Terms of Service

Please Read These Terms Of Service (“Terms”) Carefully Before Agreeing To Them And Using The Flycode Platform (The “Platform”).

These Terms Constitute A Legally Binding Agreement Between You And The Entity You Represent (Hereinafter, Unless Otherwise Indicated, “You”) And Flycode Inc. (Unless Otherwise Indicated, “Flycode”, “Us,” “We,” “Our”).
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By Signing Up, Logging In, Clicking A Submit Or “I Agree” Checkbox (Or Other Button With Language Confirming Your Agreement) Or Accessing Or Using The Platform, You Agree To Abide And Be Bound By These Terms. If You Represent Or Access Or Use The Platform On Behalf Of An Entity, You Represent And Warrant That You Have The Authority To Enter Into These Terms On Behalf Of Such Entity And That It Is Aware Of Your Actions And Will Be Legally Bound By Them And These Terms. You Hereby Waive Any Applicable Rights To Require An Original (Non-Electronic) Signature Or Delivery Or Retention Of Non-Electronic Records, To The Extent Not Prohibited Under Applicable Law. If You Do Not Agree To Or Do Not Wish To Be Bound By These Terms, Do Not Access Or Use The Platform In Any Way.

You acknowledge and agree that we may modify and update these Terms at any time. In such case, the updated Terms will become effective immediately following our notice to you or posting of the updated Terms on the Platform portal. Such notice may be by email or in your Account or dashboard in the Platform, including, without limitation, via a popup window before or after logging in. By continuing to use the Platform after such time, you agree to such changes.

1. Access to Platform

Subject to these Terms and your compliance with them, during the Subscription Term, FlyCode grants you a personal non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable limited right to access and use the Platform solely for your internal purposes, up to the number of users and within the volume limits chosen on the Order Form (defined below).

2. Limitations

You may not do, attempt to do, or authorize or encourage any third party to do any of the following: (i) assign, sublicense, sell, resell, transfer, pledge, loan, lease, rent, market, convey or otherwise transfer or share your rights under these Terms, or otherwise provide access to others to use the Platform including, without limitation, on a shared server or in a service bureau arrangement or by sharing accounts; (ii) reverse engineer, decompile, disassemble or in any other manner decode, or otherwise attempt to discover the source code of the Platform or any portion thereof; (iii) access the Platform for the purposes of building a competitive product or service, or build a competitive product using similar features, functions or graphics of our Platform; (iv) copy, modify, adapt, translate, divide or revise the Platform, or any portion thereof, or otherwise use parts, portions or elements of the Platform, or create derivative works or any enhancement or adaptations based on the Platform, or any portion thereof; (v) breach, or take any other action intended to circumvent or disable the operation of, any security feature or measure or any licensing mechanism of the Platform or identify or attempt to identify any security vulnerabilities therein otherwise interfere with or disrupt the integrity or performance of the Platform or the data contained therein; (vi) work around or circumvent any technical limitations in the Platform or; or (vii) use any tool or other means to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Platform or for which you have not paid a license fee; (viii) conduct any performance or benchmark testing of the Platform, unless such a restriction is prohibited by law or unenforceable in which case you shall not or allow any third party to disclose to the public the results of any internal performance testing or benchmarking studies of or about the Platform, without first (a) sending the results and related study(ies) to FlyCode, and (b) obtaining Flycode’s approval in writing of the assumptions, methodology and other parameters of the testing and study(ies); (ix) publish, market, display, distribute, disclose or otherwise make available, or allow use of, the Platform, or any portion thereof, in any manner or format except as expressly authorized by FlyCode in writing; or (x) otherwise use the Platform in any manner that is illegal or not authorized by these Terms, for an illegal or immoral purpose, as determined by FlyCode in its sole discretion, or in any manner which we may deem to violate Section ‎3 (Acceptable Use) below. These Terms, and the license granted to you hereunder, shall automatically terminate, and you shall promptly cease accessing or using the Platform, upon the occurrence of any of the events set forth in this Section ‎‎2.

3. Acceptable Use

The FlyCode Platform may not be used to develop software or other materials which contain, transmit, display or otherwise process, content which (a) is obscene, vulgar, profane, sexually explicit, defamatory, religiously inflammatory, violent, inciting, threatening, discriminatory or hate speech directed at an individual or group (e.g., based on race, ethnicity, gender, sexual orientation, religion or nationality); (b) is related to the promotion or sale of weapons, illicit drugs, or pornography, or illegal items, services or activities; (c) infringes the rights of third parties; or (d) negatively impacts the reputation and goodwill of FlyCode in any way.

