Terms

Updated: June 15, 2018

 

Please read these terms of service (the “Terms“) carefully as they form a legal contract between You as a user of our services (“You”, “Your”, or “Yourself”) and Airvel, LLC, a Tennessee limited liability company (“Airvel“, “we“, “us“, or “our“), that governs Your access and use of Airvel’s services including those that facilitate communications between You and unrelated third party charter flight operators (“Operator”) through Airvel’s website located at www.airvel.com (the “Site“), and any mobile applications offered by Airvel (the “Applications”) (collectively, the Site and Applications are, the “Services”).

 

Should You have any questions concerning these Terms, please contact support@wpdev2.airvel.com. Please note that, as more fully set forth below, Airvel does not provide warranties for the Services, and this contract also limits our liability to You.

 

By using any of the Services, including but not limited to downloading, installing or using the Services, You agree to be bound by these Terms. If You are using the Services on behalf of an organization, You are agreeing to these Terms for that organization and representing to Airvel that You have the authority to bind that organization to these Terms (in which event, “You” and “Your” will refer to that organization) unless that organization has a separate contract in effect with us, in which event the terms of that contract will govern Your use of the Services.  IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICES.

 

Airvel is an aircraft charter broker and is acting solely as agent on behalf of the charterer.  Airvel is not an air carrier and does not provide or act in any way as an air carrier.  Only Operators offer charter flights and related services (collectively, the “Charter Flight”) on the Services.  Airvel provides Charter Flight data to the Services which allow You to engage Operators to secure Charter Flight(s).  These Terms do not constitute a charter flight contract. All Charter Flights will be subject to the terms and conditions of the Operator selected and engaged through the Services by You.

 

By using Airvel You acknowledge and agree that Airvel has no liability with respect to the information contained on the Services, the Charter Flight, or the Operator.  Any and all claims arising from information provided by the Operator, Operator’s failure to perform, or the Charter Flight, INCLUDING BUT NOT LIMITED TO CHANGE OR CANCELLED FLIGHTS REGARDLESS OF CAUSE, UNEXPECTED CREW UNAVAILABILITY, AIRCRAFT MECHANICAL ISSUES, INABILITY TO OBTAIN THE NECESSARY SLOT OR LANDING APPROVAL, GOVERNMENT RESTRICTIONS, FIRE, FLOODING, WAR, TERRORISM, ACTS OF GOD AND/OR OTHER CAUSES WITHIN OR BEYOND OPERATOR’S CONTROL, must be directed to and settled with the Operator. 

 

CHANGES TO THESE TERMS. We reserve the right to modify or replace these Terms at any time in our sole discretion.  Any changes to these Terms will be effective upon posting the revised version of these Terms (or such later effective date as may be indicated at the top of the revised Terms), provided; however, that bookings made prior to the date of modification or replacement shall be governed by the Terms then in effect. The date of these Terms should be checked whenever You visit the Services to see if these Terms have been updated. Your continued access or use of any portion of the Services after the effective date of any changes means You accept and agree to the changes.

 

ACCESS TO THE SERVICES. You may use the Services, on a non-exclusive basis, solely in strict compliance with these Terms and all applicable laws. By using the Services You represent and warrant that (i) You are at least 18 years old, are at least of the legally required age in the jurisdiction in which You reside, and are otherwise capable of entering into binding contracts; (ii) You have the right, authority and capacity to contractually bind Yourself or Your principal; and (iii) You will abide by and are subject to these Terms.

 

USE OF SERVICES; FLIGHT QUOTES; RESERVATION CONFIRMATION. You are responsible for entering accurate information and trip details into the Services’ forms (“Mission Profile”). Following receipt of Your Mission Profile, Airvel will review and, if reasonably available, provide You one or more quotes for Charter Flights that match your Mission Profile (the “Quote”). All Quotes are subject to aircraft availability, crew availability, and Operator approval.  All Quotes are based on information provided by the Operator. Airvel does not guarantee the information provided in the Quote.  A Quote can be revoked or changed at any time prior to receipt of a Charter Flight confirmation as discussed below. Airvel is not liable for any changes in any Quote. In confirming a proposed Charter Flight, You are solely responsible for verifying all details as accurate and desired.

 

When providing your Mission Profile You are responsible for submitting specific and accurate information for all passengers that will be on the Charter Flight.  Certain factors, including but not limited to, may affect the Quote: passenger count, weight, height, age, access and seating accommodations, luggage and/or cargo value, size and weight, and pets. The failure to provide accurate or timely information may delay the receipt of a Quote, delay a booked Charter Flight, or result in a cancellation of the Charter Flight by Airvel or the Operator. 

