Carrier Terms & Conditions

  1. Introduction
    1. These terms and conditions (“Aerios Terms”) together with the Additional Terms (collectively the “Agreement”) are a binding legal agreement between Aerios Limited, a company incorporated in England with its registered office at Castle Court, 41 London Road, Reigate, England, RH2 9RJ with Company number 15184809 (“Aerios”) and the entity identified as the contracting party in the Additional Terms (“you” or “Customer”).
    2. By accessing or using the Services made available by Aerios or by clicking “accept” or “agree” in relation to these Aerios Terms, you acknowledge that you have read, understand, and agree to be bound by these Aerios Terms as part of the Agreement. If you do not wish to be bound by these Aerios Terms and the Agreement you should not use the Services.
    3. The Additional Terms may set out specific terms in relation to this Agreement or particular Services (such as a detailed services description, service limitations and exclusions or the Fees that are applicable to a particular element of the Services). You should also ensure that you have read and understood the Additional Terms before using the applicable Services.
    4. In the event of any conflict or inconsistency between these Aerios Terms and the Additional Terms, the Additional Terms shall prevail.
    5. This Agreement shall not prevent Aerios from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement to any party.
  2. Definitions
    1. The definitions and rules of interpretation in this clause apply in this Agreement:
      • Additional Terms: means (i) the information which is submitted by the Customer on the page within the Aerios Website which the Customer is required to complete to confirm their details and indicate acceptance of these Aerios Terms; and (ii) any other terms and conditions which are agreed between Aerios and Customer and which are stated expressly to be subject to these Aerios Terms, such as any additional terms relating to the Aerios Marketplace;
      • Additional Users: means the users described as such in clause 7.3;
      • Aerios: means Aerios Limited, a company incorporated in England with its registered office at Castle Court, 41 London Road, Reigate, England, RH2 9RJ with Company number 15184809;
      • Aerios Marketplace: means that part of the Aerios Platform which can be used by Carriers to indicate availability of their capacity to potential Requestors, and by Requestors to request use of available capacity;
      • Aerios Platform: means the online software platform made available by Aerios via the Aerios Website to Carriers who have agreed to be bound by the Aerios Terms;
      • Aerios Terms: means these terms and conditions, as may be updated from time to time as described herein;
      • Aerios Website: means the website operated by Aerios and found at www.aerios.com and such other publicly available website which is made available by Aerios from time to time;
      • Agreement: means this agreement formed by these Aerios Terms and the Additional Terms, as further described in clause 1;
      • API: means application process interface;
      • Authorised Users: means your employees, directors, agents and independent contractors who are authorised by you to access and/or use the Services. For the avoidance of doubt, any person who accesses the Services using a corporate email address relating to your or any affiliated company’s business shall be deemed to have been authorised by you;
      • Business Contact Information: means any information or data collected by Aerios as part of the sign-up for Services or relating to the administration of the Agreement, such as names and contact details of Authorised Users collected at sign-up, or the contact details of the individual employees within the Customer’s organisation who are responsible for billing matters;
      • Business Day: means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
      • Carrier: means an airline which owns or leases aircraft that can be made available for charter;
      • Carrier Charter Contract: has the meaning in clause 3.5;
      • Confidential Information: means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.1;
      • Contract Year: means each 12-month period, commencing on the Effective Date and each anniversary thereof;
      • Customer: means the entity described as such in clause 1;
      • Customer Materials: means any text, graphics, images, fonts, and other data or content uploaded to, or generated using, the Services by the Customer and/or its Authorised Users, including any information which is uploaded or otherwise made available to the Aerios Platform by an action of the Customer and/or its Authorised Users, such as scheduling information or flight time information which may be accessed from the Customer Systems, such as via an API, and Quotes;
      • Customer Systems: means the IT systems, software and other electronic, computer and information communications technology systems, devices and equipment owned or operated by the Customer and the Authorised Users, but excluding for the avoidance of doubt, the Aerios Platform;
      • Data Protection Legislation: means all applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder), UK GDPR (as defined in DPA 2018); and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended (and Controller, Processor, Data Subject, Personal Data, Personal Data Breach, Processing and appropriate technical and organisational measures when used in this Agreement shall have the meanings as defined in the Data Protection Legislation);
      • Documentation: means the documentation made available to the Customer by Aerios online on the Aerios Website which sets out a description of the Services and the user instructions for the Services;
      • Effective Date: means the date when you are first bound by these Aerios Terms (for example when you first register on the Aerios Website for the Services) and therefore when the Agreement comes into effect. For the avoidance of doubt, your agreement to be bound by subsequent Additional Terms shall not alter the Effective Date;