4. Account Security

You are solely responsible for maintaining keeping all login information such as your username and password or other login information (“Login Information”) secret and for maintaining the security of the equipment you use to access the Platform and Login Information, and FlyCode shall not be liable for any losses and damages caused by any unauthorized use thereof, or access thereto. You shall be solely liable for any access to or use of the Platform by anyone using any your Login Information or equipment, whether or not such access or use has been authorized by you. You also agree to promptly notify FlyCode in writing of any actual or suspected breach of security, unauthorized use of, or access to, your account involving or relating to the Platform.

5. Ownership; Intellectual Property Rights

5.1 The Platform
You are granted limited rights of access and use of the Platform on these Terms and subject to your compliance with them, including your payment of all amounts due pursuant to any Order Form (defined below). The Platform is not sold, and other than expressly as set forth in these Terms no rights or licenses, express or implied, in or to the Platform are granted to you. FlyCode and its licensors exclusively own and shall own and retain all right, title and interest, in and to the Platform and any other tools, content materials, including without limitation, any code of any kind (collectively, the “Flycode Material”) (including, without limitation, any and all Intellectual Property Rights (as defined below) embodied in, or relating to, the Flycode Material, and any additions, modifications, updates, improvements, enhancements and derivative works thereof or based thereupon (collectively, “Derivatives”). Without limitation to Section ‎‎2 (Limitations) above, if you create any Derivatives you hereby assign such Derivatives, and all right, title and interest, including all Intellectual Property Rights, in and to the Derivatives to Flycode. FlyCode reserves the right to change the Platform (or any part thereof) at any time, including by suspending or discontinuing the availability of any feature, without notice or liability.

"Intellectual Property Rights" shall include any and all worldwide patents, trademarks, service marks, trade names, copyright, works of authorship, designs, logos, and any registration and applications of or for any of the foregoing and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof, and all trade secrets, know-how, processes, inventions (whether patentable or not), products, proprietary information, technology, technical data, specifications, algorithms, computer software, source code, object code, hardware, databases and other data collections, and any similar or equivalent rights in or to any of the foregoing, whether registered or not, and any subject matters or tangible embodiments thereof.

5.2 Trademarks
All trademarks, service marks, and trade names (including the 'FlyCode' name and logo), whether registered or not, are proprietary of FlyCode and you may not publish, display, copy or otherwise use them, in whole or in part, without our prior written permission.

5.3 Customer Content
You retain all right, title and interest you may have in the software, information and content you upload to the Platform and any changes you make to such information and content, except for software, information and content provided or owned by FlyCode or other third parties and derivatives thereof (“Customer Content”). You grant FlyCode a non-exclusive, sublicensable (including multiple tiers), transferable, worldwide, royalty-free and fully paid-up license to use and perform any action with respect to the Customer Content (a) in order to make the Platform and such Customer Content available to you; (b) for the purposes of analysis and improving our products and services; and (c) and as otherwise permitted in or contemplated by these Terms. You represent and warrant that you have (and will retain throughout the Subscription Term), the valid and unrestricted right (including any and all legally required rights, licenses, consents, permissions and releases) to upload to all Customer Content to the Platform and incorporate, transmit, store and use all Customer Content in connection with the Platform, and to grant the rights and licenses granted to FlyCode under these Terms, and that and each of the foregoing do not and will not violate any laws, rules or regulations, or violate or infringe third-party rights or licenses. You further warrant and represent that no Customer Content shall contain any virus, worm, Trojan horse, hidden file, "back door", copy protection feature or other computer code or program which may contaminate, destroy, disable, disrupt, erase, harm, impede or modify normal performance or functionality of the Platform or otherwise, or any other malicious or social engineering (phishing) code, scripts or features. You agree to defend, indemnify, and hold harmless FlyCode, its Affiliates (as defined below) and its and their shareholders, directors, officers, employees, contractors (including third-party licensors and providers) and other representatives (collectively, the “FlyCode Entities and Personnel”), from and against any claims, actions, demands, proceedings, damages, liabilities, losses, costs and expenses (including reasonable attorney’s fees and litigation costs) arising out of any breach of this Section ‎‎5.3 or otherwise out of the Customer Content, your use thereof and our (and FlyCode Entities’ and Personnel’s) receipt and use thereof in accordance with these Terms.

5.4 Feedback
In the event you provide any comments, suggestions, ideas, or feedback in connection with the Platform, us or our business in any manner (collectively, “Feedback”), we, and our Affiliates, will be entitled to use such Feedback in any manner, and you hereby grant us a worldwide, non-exclusive, irrevocable, perpetual, transferable, royalty-free, fully-paid up sublicensable (including in multiple tiers) right and license, under all intellectual property and other rights, to reproduce, modify, display and perform (including publicly), broadcast, make (and have made), sell (and have sold) import, export, use and exploit such Feedback in any manner and for any purpose.