 

You and Your passengers shall comply with all applicable DOT, FAA, TSA and other laws and regulations.  You represent and warrant that You are purchasing each Charter Flight for a single entity or self-aggregating group of passengers, and have not, and will not, sell individual seats on such Charter Flight, or take other actions which would make You appear to be acting as an indirect air carrier or changing the nature of the flight to a “scheduled operation” (as defined by the DOT and FAA). 

 

Operator may require, at least seventy-two (72) hours prior to the first segment of each Charter Flight, the following information: (i) full name, date of birth, nationality, gender and place of birth for each passenger on each segment of the Charter Flight; (ii) type, size and weight of all baggage and/or cargo for each segment of the Charter Flight; (iii) any special requirements of You, including but not limited to, catering, favored fixed base operator, and ground transportation; (iv) when any passenger on a Charter Flight segment departing from and/or arriving in the United States is a non-United States citizen, the appropriate Alien Registration Number (Green Card), visa, or other documentation demonstrating the individual is authorized to be in the United States; (v) for international segments of Charter Flights, copies of the passport showing the passport number, country which issued passport, passport expiry date, and copies of all required visas (if any) for each passenger; and (vi) email address and mobile telephone number for the lead passenger on each Charter Flight segment. You acknowledge and understand each passenger may be required to show the following documentation prior to boarding the aircraft on each Charter Flight segment: (i) for all Charter Flight segments, one form of government issued photo identification, (ii) for each individual under the age of eighteen (18) in addition to the requirements of (i) they must be accompanied by: (a) both parents, (b) one parent, in which case that parent shall provide the Operator with evidence that such parent has sole custody of the minor, or evidence that the other parent or legal guardian has consented to the minor traveling with the accompanying parent on the Charter Flight; or (c) a legal guardian(s), in which case the legal guardian shall provide Operator with evidence of the extent of his/her/their legal guardianship status, and if custody of the minor is shared with another individual, documentation of that other individual’s consent to the minor traveling with the accompanying legal guardian on the Charter Flight; and (iii) for each Charter Flight segment which is not wholly within the United States, such passenger’s passport and all required visas. Failure to provide the information in this section within the time frame required by Operator, or failure of any passenger to present the required documentation as referenced in this section, could result in the applicable passenger(s) being denied boarding on the aircraft. Airvel shall have no liability for any denied boarding.

 

Charter Flights will not be ”Fully Reserved” until You (i) accept Airvel’s service charge, (ii) pay  all amounts listed on the Quote for the Charter Flight in accordance with the Services’ payment requirements, including the provision of valid identification and proof of credit card, and (iii) receive a Charter Flight confirmation. Once a Charter Flight is Fully Reserved You are subject to the cancellation policy and all other policies, rules and requirements of the Operator as well as these Terms.

 

TERMS OF PAYMENT FOR SERVICES. The cost of the Charter Flight, actual or estimated taxes, and additional fees payable directly to the Operator, will be presented on the Quote (the “Quoted Amount”).  If the Quoted Amount is not paid, Your Charter Flight may be cancelled or delayed. You retain the responsibility for settling all outstanding balances in a timely manner and maintaining updated billing information with Airvel.  Except as specifically set forth in these Terms or on the Services, all Quoted Amounts are non-refundable.  Except as prohibited by law, we may assess a late charge if You do not pay on time. You are required to pay these late charges when we bill You for them. The late charge will be the lesser of one percent (1%) of the unpaid amount each month or the maximum rate permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys’ fees and other legal fees and costs.  We may suspend or cancel Your access to the Services if You fail to pay in full on time.

 

If a fuel surcharge is stated in Your quote, this amount may change prior to the departure date and You shall be charged for such changed final amount. You shall be responsible for federal and state excise taxes, leg segment taxes, international departure and arrival taxes, airport taxes, and all other similar taxes, fees, and charges.

 

Note that, unless specifically stated, Your Quote may not include charges specific to Your Charter Flight, including but not limited to, catering, ground transportation, parking, flight phone usage, internet (Wi-Fi) usage, excess luggage fees, fees for bringing pets, cleaning and maintenance related to pets or excessive use, additional flight time due to weather, ramp, hangar or de-icing charges. If You request and obtain any significant changes to the Charter Flight, such as flight time or location, You will be responsible for the additional costs associated with such changes. These incidental items and fees may be charged directly by the Operator or Airvel may charge the credit card You provided and used to pay for the Charter Flight.

