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General Terms and Conditions for Use and Sale of Equipment

The following terms and conditions (“Terms and Conditions”) apply to your (“You”, “Your” or “Customer”) use and purchase of equipment (“Gogo Equipment”) provided and/or sold by Gogo Inc. and its operating subsidiaries (collectively, “Gogo”) including Gogo Equipment provided in whole or in part through its third party service providers (“Suppliers”) for the use of mobile satellite and/or terrestrial wireless communication, information and related value added services (each individually and collectively, the “Services”). These Terms and Conditions shall govern all of Customer’s existing and future use and purchase of the Gogo Equipment, unless otherwise agreed to in writing by the Parties. Gogo and Customer are also referred to herein individually as a “Party” and jointly as the “ Parties”.

  1. Orders of Gogo equipment.
    1. Customer may order Gogo Equipment by issuing to Gogo one or more proposed purchase order(s), in the form provided or approved by Gogo (each, an "Order" and collectively, "Orders"), specifying the specific Gogo Equipment being ordered, the applicable pricing and term, and such other relevant information as may be required from time to time, as communicated to Customer and as may be updated by Gogo from time to time in its sole discretion. An Order is not legally binding and effective unless and until it is accepted by Gogo in writing, which may be done electronically, subject to and incorporating the provisions of these Terms and Conditions (each, an “ Accepted Order” or an “Agreement”), and Gogo reserves the right to decline to accept any Order in its sole discretion. Gogo shall (i) confirm to Customer the receipt of each Order properly issued under these Terms and Conditions and (ii) use commercially reasonable efforts to respond with its acceptance or rejection of such Order within seven (7) business days following receipt. 
    2. Accepted Orders shall, along with these Terms and Conditions, govern the provision by Gogo of Gogo Equipment to Customer; any additional or alternative terms in Customer’s Order, except for quantity, delivery dates, and location, are hereby rejected and shall not apply or form part of the Agreement unless expressly accepted in writing by an authorized representative of Gogo. There are no other oral or implied agreements, warranties or understandings. From time to time, Gogo may, at its sole discretion and without notice to Customer, add, delete, suspend or modify the portfolio of Gogo Equipment made available to Customer under these Terms and Conditions, provided that such changes shall not affect Orders already accepted by Gogo. The Parties hereby disclaim any and all other terms which may be included on any Order submitted by Customer and any of Customer’s general terms, regardless of whether such terms are expressly set forth on any Order, unless such terms are expressly accepted in writing by an authorized representative of Gogo in connection with a specific Accepted Order. Any other terms outside of this Agreement purporting to govern any Accepted Order that have not been so accepted are hereby null and void.
    3. Notwithstanding anything contained in an Accepted Order and/or this Agreement to the contrary, any activation, shipment or delivery dates provided by Gogo in an Accepted Order are estimates only. While Gogo will (i) make commercially reasonable efforts to deliver the Gogo Equipment in accordance with such dates and (ii) notify Customer if Gogo becomes aware of any potential delay to such shipment or delivery dates, Gogo will not be liable for failure to ship or deliver as estimated in any Accepted Order.
    4. In the absence of a written or electronically submitted Order, Customer’s issuance to Gogo of a purchase order, work order, work ticket or other form of written order on Customer’s standard form (collectively, “ PO(s)”) will constitute Customer’s acceptance of Gogo Equipment and these Terms and Conditions. If Customer issues a PO to Gogo for Gogo Equipment, such PO will be treated as an administrative document only and will not add to, delete from, or change any of these Terms and Conditions.
