this Agreement pursuant to this Section 9.1, any and all payment obligations of Customer under this Agreement for Services provided through the date of termination will immediately become due, and Customer shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during such ninety (90) day period.
9.2. In addition to any other rights it may have under this Agreement or applicable law, YAWS may immediately terminate this Agreement or suspend service, effective without notice, in the event of (i) a payment default, or (ii) Customer's breach or failure to comply with any other obligation of Customer under this Agreement and its failure to cure such breach within ten (10) days after receipt of written notice of same. If this Agreement is terminated by YAWS under this Section 9.2, all remaining monthly recurring and other charges under this Agreement for the balance of the then current ongoing term shall immediately become due and payable and, in addition to the foregoing, YAWS reserves the right to terminate the license granted hereunder.
10. Access to Site and Information. Customer will provide for right of entry and access to all relevant sites, equipment and other information in its control or possession as is necessary for YAWS to timely and fully complete the Work. YAWS is not responsible for the quality or accuracy of data or information, nor for the methods from which the data was developed, where such information or data is provided by or through Customer or others that are not agents or YAWS, and YAWS has no obligation to investigate facts or conditions not disclosed to it by Customer.
11. Force Majeure. YAWS is not liable for any failure to perform, or delay in performance, due to circumstances beyond its reasonable control, including but not limited to, riots, wars, fires, floods, explosions, strikes, acts of nature, and acts of government. If YAWS' services are interrupted due to any such force majeure cause, Customer and YAWS shall negotiate a reasonable extension of time for YAWS' performance and payment of any additional costs to be incurred by YAWS as a result thereof.