 

You shall be responsible for all costs associated with any damage, stains, extraordinary wear and tear, or condition that requires extraordinary cleaning caused by, or otherwise attributed to, You or Your passengers on any Charter Flight.

 

USE OF AIRCRAFT. Your conduct flying with an Operator shall be in accordance with applicable laws and the rules of the Operator.  Neither You nor Your guests shall act in a manner that endangers the aircraft, other passengers, flight crew or property.  You and Your guests shall not obstruct or hinder the crew from the performance of their duties. You shall act in accordance with crew instructions with respect to smoking, taking of drugs, or drinking of alcohol, among other matters. Neither You nor Your guests shall use threatening, abusive or insulting language with the crew or act in a manner that causes discomfort, injury or damage to the crew.

 

MISSED FLIGHTS. You are obligated to fly according to the Charter Flight confirmation. You must be at the location noted in Your Charter Flight confirmation at the time indicated in such confirmation or if no time is stated than at least thirty (30) minutes prior to departure.

 

CANCELLATION POLICY. In the sole discretion of Airvel or any Operator (including its staff or pilots), a flight may be cancelled due to safety or other concerns or government requirements. In the event of such cancellation, Airvel will use reasonable efforts to secure a substitute flight. You will have a right to accept or decline a replacement aircraft and flight.   

 

USER CONTENT. Except for files, materials, data, text, audio, video, images or other content (“Content”) we provide, we don’t claim ownership of any Content that is transmitted, stored, accessed, processed, sold or purchased in or through Your account(s).  We also don’t control, verify, or endorse any Content that You and others (including but not limited to Operators) make available on the Services.  Content uploaded, expressed or submitted to the Services, other than any Content provided by Airvel, is solely the responsibility of the person or entity submitting it and does not necessarily reflect the opinion of Airvel. We are not responsible, or liable to You or any third party, for the content or accuracy of any Content posted by You or any other user of the Services. We provide functions that allow You to control who may access Your Content. If You enable the features that allow You to share Your Content with others, anyone You’ve shared content with (including the general public, in certain circumstances) may have access to Your Content and may distribute it to others without Your consent. You hereby grant Airvel and its employees and contractors the right, to use, modify, adapt,  reproduce, distribute, display and disclose Content You post on the Services solely to the extent necessary to provide the Services or as otherwise permitted by these Terms.  You represent and warrant that You have all the rights in Your Content necessary for You to use the Services and to grant the rights in this Paragraph. You will:  (a) be solely responsible for the nature, quality and accuracy of Your Content; (b) must ensure that Your Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to Your Content, including any notices sent to You or to Airvel by any person claiming that any of  Your Content violates any person’s rights, such as take-down notices pursuant to  the Digital Millennium Copyright Act and any other notices; and (d) maintain appropriate security, protection and backup copies of Your Content. Airvel will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any of Your Content. You must immediately notify Airvel in writing of any unauthorized use of (a) any of Your Content, (b) any account, or (c) the Services that comes to Your attention. In the event of any such unauthorized use by any third party that obtained access through You, You will take all steps necessary to terminate such unauthorized use. You will provide Airvel with such cooperation and assistance related to any such unauthorized use as Airvel may reasonably request.

 

LIMITS OF SERVICE. We reserve the right to withdraw or amend the Services, or any portion thereof, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. From time to time, we may restrict access to some or all Services to You.

 

CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION. By using the Services, You understand that we may send You communications or data regarding the Services, including but not limited to (a) notices about Your use of the Services, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding Airvel’s products and services, via electronic mail.  We will give You the opportunity to opt-out of receiving electronic mail from us by following the opt-out instructions provided in the message.

 

SOFTWARE. If You receive software from us (“Software”), its use is governed in one of two ways: (i) if You are presented with separate license terms that You must accept in order to use the Software, those terms apply; or (ii) if no separate license is presented to You, these Terms apply.  We reserve all other rights to the Software. We may automatically check Your version of the Software. We may also automatically download to Your computer or device new versions of the Software. Any Software is licensed, not sold. We may terminate and disable such software at any time. You must not work around any technical limitations in the Software.

