Terms of Service
Last Updated: April 29, 2021
Flymachine, Inc. Terms of Service
These Terms of Service constitute a legally binding agreement between you and Flymachine, Inc. (together with its affiliates, “Flymachine”, “we,” “our” or “us”) governing your use of our products, services, mobile application (the “App”), and website (https://flymachine.com)(the “Site” and collectively with the foregoing, the “Services”).
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “I AGREE” OR SIMILAR BUTTON, REGISTERING FOR AN ACCOUNT, DOWNLOADING THE APP OR ANY APP UPGRADES, USING THE APP ON YOUR MOBILE DEVICE, OR ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE OR THE APP. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES. These Terms of Service are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access the Services, whichever is earlier. If you accept or agree to these Terms of Service on behalf of your employer or another legal entity, you represent and warrant that (i) you have full legal authority to bind your employer or such entity to these Terms of Services; (ii) you have read and understand these Terms of Service; and (iii) you agree to these Terms of Service on behalf of the party that you represent and any permitted users of such party. In such event, “you” and “your” will refer and apply to your employer or such other legal entity.
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND FLYMACHINE CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 14). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
1. Our Services
We provide a platform to venues and artists to livestream events and collect payment for admission to these livestream events (including recorded livestream events), as well as social virtual spaces (“Virtual Spaces”) for fans to attend these events.
2. Account, Password, Security, and Mobile Phone Use
You must register with Flymachine and create an account to use the Services (an “Account”) and as part of that process you will be requested to provide certain information, including without limitation your name, full address, phone number and email address. By using the Services, you agree to provide true, accurate, current and complete information as prompted by the registration process and to maintain and promptly update the Account information to keep it accurate, current and complete. You are the sole authorized user of your Account. You are responsible for maintaining the confidentiality of any log-in, password, and Account number provided by you or given to you by Flymachine for accessing the Services. You are solely and fully responsible for all activities that occur under your password or Account, even if not authorized by you. Flymachine has no control over the use of any user’s Account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or Account or you suspect any other breach of security, you agree to contact Flymachine immediately.
The person signing up for the Services will be the contracting party (“Account Owner”) for the purposes of these Terms of Service and will be the person who is authorized to use any corresponding Account we provide to the Account Owner in connection with the Services; provided, however, that if you are signing up for the Services on behalf of your employer, your employer shall be the Account Owner. As the Account Owner, you are solely responsible for complying with these Terms of Service and only you are entitled to all benefits accruing thereto. Your Account is not transferable to any other person or account. You must immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of our security or the security of your Account.
3. Billing and Payment
Certain portions or features of the Site or the Services, including access to virtual events, may only be made available on a paid basis (“Paid Service” ). If you elect to use a Paid Service, you agree to the terms of sale, pricing, payment and billing policies applicable to such Paid Service posted on the Site.
Unless otherwise indicated on the Site at the time of purchase, all charges associated with your use of the Paid Service (the “Service Fees”) are due in full (i) at the time of purchase or (ii) upon commencement of the period for which you have agreed to purchase the Paid Service (a “Paid Service Term”), as applicable. A Paid Service will not be activated until your payment information is validated and we receive payment for the Service Fees. For recurring Paid Services, you hereby authorize Flymachine to bill your payment account or other payment instrument in advance on a periodic basis in accordance with the terms of the Paid Service you have purchased until you cancel such recurring Paid Services, and you further agree to pay any Service Fees so incurred. If you fail to pay the Service Fees or charges for other services indicated on the Site within five (5) business days of our notice to you that payment is due or delinquent, or if your Payment Information is not accurate, current and complete, in addition to our other remedies, we may suspend or terminate your use of the Site or the Services.
Flymachine reserves the right to modify the Paid Service and Service Fees from time to time at its sole discretion. We will provide you with notice (“Change Notice”) of any material modifications to a Paid Service or Service Fees for which you have purchased by sending an email to the email address that you have registered under your account. If you do not cancel your Paid Service within 30 days from the date of the Change Notice, you will be deemed to have irrevocably accepted the modifications to the Paid Service and Service Fees identified in the Change Notice.