      • Feedback: means suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or its Authorised Users relating to the Services or the Aerios Platform. Feedback does not include any pre-existing intellectual property of the Customer;
      • Fees: means all fees payable by the Customer under this Agreement for example as specified in the Additional Terms or, where the charges relate to a standard Aerios service which the Customer has been informed is provided on a subscription basis, the fees for that services set out on the Aerios Website;
      • Intellectual Property Rights: means all intellectual property rights of any kind existing anywhere in the world whether or not registered and all applications, renewals and extensions of the same and whenever arising, registered or applied to be registered including, without limitation, copyright, database right, design right, patents, trademarks, service marks, trade names and other rights in goodwill, rights in know-how, trade secrets and other confidential information;
      • Month: means each period of a calendar month, commencing on the Effective Date, and thereafter commencing on the equivalent day of the month in subsequent calendar months during the Term. For example, if the Effective Date is the 15th of a month, the first Month shall run from and including the 15th day of the first calendar month up to and including the 14th day of the next calendar month, and the second Month shall commence on the 15th day of the next calendar month following the month in which the Effective Date occurs, and so on;
      • Quote: means a quote generated by the Customer using the Aerios Platform;
      • Services: means the services provided by Aerios to the Customer through access to the Aerios Platform, as more particularly described at www.aerios.app and in the Additional Terms where expressly identified as such (as applicable);
      • Service Levels: means those service levels set out in at www.aerios.app;
      • Subdomain: means a subdomain which is generated in relation to the Customer’s use of the Aerios Platform such as ‘carrier.aerios.app’ and which may be used by Authorised Users to access Customer’s section of the Aerios Platform;
      • Requester: means a party, such as a brokerage, logistics company or freight forwarder who wishes to find air charter capacity for contract;
        Term: means the period during which the Agreement is in effect, commencing on the Effective Date and ending on the date of termination of this Agreement;
      • Third Party Services: means services or content which is provided by a third party (other than Aerios) and which shall include any such services which are via third-party websites, third party APIs or which are otherwise accessible via the Customer Systems;
      • User Licences: means the user licences obtained by the Customer (the number of which may be specified in Additional Terms, or added via registration on the Aerios Website) which entitle Authorised Users to access the Aerios Platform and use the Services in accordance with this Agreement;
      • Virus: means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and
      • You: means the entity described as such in clause 1.
    2. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
    3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
    4. Unless the context otherwise requires: (i) words in the singular shall include the plural and in the plural shall include the singular; and (ii) a reference to one gender shall include a reference to the other genders.
    5. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement and shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
    6. A reference to writing or written includes e-mail.
    7. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
  3. Services – General
    1. Subject to payment of the applicable Fees by the Customer, Aerios shall, during the Term, provide the Services and access to the Aerios Platform to the Customer on, and subject to, the terms of this Agreement.
    2. Aerios hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to use and permit the Authorised Users to use the Services, Aerios Platform, any Subdomain that has been allocated to the Customer and the Documentation during the Term solely for the Customer’s business operations. The rights provided under this clause 3 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer, unless specified in the Additional Terms or otherwise agreed to by Aerios.
    3. Aerios shall provide the Services materially in accordance with the Services Description and the Service Levels.
    4. Aerios:
      1. does not warrant that the Customer’s use of the Services will be uninterrupted or error-free, or that the Services and/or the Quotes or other outputs generated by the Customer or any Authorised User using the Services will meet the Customer’s requirements;
      2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
      3. does not accept any liability for any non-conformance of the Services to the Services Description or failure to achieve the Service Levels which is caused by use of the Services contrary to Aerios’ instructions, or modification or alteration of the Services by any party other than Aerios or Aerios’ duly authorised contractors or agents.
    5. Whilst the Services may enable the Customer and Authorised Users to interact with or otherwise communicate with Requestors and to generate Quotes, the Customer remains responsible for all such interactions, communications and Quotes. Accordingly Aerios:
      1. is not responsible for any communications or interactions between Carriers and Requesters, including Quotes, and does not own, control, offer or manage any listing for carriage space;
      2. has not verified the content of any communications between Carriers and Requestors;
      3. is not a party to any contract entered into directly between Carriers and Requesters (“Carrier Charter Contract”),
      4. is not responsible for performance of any party under the Carrier Charter Contracts and disclaims all of its liability in relation thereto; and
      5. is not acting as an agent in any capacity for any Carrier or Requester.