5.5 Third Party Software
The Platform may use or include third-party proprietary software, or other materials, product or services (“Third Party Software”), including, without limitation open-source software or materials, which may be subject to third party agreements or terms (“Third Party Terms”). You agree that such Third Party Terms shall apply in respect of such Third Party Software (and only such Third Party Software, and not the rest of the Platform or other Third Party Software). Accordingly, to the extent, any Third Party Terms includes terms which contradict these Terms, or requires that these Terms effectively impose, or incorporate by reference, certain disclaimers, notices, certain provisions, prohibitions or restrictions, then such terms shall supersede these Terms or apply, as the case may be, solely with respect to the applicable Third Party Software, and not the rest of the Platform or other Third Party Software. Information regarding such Third Party Software and Third Party Terms, including information required by the owners of may be provided to you within the Platform or on our website (http://www.flycode.com) (our "Website"). FlyCode does not make or provide any representation or warranty about such Third Party Software, and is not responsible or liable in any manner for your interaction with such third parties.

6. Personal Data

6.1 Use Data
You acknowledge and agree that FlyCode collects and uses information relating to identified or identifiable individuals or households (“Personal Data”) it gathers and receives in connection with your use of the Platform (in accordance with our Privacy Policy (which is currently available at https://www.flycode.com/policy/privacy, as may be updated from time to time ("Privacy Policy"), and that your access and use of the Platform is subject to our Privacy Policy.

6.2 Customer Personal Data
You acknowledge and agree that the Platform is not meant for the processing or use of Personal Data. Except for information requested by us regarding yourself, your personnel or business (the use of which is governed by our Privacy Policy), you agree not to submit to any Personal Data as part of your use of the Platform, and represent and warrant that no Customer Content or other data you (or anyone on your behalf) submit or upload to the Platform contains Personal Data.

7. Uptime; Unavailability and Support

We make commercially reasonable efforts to make the service available, excluding scheduled maintenance, emergencies, or other instance in which we determine that the downtime is required. If you have ordered a support plan, we will make commercially reasonable efforts to provide support and maintain service availability in accordance with the terms of such support plan, subject to your payment of all Fees due in respect of such plan or otherwise due from you, as set forth in the applicable Order Form.

Each party accepts and agrees that the other party shall not be liable for, and hereby disclaims all liability relating to, any unavailability of the party's website and/or services (or any portion of the party's services).

8. Fees; Payments

8.1 Fees
You shall pay all amounts due in accordance with the order form you completed and submitted to us (whether on our Website or manually) (such order form, “Order Form” and amounts due, “Fees”). In the event you exceed any of the usage parameters set forth in the Order Form (number of users, volume), you agree that we may do any of the following: (a) suspend your use in accordance with Section ‎12 (Suspension), (b) limit your usage in excess of that agreed in the Order Form, and (c) charge you overage fees equal to one and a half times (1.5x) the Fees that would otherwise have been due for such use per a pre-ordered pricing plan or at such other rate set forth in the Order Form.

8.2 Payment Terms
All Fees are due in accordance with the payment schedule set forth in the Order Form. In the event Fees are required to be paid in advance, we may suspend commencement or continued use of the Platform until the Fees are paid for the applicable period. All payments shall be made in United States Dollars or other currency set forth in the Order Form and in accordance with the method set forth in the Order Form or otherwise instructed by us. Any amounts not paid when due shall accrue interest on a daily basis until paid in full, at the lesser of the rate of (i) one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable Law. All Fees are non-refundable, including, without limitation, in the event of cancellation or termination for any reason.

8.3 Taxes
Unless explicitly otherwise set forth in the Order Form, all Fees are exclusive of any taxes or third-party fees, tariffs, or other charges, all of which are your responsibility and may be added to the Fees. In the event that any withholding tax or obligation applies, the amount due shall be increased such that the total amount, after any withholding or deduction, paid to us is equal to the amount of Fees which otherwise would have been due, free of liability of any kind.

8.4 Trials, Free Use or Discounted Fees
If you are a free, trial, or beta user (“Trial User”) and access the Platform free of charge, or at a discounted rate (“Trial Use”), you acknowledge and agree that we may at any time (upon written notice to you) increase or require the payment of fees at any time. In such case, you may decline to pay such amounts and cease all use of the Platform, and these Terms and your right to access and use of the Platform will be terminated. YOU ACKNOWLEDGE AND AGREE THAT ALL TRIAL USE IS WITHOUT WARRANTY OR OBLIGATION OF ANY KIND BY US, OTHER THAN WARRANTIES AND OBLIGATIONS WHICH CANNOT BE WAIVED PURSUANT TO APPLICABLE LAW.