  2. Use of equipment
    1. Laws & Regulations. Customer will use the Gogo Equipment only in accordance with applicable U.S. and foreign rules, laws and regulations including, without limitation, anti-corruption laws and all applicable export control laws and regulations in connection with Gogo Equipment. Customer agrees to obtain, maintain and update, at Customer’s sole expense, all necessary licenses, approvals, permits, consents and governmental authorizations that may be required for Customer’s use of the Gogo Equipment (individually and collectively, “Compliance Requirements”). Customer is solely responsible for determining and complying with all Compliance Requirements in any jurisdiction in which it is using the Gogo Equipment. Customer acknowledges and agrees that the Gogo Equipment may be subject to, and governed by, U.S. export control laws, which Customer agrees to comply with in all respects. No Gogo Equipment shall be imported into, any country where doing so is a violation of applicable U.S. law, and no Gogo Equipment shall be transferred to, any person or entity identified on the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) Specially Designated Nationals and Blocked Persons (“SDN”) List. Without limiting the foregoing, you will (i) comply with all applicable sanction laws or regulations, (ii) will not use, export or import the Gogo Equipment in violation of any sanctions laws or regulations or from any territory under embargo by the United States, the United Kingdom or the European Union; (iii) not deliver, transfer, export, or re-export the Gogo Equipment or other software, technical data or other information (technology), directly or indirectly, to any individual or entity that is: (A) designated or identified on any list of persons that are the subject or target of sanctions, including, the SDN and Blocked Persons List, the Consolidated List of Persons, Groups and Entities Subject to EU Financial Sanctions and the Consolidated List of Financial Sanctions Targets in the UK; (B) located, organized or resident in a country or territory that is the subject of comprehensive sanctions, including, as of the date hereof, Cuba, Iran, North Korea, Syria and the temporarily occupied regions of Ukraine (Crimea, Donetsk People’s Republic, and Luhansk People’s Republic); (C) owned or controlled by, or acting for on behalf of, any individual or entity described in the foregoing subsections (A) or (B); or (D) otherwise the subject or target of sanctions and (iv) promptly notify Gogo in writing if you become aware of any facts or circumstances that would cause you to be in breach of this representation. Gogo will not be held responsible for any operational and/or use restrictions, customs, license or permit fees required for use of the Gogo Equipment in any Customer destination country. In addition, Gogo will have no responsibility for fines associated with terminal seizure nor for legal ramifications of using Gogo Equipment in countries where doing so is prohibited. Customer shall, at Gogo’s request, cooperate in good faith in respect of any inquiries, investigations, audits, requests, demands or other proceedings by any governmental authority, law enforcement agency or court having jurisdiction over either of the Parties relating to the subject matter of the Agreement and/or either Party’s performance of its obligations or exercise of its rights hereunder.
    2. Abusive or Fraudulent Use. Customer will be liable for all use or misuse of the Gogo Equipment hereunder, irrespective of whether such use or misuse was authorized, fraudulent or otherwise. Customer is prohibited from using the Gogo Equipment in an abusive or fraudulent manner, including, but not limited to the following actions: (i) accessing or attempting to access any telecommunication services by tampering with or altering Gogo Equipment; (ii) obtaining or attempting to obtain permission to use Gogo Equipment by providing false or misleading information; (iii) obtaining Gogo Equipment without having the intent to pay charges incurred; (iv) using Gogo Equipment to undertake, encourage, promote or further any unlawful, fraudulent or criminal purpose or otherwise illegal activity; (v) interfering with, gaining unauthorized access to (including circumventing the user authentication or security of) any Gogo, Supplier, or any other third party’s server, host, account, network, network access, computer, computer system, or control device; (vi) using the Gogo Equipment in a manner that interferes unreasonably with the use of Gogo Equipment by one or more other Gogo customers; or (vii) using the Gogo Equipment other than for the purposes expressly set forth in this Agreement. 
    3. Notification. Customer will immediately notify Gogo in the event any Gogo Equipment or enabling information (e.g., SIM cards, IMEI numbers) are lost, stolen or are rendered unserviceable due to damage or are used for a purpose other than that for which they are intended. Customer shall notify Gogo immediately upon becoming aware of: (i) any violation of these Terms and Conditions, (ii) any and all actual or suspected unauthorized disclosures or uses of any Access Methods or any thefts, losses or other breaches of security with respect to any Access Methods; (iii) any and all actual or suspected unauthorized use or misuse of any Services; (iv) any actual or suspected infringement or other violation of any rights of Gogo or any third party; (v) any other acts or omissions of Customer, including its users, which are likely to jeopardize or prejudice the rights of Gogo in any Services or threaten the security of any Services; and (vi) any claim, demand, or cause of action brought against Customer, including its users, or any subpoena or other similar legal document served upon Customer or any other person, which relates to this Agreement, any Gogo Equipment or any Services. Notwithstanding the foregoing, except to the extent mandated by applicable laws, Gogo shall have no obligation hereunder to investigate, prosecute, or otherwise take any action in respect of any violation of which it is notified by Customer. 
    4. Equipment Compatibility. Customer is solely responsible for ensuring: (i) Customer’s non-Gogo equipment is compatible with the Services, (ii) paying any fees or charges associated with use of Customer’s Gogo Equipment, and (iii) obtaining, installing, configuring, and maintaining suitable equipment and software, including any necessary system or software upgrades, patches or other fixes, that are or may become necessary to access or use the Services and to operate Gogo Equipment.