    6. The Customer assumes sole responsibility for ensuring that the Services are sufficient for its needs. Aerios shall have no liability for any damage caused by errors or omissions in any information, instructions, or scripts provided to Aerios by the Customer in connection with the Services, or any actions taken by Aerios at the Customer’s direction. In particular It is the responsibility of the Customer to ensure that any Quotes it provides to its clients are correct, and we do not accept responsibility in relation to any errors or losses that may occur in connection with such Quotes.
  4. Services – Interaction with the Customer Systems, Third Party Services, and APIs
    1. The Customer acknowledges that, whilst the Services may enable or assist the Customer and Authorised Users to access or interact with the Customer Systems and Third Party Services (including any data, information, or Customer Materials accessible thereon), the Customer does so solely at its own risk.
    2. The Customer must ensure that it has all necessary rights to enable the Customer Systems and Third Party Services to be used in conjunction with the Services and is responsible for complying with any terms and conditions which are specified by the provider of any API.
    3. Aerios:
      1. makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any the Customer Systems and Third Party Services (or the data, information, or Customer Materials accessible thereon);
      2. is not responsible for any transaction completed, or information obtained from the Customer Systems and Third Party Services; and
      3. is not responsible for the APIs and does not guarantee that any API will be operational or kept up to date, even if accessed via the Aerios Platform, although Aerios shall use its reasonable efforts to monitor published changes to APIs and shall seek to accommodate these where Aerios considers this technically feasible.
    4. The Customer acknowledges and agrees that any contract entered into, information obtained and any transaction completed in relation to the Third Party Services is between the Customer and the relevant third party, and not Aerios. Aerios recommends that the Customer refers to the third party’s suppliers terms and conditions and privacy policy prior to using the relevant Third-Party Services, third-party website or API.
    5. The Customer may only make the Services available to its Authorised Users via its own domain name (and not via a Subdomain) where this is agreed to in writing by Aerios, subject to the payment of any applicable Fee as specified by Aerios.
  5. Additional Terms for Aerios Marketplace
    1. This clause 5 applies to the extent that the Customer has agreed to be bound by the Additional Terms relating to the Aerios Marketplace.
    2. The Aerios Marketplace offers an online platform that enables Carriers to make capacity available that it controls, and for Requesters to view this capacity and contract directly with that Carrier in relation to the capacity available.
    3. You undertake that:
      1. your use of the Aerios Marketplace will not be designed to mislead any party (for example by indicating that carriage space is available when it is not)
      2. you and your Authorised Users shall use the Aerios Marketplace in accordance with any Aerios Marketplace guidelines which are notified to you or which are otherwise generally applicable to users of the Aerios Marketplace and are available on the Aerios Platform.
  6. Customer Obligations
    1. The Customer shall not, and shall procure that its Authorised Users shall not, access, store, distribute, or transmit any Viruses using the Services or into the Aerios Platform.
    2. The Customer shall not, and shall procure that its Authorised Users shall not:
      1. supply, upload or create any material or content during the course of its or their use of the Aerios Platform or the Services, or
      2. create or seek to create any Subdomain,
        that in either case:
        1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
        2. facilitates illegal activity;
        3. promotes unlawful violence;
        4. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
        5. that is intentionally misleading; or
        6. is otherwise illegal or causes damage or injury to any person or property;
      3. and Aerios reserves the right, without liability or prejudice to its other rights against the Customer, to disable the Customer’s and any Authorised User’s access to the Aerios Platform if it reasonably suspects that the Customer is in breach of this clause.
    3. The Customer shall not, and shall procure that the Authorised Users shall not:
      1. except to the extent expressly permitted under this Agreement or by applicable law:
        1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Aerios Platform or the Services (as applicable) in any form or media or by any means; or
        2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Aerios Platform or the Aerios Website;
        3. intentionally interfere with, or disrupt, the Aerios Platform, server, or network connected to the Aerios Platform;
        4. access all or any part of the Aerios Platform in order to build a product or service which competes with the Platform;
        5. use the Aerios Platform to provide services to third parties (although for the avoidance of doubt, this restriction shall not prevent the Customer from subcontracting any contractual carriage undertaking owed to Requestor, so long as the prime contract remains between the Carrier and Requestor); or
      2. permit access to the Aerios Platform to any party who is not an Authorised User;
      3. attempt to obtain, or assist third parties in obtaining, access to the Aerios Platform in a manner that is not permitted by Aerios.
