Effective date: 25 May 2018
Please read these “Terms of Service” fully and carefully before using https://www.flybits.com (the “Flybits Platform”) and any of the services, features, or applications made available by Flybits (“Flybits”, “we”, “us”) or any other Flybits services that links to these Terms of Service (collectively, the “Services”).
These Terms of Service set forth the legally binding terms and conditions for your use of the Services.
By “signing up”, you or the company or entity that you represent (“you,” “your,” “yours” or “customer”) are consenting to be bound by and are becoming a party to these Terms of Service. You are also representing and warranting that the individual signing up is authorized to enter into this agreement and bind such entity. Your continued use of any portion of the services shall also constitute assent to the terms of these Terms of Service. If you are using the services on behalf of a company or other entity, then all references to “you” or “your” herein shall refer to both the individual and the entity.
If you do not unconditionally agree to all of the terms of these Terms of Service, you will have no right to use the Services (and you should immediately cease all such use).
Acceptance of Terms of Service
By registering for and/or using any of the Services in any manner, including visiting or using the Flybits Platform and/or Services, you agree to these Terms of Service, and all other operating rules, policies, and procedures that we may publish from time to time through the Flybits Platform and/or Services, each of which is incorporated by reference, and each of which may be updated from time to time without notice to you.
Certain use of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
These Terms of Service apply to all users of the Services who use the Flybits Platform and/or Services in any capacity. Please note that if you have executed a separate written agreement with Flybits regarding your use of our Services, then that agreement applies to those Services and supersedes the Terms of Service.
Arbitration notice and class action waiver: except for certain types of disputes described in the arbitration section below, you agree that disputes between you and us will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration.
You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances or for any reason, register for an Account (defined below) or use the Services. Furthermore, you must be at least 18 years of age to use the Flybits Platform and/or Services in any capacity. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service and your use of the Services (a) are in compliance with all laws, rules and regulations applicable to you and (b) do not violate any other agreement to which you are a party. The right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
To sign up for the Services, you must register for an account on the Services (an “Account”). You must provide accurate and complete information for your Account. You may never use another person’s user Account without permission from Flybits, or share your Account or access credentials with any other individual or entity. “User” refers to an individual whom you authorize to use the Services. Users may include, for example, your employees, business affiliates, or any user of the Flybits Platform. You should never publish, distribute, or post login information for your Account. A User’s access credentials may not be shared with any other individual or entity for purposes of using the Services. You are responsible for maintaining the security of your Account, passwords (including, but not limited to, administrative and user passwords). You shall be responsible for acts, omissions, or breaches hereunder by any of your Users or any other individuals using your Account or credentials for the Services. You must keep your Account information updated, and you must notify us immediately of any change in your eligibility to use the Services or breach of security or unauthorized use of your Account. Users may have the ability to invite other designated users to their Flybits project, unless the applicable Account settings restrict this functionality.
Please note that if you are a User of an Account purchased by your employer or another entity, then these Terms of Service allow such person or entity to provision additional services, or to change or limit your access to the Services at any time. It is up to that person or entity to inform you of any particular rules, requirements or limitations regarding your use beyond those set forth in these Terms of Service. You agree to look solely to such person or entity regarding any dispute relating to such additional rules, requirements, or limitations.
Subject to these Terms of Service, Flybits (i) grants to Customer a worldwide, non-exclusive, non-sublicensable, and non-transferable license to use the Flybits Platform and/or Services solely for purposes of using the Flybits Platform or Services for Customer’s internal use, unless otherwise stated in a written agreement with Flybits and Customer.