Payment and any other expenses must be paid through the third-party payment processing system (the “PSP”) as indicated on the Services. You may be required to register with the PSP, agree to terms of service of the PSP, provide your payment details to the PSP and go through a vetting process at the request of the PSP to set up an account with the PSP (the “PSP Services Agreement”). By accepting these Terms of Service, you agree that you have downloaded or printed, and reviewed and agreed to, the PSP Services Agreement. Please note that Flymachine is not a party to the PSP Services Agreement and that you, the PSP and any other parties listed in the PSP Services Agreement are the parties to the PSP Services Agreement and that Flymachine has no obligations, responsibility or liability to any user or any other party under the PSP Services Agreement.
Unless otherwise noted, all prices and fees displayed on the Services are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services or other taxes, fees or charges now in force or enacted in the future (“Taxes”). Any applicable Taxes are based on the rates applicable to the billing address you provide to us and will be calculated at the time a transaction is charged to your Account. Unless otherwise indicated, all prices, fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
From time to time, we may offer trials of Paid Services for a specified period without payment or at a reduced rate (a “Trial”). We reserve the right, in its absolute discretion, to determine the eligibility for a Trial, and, subject to applicable laws, to withdraw or modify a Trial at any time without notice and with no liability, to the greatest extent permitted under the law. For some trials, we will require you to provide your payment details to start the Trial. AT THE END OF SUCH TRIALS, WE MAY AUTOMATICALLY START TO CHARGE YOU FOR THE APPLICABLE PAID SERVICES FOLLOWING THE END OF THE TRIAL, ON A RECURRING BASIS. BY PROVIDING YOUR PAYMENT DETAILS IN CONJUNCTION WITH THE TRIAL, YOU AGREE TO THIS CHARGE USING SUCH PAYMENT DETAILS. IF YOU DO NOT WANT THIS CHARGE OR DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING BASIS, YOU MUST CANCEL THE APPLICABLE PAID SERVICES OR TERMINATE YOUR FLYMACHINE ACCOUNT BEFORE THE END OF THE TRIAL. PAID SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, FLYMACHINE WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
3.1 Refund Policy
You acknowledge and agree that all purchases made through the Site or the Services are final. Exchanges and refunds are not permitted, unless an event, pass type or other offering is significantly modified, as determined by Flymachine in its sole discretion.
4. User Content
You acknowledge and agree that any public communications made to or by means of any portion of the Site or the Services are public. You acknowledge that (i) you have no expectation of privacy in any such public communications and (ii) no confidential, fiduciary, contractually implied or other relationship is created between you and Flymachine by reason of your transmitting a public communication to any part of the Site or Services. As used in these Terms of Service, “Your Posted Material” means any information, messages, e-mails, postings, on-line discussions, literary works, drawings, illustrations or images, films, audio, audiovisual and/or digital content, or any other copyrightable work or non-copyrightable idea, expression, or communication, regardless of whether you authored or created such work or communication, which you cause to be posted to, submitted to, or in any way transmitted via, the Site or the Services. You are solely responsible for Your Posted Material. You agree that you are solely responsible for Your Posted Material sent or transmitted by you or displayed or uploaded by you in using the Services and for compliance with all laws applicable to Your Posted Material, including, but not limited to, any laws requiring you to obtain the consent of a third party to use Your Posted Material and to provide appropriate notices of third party rights. You represent and warrant that you have the right to upload Your Posted Material to the Services and that such use does not violate or infringe on any rights of any third party. Under no circumstances will Flymachine be liable in any way for (a) Your Posted Material that is transmitted or viewed while using the Services, (b) errors or omissions in Your Posted Material, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Your Posted Material. Although Flymachine is not responsible for Your Posted Material, Flymachine reserves the right to delete any User Content, at any time without notice to you, if Flymachine becomes aware that it violates any provision of this Agreement or any law. You retain copyright and any other rights you already hold in Your Posted Material. Flymachine acts merely as a passive conduit for your online distribution and publication of Your Posted Material. You acknowledge and agree that Flymachine:
- Is not involved in the creation or development of Your Posted Material.