    4. The Customer shall:
      1. provide Aerios with:
        1. all necessary co-operation in relation to this Agreement; and
        2. all necessary access to such information as may be required by Aerios;
          in order to provide the Services including, but not limited to, any Customer Materials, security access information, and configuration services;
      2. carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Aerios may adjust any agreed timetable or delivery schedule as reasonably necessary;
      3. ensure that the Authorised Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
      4. obtain and shall maintain all necessary licences, consents, and permissions necessary for Aerios, its contractors and agents to perform their obligations under this Agreement and for the Customer provide Customer Materials;
      5. ensure that it has suitable internet connectivity, network connections, telecommunications links, hardware, and software as is necessary to access the Services and as may be recommended by Aerios from time to time. The Customer acknowledges that Aerios has no responsibility for the procurement, performance, maintenance, suitability, or availability of any such internet connectivity, network connections, telecommunications links, hardware, or software, and all problems, conditions, delays, delivery failures, and all other losses or damage arising from, or relating to, the same are the sole responsibility of the Customer;
      6. observe any reasonable policies, practices, and fair usage limits concerning use of the Services which Aerios may put in place and communicate to the Customer from time to time;
      7. maintain the confidentiality, and ensure that the Authorised Users also maintain the confidentiality, of all login credentials provided to the Customer; and
      8. use commercially reasonable endeavours to prevent any unauthorised use of the Services and assume full responsibility for all activities which occur under the Customer’s account. In the event of any unauthorised use, the Customer shall promptly notify Aerios of the same.
    5. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Aerios Platform and, in the event of any such unauthorised access or use, promptly notify Aerios.
  7. Responsibility for Authorised Users and User Licenses
    1. The Customer may permit access to the Aerios Platform to Authorised Users, subject to:
      1. the terms of this Agreement; and
      2. those Authorised Users having agreed to comply with any terms of use or similar document which Aerios makes available in relation to use of the Services.
    2. In relation to the Authorised Users, the Customer undertakes that:
      1. Authorised users shall only use the Services and Aerios Platform for the Customer’s business purposes;
      2. the Customer is responsible for all actions of the Authorised Users in relation to the Aerios Platform and the Services, and any loss or harm caused to Aerios by the actions of an Authorised User shall be deemed to have been carried out by the Customer itself;
      3. it will not allow any User Licence to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User (and such reallocation can only occur if the new Authorised User has completed the formalities described in clause 7.1(b)), in which case the prior Authorised User shall no longer have any right to access or use the Services;
      4. if an individual leaves the employment of the Customer or otherwise does not meet the requirements to be classed as an Authorised User, the Customer shall inform Aerios and shall take all reasonable steps to ensure that individual no longer has access to the Services or Aerios Platform; and
      5. each Authorised User shall keep a secure password for their use of the Services, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep their password confidential.
    3. The Customer may, from time to time during any Term, purchase additional User Licences for new Authorised Users (“Additional Users”) by completing the sign-up process for such new Authorised Users as set out on the Aerios Website, or as otherwise may be agreed by Aerios (for example by entering Additional Terms which specify the Additional Users) in accordance with the provisions of this Agreement. Each Additional User must complete the formalities described in clause 7.1(b) prior to obtaining access to the Platform.
    4. For the avoidance of doubt, each User Licence may only apply to a single Authorised User and the User Licence may be cancelled if the Customer provides Aerios with at least 14 days’ notice by email (or such other method as specified by Aerios) that the individual who has been allocated that User Licence is no longer an Authorised User, in which case the User Licence shall remain in effect until the last day of the Month following the end of the 14 day period.
  8. Customer Materials
    1. The Customer or its licensors shall own and retain all right, title and interest in and to all of the Customer Materials and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Materials and their use in relation to the Services.
    2. Aerios shall store and back-up Customer Materials in accordance with Aerios’ applicable information security protocols usual back-up processes. The Customer agrees that the Customer Materials may be held by Aerios, copied for back-up purposes, and transferred electronically as part of Aerios’ provision of the Services. Pursuant to rights granted in this clause 8 and the Customer grants all such necessary rights to Aerios for that purpose.
    3. Aerios shall not be responsible for any loss, destruction, alteration or disclosure of Customer Materials caused by any third party (except those third parties sub-contracted by Aerios to perform services related to Customer Materials’ maintenance and back-up). In the event of any loss or damage to Customer Materials, the Customer’s sole and exclusive remedy shall be for Aerios to use reasonable commercial endeavours to restore the lost or damaged Customer Materials from the latest back-up of such Customer Materials maintained by Aerios.