  3. Equipment Terms and Conditions.
    1. Delivery/Title/Risk of Loss. Risk of loss of the Gogo Equipment will transfer upon goods made available for Customer pick up Ex Works (EXW) Gogo’s designated facility for the Gogo Equipment (INCOTERMS® 2025). Customer will pay all costs and Taxes associated with the import/export, shipment, sale or transfer of the Gogo Equipment, including, postage, freight fees, transportation charges, handling costs, loading costs, packaging costs, insurance, import/export fees, customs fees, broker fees, duties, tariffs, and governmental fees (collectively “Shipping Costs”) incurred by Gogo to ship the Gogo Equipment to Customer’s designated location including for the shipment of Gogo Equipment to Customer’s delivery location upon purchase as well as the forward and return shipment of Gogo Equipment for repair, upgrade, replacement, or other purposes, unless otherwise agreed upon by the Parties prior to shipment. Customer shall act as the importer of record for any jurisdictions which the Gogo Equipment are imported into and shall be solely responsible for clearing the Gogo Equipment from customs and ensuring compliance with any Laws along with payment of applicable Taxes in accordance with Section 6.F. Any additional delivery terms will be mutually agreed to in writing by Gogo and Customer. Gogo will use commercially reasonable efforts to comply with delivery dates requested by Customer. In no event will Gogo have any liability in connection with any shipment, except for Gogo's gross negligence or willful misconduct in selecting or instructing the carrier, nor will any carrier be deemed to be an agent of Gogo.
    2. Partial Shipments. Customer agrees to accept partial shipments unless otherwise specified in advance, particularly in cases where the Gogo Equipment is temporarily out of stock. In the event that ordered Gogo Equipment is not available, Gogo will maintain a backorder list compiled by date. Customer is responsible for Shipping Costs for each partial shipment.
    3. Title. Title to Gogo Equipment purchased by Customer will transfer from Gogo to Customer upon Gogo’s receipt of the full sale price and any applicable Shipping Costs. Until Gogo’s receipt of payment in full, Customer will keep Gogo Equipment that is owned by Gogo free from any liens, claims or encumbrances and will execute all such documents as may be reasonably required by Gogo to evidence or perfect its security interest. 
    4. Inspection & Acceptance. Customer shall inspect or test the Gogo Equipment that has been tendered for acceptance within ten (10) days of delivery (“Inspection Period”), after which time such Gogo Equipment will be deemed accepted by Customer, except for latent defects not reasonably discoverable during the Inspection Period. Subject to Customer notifying Gogo of any nonconforming Gogo Equipment and detailing such nonconformity during the Inspection Period, Gogo will repair or replace nonconforming Gogo Equipment at no increase in price.
    5. Warranty. The Gogo Warranty Terms and Conditions pertaining to Gogo Equipment are available at https://www.gogoair.com/policies/warranty-policies and are incorporated herein by reference, as may be updated from time to time. EXCEPT AS SET FORTH IN THE GOGO WARRANTY TERMS AND CONDITIONS, GOGO MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. 
    6. Refunds/Restocking Fees. There will be no refunds for used Gogo Equipment returned to Gogo, except as provided in Section 4.E. If Customer returns unused Gogo Equipment to Gogo in its original package, in its original condition, and within thirty (30) days of delivery, Gogo will refund to Customer eighty five percent (85%) of the purchase price, the remaining fifteen percent (15%) of the purchase price representing a restocking fee. Customer will bear all Shipping Costs related to such return shipment. All Gogo Equipment must be returned to the Gogo facility as directed by Gogo.
  4. Intellectual Property. As between Gogo and Customer, all right, title and interest in and to: (a) the Gogo website located at https://www.gogoair.com and associated websites and any and all user guides or other information provided by Gogo to Customer; (b) all Confidential Information of Gogo; (c) the Services, including any software contained therein; (d) all system and network data, details, statistics, metrics, measurements and other non-personal information collected or generated by the Services, Gogo Equipment, or the Gogo network; and (e) all Intellectual Property and any components thereof associated therewith (collectively, “Gogo Property”), shall be and remain vested solely and exclusively in Gogo or Gogo’s third party licensors or Suppliers. Except as expressly provided for in these Terms and Conditions or the Agreement, nothing in these Terms and Conditions or the Agreement grants Customer any (i) rights, title, or interest in and to any Gogo Property; and (ii) any express or implied licenses relating to use of the Gogo Property. If Customer acquires any Intellectual Property in or relating to any Gogo Property (or any components thereof), by operation of applicable law, or otherwise, Customer hereby assigns such rights to Gogo and/or its licensors (including its Suppliers), as the case may be. Customer agrees to execute any documents reasonably necessary to effectuate such assignment. In the event Customer provides to Gogo any suggestions, comments or other feedback with respect to the Services (collectively, “Feedback”), such Feedback shall be deemed to be Gogo Property. Customer shall not, and shall not allow any third parties to, directly or indirectly (i) copy, alter, create derivative works of, edit, modify, translate, or revise Gogo Property; (ii) reverse engineer or compile, decompile, disassemble, or otherwise attempt to reconstruct or discover any source code or algorithms that is part of Gogo Property; (iii) use Gogo Property to create or support any commercially available equipment and/or service that replicates any function of the Gogo Equipment; and/or (iv) remove, delete, alter, obscure, add to or fail to reproduce in and on any of the Gogo Property, any warranties, disclaimers, or warning labels, any Intellectual Property rights notices, confidential / proprietary rights notices or other notices appearing in or on any applicable Gogo Property or which may be required by Gogo and/or its licensors (including Suppliers). Customer shall (i) immediately notify Gogo of any alleged infringements of the Gogo Property and (ii) reasonably assist Gogo in pursuing Gogo’s legal rights against any such infringers. Subject to the provisions of these Terms and Conditions, Gogo grants to Customer, and Customer accepts, a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to use, any Gogo owned or licensed software embedded solely to the extent embedded on the applicable unit of the Gogo Equipment with which it is shipped, and solely in accordance with the applicable Gogo documentation.

