AIRQUEST, INC.

TERMS AND CONDITIONS

These Terms and Conditions (the “Terms”) govern access to and use of the service offered by Airquest, Inc., a Delaware corporation (“Airquest”) as described at www.air-quest.com (the “Website” and such service, the “Service”).  By using the Service you (the “Customer” or “You”) agree that you have read, understand, and agree to be bound by and party to these Terms. 

1.     The Service.

1.1.          Description of the Service.  The Airquest Service enables Customer to place orders for on-demand logistics and courier services via the Website (each, a “Shipment”) to be fulfilled by Airquest’s network of couriers.  Each Shipment is ordered subject to these Terms.  The items to be delivered as part of each Shipment (the “Goods”) are purchased by Customer pursuant to a separate agreement with the relevant third-party (the “Third-Party Seller”).  At no time does title to the Good pass to Airquest. 

1.2.          Access to the Service.  Subject to Customer’s compliance with the terms of these Terms, Airquest shall provide Customer with non-exclusive access to the Service and the Website and grants Customer the right to access and use the Service and place orders for Shipment, solely for its own business purposes.

1.3.          Authorized Users.  Customer may authorize access to and assign unique passwords and usernames to any number of its employees, contractors, agents, affiliates and suppliers, in each case only in support of Customer’s business purposes (each, an “Authorized User”).  Customer is responsible for maintaining the confidentiality of the log-in credentials of each Authorized User.

1.4.          Acceptable Use.  In using the Service, (i) Customer must comply with all applicable laws, including without limitation, laws relating to export compliance or restricted or denied parties as determined by the applicable government authorities, (ii) Customer must not request service with respect to any item that contains hazardous materials, flammable, combustible or explosive materials, firearms, alcoholic beverages, or any other item which is prohibited by by the applicable airline or ground transport provider.  Airquest reserves the right to refuse service with respect to any Shipment in its sole discretion.

1.5.          International Shipments.  If Customer places an order for a Shipment involving international shipment, and Customer does not procure the services of a customs broker, Airquest and Customer may agree that Airquest will act as Customer’s customs broker.  In such case, all applicable customs fees will be paid by Airquest and then included on the applicable invoice to Customer.  If Customer procures the services of a customs broker, then Customer will be responsible for all applicable customs fees separate from this Agreement.  In either case, Customer will provide Airquest all necessary documentation associated with customs clearance.

2.     Billing and Payments.

2.1.        Pricing.  Pricing for each Shipment will be displayed to Customer on the Website (the “Fees”).  Fees will be invoiced upon placement of an order for a Shipment, an additional fees incurred thereafter, such as fees related to customs clearance as described above, baggage fees, parking fees, or other actual out-of-pocket expenses, may be invoiced separately.  All invoices are due within 30 days of the invoice date.  All fees are non-refundable.

2.2.        Late Charges.  Late payments are subject to interest charges of 1% per month, or if lower, the maximum amount allowed by law.

2.3.        Taxes.  Customer is solely responsible for payment of any taxes resulting from the use of the Service.  If any such taxes are required to be withheld, Customer shall pay an amount to Airquest such that the net amount paid to Airquest after withholding of taxes shall equal the amount that would have been otherwise payable under the applicable Shipment.

2.4.        Billing Disputes.  Customer agrees that it shall notify Airquest within 15 days of receipt of an invoice from Airquest if it intends to dispute the amounts owed under such invoice, and that after expiration of such period all undisputed invoices will be deemed to have been accepted. 

3.     Airquest Intellectual Property Rights & Restrictions. 

3.1.          Airquest Intellectual Property Rights.  Airquest shall retain all intellectual property rights in the Service and the Website, including any and all derivatives, changes and improvements thereto.  Customer agrees that it obtains no intellectual property rights or licenses by these Terms except the subscription expressly granted herein.

3.2.          Suspension of Access.  Airquest may suspend Customer’s access to the Service if Airquest reasonably determines that: (a) Customer’s use of the Service disrupts or creates a security risk to the Service or Airquest systems; (b) Customer is using the Service in violation of any applicable law or regulation or the terms of these Terms; or (c) Customer fails to pay fees owed to Airquest in accordance with these Terms. In the event of any suspension pursuant to this section, Airquest will use commercially reasonable efforts to provide written notice thereof to Customer, and to restore access to the Service as promptly as reasonably practicable.

4.     Customer Data.

4.1.          Ownership. All data, information, files or other materials and content that Customer makes available to Airquest for the purpose of using the Service (“Customer Data”) shall remain the sole property of Customer.

4.2.          License to Airquest. Customer hereby grants Airquest a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display and perform any and all Customer Data, to the extent required to perform the Service.

4.3.          EU Privacy Laws.  Customer agrees that it will not transfer to Airquest any Customer Data that contains personal data of a person subject to the General Data Protection Regulation without first entering into a mutually agreeable data processing agreement with Airquest.

5.     Confidentiality.

5.1.          Nondisclosure. Each party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under these Terms and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know and who are bound by obligations of confidentiality and non­use at least as protective of such information as these Terms and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of these Terms for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. “Confidential Information” means all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation and without the need to designate as confidential, the terms and conditions of these Terms and all Customer Data, but excluding Aggregate Anonymized Data.

5.2.          Exceptions. Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of these Terms by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in these Terms.

5.3.          Remedies.  Violations of this Section 5 are likely to cause irreparable harm and therefore each of the parties may seek immediate injunctive relief without the need of posting bond in the event of a violation of this Section 5.

6.     Representations and Warranties.

6.1.   Warranties. 

6.1.1.   Each party represents and warrants that these Terms constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms.