Restrictions on Use the Services
Customer shall not directly or indirectly (i) sell, license, sublicense, distribute, copy, rent or lease the Flybits Platform and/or Services, or otherwise make the Flybits Platform and/or Services available to, or use the Flybits Platform and/or Services for the benefit of, any third party, or transfer any of the rights received hereunder; (ii) interfere with or disrupt the integrity or performance of the Flybits Platform and/or Services or any third party data contained therein or attempt to gain unauthorized access to the Flybits Platform and/or Services or its related systems or networks; (iii) copy, modify, translate or create derivative works based on the Flybits Platform and/or Services or any underlying software or any part, feature, function or user interface thereof, including by framing or mirroring any part of any of the Flybits Platform and/or Services; (iv) access or use the Flybits Platform and/or Services for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service; (v) decompile, disassemble, decipher or reverse engineer the Flybits Platform and/or Services, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Flybits Platform and/or Services, (except to the extent such restriction is prohibited by applicable statutory law); (vi) remove any copyright notices, information and restrictions contained in the Flybits Platform and/or Services; (vii) bypass, circumvent or attempt to bypass or circumvent any measures Flybits may use to prevent or restrict access to the Flybits Platform and/or Services (or other accounts, computer systems or networks connected to the Flybits Platform and/or Services) or take any action that imposes or may impose (as determined by us in Flybits sole discretion) an unreasonable or disproportionately large load on Flybits (or Flybits third party providers’) infrastructure; (viii) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Flybits Platform and/or Services; or (ix) otherwise take any action in violation of Flybits guidelines and policies, including these Flybits Platform and/or Services.
Flybits is not and will not be responsible or liable for any failure in the Flybits Platform and/or Services resulting from or attributable to (i) failures in any telecommunications, network or other service or equipment outside of Flybits facilities; or (iii) any force majeure or other cause beyond Flybits reasonable control. Flybits reserves the right, but does not have any obligation, to remove, edit, modify or block access to the Flybits Platform and/or Services in its reasonable discretion, at any time, without notice to Customer.
As between the parties, all right, title and interest in and to the Flybits Platform and/or Services, and all copies, modifications and derivative works thereof is and will remain the sole and exclusive property of Flybits. Except as expressly set forth herein, no license or other right, title or interest in the Flybits Platform and/or Services is granted by Flybits to Customer.
Notwithstanding anything to the contrary set forth herein, Flybits may collect and use data regarding the use and performance of the Service in anonymized and aggregated form, to analyze and improve the Service and for distribution in general benchmarking data and industry reports, provided that any reported user data is aggregated and anonymized such that no personally identifying information of Customer or its users is revealed.
Representations and Warranties
Customer represents, warrants and covenants that (i) all account information, log data, session activity and other electronic information (“Customer Data”) has been collected and provided in accordance, and is compliant with all applicable laws, rules and regulations; (ii) Customer owns all rights, title and interest in and to the Customer Data, or has otherwise secured all necessary rights in the Customer Data, as may be necessary to permit the access, use and distribution thereof as contemplated by these Terms of Service; (iii) Customer shall only use the Flybits Platform and/or Services in accordance with all applicable laws, rules and regulations, these Terms of Service and any relevant documentation provided by Flybits; and (iv) Customer will not, and will not permit any third party, to upload, download, post, submit, provide, transmit, distribute or otherwise make available to or through the Flybits Platform and/or Services any Customer Data that (A) is unlawful, infringing, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, or that otherwise violates any other right of any third party, including any intellectual property, proprietary or privacy rights, or that is otherwise inappropriate, as determined by Flybits in its sole discretion; (B) contains any viruses, code, files or programs designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or that is or can be otherwise malicious or disruptive; (C) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”) or otherwise violates federal CAN-SPAM regulation; or (D) contains any personally identifying information subject to specialized security regimes including without limitation the Health Insurance Portability and Accountability Act (“HIPAA”), and the standards promulgated by the PCI Security Standards Council (“PCI”). Customer acknowledges and agrees that Flybits is not a “Business Associate” under HIPAA, and Customer will not provide any protected health information to Flybits. Customer will not provide Flybits with any personally identifying information except for Authorized User information as necessary to allow Authorized Users to access the Flybits Platform and/or Services as set forth in these Terms of Service. Customer is responsible for complying with CAN-SPAM, including without limitation for supplying an “Unsubscribe” link in any emails required to include such link.
Third Party Services
Termination or cancellation of Customer’s Account by either party may result in the forfeiture and destruction of all information and data, including Customer Data, associated with Customer’s Account. Upon Customer’s request, upon termination, Flybits shall promptly delete or destroy all copies of Customer Data in Flybits systems or otherwise in Flybits possession or control, unless not reasonably feasible due to technical limitations e.g. feature incompatibility), unless legally prohibited. Flybits reserves the right, including after termination, to access, read, preserve, and disclose any information, including without limitation Customer Data, as Flybits reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms of Service, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests; or (v) protect the rights, property or safety of Flybits, Flybits users and the public.
