Customer (the entity or person listed in the sign up form) acknowledges and agrees to be bound by the terms and conditions of this FlightStats Subscription Agreement (this “Agreement”) between Customer (also called “you” and “your”) and FlightStats, Inc. (“FlightStats”). If for any reason you do not agree to be bound by each and every term of this Agreement, you should exit the license process.
FlightStats grants you a non-exclusive, non-transferable, limited and terminable license to access and use the FlightStats products (the “FlightStats Services”) and the information provided therein (the “FlightStats Data”), upon your acceptance of this Agreement. Individuals working as employees or contractors hired by Customer are called “Customer Users” in this Agreement.
Payment of Fees
You agree that (i) you will fulfill your obligation to pay for the FlightStats Services by the date on which payment is due; (ii) any payment information you provide is true and accurate; (iii) you are authorized to use the payment method you provide; (iv) FlightStats has permission to retain the payment information and method submitted by you and your issuing bank; and (v) FlightStats is authorized to charge you for the FlightStats Services, including any applicable taxes, using the established payment method and the information you provide that is stored in your account as of the applicable date for payment.
Changes in Fees. FlightStats may change the price of any of its FlightStats Services from time to time. Advance notice shall be provided in all cases.
Restrictions on Use
You may not:
- Lend, rent, sell or grant sublicenses, leases or other rights to access the FlightStats Services.
- Sell, sublicense, or otherwise transfer any part of the FlightStats Data received through the FlightStats Services to third parties, unless permitted elsewhere.
- Reverse engineer, disassemble, or decompile the FlightStats Services, any password or security device used with the FlightStats Services, or make any attempt to discover the source code or scripts used to provide the FlightStats Services.
- Modify the FlightStats Services or the FlightStats Data without the written permission of FlightStats.
- Remove any FlightStats or third party names, trademarks, copyright notices or other proprietary rights notices.
- Use the FlightStats Services or the FlightStats Data in any way that may violate rights of publicity or privacy of any individual whose personally identifiable data is retrieved.
- Use the FlightStats Services or the FlightStats Data for any passenger rights claims actions, for example actions pursuant to EU Regulation 261/2004.
Service Level Agreement
Availability. The FlightStats Services will be available at least 99% of the time each month. The following will not be counted as an availability outage: an outage that continues for an hour or less that FlightStats fails to identify and which Customer fails to report to FlightStats within three business days, or an outage resulting from maintenance by FlightStats for which Customer receives an advance notice. FlightStats shall maintain the ability to perform software updates and system maintenance without taking the system offline, through the use of redundant hardware.
Monitoring and Support. The FlightStats infrastructure shall be monitored 24×7 via a variety of automated mechanisms that continually check the health of the overall system and subsystems.
Term and Termination
Term. The term of this Agreement shall commence on the date on which you complete the account sign-up process and complete a transaction to purchase a FlightStats Subscription plan. This Agreement shall remain in effect until such time that your FlightStats Subscription plan is terminated.
Customer’s Termination Rights. Customer may terminate this Agreement for any reason at any time. Any termination will be effective as of the end of the then-current billing period. Customer shall not be entitled to a refund of any amounts paid, regardless of level of FlightStats Services usage.
Effect of Termination. Upon any termination or expiration of this Agreement for any reason the following shall occur: (i) FlightStats shall cease to provide and Customer shall cease to access the FlightStats Services; (ii) each party shall promptly discontinue the use of the other party’s service marks, trademarks, trade names, and logos and cease all marketing efforts relating to its obligations hereunder; and (iii) each party shall return all items containing Confidential Information to the other party, or at the disclosing party’s request destroy them, and certify in writing to the other party within thirty (30) days thereafter that all such information has been duly returned or destroyed.
Ownership and Use of Services and Data
Ownership and Use of FlightStats Services. Customer acknowledges the FlightStats Services and documentation are owned by and shall remain the exclusive property of FlightStats. No rights in the FlightStats Services and documentation are granted or conveyed by FlightStats other than the limited right to use them as set forth in this Agreement, and nothing in this Agreement will be deemed to grant a party any license, sublicense, copyright interest, proprietary right, or other claim against or interest in the other party’s copyrights, patents, trade secrets, or other intellectual property.
Ownership and Use of FlightStats Data. Customer acknowledges that all FlightStats Data provided or available to Customer or Customer Users through the FlightStats Services is owned either by FlightStats or by FlightStats’ third-party data providers (including FlightGlobal for flight schedules information) and that neither Customer nor Customer Users shall acquire any ownership or interest whatsoever in such data.
All costs associated with Customer’s accessing and supporting the FlightStats Services shall be the sole responsibility of Customer. Customer will establish and enforce reasonable procedures to ensure that Customer can control and account for access to and use of the FlightStats Services by Customer Users. FlightStats may collect, retain, and use data and information regarding Customer and Customer Users who use the Service. FlightStats may only use and disclose any personally identifiable information about Customer Users for FlightStats’ own internal purposes.
Marketing by FlightStats. FlightStats shall obtain Customer’s prior consent to use Customer’s name, trademarks, or logos before performing any marketing activities related to this Agreement.
Marketing by Customer. Customer shall obtain FlightStats’s prior written consent to any marketing activities contemplating the use of FlightStats’s name, service marks, trademarks, or logos.
Confidential Information. The parties acknowledge that, in the course of their dealings hereunder, each may acquire Confidential Information about the other. For the purposes of this Agreement, “Confidential Information” means any information in tangible form marked as such at the time presented to the other party, excluding information in the public domain or developed independently by the receiving party hereunder.
Nondisclosure and Nonuse. Each party agrees (i) that it will not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement and (ii) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.
