1.1 this document contains terms and conditions (“GTC”) governing the contractual relationship between Bsfom Gmbh and any related company, hereinafter referred to as “BSFOM”, the holder or user, hereinafter referred to as “HOLDER”, of the Aviatos application (“APP”) and the customer who is party according to the “bsfom lizenzvertrag” ( the “LICENCE AGREEMENT” as concluded, replaced, extended or renewed between the parties from time to time,) hereinafter referred to as “CUSTOMER”. The licence agreement must be read in conjunction with these General Terms and Conditions (“GTC”) to form the entirety of the contractual relationship governing the contractors usage of the Aviatos Service (“APP”) and the BSFOM Webservice (“SITE”). In the following if HOLDER as well as CUSTOMER shall be ment, it will be refefered to as “LICENCE HOLDER” abbreviated “LH”.
1.2 These General Terms and Conditions (“GTC”) shall remain in effect until superseded by a revised version of General Terms and Conditions, pursuant to Section 7 hereof.
1.3 Any capitalized terms used but not defined herein shall have the meanings ascribed to them in the Licence Agreement.
2. THE SERVICE
2.1 BSFOM provides access to the app based Aviatos service of which the websites are bsfom.com / aviatos.at (the “SITE”). The site in conjunction with the aviatos app hereinafter the “APP” is used by the holder and the customer for the management of their flight operations.
2.2 BSFOM reserves the right to modify the SITE, the Service and the Offered Services, in part or in their entirety, at any time.
3. ACCESS TO THE SERVICE
3.1 AUTHORIZED USE
3.1.1 Access to the Service is granted to the Customer on a licence basis. A valid and effective contract requires a valid LICENCE AGREEMENT and a balanced current account. Access to the web service will be activated only if a valid licence agreement has been signed and BSFOM has received payment for the first payment period. If any service is free of charge BSFOM may revoke at any time the right to use the service.
3.1.2 The service may only be used in accordance with the terms of the LICENCE AGREEMENT and the GTC . CUSTOMER and HOLDER have to comply with applicable GTC, of which the most current versions are always accessible on the SITE.
3.2 MINIMUM REQUIREMENTS
3.2.1 The most current requirements with respect to supported browsers, and operating system limitations and minimum specifications for operating the service can be found on the SITE.
3.3 USER ID’S AND PASSWORDS
3.3.1 Each user account is associated with a specific user ID and a password.
3.3.2 each user id and each password is confidential and the assigned user may not disclose or share it with anyone else, including other employees or representatives of the HOLDER, and it may not be used for any unauthorized purpose. HOLDER and CUSTOMER will use all efforts and security measures to make sure that everybody as well as employees and representatives which are provided with a user ID and password keep such information confidential and are not disclosed and/or misused and are liable for any conseqences of such breach.
3.3.3 HOLDER and CUSTOMER are fully responsible for any and all use of the SITE and the Service by anyone using a user ID and a password connected to a LICENCE AGREEMENT.
3.3.4 HOLDER and CUSTOMER agree to receive emails from BSFOM .
4.1 USE AND OWNERSHIP
4.1.1 Any and all content, data, graphics, images and other information that the HOLDER transmits through the APP or the SITE (“Submissions”) shall remain the HOLDER’s sole and exclusive property, and he shall be solely responsible for its submissions.
4.1.2 The HOLDER may only provide information in the form of text, numbers, pdf documents and digital photos
5.1 HOLDER and CUSTOMER may not enter any form of data, use devices, software or routine that could pose a threat to the security or functionality of the app or the site or other services offered, including but not limited to html, asp, xml, viruses, trojans, hyperlinks, auto responders, time bombs or cancel bots.
5.2 The HOLDER and CUSTOMER may not damage or interfere with the proper working of the APP or the SITE and offered service.
5.3 Any breach by HOLDER or CUSTOMER of this regulations of section 5 shall for all purposes be regarded as a “material breach” of the LICENCE AGREEMENT and the GTC.
6. OFFERED SERVICES
6.1 BSFOM provides a range of different services to CUSTOMERs. Some services may be subject to additional charges and the CUSTOMER may elect to include additional services thus amending and updating the LICENCE AGREEMENT and licence fees therewith . Once added through an updated and signed licence agreement, the term “service” as used herein will also include such additional services governed by the GTC.