  5. Billing & Payment.
    1. Payment for Gogo Equipment. Customer must provide the necessary documentation to Gogo to be set up in our system, complete a credit check and have available credit before Gogo Equipment is shipped. If Gogo determines in its sole discretion that Customer has sufficient credit available, invoices for Gogo Equipment will be sent on or after the date of shipment and will include all applicable federal, state, provincial, local, and other taxes, fees and duties or other charges and amounts that may be levied upon the Gogo Equipment.
    2. Payment Terms.
      1. Customer shall pay all undisputed invoices within thirty (30) days of the date of invoice and in accordance with this Section 6 and the instructions stated on the invoice unless otherwise agreed to by the Parties in writing.
      2. Undisputed amounts not paid within thirty (30) days will be subject to an interest charge of the lesser of (A) one and one-half percent (1.5%) per month or (B) the highest rate permitted by applicable law. 
      3. Gogo reserves the right to apply any amounts or credits Gogo owes Customer to any outstanding balances on any of Customer’s Gogo accounts. 
      4. Customer will pay for any and all collection or litigation expenses, including reasonable legal fees, incurred by Gogo in collecting any late payments or late payment fees. 
      5. Customer shall pay an administrative fee of $10 U.S.D to Gogo per month for the issuance of paper invoices. To avoid this fee, Customer may elect to receive electronic invoices, in PDF format, each month. If Customer elects to receive electronic invoices, Customer may also pay invoices directly online by credit card through Gogo’s electronic invoicing system. If you have authorized payment by credit card, no additional notice or consent will be required for fees charged to such credit card. Gogo may also require monthly automatic payments using your credit card or eCheck, in accordance with applicable laws. By enabling automatic payments in accordance with applicable laws, you authorize Gogo to automatically debit your credit card or bank account for all charges incurred by you under the Service Agreement for the use of the Services, including early cancellation fees, termination charges, and any other fees.
      6. Gogo retains a purchase money security interest in the Gogo Equipment and all proceeds of the Gogo Equipment, including, but not limited to, insurance proceeds, to the extent such Gogo Equipment is shipped but not paid for in full. Failure of Customer to pay all charges related to any Gogo Equipment when due shall give Gogo the right, without liability, to repossess the Gogo Equipment, with reasonable prior notice to Customer (except where prohibited by law or where immediate action is necessary to prevent removal, concealment, or dissipation of the collateral), and to avail itself of any legal remedy available under the Uniform Commercial Code and applicable law. Customer agrees to execute and deliver such financing statements and other documentation as Gogo may reasonably request to perfect and protect Gogo’s interest in such Gogo Equipment.
    3. Pricing.
      1. Price. All pricing, which is exclusive of Taxes and Shipping Costs, will be in accordance with Gogo’s then-current pricing or pricing provided to Customer in a written Order for the applicable Gogo Equipment. Gogo reserves the right to revise such pricing from time to time at its sole discretion. 
      2. Changes. Prices and availability of Gogo Equipment are subject to change without notice. Gogo will correct any pricing and availability errors where and when discovered, and Gogo reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions including after an order has been submitted and whether or not the order has been confirmed. Gogo shall have the right to issue adjustments to invoices after the date of any given invoice in the event of the discovery of errors or adjustments affecting such invoices. The right to issue adjustments shall be limited to eighteen (18) months after the date of any given invoice. Gogo shall, on discovery of any such error, notify Customer in writing within thirty (30) days of such discovery of the intention to make such adjustments.
    4. Credit. Gogo may require Customer to provide a third-party guarantee, deposit, letter of credit, or other form of security deemed necessary by Gogo, in its sole discretion, to provide adequate assurance of payment. The provision of such third-party guarantee, deposit, letter of credit, or other form of security does not relieve Customer of its payment obligations specified herein.