Permitted Disclosures. Notwithstanding the foregoing, each party may disclose Confidential Information (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law or (ii) on a “need-to-know” basis under an obligation of confidentiality to its legal counsel, accountants, banks, and other financing sources and their advisors.
Warranties, Disclaimer, Limitation of Liability
Warranties. Each party warrants that (a) it has the full power and authority to enter into this Agreement and to perform the obligations contained in this Agreement, and (b) its entry into, and performance under this Agreement, will not violate any law, statue or regulation or result in a breach of any material agreement or understanding to which it is bound.
No Performance Warranties. The FlightStats Data available through the FlightStats Services has been compiled from various sources, and FlightStats disclaims all responsibility for checking and verifying that the FlightStats Data is 100% accurate. Consequently, FlightStats provides no performance warranties to Customer or to Customer Users, AND IN THE ABSENCE OF SUCH WARRANTIES FLIGHTSTATS SPECIFICALLY PROVIDES THE FLIGHTSTATS SERVICES AND FLIGHTSTATS DATA ON AN “AS IS” BASIS.
General Disclaimer. FLIGHTSTATS DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, AND ALL IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FLIGHTSTATS ASSUMES NO RESPONSIBILITY AND ACCEPTS NO LIABILITY FOR ANY FAILURE IN TELECOMMUNICATION LINES OR ELECTRIC POWER SOURCES CONNECTING CUSTOMER OR CUSTOMER USERS TO THE FLIGHTSTATS SERVICES. FLIGHTSTATS DOES NOT WARRANT THAT ACCESS TO, OR OPERATION OF, THE FLIGHTSTATS SERVICES OR THE FLIGHTSTATS DATA WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED.
Limitation of Liability. IN NO EVENT SHALL FLIGHTSTATS, OR ITS OFFICERS, DIRECTORS, OR EMPLOYEES, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. THE AGGREGATE LIABILITY OF FLIGHTSTATS FOR ALL DAMAGES, INJURIES, AND LIABILITY INCURRED BY CUSTOMER, ANY CUSTOMER USER, AND ALL OTHER PARTIES IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED US$1,000.
Exclusive Remedy. In the event the FlightStats Services do not operate as represented, FlightStats will make commercially reasonable efforts to correct the problem upon receiving notice of it. If FlightStats cannot reasonably remedy the problem, then Customer will be notified and may terminate this Agreement in accordance with the termination provisions below. This remedy is the sole remedy available to Customer.
FlightStats Indemnity of Customer. FlightStats shall indemnify and defend Customer and its officers, directors, agents, and employees against any action, judgment, liability, loss, cost, or damage (including attorneys’ fees) resulting from third-party claims arising exclusively from FlightStats’ unauthorized use or release of the FlightStats Data.
Customer Indemnity of FlightStats. Customer shall indemnify, defend, and hold FlightStats and its officers, directors, agents, and employees harmless against any action, judgment, liability, loss, cost, or damage (including attorneys’ fees) resulting from third-party claims arising exclusively from any violation by Customer or a Customer User of the restrictions set forth herein on use of the FlightStats Services or FlightStats Data contained therein.
Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter.
Modifications; Waiver and Amendments. FlightStats may modify the terms of this Agreement from time to time. The terms published on our site at the time Customer purchased a subscription will apply to the transaction. FlightStats may alter, modify or substitute Company IDs, passwords, or any other device or method used for controlling access to the FlightStats Services and the FlightStats Data, at any time, without the consent of Customer or Customer Users, by giving reasonable notice to Customer of such change.
Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s written consent (which shall not be unreasonably withheld), except that no such consent will be required in connection with the assignment to a legal successor in interest that assumes all obligations hereunder as part of (i) a merger, reorganization, or sale of all, or substantially all, of such party’s assets or (ii) either party’s assignment or delegation of its rights and responsibilities hereunder to a wholly owned subsidiary or joint venture in which the assigning party holds an interest. The assigning party in any authorized assignment without consent shall be required to provide reasonable notice to the other party, and in all events not less than five (5) business days’ notice. Any attempt to assign this Agreement other than as permitted above will be null and void.
Governing Law. The validity, construction, and performance of this Agreement shall be governed by the laws of the state of Oregon, without reference to conflict of laws principles.
Notices. Any notice under this Agreement will be in writing and delivered by a message accessible in the Customer’s account, by personal delivery, express courier, confirmed facsimile, confirmed email, or certified or registered mail, return receipt requested. Notice will be deemed given (i) immediately upon delivery of a message accessible in the Customer’s account; (ii) one (1) day after deposit with express courier, upon confirmation of receipt of facsimile or email, or; (iii) five (5) days after deposit in the mail. Notices will be sent to a party at its contact address set forth in this Agreement or such other address as that party may specify in writing pursuant to this Section.
Independent Contractors; No Agency. The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. Notwithstanding any public references to a “partnership”, this Agreement does not, and shall not be construed, to create or imply any partnership, agency, or joint venture.
Force Majeure. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party, including, but not limited to, acts of God, power outages, telecommunication system failures, and governmental restrictions.
No Third-Party Beneficiaries. The provisions of this Agreement are intended solely for the benefit of Customer and shall create no rights or obligations enforceable by any other party unless such beneficiaries are expressly set forth in an amendment hereto.
I, A CUSTOMER USER AUTHORIZED TO LEGALLY BIND CUSTOMER TO THIS FLIGHTSTATS SUBSCRIPTION AGREEMENT, ACKNOWLEDGE THAT I HAVE READ THE FOREGOING TERMS OF THIS AGREEMENT AND I INDICATE THE INTENTION OF CUSTOMER TO BE LEGALLY BOUND BY THIS AGREEMENT.