  9. Intellectual property rights
    1. The Customer acknowledges and agrees that Aerios and/or its licensors owns all Intellectual Property Rights in the Services, Aerios Platform, the Documentation, the Subdomains and any Feedback. Except for the licence expressly granted in clause 3, or as otherwise set out in Additional Terms, this Agreement does not grant the Customer or any Authorised User any rights to, under, or in any Intellectual Property Rights in respect of the Services, the Aerios Platform or the Documentation.
    2. All Intellectual Property Rights in the Customer Materials shall, as between the Customer and Aerios, remain the property of the Customer or its licensors, and the Customer acknowledges, warrants and agrees that it owns or licences all Intellectual Property Rights in the Customer Materials, and it has the right to grant the licence to Aerios as set out in clause 9.3.
    3. The Customer grants Aerios a non-exclusive, non-transferable, sub-licensable right to use, copy, store, modify, transmit and display the Customer Materials to the extent necessary or reasonable to enable Aerios to provide the Services and conduct its obligations under this Agreement. For the avoidance of doubt, the licence granted under this clause 9.3 shall entitle Aerios to backup and store the Customer Materials with its relevant hosting providers, and to share the applicable elements of the Customer Materials with third parties where this results from the Customer’s or an Authorised User’s use of functionality which forms part of the Services, for example by the issue of a Quote or the communication with a potential or actual Requestor.
    4. Without prejudice to the licence in clause 9.3, Aerios may analyse the Customer’s and the Authorised Users’ use of the Services and may also copy, store, index, analyse, aggregate (including combination with similar data of other customers of Aerios or its affiliates) and use all or any portion of the Customer Materials, and outputs of such analysis, for its internal business purposes and for providing and improving its services and offerings generally. Aerios may also disclose the results of any such analysis or aggregation in anonymised and aggregated form or any other form that does not specifically identify the Customer or the source of such raw data or information (“Aggregated Data”), for example in market insights and reports made available by Aerios. The Customer grants to Aerios a non-exclusive, perpetual, irrevocable, royalty-free, transferable, sub-licensable (through one or more tiers) licence to use the Customer Materials for the purposes described in this clause and to create such Aggregated Data and to copy, use, modify and otherwise exploit such Aggregated Data without limitation (except as described in this clause).
    5. The Customer also grants to Aerios the right to use the Customer’s name and logo to provide the Services, on the Aerios Website, in Subdomains and to refer to Customer as a customer of Aerios in Aerios’ marketing materials. However, any further use of the Customer’s name and logo, for example in a press-release, will require agreement of the parties in writing.
  10. Data protection
    1. Both parties shall comply with all applicable requirements of the Data Protection Legislation in the Processing of Personal Data in connection with this Agreement. This clause 10 is in addition to, and does not relieve, remove or replace a party’s obligations under the Data Protection Legislation.
    2. The parties acknowledge that, in relation to any Personal Data within Business Contact Information, Aerios is the Controller and to the extent that such Personal Data is supplied by the Customer, this shall be considered to be a ‘Controller to Controller’ transfer.
    3. In relation to any Personal Data within the Customer Materials, the Customer shall be the Controller and Aerios shall be the Processor. In relation to such Personal Data within the Customer Materials, Aerios shall:
      1. process that Personal Data only for the purpose of providing the applicable Services;
      2. process that Personal Data only on the Customer’s written instructions (and, for the avoidance of doubt, the terms of this Agreement and facilitating any communication between the Customer and a Requestor or other third party as a result of Customer’s or an Authorised User’s request within the Aerios Platform shall constitute such written instructions) unless otherwise required by applicable laws to which Aerios is subject, in which case Aerios shall, to the extent permitted by applicable laws, inform the Customer of that legal requirement before such Processing;
      3. ensure that it has in place appropriate technical and organisational security measures to protect against unauthorised or unlawful Processing and accidental loss or destruction of, or damage to, that Personal Data which is appropriate to the harm that might result from the unauthorised or unlawful Processing or accidental loss, destruction or damage and the nature of Personal Data to be protected, having regard to the state of technological development and the cost of implementing any measures. Those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by Aerios;
      4. ensure that all of Aerios’ personnel who have access to and/or Process that Personal Data are obliged to keep it confidential;
      5. not transfer any Personal Data outside of the UK or EEA unless such transfer is in compliance with Data Protection Legislation;
      6. assist the Customer in responding to any request from a Data Subject and in ensuring compliance with the Customer’s obligations under Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with regulators;
      7. notify the Customer if Aerios or, in so far as this is possible, another Processor engaged by Aerios to process Personal Data within Customer Materials (a “Sub-processor”) receives a request from a Data Subject under any Data Protection Laws in respect of Personal Data;
      8. at the Customer’s written request, delete and/or return to the Customer, Personal Data and copies of it on the termination of this Agreement, without prejudice to clause 17, unless Aerios is required by applicable laws to store specific Personal Data beyond the termination of this Agreement (in which case Aerios shall delete such Personal Data as permitted by applicable laws);
      9. notify the Customer without undue delay upon Aerios becoming aware of a Personal Data Breach affecting any Personal Data, providing the Customer with sufficient information to allow the Customer to meet any obligations to report to a regulator, or inform Data Subjects, of the Personal Data Breach under Data Protection Legislation; and
      10. maintain complete and accurate records and information to demonstrate the Customer’s compliance with clauses 10.3(a) to (i) (inclusive) and allow for reasonable audits by the Customer, in order to verify compliance with clauses 10.3(a) to (i) (inclusive).