 

COPYRIGHT COMPLAINTS AND REMOVAL POLICY. Airvel does not tolerate content that appears to infringe any copyright or other intellectual property rights or otherwise violates these Terms and will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us. We reserve the right to delete or disable content alleged to violate these Terms and to terminate access to the Services for repeat infringers. Our designated agent for notice of alleged copyright infringement is:

 

Airvel, LLC.

 

Attn:  DMCA Copyright Agent

__________________

 

_______________TN _____

 

__________________________ Phone: ( _________________ email:   legal@wpdev2.airvel.com

 

Federal law requires Your DMCA Notice to include the following information:

 

1.     Identification of the copyrighted work that You claim has been  infringed;

2.     Identification of the material, including URL, that You claim is infringing, with enough detail so that we may locate it;

3.     Your address, telephone number, and e-mail address;

4.     A statement declaring under penalty of perjury that (a) You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (b) the above information in Your notice is accurate, and (c) You are the owner of the copyright interest involved or You are authorized to act on behalf of that owner; and

5.     Your physical or electronic signature.

 

INTELLECTUAL PROPERTY NOTICES. All contents of the Services including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are: Copyright © 2015 Airvel, LLC and/or the proprietary property of its suppliers, affiliates, or licensors. All Rights Reserved. Airvel and the Airvel’s logo are either trademarks, service marks or registered trademarks of Airvel, LLC, and may not be copied, imitated, or used, in whole or in part, without Airvel’s prior written permission or that of our suppliers or licensors. Other product and company names may be trade or service marks of their respective owners. Airvel may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter that is part of the Services. Unless we have granted You licenses to our intellectual property in these Terms, our providing You with the Services does not give You any license to our intellectual property.  Any rights not expressly granted herein are reserved.

 

SERVICES AND RESTRICTIONS. You may not take any action which imposes an unreasonable or disproportionately large load on our infrastructure. You may not disclose or share Your password with any third parties or use Your password for any unauthorized purpose. Only You may use Your Services account. You must keep Your account and passwords confidential and not authorize any third party to access or use the Services on Your behalf, unless we provide an approved mechanism for such use.  You must contact us immediately if You suspect misuse of Your account or any security breach in the Services. You are responsible for all activities that take place with Your account.  Airvel will not be liable for any loss or damage arising from any unauthorized use of Your accounts. The functionality of the Services depends, among other things, on the availability of internet connectivity, net congestion and other factors.  You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Services. Airvel makes no warranties or guarantees as to the availability or reliability of the Services or the information provided to You or to any other user nor makes any commitment to provide You with on-going operational Services.

 

BOOKING INFORMATION AND PRIVACY. You will input personal information into forms on the Services to be able to obtain a Quote. The types of personal information collected by Airvel may include, if applicable: name, address, email address, birth date, company name, company contact name and title, company address, company contact email address, company telephone and facsimile number, company website URL, registrar username and password, service contract number, service level, product model number, product part  number, product serial number, MAC address, software license key number, purchase order number or sales order number, and payment details. When providing information to Airvel You must: (a) provide true, accurate, current and complete information about Yourself as requested by the Services’ registration form (such information being the “Registration Data“) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Airvel will primarily use Your personal information to provide You access to the Services and its functionality (such as using Your email address to send You passwords required to access and use the Services). Airvel may also occasionally use Your personal information, such as Your email address, to send You other communications, important service information and updates. Airvel engages other companies and individuals (“Agents”) to perform functions on its behalf, such as payment processing, order fulfillment, marketing assistance and customer service.  Airvel may share Your personal information with such Agents in order to perform these and other functions, but, unless Airvel informs You otherwise, such Agents may not use Your personal information for other purposes. For more information concerning Airvel’s privacy policy, please read the Airvel Privacy Policy.

 

CONTENT STANDARDS.  Content standards apply to any and all content You post using the Services.  Content You post must in its entirety comply with all applicable Federal, state, local and international laws and regulations. Without limiting the foregoing, Content You post must not:

 

(a)                                      Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable;

 

(b)                                      Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;

 

(c)                                      Infringe any patent, trademark, trade secret, copyright or other intellectual property rights of any other person;

 

(d)                                      Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms and our Privacy Policy;

 

(e)                 Be likely to deceive any person;

 

(f)              Promote any illegal activity, or advocate, promote or assist any unlawful act;

 

(g)                                      Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person;

 

(h)                                      Be used to impersonate any person, or to misrepresent Your identity or affiliation with any person or organization; or

 

(i)                                     Give the impression that they emanate from us or any other person or entity, if this is not the case.