    5. Methods of Payment. Payment for all Gogo Equipment must be made via check (subject to a fee of $100 each for any returned checks), ACH, wire (for which Customer is responsible for all wiring fees), credit card (Master Card, VISA, American Express, or other credit cards as Gogo may designate from time to time and subject to any additional fees we may charge for credit card payments), or as otherwise allowed in writing by Gogo. All payments must be made in US dollars unless otherwise agreed to in writing by Gogo in its sole discretion. Gogo reserves the right to assess a surcharge for credit card payments as permitted by applicable law. Gogo may, but is not required to, accept partial payments from Customer. Any Customer payments submitted to Gogo via check or other form of payment marked “payment in full” or otherwise labeled in restrictive endorsements, shall, if accepted by Gogo, be accepted as only partial payment and Gogo will retain any and all rights to collect all amounts owed by Customer under this Agreement.
    6. Taxes/Fees. Customer shall pay all applicable taxes, assessments, tariffs, excises, fees, charges, surcharges or similar exactions imposed by any government authority (local, state, national or foreign) on the Gogo Equipment that are the subject of this Terms and Conditions (including if imposed retroactively or assessed in the future) including but not limited to sales and use taxes, good and services taxes, value added taxes, duties and custom fees; provided that the forgoing shall exclude any taxes based on Gogo’s income, profit, gains or equity (collectively, “Taxes”). Further, Gogo shall have the right to recover from Customer the amount of any government fees or Taxes arising as a result of these Terms and Conditions, which are imposed on Gogo or Gogo Equipment. Such fees or Taxes shall be invoiced to Customer in the form of a surcharge included on Customer’s invoice. Customer shall be responsible for providing Gogo any and all documentation substantiating a claim for exemption from Taxes prior to the date the Gogo Equipment are purchased under these Terms and Conditions. To the extent such documentation is held invalid for any reason, Customer agrees to reimburse Gogo for any Tax or fee liability including without limitation related interest and penalties arising from such invalid documentation. Customer acknowledges that currently, and from time to time, there is uncertainty about the regulatory classification of some of the Services Gogo provides and, consequently, uncertainty about what taxes are due from Gogo and/or its Customers. Customer agrees that Gogo has the right to determine, in its sole discretion and in accordance with applicable law, what taxes are due and to collect and remit them to the relevant governmental authorities, and/or to pay and pass them through to Customer. Customer agrees not to challenge Gogo's good faith determination and collection of such fees, taxes and surcharges, except where Customer can demonstrate that such determination was made in bad faith or was not in accordance with applicable law. In the event that any tax, duty, impost, levy or like charge becomes payable in any territory, either by deduction or otherwise, on or in respect of any amount to be paid by Customer to Gogo, or which Customer may be required to withhold in respect of any amount due to Gogo, such tax, duty, impost levy or like charge shall be applied to the account of Customer and Customer shall pay to Gogo such an amount as to yield to Gogo a net amount equal to the amount that, but for such tax, levy, impost or charge, would have been received by Gogo. Gogo will provide reasonable assistance to Customer to minimize the amount of such withholdings or deductions, including providing any relevant certification of its status as a non-resident of a jurisdiction or of its entitlement to benefits under a treaty.
    7. Invoice Inquiries. Customer must pay all invoiced amounts when due. Customer may dispute any charges in any invoice in good faith by notifying Gogo in writing within thirty (30) days of the invoice date and may withhold payment of the disputed portion of such invoice; provided that such notice shall include the reasons for the dispute. However, Customer shall make payment of any undisputed portion of such invoice by the required due date. Customer’s failure to dispute any charges in any invoice within the required thirty (30) day timeframe shall amount to agreement by Customer of all such charges being correct and due to Gogo. Customer’s claims of unauthorized or unintended use, fraudulent been received by Gogo. Gogo will provide reasonable assistance to Customer to minimize the amount of such withholdings or deductions, including providing any relevant certification of its status as a non-resident of a jurisdiction or of its entitlement to benefits under a treaty.
  6. Cancellation of Equipment Orders
    1. By Customer: Customer may cancel or amend any portion of an Accepted Order by notifying Gogo by email no later than when the Gogo Equipment is made available at the Gogo’s designated facility to be shipped in accordance with Section 4.A. for any given Accepted Order; provided that if such cancellation is within eight (8) weeks (two months) of the Accepted Order delivery date for the applicable Gogo Equipment, Customer will incur a cancellation fee of fifty percent (50%) of the total for the canceled Equipment portion of such Accepted Order.