Definition of Confidential Information
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer Data, Flybits’s Confidential Information includes the Flybits Platform and/or Services, and Confidential Information of each party includes the terms and conditions of all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, source code and business processes disclosed by such party. However, Confidential Information of a Disclosing Party does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was rightfully known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is rightfully received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
Protection of Confidential Information
The Receiving Party will use the same degree of care that it uses to protect the Confidential Information of the Disclosing Party as it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party will (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms of Service, and (ii) except as otherwise authorized by the Disclosing Party in writing, only disclose Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who (A) need that access for purposes consistent with these Terms of Service and (B) have confidentiality obligations with respect to the Disclosing Party’s Confidential Information consistent with those contained herein. Neither party will disclose the terms of Order Form to any third party other than (1) its affiliates, legal counsel and accountants, or (2) in connection with a bona fide due diligence inquiry for a financing, acquisition or similar transaction, in each case subject to confidentiality obligations consistent with these Terms of Service, without the other party’s prior written consent. A Receiving Party shall be responsible for any breaches of confidentiality obligations hereunder by any third party to whom it discloses the Disclosing Party’s Confidential Information. Notwithstanding anything to the contrary set forth herein, Flybits is expressly authorized to use data regarding Customer’s use of the Flybits Platform and/or Services in anonymized and aggregated form, to analyze and improve the Flybits Platform and/or Services and for distribution in general benchmarking data and industry reports, provided that any reported user data is aggregated and anonymized such that no personally identifying information of Customer or its users is revealed.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
Flybits shall maintain appropriate administrative, physical, and technical safeguards designed to protect the security of the Flybits Platform and/or Services and Customer Data. If Customer’s use of the Flybits Platform and/or Services involves processing personal data pursuant to Regulation 2016/679 (the “GDPR”) and/or transferring personal data outside the European Economic Area to any country not deemed by the European Commission as providing an adequate level of protection for personal data, the terms of the data processing addendum shall apply to such personal data and be incorporated into the Terms of Service upon the Effective Date. The data processing addendum may be accessed here.
Flybits makes no representations concerning any Content contained in or accessed through the Flybits Platform and/or Services, and Flybits will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Flybits Platform and/or Services.
THE FLYBITS PLATFORM AND/OR SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. Flybits, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE FLYBITS PLATFORM AND/OR SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) THE FLYBITS PLATFORM AND/OR SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS AT ALL TIMES; CUSTOMER’S USE OF THE FLYBITS PLATFORM AND/OR SERVICES IS SOLELY AT CUSTOMER’S OWN RISK.
Customer is solely responsible for Customer’s conduct and Customer’s data related to the Flybits Platform and/or Services. Customer shall defend, indemnify, and hold harmless Flybits, its affiliates and each of Flybits and its affiliates’ respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to Customer’s use, misuse or provision of, or access to, the Flybits Platform and/or Services, violation of these Terms of Service, or infringement by Customer, or any third party using Customer’s Account or identity in the Flybits Platform and/or Services, of any intellectual property or other right of any person or entity.
Flybits will defend Customer against any claim, demand, suit or proceeding (“Claim”) made or brought against Customer by a third party alleging that Customer’s use of the Flybits Platform and/or Services provided hereunder in accordance with these Terms of Service infringes or misappropriates such third party’s intellectual property rights, and will indemnify and hold harmless Customer from any damages, attorney fees and costs finally awarded to such third parties as a result of, or for any amounts paid by Flybits under a settlement of, such Claim made in accordance with the terms of this Section. The foregoing obligations do not apply with respect to any Claim based on or arising from (i) the Flybits Platform and/or Services or Flybits Platform and/or Services or portions or components thereof (A) used not strictly in accordance with these Terms of Service or in an environment or on a platform or with devices for which it was not designed or contemplated; (B) made in whole or in part in accordance with Customer specifications; (C) modified, altered or enhanced by a party other than Flybits or (D) combined with other products, services, processes, content or materials not supplied by Flybits where the alleged infringement would not have occurred without such combination. The foregoing obligations also do not apply to (E) any continuing allegedly infringing activity after being notified thereof or provided modifications that would have avoided the alleged infringement, or (F) any Claims based on or arising out of Customer’s, Customer’s Affiliates, or Customer’s Users breach of these Terms of Service or an applicable Order Form. Any claim for indemnification under this Section 10.b. requires that Customer (i) promptly give the Flybits written notice of the Claim; (ii) give Flybits sole control of the defense and settlement of the Claim, and (iii) give Flybits all reasonable assistance. In the event that the Content is held by a court of competent jurisdiction or reasonably believed by Flybits to constitute an infringement of a third party’s intellectual property rights, Flybits may at its option (a) modify the infringing portion of the Content so that it is non-infringing; (b) procure for Customer sufficient rights to continue to exercise its rights under these Terms of Service; or (c) terminate these Terms of Services, and/or any Order Forms and Customer’s access to the Flybits Platform and/or Services. This Section represents the sole right and remedy available to Customer if the Flybits Platform and/or Services or Content infringe the intellectual property rights of a third party.