 

PROHIBITED ACTIVITIES. You may not: (a) modify, adapt, alter, translate, or create derivative works of the Content or Services other than as approved of in writing by Airvel; (b) lease, rent, or loan the Content or other Services to any third party; (c) sublicense, distribute or otherwise transfer the Content or other Services or any component thereof to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Services; (e) remove, alter, or obscure any confidentiality or proprietary notices (including copyright and  trademark notices) of Airvel and or its licensors on the Services; (f) allow third parties to access or use the Services such as in a time-sharing arrangement or operate the Services as part of a service bureau or, otherwise for the use or benefit of third parties; (g) reproduce or use the Services except as expressly authorized hereunder; or (h) disclose or publish performance benchmark results for the Services. You must not engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Airvel or users of the Services or expose them to liability.  You must not:  damage, disable, overburden, or impair the Services (or any network connected to the Services); use any unauthorized means to modify, reroute, or gain access to the Services or attempt to carry out these activities; use any automated process or Services (such as a bot, a spider, or periodic caching of information stored by Airvel) to access or use the Services; or otherwise attempt to interfere with the proper working of the Services. In addition, You promise that You will not and will not encourage or assist any third party to:

 

(a)                                      use the Services in any manner or for any purpose other than as expressly permitted by these Terms, the Privacy Policy, any documentation presented to You, or any other policy, instruction or terms applicable to the Services that are available on the Services (“Policies“);

 

(b)                                      access or use the Services in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;

 

(c)                                      use the Services to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (iii) store or transmit any Content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware;

 

(d)                                      interfere with or disrupt servers or networks used by Airvel to provide the Services or used by other users to access the Services, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of any Software or the Services; or

 

(e)                                      access or attempt to access Airvel’s other accounts, computer systems or networks not covered by these Terms, through password mining or any other means.

 

We will make all judgments concerning the applicability of these guidelines in our sole and exclusive discretion. We reserve the right, in its sole discretion, to determine whether and what action to take in response to each such notification, and any action or inaction in a particular instance will not dictate or limit our response to a future complaint.

 

MONITORING OF CONTENT, REMOVAL OF CONTENT AND ENFORCEMENT. We have the right to:

 

(a)                                      Remove or refuse to post any Content for any or no reason in our sole discretion.

 

(b)                                      Take any action with respect to any Content that we deem necessary or appropriate in our sole discretion if we believe that such Content violates the Terms, infringes any intellectual property right or other right, threatens the personal safety of users of the Services and the public or could create liability for Airvel.

 

(c)                                      Disclose Your identity to any third party who claims that material posted by You violates their rights, including their intellectual property rights or their right to privacy.

 

(d)                                      Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.

 

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any Content on or through the Services. YOU RELEASE AND HOLD HARMLESS AIRVEL FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY AIRVEL DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER AIRVEL OR LAW ENFORCEMENT AUTHORITIES.

 

However, we do not undertake to review Content before it is posted on the Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or Content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this paragraph.

 

LINKS TO THIRD PARTY SITES. Third party sites may be linked to through the use of the Services. Third party sites are not under the control of Airvel, and Airvel is not responsible for the contents of any third party sites, any links contained in third party sites, or any changes or updates to third party sites. Any such activities, and any terms associated with such activities, are solely between You and the applicable third party and Airvel shall have no liability, obligation or responsibility with respect to any such activities. Similarly, we are not responsible for any third party content You access with the Services, and You irrevocably waive any claim against us with respect to such sites and third party content.

 

SERVICES; UPDATES; PRODUCT CHANGES. Airvel reserves the right at any time not to release or to discontinue release of any of the Services and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of any of the Services. Airvel reserves the right, in its sole discretion, to make unscheduled deployments of changes, updates or enhancements to the Services at   any time.  We may add or remove functionalities or features, and we may   suspend or stop the Services altogether.   Subject to applicable law, we: (a)    reserve the right to change the goods and services advertised or offered for sale through the Services, the prices or specifications of such goods and services, and any promotional offers at any time and from time to time without any notice or liability to You or any other person; (b) cannot guarantee that goods or services advertised or offered for sale on the Services will be available when ordered or thereafter; (c) reserve the right to limit quantities sold or made available for sale; (d) do not warrant that  the Content (including without limitation product descriptions or photographs) is accurate, complete, reliable, current or error-free; and (e) reserve the right to cancel, to terminate or not to process orders (including accepted orders) where the price or other material information on the Services is inaccurate or when we recognize abuse of our policies. If we do not process an order for such reason, we will advise You that the order has been cancelled and will either not charge You or will apply credit to the payment type used in the order.  Some jurisdictions may not allow the exclusions and disclaimers of certain implied warranties, so some of the provisions of this section may not apply to You.  See the paragraph titled “Warranty   Disclaimer” below for more information.