    2. By Gogo: Gogo may cancel an Accepted Order and terminate the sale of Gogo Equipment, in whole or in part, without liability: (1) if Customer fails to pay any amount due to Gogo under this Agreement that is not cured within ten (10) calendar days following receipt of written notice of such failure; (2) immediately upon written notice to Customer if Gogo is prohibited from furnishing the Gogo Equipment to Customer by any applicable government authority; (3) upon thirty (30) days’ written notice if a change in any applicable law or regulation materially increases Gogo’s cost to provide the Gogo Equipment; (4) if Customer commits any material action or makes any material misrepresentation related to Gogo that is not expressly authorized by these Terms and Conditions or in the event that Customer materially breaches these Terms and Conditions and such breach is not cured within thirty (30) Business Days following receipt of written notice, provided that such breach is capable of being cured; (5) immediately upon written notice if Customer becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy proceedings that are not dismissed within sixty (60) days, has a receiver appointed, or makes a general assignment of its assets for the benefit of creditors; or (6) in the event that a Supplier Contract (as defined in Section 10.D) expires or is terminated, Gogo may cancel an Accepted Order, provided that cancellation will only be with respect to the Gogo Equipment provided pursuant to that expired or terminated Supplier Contract.
    3. Consequences of Cancellation. Upon cancellation or termination, each Party will promptly (and in any event within thirty (30) days) make any payments due to the other Party as of the effective date of such cancellation or termination. Immediately upon cancellation and/or termination of this Agreement for any reason, Customer shall (except as strictly necessary to service any surviving Accepted Orders) destroy or return to Gogo (at Gogo’s sole election) the originals and all copies of any Confidential Information of Gogo and any other Gogo Property (excluding the Gogo Equipment that has been paid for in full by Customer) previously obtained in connection with this Agreement, and separately confirm the foregoing in writing to Gogo. The rights of cancellation or termination set forth in this Section 7 are in addition to any other remedies available to either Party under the Agreement, or at law or in equity.
    4. Survival of Terms.  In addition to this Section, the following provisions shall survive any expiration and/or termination of this Agreement and/or any Accepted Orders: (a) Sections 5, 6, 7(D), 7(E), 8, 9 and 10(A); and (b) any other provisions of this Agreement which, by their nature, were intended by the Parties to survive any expiration and/or termination of this Agreement. Additionally, expiration or termination of this Agreement shall not relieve either Party of any obligation or liability accruing prior to such expiration or termination, including without limitation payment obligations, indemnification obligations, and liability for breaches occurring prior to termination.
  7. Indemnity and Limitation of Liability.
    1. THE FOLLOWING LIMITATIONS AND INDEMNITIES APPLY ONLY TO THE EXTENT ALLOWABLE UNDER APPLICABLE LAW. 
    2. CUSTOMER AGREES TO RELEASE, PROTECT, INDEMNIFY, DEFEND AND HOLD HARMLESS GOGO AND GOGO’S SUPPLIERS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, INSURERS, ASSIGNS, SUBSIDIARIES AND AFFILIATED (INCLUDING PARENT) COMPANIES, AND THEIR DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, ACTIONS, LOSSES, DAMAGES, DEMANDS, SUITS, (INCLUDING DAMAGE TO PROPERTY AND PERSONAL INJURY) AND EXPENSES (INCLUDING LOSSES FROM SETTLEMENT AND REASONABLE COURTS COSTS AND ATTORNEY’S FEES) ARISING OUT OF OR RELATING IN ANY WAY OR ALLEGED TO BE CAUSED BY ANY OF THE FOLLOWING: (I) CUSTOMER’S USE OR MISUSE OF THE GOGO EQUIPMENT AND/OR SERVICES; (II) FAILURE OR LIMITATIONS OF ANY EMERGENCY DISTRESS FEATURE; (III) INSTALLATION, MAINTENANCE AND/OR REMOVAL OF SUCH GOGO EQUIPMENT AND/OR SERVICES PROVIDED BY GOGO AND/OR ITS SUPPLIERS; (IV) CUSTOMER’S BREACH OF THESE TERMS AND CONDITIONS, EXCEPT TO THE EXTENT SUCH CLAIMS ARE DIRECTLY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF GOGO, AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION; (V) ANY CLAIMS OR ACTIONS FOR LIBEL, DEFAMATION, SLANDER, INVASION OF PRIVACY, PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT, OR THE VIOLATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, ARISING IN CONNECTION WITH CUSTOMER’S USE OR MISUSE OF THE SERVICES AND/OR GOGO EQUIPMENT; OR (VI) ANY CLAIM OR ACTION FOR INTELLECTUAL PROPERTY INFRINGEMENT RESULTING FROM CUSTOMER’S USE (OR USE BY ANY OF ITS AFFILIATES) OF THE GOGO EQUIPMENT AND/OR SERVICES IN COMBINATION WITH EQUIPMENT, HARDWARE, SOFTWARE, SYSTEMS, CABLING, FACILITIES OR SERVICES NOT PROVIDED HEREUNDER BY GOGO.