7. CHANGES AND AMENDMENTS
7.1 THE GENERAL TERMS AND CONDITIONS
7.1.1 BSFOM reserves the right to change or update the GTC at any time and in its sole discretion, by posting on the SITE or within the APP or emailing to HOLDER or CUSTOMER at the email address which has been provided to BSFOM. Should the HOLDER or CUSTOMER not be willing to accept the revised conditions, they shall give notice in writing within thirty (30) days thus terminating the LICENCE AGREEMENT and terminating all services provided by BSFOM. If not doing so, all changes are accepted by HOLDER and CUSTOMER.
7.2 THE LICENCE AGREEMENT
7.2.1 The LICENCE AGREEMENT may be amended, modified or supplemented by BSFOM sending changes to the other party, and the other party confirming the requested change in writing or via email. The “CUSTOMER” may also unilaterally remove products from the services by giving BSFOM at least thirty (30) days before year end written notice, such removal to be effective from the first day of the following year.
8. CANCELLATION AND TERMINATION
8.1 BSFOM may terminate the LICENCE AGREEMENT at once in the event that the other party is in default or breach of any material provision of the agreement or the GTC and such default or breach has not been cured within ten (10) days after written notice thereof (if at all possible to be cured within ten (10) days).
8.2 BSFOM may terminate the LICENCE AGREEMENT for any reason by providing sixty (60) days written notice. The termination will take effect the first (1st) day of the month following expiration of the sixty (60) day notice period.
8.3 The first time LH enters into the LICENCE AGREEMENT, it may be canceled with immediate effect within seven (7) business days of the agreement start date. A request for cancellation must be submitted in writing.
9. REFUNDS AND CREDIT NOTES
9.1 Refunds or credit notes will only be issued for pre-paid future services. No refunds will be given for periods that have already passed.
9.2 Should a first-time LH choose to cancel within the first seven (7) days of membership, BSFOM will issue a refund for any pre-paid amounts, less one month’s fees and any applicable one-time set up fees.
9.3 If due a balance is owed to the LH, BSFOM will issue a credit to the CUSTOMER. The credit will then be applied to the next invoice.
10. BSFOM’S RESPONSIBILITY
10.1 BSFOM shall use all commercially reasonable efforts to keep the SITE, the APP and the service available twenty four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, BSFOM reserves the right to make the SITE, the APP and the service unavailable from time to time in order to install new releases, to perform maintenance, or to undertake activities to protect the SITE or the service or the information provided through them. BSFOM will make all reasonable efforts to notify members of planned system changes up to three (3) days in advance by posting clear notices on the SITE and/or by sending an e-mail notification to the CUSTOMER at the address provided in the LICENCE AGREEMENT . Furthermore, BSFOM does not assume responsibility for unavailability and downtime caused by force majeure or other events and circumstances beyond BSFOM’s control, it being understood that failure in the transfer of data, problems inherent in the use of communication facilities and failures caused by the LH not adhering to BSFOM’s instructions or policies will always be considered circumstances beyond BSFOM’s control.
BY SIGNING THE LICENCE AGREEMENT, OF WHICH THESE GENERAL TERMS AND CONDITIONS IS AN INTEGRAL PART, THE MEMBER ACKNOWLEDGES AND AGREES THAT BSFOM SHALL NOT BE RESPONSIBLE FOR, AND SHALL NOT INCUR ANY LIABILITY TOWARDS THE MEMBER AS A RESULT OF, ANY LOSS OR DAMAGE CAUSED BY THE ACTS OR OMISSIONS OF OTHER MEMBERS, REGARDLESS OF IF BSFOM FACILITATED THE UNDERLYING TRANSACTIONS AND REGARDLESS OF THE BASIS OF SUCH CLAIMS, AND THE LH HEREBY WAIVES AND RENOUNCES ANY RIGHT IT MAY OTHERWISE HAVE TO CLAIM INDEMNIFICATION FROM BSFOM IN SUCH RESPECT.