6.1.2.   Customer additionally represents and warrants that (a) Customer has obtained valid title to the Goods prior to delivery thereof to Airquest in connection with a Shipment, (b) Customer will use the Service in compliance with all applicable laws and regulations.

6.2.          Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, AIRQUEST PROVIDES ACCESS TO THE SERVICE ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE, WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE.

7.     Indemnification.

7.1.          Customer's Indemnities. Customer shall defend, indemnify and hold harmless Airquest and its officers, directors, consultants, employees, successors and permitted assigns, from and against any third party claim, suit or proceeding and all resulting damages, costs, losses, awards and reasonable attorneys’ fees (collectively, a “Claim”), arising out of or relating to (a) ownership of the Goods, (b) Customer’s use of the Service in any manner that violates these Terms or applicable laws, rules or regulations or (c) any harm suffered or alleged to be suffered by any third party, including employees or contractors of Airquest, caused by or in connection with the Goods, except to the extent such harm is solely due to the actions of Airquest.

7.2.          Airquest's Indemnities. Airquest shall defend, indemnify and hold harmless Customer from and against any Claim arising out of or relating to (a) Airquest’s provision the Service in any manner that violates these Terms or applicable laws, rules or regulations, or (b) Airquest’s gross negligence or willful misconduct.

7.3.          Indemnification Procedure. The indemnified party shall provide the indemnifying party with: (a) prompt written notice of such Claim; (b) sole control over the defense and settlement of such Claim; and (c) information as may be reasonably requested by the indemnifying party. The indemnifying party shall not settle any such Claim in a manner that does not unconditionally release the indemnified party without the indemnified party’s written consent.

8.     Limitation of Liability.

8.1.          EXCLUSION OF DAMAGES.  IN NO EVENT WILL AIRQUEST BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, PENALTIES OR FINES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT AIRQUEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2.          MAXIMUM AGGREGATE LIABILITY. 

8.2.1.UNLESS OTHERWISE AGREED IN WRITING WITH RESPECT TO ANY SHIPMENT, AIRQUEST’S MAXIMUM LIABILITY WITH RESPECT TO LOSS, DAMAGE, DELAY, OR MISDELIVERY OF OR TO THE GOODS SUBJECT TO SUCH SHIPMENT SHALL NOT EXCEED THE LESSER OF (A) THE REPLACEMENT VALUE OF SUCH GOODS OR (B) $10,000. 

8.2.2.ADDITIONALLY AIRQUEST’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE SHALL NOT EXCEED THE AVERAGE OF THE FEES PAID BY CUSTOMER TO AIRQUEST IN EACH OF THE SIX MONTHS IMMEDIATELY PRECEDING THE DATE THE LIABILITY FIRST ARISES.

8.3.          ACKNOWLEDGEMENT.  THE LIABILITIES LIMITED BY SECTIONS 8.1 AND 8.2 APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF AIRQUEST IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW, INCLUDING THE WARSAW CONVENTION, LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 8, AIRQUEST’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE BY SUCH LAW.

9.     Term; Termination.

9.1.          Term.  These Terms shall commence on the Effective Date of your first Shhipment and shall remain in effect until terminated as provided herein (the “Term”).

9.2.          Termination.  Either party may terminate these Terms upon written notice to the other party.

9.3.          Effect of Termination.  Upon termination of these Terms, Customer will immediately cease, and will cause all Authorized Users to cease, use of the Service, and these Terms shall terminate and be of no further force or effect, provided that the following provisions shall survive any expiration or termination of these Terms: (i) the obligation of Customer to pay Fees incurred prior to termination; and (ii) Section 3 (Airquest Intellectual Property Rights & Restrictions); Section 5 (Confidentiality); Section 6.2 (Disclaimer of Warranties); Section 7 (Indemnification); Section 8 (Limitation of Liability); and Section 10 (Miscellaneous).

10.  Miscellaneous.

10.1.       Amendments.  These Terms may be amended by Airquest from time to time in its sole discretion. In the event of such an amendment, Airquest will notify Customer of such update via email and provide Customer 30 days to object to such amendment. If Customer does not object within such period, the amended terms will be effective with respect to Customer upon the end thereof. If Customer does object within such 30 day period, the these Terms will automatically terminate at the end thereof.

10.2.       Entire Agreement.  These Terms, together with all order for Shipment, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications and agreements.

10.3.       Governing law. These Terms is governed by the laws of the State of California, without regards to its conflict of laws principles, and any dispute arising from these Terms shall be brought exclusively before the state and federal courts in San Francisco, California, and each party irrevocably submits to the jurisdiction of such courts.  The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.  In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.

10.4.       Assignment. Neither party may transfer or assign its rights or obligations under these Terms to any third party without the prior written approval of the other party, except that Airquest may assign these Terms to an affiliated company or to a successor in connection with a merger, acquisition, reorganization or sale of substantially all of its assets or voting securities.  Any purported assignment contrary to this section shall be void.  Subject to the foregoing, these Terms will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

10.5.       Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent by email or by mail to the address of such party listed in these Terms (or at such different address as may be designated by such party by written notice to the other party).

10.6.       Relationship of Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. these Terms will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.

10.7.       Severability. If any provision of these Terms is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of these Terms will remain in full force and effect.

10.8.       Force Majeure. Except for payment obligations under these Terms, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party's failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.

10.9.       Counterparts.  These Terms may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

10.10.    Publicity. Either party may issue publicity or general marketing communications concerning its involvement with the other party, subject to such other party’s prior written approval, which shall not be unreasonably withheld or denied; provided, that Customer hereby approves the display by Airquest of Customer’s name and logo on its website and in marketing materials, subject to Customer’s right to revoke such approval upon written notice to Airquest.

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