    3. THE TOTAL, AGGREGATE LIABILITY OF GOGO TO CUSTOMER (OR TO ANY AFFILIATE OF CUSTOMER) FOR ANY AND ALL CLAIMS WHATSOEVER RELATED TO THE GOGO EQUIPMENT AND/OR SERVICES OR THESE TERMS AND CONDITIONS FOR ANY CLAIMS WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, STRICT LIABILITY, PRODUCT LIABILITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, HOWSOEVER ARISING, WILL BE LIMITED TO DAMAGES PROVEN AS DIRECTLY ATTRIBUTABLE TO GOGO, AND FURTHER LIMITED TO AN AMOUNT EQUAL TO THE LAST TWELVE (12) MONTHS OF PAYMENTS MADE BY CUSTOMER TO GOGO UNDER THESE TERMS AND CONDITIONS PRECEDING THE DATE OF ANY CLAIM MADE AGAINST GOGO.
    4. THE INDEMNIFIED PARTIES SHALL NOT BE LIABLE TO CUSTOMER ON ANY BASIS WHATSOEVER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT, LOSS ARISING FROM OR ATTRIBUTABLE TO FAILURE TO REALIZE ANTICIPATED SAVINGS, OR LOSS OF PRODUCTION, EQUIPMENT OR DATA) EVEN IF A PARTY KNEW OR HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. THIS SECTION WILL SURVIVE TERMINATION OF THIS AGREEMENT.
    5. ANY ACTION AGAINST GOGO MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE DATE THAT THE CLAIM AROSE.
  8. Miscellaneous Provisions.
    1. Governing Law & Venue. The Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding any choice of law rule thereof that would direct the application of the laws of another jurisdiction. Any and all disputes, controversies or claims arising out of or in connection with these Terms and Conditions and/or the Agreement (each a “Dispute”) shall be resolved by final and binding arbitration under the International Chamber of Commerce Rules of Arbitration then in force (the “Rules”). The place of arbitration shall be New York, New York, and the language of arbitration shall be English. There shall be one arbitrator appointed in accordance with the Rules. Under these Terms and Conditions and the Agreement, you and Gogo each waive any and all rights to have a court or jury hear or decide any Disputes. If you have a Dispute, before initiating arbitration, you must send a written notice to legalnotices@gogoair.com describing your issue and your desired resolution. If your Dispute has not been resolved within 60 days of submitting a notice, you may initiate arbitration as described above. YOU AND GOGO AGREE THAT NO DISPUTE OR CLAIM MAY BE BROUGHT OR MAINTAINED AS PART OF A CLASS ACTION OR CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR ARBITRATION, REGARDLESS OF WHETHER THE APPLICABLE ARBITRATION RULES WOULD OTHERWISE PERMIT CLASS OR REPRESENTATIVE PROCEEDINGS. ACCORDINGLY, YOU AND GOGO MAY ONLY PURSUE A CLAIM AGAINST THE OTHER IN AN INDIVIDUAL CAPACITY, AND MAY NOT PURSUE A CLAIM AGAINST THE OTHER ON BEHALF OF ANY OTHER PERSON, AND NO OTHER PERSON MAY PURSUE A CLAIM ON BEHALF OF YOU OR GOGO AGAINST THE OTHER. AN ARBITRATOR MAY ENTER AN AWARD ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
    2. Attorneys’ Fees and Costs. In the event of a Dispute arising under the Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, whether incurred before suit, during suit, or at the appellate level. The prevailing party shall also be entitled to recover any attorneys’ fees and costs incurred in litigating the entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of attorneys’ fees and costs due to it.
    3. Waiver. The waiver or failure of either Party to enforce any provision of the Agreement or to exercise any right or privilege hereunder, will not be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any provisions, rights or privileges hereunder. No waiver by either Party hereunder shall be effective unless agreed to pursuant to a writing signed by an authorized representative of the Party granting the waiver.
    4. Supplier Contracts. Gogo’s obligations under the Agreement are subject to the agreements under which Gogo purchases Gogo Equipment from its Suppliers and any separate agreements between Supplier(s) and Customer (each, a “ Supplier Contract”). To the extent fulfillment of any obligation of the Agreement is not permissible or possible under a Supplier Contract, the Supplier Contract will prevail, and such obligation will be suspended, terminated or modified to the extent required by the Supplier Contract. Gogo represents and warrants that to its knowledge it is not presently aware of any material respect in which these Terms and Conditions is inconsistent with a Supplier Contract. 