    4. Aerios shall not engage a Sub-processor without the prior specific or general written authorisation of the Customer. In the case of general written authorisation, Aerios shall inform the Customer of any intended changes concerning the addition or replacement of Sub-processors, thereby giving the Customer the opportunity to object to such changes. The Customer hereby authorises Aerios to appoint the following classes of Sub-processors described below:
      1. Hosting and/or Infrastructure Services: providers used by Aerios to support the availability of the Aerios Website, the Services, and/or the Aerios Platform, including but not limited to cloud computing resources, machine learning models, data storage and server hosting;
      2. Technical and IT Support Suppliers: suppliers of technical support and IT services to Aerios, including but not limited to maintenance, troubleshooting, and the enhancement of IT systems and infrastructure;
      3. Authentication and Security Services: third-party service providers of services relating to authentication, authorisation, security measures, logs and scans of the Aerios Platform, ensuring secure access and the protection of data;
      4. Payment Processing Services: third-party service providers that manage financial transactions, enabling Aerios to process payments securely and efficiently from customers;
      5. Data Management and Analytics Services: providers that offer data storage, backups, management, and analytics services, assisting Aerios in the handling and analysis of data for the purpose of improving service delivery;
      6. Customer Support, CRM and Engagement Platforms: providers of third-party platforms and tools that facilitate communication with customers, provide support, and engage with users of the Aerios Platform;
      7. Development and Operational Tools: providers of services and tools that support the development, deployment, and operation of the Aerios software, including version control, continuous integration, and deployment automation;
      8. Content Delivery Networks (CDNs): providers of networks of servers that deliver cached content from the Aerios Services to users based on geographic locations, improving the speed and reliability of access; and
      9. Communication, Productivity, Collaboration and Project Management Platforms: providers of third-party platforms that facilitate team collaboration, project management, and internal communication and record-keeping, enabling Aerios and its team members to coordinate effectively and efficiently on various projects and tasks.
    5. With respect to each Sub-processor appointed pursuant to clause 10.4, Aerios shall:
      1. carry out adequate due diligence to ensure that the Sub-processor is capable of providing the level of protection for Personal Data as required by the Data Protection legislation;
      2. ensure that the arrangement with the Sub-processor is governed by a written contract including terms which offer at least the same level of protection for Personal Data as those set out in this clause and which in any case comply with Data Protection Legislation;
      3. remain liable for the actions of that Sub-processor in relation to the Processing of the Personal Data in the Customer Materials.
  11. Charges and payment
    1. In consideration for the provision of the Services, the Customer shall pay the applicable Fees (if any) to Aerios in accordance with this clause 11.
    2. All Fees are stated exclusive of VAT (or other relevant sales tax) which Aerios shall also be entitled to charge the Customer at appropriate rate in addition to the Fees. The Customer agrees to pay applicable VAT (and any other relevant sales tax) in addition to the applicable Fees when they are due.
    3. Fees are payable monthly in advance at the start of the Month. The first payment of Fees is due on the Effective Date, and thereafter shall be due on the first day of each subsequent Month.
    4. Aerios shall be entitled to raise invoices at the start of each Month, and such invoices are payable by the Customer upon presentation of the invoice.
    5. The Fees shall either:
      1. be paid by the Customer using bank transfer to an account nominated by Aerios; or
      2. if agreed by Aerios, collected by Aerios from the Customer’s bank account by way of direct debit (or equivalent method), standing order or credit card payment (and the entering of this Agreement shall be considered to be an ongoing authorisation for Aerios to operate such payment method to collect Fees). If any payment which is due is unable to be collected by Aerios using such agreed method, the outstanding sums shall immediately be paid by the Customer to Aerios using bank transfer.