Limitation of Liability
EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY, NOR SUCH PARTY’S DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE FLYBITS PLATFORM AND/OR SERVICES (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (B) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); OR (C) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF THE FEES PAID OR PAYABLE BY SUCH PARTY DURING THE IMMEDIATELY PREVIOUS TWELVE (12) MONTH PERIOD.
Entire Agreement and Severability. These Terms of Service constitute the entire agreement, and supersede all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of these Terms of Service (and all past dealing or industry custom). Any inconsistent or additional terms, even if signed by the parties hereafter, shall have no effect under these Terms of Service. No change, consent or waiver under these Terms of Service will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under these Terms of Service at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. No waiver by any party of any breach or default of any provision of these Terms of Service by the other party shall be effective as to any other breach or default, whether of the same or any other provision and whether occurring prior to, concurrent with, or subsequent to the date of such waiver. If any provision of these Terms of Service is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. These Terms of Service are in English only, which language shall be controlling in all respects. No version of these Terms of Service in another language shall be binding or of any effect.
Neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
We use subcontractors to provide certain aspects of the Services and in some cases permit them to access Customer Data subject to appropriate obligations of security, confidentiality and compliance with applicable laws. We remain responsible for our subcontractors’ compliance with these Terms of Service.
These Terms of Service and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. However, without consent, either party may assign these Terms of Service to any successor to all or substantially all of its business or assets which concerns these Terms of Service (whether by sale of assets or equity, merger, consolidation or otherwise). These Terms of Service shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
Unless otherwise specified in these Terms of Service, all notices under these Terms of Service 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 e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to firstname.lastname@example.org. Customer acknowledges and agrees that Flybits may occasionally send notices to Customer regarding Customer’s Account or the Flybits Platform and/or Services via email or via the Flybits Platform and/or Services.
The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in these Terms of Service shall be read as being followed by “without limitation” where appropriate.
These Terms of Service and the transactions contemplated hereby shall be governed by and construed under the law of the Province of Ontario, without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods or any implementation of the Uniform Computer Information Transactions Act.
Except that either party may seek equitable or similar relief from any court of competent jurisdiction, any dispute, controversy or claim arising out of or in relation to these Terms of Service, or at law, or the breach, termination or invalidity of these Terms of Service shall be finally settled in accordance with the arbitration rules of JAMS then in force, by one or more arbitrators appointed in accordance with said rules. Any dispute arising from or related to the subject matter of these Terms of Service shall be resolved in Toronto, Canada.
The award rendered shall be final and binding on both parties. Judgment on the award may be entered in any court of competent jurisdiction. In any action or proceeding to enforce rights under these Terms of Service, the prevailing party shall be entitled to recover costs and attorneys’ fees.
Flybits commits to being GDPR compliant! If you have users in the EU, please follow this link where you can execute our Data Processing Addendum, which further sets forth the details of our GDPR compliance.
Flybits commits to being GDPR compliant. If you have any further questions regarding the data Flybits collects, or how we use it, then please feel free to contact us by email at: legal@Flybits.com.
Flybits has a “Data Protection Officer” who is responsible for matters relating to privacy and data protection. This Data Protection Officer can be reached at the following address: email@example.com