    5. Force Majeure. Gogo will not be liable for any failure of performance hereunder due to causes beyond its reasonable control (“Force Majeure”), including, without limitation, acts of God, fire, explosion, satellite failure, unavailability of Supplier-provided Service elements, vandalism, cable cut, storm or other catastrophes, national emergency, insurrections, riots, wars or strikes, lock-outs, severe weather, epidemics, earthquakes, floods, work stoppages or other labor disputes, or any law, order, regulation, direction, action or request of any government or authority or instrumentality thereof, or delay in delivery of Gogo Equipment, to the extent such delay is beyond the reasonable control of Gogo or Customer and other delays incurred for reasons beyond Gogo’s reasonable control. Gogo’s obligation to perform will be suspended for the duration of a period of Force Majeure and will resume as soon as reasonably possible, after cessation of the event of Force Majeure.
    6. Entire Agreement. These Terms and Conditions together with the Accepted Order constitutes the entire agreement between Gogo and Customer relating to the subject matter hereof and supersedes all prior agreements between the Parties with respect to such subject matter. In the event of any conflict between these Terms and Conditions and the Accepted Order, these Terms and Conditions shall govern and control. There are no other oral or implied agreements, warranties or understandings between Gogo and Customer with respect to such subject matter.
    7. New and Modified Terms and Conditions. Gogo may modify these Terms and Conditions from time to time at its discretion. Gogo will notify Customer of a modification to these Terms and Conditions by: (A) emailing Customer at Customer’s e-mail address of record, or (B) written correspondence, including notification on Customer’s invoice. Such modifications will be effective on the date specified in the notice. CUSTOMER’S CONTINUED USE OF THE GOGO EQUIPMENT CONSTITUTES CUSTOMER’S AGREEMENT TO GOGO’S TERMS AND CONDITIONS THAT ARE IN EFFECT AT THE TIME CUSTOMER USES GOGO EQUIPMENT.
    8. Severability. If any provision of the Agreement is declared invalid, illegal or unenforceable by a court or regulatory agency of competent jurisdiction, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby. In the event that any such provision is declared invalid, illegal or unenforceable due to its scope, breadth or duration, then it will be modified to the scope, breadth or duration permitted by law and will continue to be fully enforceable as so modified. All provisions of the Agreement which would naturally survive its expiration or termination will so survive.
    9. Relationship; Assignment. Nothing in the Agreement shall constitute or be deemed to establish a partnership, joint venture, association or employment relationship between the Parties, and neither Party is granted herein or shall have the authority or power to bind the other Party, or to contract in the name of the other Party, in any manner or for any purpose. Gogo may assign the Agreement and any rights and obligations hereunder to any third party without consent of or notice to Customer. Customer may not assign its rights or obligations hereunder without Gogo’s prior written consent and any attempt to do so shall be void and of no force. or effect for any purpose whatsoever and shall constitute a breach of the Agreement. The Agreement will inure to the benefit of, and will be binding on, Customer’s and Gogo’s respective successors and permitted assigns. The Parties agree that, except as expressly set forth herein, no provision of the Agreement is intended, expressly or by implication, to purport to confer a benefit or right of action upon any authorized user or other third party (whether or not in existence, and whether or not named, as of the Effective Date).
    10. Full Disclosure. Customer has had the opportunity to review these Terms and Conditions and consult with an attorney or other person/entity of Customer’s choosing for legal/professional advice prior to executing the Agreement. Further, Customer has fully informed itself of the contents, terms, conditions, and effects of the Terms and Conditions, has read the entire Agreement and fully understands all of the terms.
    11. Publicity. Neither Party shall, without the prior written approval of such other Party in each instance, issue any press release relating to the Agreement or other display, broadcast or otherwise use in publicity distributed materials any corporate name, trade name, trademarks or service marks of the other Party.
    12. Remedies. No remedy conferred by any provision of the Agreement is intended to be exclusive of any other remedy, except as expressly provided in the Agreement, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or hereafter existing in Law or in equity or by statute or otherwise. 
    13. Notice. All notices, requests, demands and other communications hereunder will be in writing and will be sent by email, nationally recognized overnight courier or delivered in person, addressed as set forth below. Such notices will be effective upon delivery, or in the case of email, upon transmission with confirmation of receipt, or if sent by nationally recognized overnight courier, one (1) business day after deposit with such courier. Either Party may, at any time, amend the below addresses for notice upon written notice to the other Party.

If to Gogo:

Gogo Business Aviation LLC
105 Edgeview Drive, Suite 300
Broomfield, CO 80021
Attention: Legal Department
Email: legalnotices@gogoair.com

If to Customer: To the mailing address or e-mail address given at the time Gogo initially set up Customer’s account, or to such other address as Customer may designate by written notice to Gogo. Customer agrees to give Gogo notice within seven (7) days of any change of name, billing address, e-mail address, telephone number or contact person. This notification must be in writing or via e-mail to Gogo.