- Disclaims any responsibility for Your Posted Material.
- Cannot be liable for claims arising out of or relating to Your Posted Material.
- Is not obligated to monitor, review, or remove Your Posted Material, but reserves the right to limit or remove Your Posted Material on the Services or suspend or terminate your access to the Services in connection with Your Posted Material at its sole discretion.
You hereby represent and warrant to Flymachine that Your Posted Material (i) will not be false, inaccurate, incomplete or misleading; (ii) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (iii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (iv) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (v) will not be obscene, sexually explicit, or contain pornography (including but not limited to child pornography) or be harmful to minors; (vi) will not facilitate human trafficking; (vii) will not support terrorism or terrorist organizations; (viii) will not be fraudulent, false or misleading; (ix) will not be defamatory, harassing, stalking, threatening or abusive, which includes any activity that reflects hatred against others based on race, religion, ethnicity, national origin, gender or sexual orientation; (x) will not send unauthorized messages, advertising or spam, including unsolicited promotional or commercial content or other mass solicitation materials; (xi) will not misrepresent your identity or affiliation with any entity or organization, or impersonate any other person; (xii) will not harvest, collect or gather user data without proper consent; (xiii) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (xiv) will not represent you being employed or directly engaged by or affiliated with Flymachine or purport you to act as a representative or agent of Flymachine; (xv) will not constitute at invasion of privacy, or misappropriation of statutory or common law rights to publicity or personality; (xvi) with respect to Virtual Spaces, “chat rooms” or other mechanism for real time dialogue between users, disrupts the normal flow of dialogue, or posts comments that are not related to the topic being discussed (unless it is clear that the discussion is free-form); and (xvii) will not create liability for Flymachine or cause Flymachine to lose (in whole or in part) the services of its ISPs or other suppliers. We take violations of our customers' rights and our own rights seriously, and we make efforts to report any potential criminal violations to appropriate authorities.
By making available Your Posted Material or any other notes, postings, ideas, suggestions, concepts or other materials on the Site or through the Services, including via Virtual Spaces, you hereby grant to Flymachine a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free right and license, with the right to sublicense, to use, access, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content on, through or by means of the Services, including, but not limited to, all rights in copyright to such material and all elements thereof alone or as part of other works, throughout the universe, in any form, media, or technology, whether now known or hereafter devised, and to sublicense such rights through multiple tiers of sublicenses, all without any obligation to you, whether by way of compensation, attribution or otherwise.
5. Representations and Warranties
You represent and warrant that: (i) you are 18 years of age or older or are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts, and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You agree not to engage in any of the following prohibited activities, among others: (i) copying, distributing, or disclosing any part of the Services in any medium other than as allowed by the Services and these Terms of Service; (ii) using any automated system (other than any functionalities of the Services), including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services; (iii) transmitting spam, chain letters, or other unsolicited email or attempting to phish, pharm, pretext, spider, crawl, or scrape; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) violating any international, federal, provincial or state regulations, rules, laws, or local ordinances; (vi) conducting any unlawful purposes or soliciting others to perform or participate in any unlawful acts; (vii) uploading invalid data, viruses, worms, or other software agents through the Services; (viii) infringing upon or violate our intellectual property rights or the intellectual property rights of others; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, sharing or promoting false information or fraudulent content, hiding or attempting to hide your identity, including disguising your location to circumvent geographic restrictions; (x) harassing, insulting, harming, abusing, defaming, abusing, harassing, stalking, threatening, intimidating or otherwise violating the legal rights (such as of privacy and publicity) of any other users or visitors of the Services or staff member of Flymachine; (xi) interfering with or any activity that threatens the performance, security or proper functioning of the Services; (xii) uploading or transmitting viruses or any other type of malicious code; (xiii) attempting to decipher, decompile, disassemble or reverse engineer any of the software or algorithms used to provide the Services; (xiv) bypassing the security features or measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; (xv) attempting to access unauthorized Accounts or to collect or track the personal information of others; (xvi) sharing Accounts unless otherwise permitted hereunder; (xvii) evasion of account suspension; (xviii) using the Services for any purpose or in any manner that infringes the rights of any third party; or (xiv) encouraging or enabling any other individual to do any of the foregoing.