 

WARRANTY DISCLAIMER.  You understand that we cannot and do not guarantee or   warrant that files available for downloading from the internet or the Services will be free of viruses or other destructive code. You are responsible for implementing   sufficient procedures and checkpoints to satisfy Your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Services for any reconstruction of any lost data. WE WILL      NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

 

YOUR USE OF THE SERVICES, ITS CONTENT AND ITEMS OBTAINED THROUGH THE SERVICES OR THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, ALL CONTENT AND ANY ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER AIRVEL NOR ANY PERSON ASSOCIATED WITH AIRVEL MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER AIRVEL NOR ANYONE ASSOCIATED WITH AIRVEL REPRESENTS OR WARRANTS THAT THE SERVICES, ANY CONTENT OR ANY ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, TIMELY, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES OR ANY ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

 

AIRVEL HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

 

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

CONFIDENTIALITY. The Services (including their underlying source code) contain confidential information of Airvel. You agree to hold this information in confidence, not disclose it to any person, and not use it for any purpose other than the use and operation of the Services as permitted under these Terms.  These restrictions do not apply to any information which is or becomes (through no fault of Yours) publicly available.  If You are required by law or order of a court or other government authority to disclose Airvel’s confidential information, then You will notify Airvel as soon as possible, but in any event prior to the disclosure, and will cooperate with Airvel, at its expense and request, in any lawful action to contest or limit the scope of such required disclosure.

 

You agree to limit access to and use of the Services and Content to personal use, and shall not use the Service or Content for further distribution, publication, public display, or preparation of derivative works or facilitate any of these activities in any way. You shall not use or reproduce Content obtained from the Service for or in connection with any other listing service or device. You shall not modify, merge, decompile, disassemble, translate, decode or reverse engineer any portion of the Services, or use any data mining, gathering or extraction tool, or any robot, spider or other automatic device or manual process, to monitor or copy any portion of the Services.  You shall not access or use any portion of the Services if You are a direct or indirect competitor of Airvel, nor shall You provide, disclose or transmit any portion of the Service to any direct or indirect competitor of Airvel (by way of example, a “direct or indirect competitor” of Airvel includes, but is not limited to, other aircraft brokerage service firms). A violation of these specific terms, specifically by customers using the Services in an abusive or excessive manner, by automated or manual means, shall be subject to, and will be assessed, a fee of $500.

 

LIMITATION OF LIABILITY. IN NO EVENT WILL AIRVEL AND ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, MEMBERS, MANAGERS, AGENTS, OFFICERS OR DIRECTORS BE LIABLE TO YOU OR YOUR PASSENGERS FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY OR DATA, ARISING FROM OR RELATING TO THE SERVICES OR ANY CONTENT, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, EVEN IF AIRVEL AND ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, MEMBER, MANAGERS, AGENTS, OFFICERS OR DIRECTORS KNEW, SHOULD HAVE KNOWN OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  AIRVEL AND ITS AFFILIATE’S OR THEIR LICENSOR’S, SERVICE PROVIDER’S, EMPLOYEE’S, MEMBERS, MANAGERS, AGENT’S, OFFICER’S OR DIRECTOR’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THESE TERMS OR THE SERVICES, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY YOUR FOR USE OF THE SERVICES.  THIS PARAGRAPH WILL APPLY EVEN IF AN EXCLUSIVE REMEDY HEREUNDER HAS FAILED OF ITS ESSENTIAL PURPOSE.

 

INDEMNIFICATION. You agree to defend, indemnify and hold harmless Airvel, its affiliates and licensors and their respective officers, directors, members, managers, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from (i) any breach of these Terms by You or Your passengers; (ii) Your use of the Services, including without limitation any use of the Services’ content, services; (iii) any act or omission by You, Your passengers, or Your affiliates, directors, officers, employees, members, managers, or agents; (iv) non-performance or failure of any type on behalf of Operator; or (v) products other than as expressly authorized in these Terms or Your use of any information obtained from the Services.