    6. Where any additional Fee becomes due as a result of an event part-way that Month (for example the addition of Additional Users or the subscription for a new element of the Services), the applicable Fee shall be pro-rated from the date of the event giving rise to it, and charged at the start of the next Month, and then Monthly thereafter.
    7. Aerios is entitled to set off any sums owed to it by the Customer. The Customer shall not be entitled to exercise any right of set off under or in relation to this Agreement.
    8. All amounts and fees stated or referred to in this Agreement:
      1. shall be payable in US Dollars, unless agreed otherwise in Additional Terms, or in writing by Aerios;
      2. are non-cancellable and non-refundable; and
      3. are exclusive of value added tax, which shall be added to Aerios’ invoice(s) at the appropriate rate.
    9. Without prejudice to any other right or remedy available to Aerios, if Aerios has not received payment within 14 days after the due date:
      1. Aerios may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Aerios shall be under no obligation to provide any or all of the Services while the Fees concerned remain unpaid; and
      2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgement.
    10. Aerios shall be entitled to increase the Fees at any time during the Term upon 60 days’ prior notice to the Customer. Without prejudice to the Customer’s rights under clause 16.2, if the Customer does not agree to the Fee increase, it shall be entitled to terminate the Agreement by providing Aerios with at least 14 days’ notice prior to the end of the 60 day notice period.
  12. Confidentiality
    1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
      1. is or becomes publicly known other than through any act or omission of the receiving party;
      2. was in the other party’s lawful possession before the disclosure;
      3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
      4. is independently developed by the receiving party, which independent development can be shown by written evidence.
    2. Subject to clause 12.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
    3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
    4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure. For the avoidance of doubt, Aerios shall be able to disclose any information within the Customer Materials to a Requestor where this disclosure results from the actions of the Customer or an Authorised User within the Aerios Platform, for example by generating and instigating the sending of a Quote.
    5. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
    6. No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
    7. The above provisions of this clause 12 shall survive termination of this Agreement, however arising.
  13. Warranties
    1. Aerios warrants that:
      1. the Services will be performed with reasonable skill and care; and
      2. it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
    2. The Customer warrants and undertakes that:
      1. its and the Authorised Users use of the Services and Aerios Platform shall be in compliance with all applicable laws, statutes, regulations from time to time in force;
      2. it has all necessary rights to:
        1. make the Customer Materials available to Aerios;
        2. use the Customer Systems and (where applicable) to connect the Customer Systems to the Aerios Platform; and
        3. to grant the licences to Aerios as described in this Agreement;
      3. the use of the Customer Materials, Customer Systems and any data or information which is accessible therein by Aerios to provide the Services in accordance with the Agreement shall not infringe the rights (including the Intellectual Property Rights) of any party;
      4. the individual who enters this Agreement on behalf of the Customer has the necessary authority to do so and is therefore duly authorised to bind the Customer.
  14. Indemnity
    1. The Customer shall defend, indemnify and hold harmless Aerios and its affiliates, directors and staff against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:
      1. the Customer’s use of the Services;
      2. any alleged or actual infringement by the Customer Materials or the Customer Systems of the rights of any third party, including Intellectual Property Rights (including resulting from Aerios’ use of the Customer Materials and/or the Customer Systems in accordance with the terms of this Agreement).
  15. Limitation of liability
    1. Nothing in this Agreement excludes the liability of Aerios:
      1. for death or personal injury caused by Aerios’ negligence;
      2. for fraud or fraudulent misrepresentation; or
      3. any other liability that cannot be excluded or limited by law.
    2. Subject to clause 15.1:
      1. Aerios shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
      2. Aerios’ total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, for all claims arising under or in connection with the performance or contemplated performance of this Agreement shall be limited in each Contract Year to the greater of:
        1. £100 (one hundred pounds sterling); or
        2. the total Fees paid or payable for the Services during that Contract Year.
  16. Term and termination
    1. The Agreement shall commence on the Effective Date and shall remain in effect until terminated.
    2. Either party may terminate the Agreement by providing the other party with 14 days’ notice in writing, following which the Agreement shall thereafter terminate on the last day of the Month following the end such 14 day period.