You hereby warrant and represent that, other than as fully and promptly disclosed to Flymachine as set forth below, you do not have any motivation, status, or interest which Flymachine may reasonably wish to know about in connection with the Services, including without limitation, if you are using or will or intend to use the Services for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Flymachine in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the Services.
6. Mobile App Updates and Upgrades
7. Termination and Suspension
Unless otherwise agreed to in writing between you and Flymachine, either party may terminate these Terms of Service for any or no cause, at any time. You may cancel and delete your Account at any time by either using the features on the Services to do so (if applicable and available) or by written notice to email@example.com. After cancellation, you will no longer have access to your Account, your profile or any other information through the Services. The provisions of these Terms of Service which by their intent or meaning intended to survive such termination, including without limitation the provisions relating to disclaimer of warranties, limitations of liability, and indemnification, shall survive the any termination of these Terms of Service and any termination of your use of or subscription to the Services and shall continue to apply indefinitely.
We reserve the right to refuse the Services to anyone for any reason at any time. Flymachine may terminate or limit your right to use the Services in the event that we are investigating or believe that you have breached any provision of this Agreement, by providing you with written or email notice. Such termination or limitation will be effective immediately upon delivery of such notice. If Flymachine terminates or limits your right to use the Services pursuant to this section, you are prohibited from registering and creating a new Account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.
Even after your right to use the Services is terminated or limited, this Agreement will remain enforceable against you. Flymachine reserves the right to take appropriate legal action, including but not limited to pursuing arbitration in accordance with Section 14 of these Terms of Service.
Flymachine reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Services at its sole discretion. Flymachine is not liable to you for any modification or discontinuance of all or any portion of the Services. Flymachine has the right to restrict anyone from completing registration as a user if Flymachine believes such a person may threaten the safety and integrity of the Services, or if, in Flymachine’s discretion, such restriction is necessary to address any other reasonable business concern.
Following the termination or cancellation of your Account (as defined below), we reserve the right to delete all your data, including any User Content, in the normal course of operation. Your data cannot be recovered once your Account is terminated or cancelled.
8. Links to Third-Party Websites
The Services may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Flymachine or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Services as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Flymachine does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Flymachine is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Flymachine has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Services at its sole discretion.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. Flymachine expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Services. You hereby agree to hold Flymachine harmless from any liability that may result from the use of links that may appear on the Services.
As part of the functionality of the Services, you may link your Account with online accounts you may have with third-party service providers, such as Google (each such account, a “Third-Party Account”) by either: (i) providing your Third-Party Account login information through the Services; or (ii) allowing Flymachine to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Flymachine and/or grant Flymachine access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Flymachine to pay any fees or making Flymachine subject to any usage limitations imposed by such third-party service providers. By granting Flymachine access to any Third-Party Accounts, you understand that (1) Flymachine may access, make available and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the “SNS Content”) so that it is available on and through the Services via your Account, including without limitation any friend lists, and (2) Flymachine may submit and receive additional information to your Third-Party Account to the extent you are notified of this when you link your Account with the Third-Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Content. Depending on the Third-Party Accounts you choose, and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Services. Please note that if a Third-Party Account or associated service becomes unavailable or Flymachine’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content may no longer be available on and through the Services. You will have the ability to disable the connection between your Account on the Services and your Third-Party Accounts at any time, as set forth below. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY PROVIDERS. Flymachine makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Flymachine is not responsible for any SNS Content.
9. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, trademarks, logos, typefaces and other content (collectively “Proprietary Material”) that users see or read through the Services is owned by or licensed to Flymachine, excluding User Content, which users hereby grant Flymachine a license to use as set forth herein. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Flymachine owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws governing copyright, patents, and other proprietary rights. You may not copy, download, use, redesign, reconfigure, or retransmit anything from the Services without Flymachine’ express prior written consent and, if applicable, the holder of the rights to the User Content.
Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Flymachine and, if applicable, the holder of the rights to the User Content.
The service marks and trademarks of Flymachine, including without limitation Flymachine and Flymachine logos, are service marks owned by Flymachine. Any other trademarks, service marks, logos and/or trade names appearing via the Services are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
Additionally, you may choose to or we may invite you to submit comments, ideas, or feedback about the Services, including without limitation about how to improve our services or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited, and without restriction and will not place Flymachine under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Flymachine does not waive any rights to use similar or related Feedback previously known to Flymachine, developed by its employees, or obtained from sources other than you. You acknowledge that all email and other correspondence that you submit to us shall become our sole and exclusive property.
In addition, Flymachine retains all rights to aggregated and anonymous data derived from your use of the Service, with the understanding that such data will not be identifiable as belonging to or emanating from you nor will such data contain information that directly or indirectly identifies you or any other person (natural or otherwise).
Subject to the terms and conditions hereof, you are hereby granted a limited, nonexclusive, nontransferable, freely revocable, right to access and use the Services. We may terminate this right at any time for any reason or no reason. We grant you this right to use the Services for the limited purpose of personal use, and not for any commercial purpose. No business entity (e.g., corporation, partnership, sole proprietorship) is licensed to use the Services. You hereby agree not to use the Services or any element or portion thereof for any commercial purpose whatsoever.
The Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, reports generated by the Services, and copyrights (the “Flymachine Content”), and all Intellectual Property Rights (as defined below) related thereto, are the exclusive property of Flymachine or, as applicable, its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license or other right in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, publicly distribute, publicly transmit, publicly display, publicly perform, publish, adapt, edit, download, stream or create derivative works from any materials or content accessible on the Services. Use of the Flymachine Content or materials on the Services for any purpose not expressly permitted by this Agreement is strictly prohibited. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Your use of the Services and the related licenses granted hereunder are also conditioned upon your strict adherence to the letter and spirit of the various applicable guidelines and any end user licenses associated with your use of the App. Flymachine may modify such guidelines at its sole discretion at any time. Flymachine reserves the right to terminate your Account and access to the Services if it determines that you have violated any such applicable guidelines.
10. Copyright Complaints and Copyright Agent
Flymachine respects the intellectual property of others, and expects users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Services infringe upon your copyright or other intellectual property right, please send the following information to Flymachine’ Copyright Agent at firstname.lastname@example.org or 1442A Walnut Street, #82, Berkeley, CA 94709, United States.
- A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Services where the material you claim is infringed is located. Include enough information to allow Flymachine to locate the material, and explain why you think an infringement has taken place;
- A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- Your address, telephone number, and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
11. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Flymachine and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than using the Services in accordance with these Terms of Service. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall promptly notify Flymachine in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Flymachine upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Flymachine’s trade secrets, confidential and proprietary information, and all other information and data of Flymachine that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other proprietary and confidential information relating to Flymachine or Flymachine’s business, operations or properties, including information about Flymachine’ staff, users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
12. Disclaimer of Warranties
THE SERVICES IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FLYMACHINE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SERVICES OR THE CONTENT OF ANY SITES LINKED TO THE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
UNDER NO CIRCUMSTANCES WILL FLYMACHINE AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY FLYMACHINE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT FLYMACHINE AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE LOWER OF (I) THE TOTAL FEES PAID BY YOU TO FLYMACHINE DURING THE SIX MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE OR (II) ONE HUNDRED DOLLARS ($100), TO THE EXTENT PERMITTED BY APPLICABLE LAW.