 

TERMINATION AND SUSPENSION.  You may stop using the Services at any time to reserve new Charter Flights. Confirmed Charter Flights, and the cancellation or termination of such confirmations shall be as otherwise set forth herein. We reserve the right to temporarily suspend or terminate Your access to all or any part of the Services at any time in our sole discretion, with or without cause, and with or without notice, without incurring liability of any kind.  For example, we may suspend or terminate Your access to or use of the Services for: (a) the actual or suspected violation of these Terms; (b) the use of the Services in a manner that may cause Airvel to have legal liability or disrupt others’ use of the Services; (c) the suspicion or detection of any malicious code, virus or other harmful code by You or in Your account; (d) scheduled downtime and recurring downtime; or (e) unplanned technical problems and outages. If, in Airvel’s determination, the suspension might be indefinite and/or Airvel has elected to terminate Your access to the Services, Airvel will use reasonable efforts to notify You through the Services.  If You stop using the Services or we permanently terminate Your access to the Services, You must destroy all copies of the Software and documentation provided to You, and discontinue access of the Services. You acknowledge that if Your access to the Services is suspended or terminated, You may no longer have access to the Content, including paid Content that is stored with the Services, if any.

 

EXPORT RESTRICTIONS. You acknowledge that the Content is of U.S. origin and subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Content, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. Without limitation, You may not transfer any part of the Services without U.S. government permission to anyone on U.S. government exclusion lists (see the Commerce Department’s compliance list at http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm). You represent and warrant that neither You nor any of Your affiliates are on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.

 

RESTRICTED RIGHTS LEGEND. Any software which is provided for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Airvel, LLC.

 

CANADIAN TRANSACTIONS. If You are subject to Canadian law, You agree to the following:   The parties hereto have expressly required that the present License and its Exhibits be drawn up in the English language / Les parties aux presentes ont expressement exige que la presente Convention et ses Annexes soient redigees en langue anglaise.

 

ARBITRATION.

 

(a)                                      Informal Negotiations. To expedite resolution and reduce the cost of any dispute, controversy or claim, past, present, or future, between You and Airvel, including without limitation any dispute or claim related to or arising out of this Agreement (“Dispute”), You and Airvel may attempt to negotiate any Dispute informally (the “Informal Negotiations”) before initiating any arbitration or court proceeding. Such Informal Negotiations will commence upon written notice. Your address for any notices under this paragraph is Your email address and/or physical address that You have provided to Airvel and Airvel’s address for such notices is: legal@wpdev2.airvel.com and/or by mail to Airvel, LLC, Attn: Legal,41 Peabody Street, Nashville, TN 37205.

 

(b)                                      Arbitration. If a Dispute is not resolved through Informal Negotiations, You and Airvel agree to resolve any and all Disputes (except those Disputes expressly excluded below) through final and binding arbitration (“Arbitration Agreement”). The arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website (www.adr.org). Your arbitration fees and Your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules).  The arbitrator shall be selected by mutual agreement of You and Airvel.  Unless the parties mutually agree otherwise, the arbitrator shall be an attorney licensed to practice in the state where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted.  If   for any reason the parties cannot agree to an arbitrator, either party, pursuant to California Code of Civil Procedure section 1281.6, may apply to a court of competent jurisdiction, with authority over the location where the arbitration will be conducted, for appointment of a neutral arbitrator. Each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law.  The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the “Class Action Waiver” described in Section (d) below.

 

(c)                                      Excluded Disputes. You and Airvel agree that the following Disputes are excluded from this Arbitration Agreement: (1) any Dispute seeking to enforce or protect, or concerning the validity of, any of Your or our intellectual property  rights;

(2) individual claims in small claims court; (3) any claim that an applicable federal statute expressly states cannot be arbitrated; and (4) any claim for injunctive relief.

 

(d)                                      Waiver of Right to be a Plaintiff or Class Member in a Class Action. You and Airvel agree to bring any Dispute in arbitration on an individual basis only, and not as a class or collective action. There will be no right or authority for any Dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything else in this Arbitration Agreement, the interpretation, applicability, enforceability or formation of the Class Action Waiver may only be determined by a court and not an arbitrator.

 

(e)                                      Rules/Standards Governing Arbitration Proceeding. A party who wishes to arbitrate a Dispute covered by this Arbitration Agreement must initiate an arbitration proceeding by delivery of a written demand by hand or first class mail to the other party no later than the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator shall apply the statute of limitations that would have applied if the Dispute had been brought in court. The demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. (In cases where the plaintiff first files a complaint in court instead of a written demand to arbitrate, the responding party’s written demand for arbitration need not include a statement as to the basis of the plaintiff’s claims(s) or the remedy sought.) The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited.  The arbitrator is without authority   to apply any different substantive law. The parties have the right to conduct adequate civil discovery and present witnesses and evidence as needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The location of the arbitration proceeding shall take place in Santa Barbara County, Santa Barbara, unless each party agrees otherwise. A court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator’s decision/award.