    3. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
      1. the other party commits a material breach of any of the terms of this Agreement which is not capable of remedy; or
      2. the other party commits a material breach of any of the terms of this Agreement and fails to remedy that material breach within 30 days of receiving notice to remedy; or
      3. the other party summons a meeting of its creditors, makes a proposal for a voluntary arrangement, becomes subject to any voluntary arrangement, is unable to pay its debts, has a receiver, manager or administrative receiver appointed over any of its assets, undertaking(s) or income, has passed a resolution for its winding-up (save for the purpose of a voluntary reconstruction or amalgamation), is subject to a petition presented to any court for its winding-up (save for the purpose of a voluntary reconstruction or amalgamation), has a provisional liquidator appointed, has a proposal made for a scheme of arrangement, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of appointment of an administrator filed at any court or a notice of intention to appoint an administrator given by any person or is subject to an event analogous to any of the foregoing; or
        the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
    4. On termination of this Agreement for any reason:
      1. all licences granted under this Agreement shall immediately terminate and the Customer shall (and shall procure that the Authorised Users shall) immediately cease all use of the Services; and
      2. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
  17. Return of Customer Materials
    1. Following termination of this Agreement, the Customer shall be entitled to request the return of all Customer Materials which are stored within the Aerios Platform. Such request must be made no later than 28 days following the termination of this Agreement.
    2. Subject to the Customer paying any Fee specified by Aerios for the return of the Customer Materials, Aerios shall use reasonable commercial endeavours to deliver, or otherwise make available for download, the latest back-up of the applicable Customer Materials to the Customer in a format reasonably specified by Aerios within 14 days of its receipt of such a written request, provided that the Customer has, at that time, paid all outstanding Fees.
    3. Following the 28 day period specified in clause 17.1, Aerios makes no commitment about the return or availability of the Customer Materials, and the Customer Materials may be irretrievably deleted and may not be recoverable after this period.
  18. Force majeure
    1. Aerios shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Aerios or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
    2. If an event of force majeure prevails for a continuous period of more than 30 days, Aerios may terminate this Agreement by giving 14 days’ written notice to the Customer. On the expiry of this notice period, this Agreement will terminate. Such termination shall be without prejudice to the rights of Aerios in respect of any breach of this Agreement occurring prior to such termination.
  19. Variation
    1. Aerios may update these Aerios Terms or any Additional Terms from time to time by providing you with at least thirty (30) days’ notice prior to the effective date of the change. Such notice will typically be provided by email or by such other reasonable method as selected by Aerios.
    2. If you do not agree to the update described in clause 19.1, please contact us within such thirty (30) day notice period described in clause 19.1, and we will discuss the issue with you. If you still do not agree to the update (or if we have not agreed to an alternative solution with you), you may terminate the Agreement by providing notice as described in clause 16.1.
    3. If you agree to the update described in clause 19.1, or if you continue using our Services following the expiry of the thirty (30) day notice period, the Aerios Terms and any Additional Terms (as applicable) relating to your use of the Services shall be deemed to have been updated as described in clause 19.1. If you do not accept the updated Aerios Terms or Additional Terms (as applicable) then you should not use our Services.
    4. Subject to clauses 19.1 to 19.3, no variation of the Agreement shall be valid unless it is in writing (which for this purpose does not include email) and signed by or on behalf of each of the parties by its respective authorised representatives.
  20. Waiver
    1. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
  21. Rights and remedies
    1. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
  22. Costs
    1. Except as otherwise provided in this Agreement, each party shall pay its own costs in connection with the negotiation, preparation, execution and performance of this Agreement, and all documents ancillary to it.
  23. Severance
    1. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
    2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
  24. Entire agreement
    1. This Agreement constitutes the entire agreement and understanding between the parties in respect of its subject matter and supersedes any previous agreement, warranty, statement, representation, understanding, or undertaking (in each case whether written or oral) given or made before the date of this Agreement by or on behalf of the parties and relating to its subject matter.
    2. Each party acknowledges that in entering into this Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings which were made by or on behalf of the other party in relation to the subject matter of this Agreement at any time before its signature (together “Pre-Contractual Statements”), other than those which are set out in this Agreement. Each party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements.
    3. Nothing in this Agreement shall restrict or exclude any liability for (or remedy in respect of) fraud or fraudulent misrepresentation or fraudulent concealment.
  25. Assignment and sub-contracting
    1. The Customer shall not, without the prior written consent of Aerios, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
    2. Aerios may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement and the Customer agrees to undertake any steps required by Aerios to perfect Aerios’ rights under this clause.
  26. No partnership or agency
    1. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
  27. Third party rights
    1. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Right of Third Parties) Act 1999.
  28. Notices
    1. Unless specified otherwise, any notices or other communications required under this Agreement be in writing, but may be given by Aerios via email, Aerios Platform notification, or any other reasonable contact method. A notice shall be deemed to have been served at the time of delivery.
  29. Governing law
    1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
  30. Jurisdiction
    1. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).