You hereby agree to indemnify, defend, and hold harmless Flymachine and its officers, directors, employees, agents, attorneys, insurers, successors and assigns (the “Indemnified Parties”) from and against any and all Liabilities incurred in connection with (i) your use or inability to use the Services, or (ii) your breach or violation of this Agreement; (iii) your violation of any law, or the rights of any user or third party and (iv) any content submitted by you or using your Account to the Services, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or loan on our infrastructure. Flymachine reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Flymachine.
14. Dispute Resolution – Arbitration & Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND FLYMACHINE CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND FLYMACHINE TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
You agree that, in the event any dispute or claim arises out of or relating to your use of the Services, you will contact us at email@example.com and you and Flymachine will attempt in good faith to negotiate a written resolution of the matter directly. You agree that if the matter remains unresolved for 30 days after notification (via certified mail or personal delivery), such matter will be deemed a “Dispute” as defined below. Except for the right to seek injunctive or other equitable relief described under the “Binding Arbitration” section below, should you file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then you agree that you will not be entitled to recover attorneys' fees, even if you may have been entitled to them otherwise.
Binding Arbitration. You and Flymachine agree that any dispute, claim or controversy arising out of or relating to this Agreement or to your use of the Services (collectively “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. This means that you and Flymachine both agree to waive the right to a trial by jury. Notwithstanding the foregoing, you may bring a claim against Flymachine in “small claims” court, instead of by arbitration, but only if the claim is eligible under the rules of the small claims court and is brought in an individual, non-class, and non-representative basis, and only for so long as it remains in the small claims court and in an individual, non-class, and non-representative basis.
Class Action Waiver. You and Flymachine agree that any proceedings to resolve Disputes will be conducted on an individual basis and not in a class, consolidated, or representative action. This means that you and Flymachine both agree to waive the right to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and Flymachine agree otherwise in writing, the arbitrator in any Dispute may not consolidate more than one person’s claims and may not preside over any form of class action proceeding.
Arbitration Administration and Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution’ section. (The AAA Rules are available at http://www.adr.org or by calling the AAA at 1-800-778-7879).
Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
Arbitration Location and Procedure. Unless you and Flymachine agree otherwise, the seat of the arbitration shall be in San Francisco, California. If your claim does not exceed USD$10,000, then the arbitration will be conducted solely on the basis of documents you and Flymachine submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD$10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties.
Arbitrator’s Decision and Governing Law. The arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the “Disclaimers and Limitations of Liability” section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant’s individual claim.
Fees. Each party’s responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.
15. Governing Law; Compliance with Laws
Except as provided in Section 14 or expressly provided in writing otherwise, this Agreement and your use of the Services will be governed by, and will be construed under, the laws of the State of California, United States of America, without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement.
This site is operated in the State of California, United States of America. No representation or warranty is made that the materials contained on the Site or in the Services are legal, appropriate or available for use in other locations. Those who choose to access the Site or the Services from other locations do so at their own risk and are responsible for compliance with any and all local laws, if and to the extent local laws are applicable. No software from the Site or the Services may be downloaded, exported or re-exported into (or to a national or resident of) any countries that are subject to U.S. export restrictions.
16. No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship is intended or created by this Agreement.
17. General Provisions
Failure by Flymachine to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Flymachine with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Class Action Waiver” in Section 14, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (i) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (ii) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (1) to a parent or subsidiary, (2) to an acquirer of assets, or (3) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement will inure to the benefit of Flymachine, its successors and assigns.
18. Changes to this Agreement and the Services
19. No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
20. Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
21. Contacting Us
If you have any questions about these Terms of Service or about the Services, please contact us by email at firstname.lastname@example.org or by mail to Flymachine, Inc., 1442A Walnut Street, #82, Berkeley, CA 94709, United States.