11. BSFOM’S REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES
By entering into the LICENCE AGREEMENT , including these GTC, and by providing the service, BSFOM represents, undertakes and warrants that upon execution of the LICENCE AGREEMENT and receipt of the LICENCE Fee, and at any given time after that (as applicable):
(a) BSFOM GmBH are duly incorporated and validly existing under the laws of their respective jurisdiction of incorporation;
(b) the execution, delivery and performance of the LICENCE AGREEMENT and these GTC is duly authorized by BSFOM and has been duly executed and delivered for and on behalf of BSFOM by persons authorized to do so;
(c) the service is developed, produced or provided to the LH under the LICENCE AGREEMENT without infringing upon any intellectual property rights of any other person or entity
12.1 Subject to the limitations set forth below and elsewhere in these GTC, the parties agree to indemnify, defend and hold each other harmless from and against any and all losses, claims, expenses and damages (including attorney’s fees) resulting from its own breach of any provisions of the LICENCE AGREEMENT and/or these GTCs.
12.2 The LH agrees that BSFOM shall not be liable for any losses or damages arising out of or in connection with any interruption, suspension or termination of the SITE, the APP or the service.
12.3 In no event shall BSFOM or either party, or an officer, affiliate, director, shareholder, agent or employee thereof be liable to the other for any indirect, consequential, incidental, special, punitive or exemplary damages, including but not limited to lost profits, loss of data or otherwise out of or in connection with this agreement, unless such loss or damage is caused by the gross negligence or wilful misconduct of such party, its officers, employees, agents or representatives.
12.4 The cumulative liability for BSFOM under this agreement to the other party shall in no event exceed an amount equal to the licence fee for one year of licenceship, regardless of whether such party knew or should have known of the possibility of such damage.
13. PRIVACY AND DATA PROTECTION
13.1 The objective of the service is to store, analyze and exchange information. Hence, by using the service the LH agrees and acknowledges that BSFOM may obtain and collect information in a variety of ways. Such information includes, but is not limited to, information about the LH or provided by the LH, information regarding activities on the SITE, the APP and the use of the service, as well as messages sent or received by the LH through the service, the SITE or the APP.
13.2 Upon issuing a user account, including a user ID and password, BSFOM will process personal data , such as name, birthday, addresses, contact details and financial information, of the LH, LH’s employees, representatives, customers and third parties (herinafter referred as “PERSONAL DATA”). BSFOM may use such PERSONAL DATA as well as any other information submitted to BSFOM for the provision of the service, for the performance of usage analyses and for statistics purposes. The LH hereby accepts and agrees to such use of PERSONAL DATA, and undertakes to inform all affected entities by BSFOM’s processing of PERSONAL DATA, and to obtain the consent of each such employee or representative to such processing.
13.3 BSFOM may not sell or otherwise transfer PERSONAL DATA for any purpose whatsoever.
14. USE OF CUSTOMER DATA
14.1 To be able to provide and to fulfil BSFOM’s obligations regarding the SITE, the APP, the service ant the LICENCE AGREEMENT, BSFOM is processing information including PERSONAL DATA (see 13.). The LH therefore agrees that this data may be transferred to BSFOM and used by BSFOM within the offered services and as contemplated by the LICENCE AGREEMENT and the GTC.
14.2 LH appoints BSFOM as a processor to process “PERSONAL DATA”. Each party shall comply with the obligations that apply to it under applicable data protection law.
14.3 “Applicable Data Protection Law” shall mean the regulation of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing directive 95/46/EC (General Data Protection Regulation) and any data protection laws in any European Union Member State including laws implementing such Regulation.
14.4 “controller”, “processor”, “data subject”, “personal data”, “processing” (and “process”) and “special categories of personal data” shall have the meanings given in Applicable Data Protection Law.
14.5 LH shall not disclose (and shall not permit any data subject to disclose) any special categories of personal data to BSFOM for processing unless needed for the services provided by BSFOM.
14.6 BSFOM shall process the “PERSONAL DATA” as a processor as documented in and necessary to perform its obligations hereunder (the “Permitted Purpose”), except as otherwise required by any law applicable to LH and in which case BSFOM shall inform LH prior to such processing, unless BSFOM is prohibited by law from doing so.
14.7 BSFOM shall not transfer “PERSONAL DATA” (nor permit the “PERSONAL DATA” to be transferred) outside of the European Economic Area (“EEA”) and shall follow the EU process in accordance with EU rules (Privacy Shield).