(f)                                    Severability. You and Airvel agree that if any portion of this paragraph entitled “Arbitration” is found illegal or unenforceable, that portion will be severed and the remainder of this paragraph will be given full force and effect.

 

GOVERNING LAW; VENUE AND JURISDICTION. These Terms will be governed by and construed in accordance with the laws of the United States and the State of California without giving effect to any conflicts or choice of laws principles that would require the application of the laws of a different jurisdiction. The parties expressly exclude the application of the 1980 United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act (if applicable).  For all Disputes not subject to arbitration, and subject to the provisions of the paragraph titled “Equitable Relief”, any legal action, suit or proceeding arising out of or relating to these Terms must be instituted exclusively in a court of competent jurisdiction, federal or state, located within the State of California, County of Santa Barbara, and in no other venue. Each party further irrevocably consents to personal jurisdiction and venue in, and agrees to service of process issued or authorized by, any such court.

 

SEVERABILITY. If any provision of these Terms is held to be illegal, invalid or unenforceable for any reason, then such provision will be enforced to the maximum extent permissible and the remainder of the provisions of these Terms will remain in full force and effect.

 

EQUITABLE RELIEF. The parties acknowledge and agree that it is impossible to measure in money the damages that will accrue to Airvel by reason of Your breach of these Terms and that such a breach will cause irreparable harm to Airvel. In addition to any other right or remedy available at law or in equity Airvel will be entitled to specific performance or injunctive relief to enforce or prevent any breach of confidentiality or any breach of any license granted hereunder without posting a bond or other security, and may apply to any court of competent jurisdiction for  such relief notwithstanding the provisions of the paragraph titled “Governing Law; Venue and Jurisdiction.”

 

ATTORNEYS’ FEES. In any action, suit or proceeding arising out of or relating to these Terms, Airvel, if it is the prevailing party, will be entitled to recover from You its reasonable attorneys’ fees and expenses in addition to any other relief that may be awarded.

 

ASSIGNMENT. You may not assign these Terms or assign any of Your rights or delegate any of Your obligations under these Terms, by operation of law or otherwise (including by merger, sale of assets, change of voting control or consolidation), without Airvel’s prior written consent, which may be granted, conditioned or withheld in Airvel’s sole discretion.  Any attempted assignment by You in violation of this paragraph will be void and will constitute a material breach of these Terms. Notwithstanding the foregoing, Airvel may assign these Terms at any time in its sole discretion.  Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.

 

WAIVER AND MODIFICATIONS. All waivers must be in writing. Any waiver or failure to enforce a provision of these Terms on one occasion shall not be deemed a waiver of any other provision or such provision on any other occasion.

 

NOTICES. We may send You, in electronic form, information about the Services, additional information, and information the law requires us to provide. We may provide required information to You by electronic mail (“email”) at the address You specified when You signed up for the Services or by access to a website that we identify. Notices emailed to You will be deemed given and received when the email is sent. If You don’t consent to receive notices electronically, You must stop using the Services. You may provide legal notices to us via email to legal@wpdev2.airvel.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: Airvel, LLC 41 Peabody Street, Nashville, TN 37205. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.

 

ENTIRE AGREEMENT; SEVERABILITY; NO THIRD-PARTY BENEFICIARY. These Terms constitutes the entire, final and exclusive agreement between You and Airvel regarding the specific transaction described herein. No prior agreements, understandings, statements, proposals or representations, written or oral, apply. No written or oral statement, advertisement or product description not expressly contained in these Terms can be used to alter or supplement its terms.  You may not rely on any representations or statements not contained in these Terms. Headings in these Terms are for reference only and have no effect on any provision’s meaning. These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, You and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of this Terms will remain in effect. This contract is solely for Your and our benefit. It is not for the benefit of any other person, except for permitted successors.

 

CLAIMS. You must bring any claim related to these Terms or the Services within one year of the date You could first bring the claim, unless Your local law requires a longer time to file claims (“Claim Expiration Date”). If You do not file Your claim  prior to the Claim Expiration Date, the claim is permanently barred.