14.8 BSFOM shall ensure that any person that it authorises to process the “PERSONAL DATA” (including BSFOM’s staff, agents and subcontractors) (an “Authorised Person”) shall be subject to a duty of confidentiality (whether a contractual duty or a statutory duty), and shall not permit any person to process the “PERSONAL DATA” who is not under such a duty of confidentiality.
14.9 BSFOM shall implement appropriate technical and organisational measures to protect “PERSONAL DATA” (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Data (a “Security Incident”).
14.10 Upon becoming aware of a confirmed security incident, BSFOM shall inform LH without undue delay and shall provide all such timely information and cooperation as LH may require in order for LH to fulfil its data breach reporting obligations under (and in accordance with the timescales required by) applicable Data Protection Law. BSFOM shall further take all such measures and actions as are reasonably necessary to remedy or mitigate the effects of the security incident and shall keep LH updated on all material developments in connection with the security incident.
14.12 BSFOM shall provide LH with all such reasonable and timely assistance as LH may require in order to conduct a data protection impact assessment and, if necessary, consult with its relevant data protection authority.
14.13 Upon termination or expiry of LICENCE AGREEMENT and GTC, BSFOM shall maintain the “PERSONAL DATA” according to BSFOM’s retention policy and/or applicable law. At the end of the relevant period, BSFOM will anonymize or destroy “PERSONAL DATA” in its possession or control.
14.14 BSFOM shall respond to any written audit questions submitted to it by LH, provided that LH shall not exercise this right more than once a year.
15.1 Nothing in the LICENCE AGREEMENT or these GTCs shall mean that any of BSFOM’s ownership, license rights, or the like, or part thereof, is assigned, sub-licensed or transferred to the HOLDER or CUSTOMER.
15.2 With respect to ownership of data and information on the SITE, the APP and available through the offered services, each HOLDER or CUSTOMER only owns the information provided through its own submissions, subject to the provisions of Section 4. All other data, source code, and any other code and information is owned by BSFOM, and the LH agrees to not reproduce, reverse engineer, decompile, disassemble, modify or create derivative works of such data and information.
15.3 The SITE, the APP and the service, as well as the data and information provided through the offered services, may only be used for the LH’s internal purposes within the scope of the LH’s business.
16.1 The parties undertake to keep confidential the terms of the LICENCE AGREEMENT and these GTCs, including but not limited to information regarding prices and payment terms.
16.2 Notwithstanding Section 16.1, the parties may disclose any information that it is otherwise required to keep confidential under this clause:
(a) to such employees, professional advisers, consultants or officers of either party as are reasonably necessary to advise either party in relation to the LICENCE AGREEMENT, if the disclosing party ensures that the people to whom the information is disclosed keep it confidential as if they were themselves bound by these provisions; or
(b) to the extent that the disclosure is required:
(i) by law; or
(ii) by a regulatory body, tax authority or securities exchange; or
(iii) to make any filing with, or obtain any authorization from, a regulatory body, tax authority or securities exchange; or
(iv) to protect either party’s interest in any legal proceedings, but the parties shall in each case set forth in subsection (b) above use reasonable endeavors to consult the non-disclosing party and take into account any reasonable requests the non-disclosing party may have in relation to the disclosure before the disclosing party makes it.
16.3 This Section 16 shall survive termination or expiration of any LICENCE AGREEMENT and remain in effect for a period of three (3) years thereafter.
17. LEGAL STATUS
BSFOM and the LH are both independent contractors. No agency, partnership, joint venture or any other relationship of such kind is intended or created by the LH’s entry into the LICENCE AGREEMENT or the LH’s use of the SITE, the APP or any service, or the information exchanged by such means.
18. ENTIRETY OF THE AGREEMENT
19. GOVERNING LAW AND DISPUTES
19.1 The Licence Agreement and these General Terms and Conditions shall be interpreted and construed according to, and governed by, the substantive laws of Austria excluding any such laws that might direct the application of the laws of another jurisdiction.
19.2 Any controversy or claim arising out of or relating to the Licence Agreement, or the breach thereof, shall be governed by the laws of the jurisdiction of Austria and the parties agree to submit disputes arising out of or in connection with this Agreement of the courts in the Austria.