8.5 Text Messages / SMS By signing up and providing payment method (card-on-file), you agree to receive automated transactional text messages updates (e.g. payment issues) at the phone number provided. Messages and data rates may apply.

9. Term

These Terms are effective upon the earlier of your execution of the Order Form or commencement of use or access of the Platform (whether by you or any third party on your behalf), and, unless previously terminated pursuant to Section ‎‎10 below, shall remain in effect until the end of the subscription period set forth in the Order Form and may be renewed as set forth in the Order Form (such period together with all renewal periods, “Subscription Term”).

10. Termination

10.1 Termination for Convenience
You may cease to access and use of the Platform at any time by delivering to us a thirty (30) days prior written notice to that effect, however, for clarity, and we will not be required to refund any Fees paid to us, and, unless otherwise set forth in the Order Form, you shall remain liable to pay all Fees in respect of unused periods or use ordered in the Order Form. If you are a Trial User, we reserve the right to terminate these Terms and your use and access of the Platform for any reason or no reason at all upon notice to you thirty (30) days prior to such termination.

10.2 Termination for Breach
We may terminate these Terms immediately due to your (and/or anyone on your behalf's) breach or attempted, threatened or imminent breach of these Terms, including, without limitation, in the event you fail to pay any Fees or other amount due to us. We may provide you with an opportunity to cure any such breach but are not required to do so.

10.3 Bankruptcy
We may terminate these Terms at any time upon written notice to you if we, or you or your direct or indirect parent company, are declared bankrupt by a judicial decision, undergoes a process of voluntary liquidation, or in the event an involuntary bankruptcy action is filed against any of the foregoing, and such action is not dismissed within sixty (60) days, or in the event you or your direct or indirect parent company ceases to pay debts as they become due or to operate as an ongoing concern.

11. Effect of Expiration or Termination

Upon any expiration or termination of these Terms, the license granted to you herein shall terminate and you shall cease all access and use of the Platform, except to the extent permitted by us in writing (such as in the event we permit you to download any Customer Content). This Section ‎11 and Sections ‎2 (Limitations), ‎4 (Account Security), 5 (Ownership; Intellectual Property Rights), ‎6 (Personal Data), ‎8 (Fees; Payments), and ‎13 (Confidentiality) through and including ‎‎24 (Miscellaneous) shall survive termination or expiration of these Terms. In addition, termination or expiration of these Terms, shall not relieve any party of the obligation to pay any amounts accrued under these Terms or any Order Form, for the period prior to termination or expiration.

12. Suspension

Without limitation to Section ‎10 (Termination) above, in the event you have not paid any Fees due by the date required or if we believe that the Platform is being accessed or used, whether through your account or otherwise, in a manner that which has, does or might cause harm to us or any third party, in violation of these Terms, or violate or infringe any rights (including, without limitation, Intellectual Property Rights and rights of privacy) or any Laws, then we may suspend your or the relevant user’s account or full or partial access and use of the Platform, until the Fees are paid or such time as we believe the threat of harm, breach, infringement or violation or actual harm or breach, has passed or has been cured, as applicable, or longer if we deem appropriate. Such suspension shall not derogate from your obligation to pay the Fees, except to the extent such suspension is unrelated to you or your account.

13. Confidentiality

13.1 Confidential Information
You agree that the Platform, its features and functionality, and any information and materials provided by any FlyCode Entities and Personnel, are the confidential information of FlyCode (“Confidential Information”). Notwithstanding the above, Confidential Information of FlyCode shall not include information and material to the extent it: (a) is in the public domain, due to no fault of yours (or your Transferees); (b) was rightfully in your possession at the time of disclosure by any of the FlyCode Entities or Personnel, and which is not subject to prior continuing obligations of confidentiality; (c) is rightfully disclosed to the Recipient by a third party (which would not be considered FlyCode Entity or Personnel) having the lawful right to do so without obligations of confidentiality.

13.2 Obligation
You further agree to (i) use the Confidential Information solely as part of your normal use of the Platform in accordance with this Agreement; (ii) keep the Confidential Information in strict confidence; (iii) take reasonable measures, at a level at least as protective as those you take to protect your own confidential information of like nature, to protect your own confidential information against disclosure; and (iv) not disclose the Confidential Information to any third party, except to your employees, advisers, agents, investors and attorneys, who have a need to know such Confidential Information in connection with your legitimate use of the Platform and subject to substantially similar written confidentiality undertakings) (“Transferees”), and solely provided that you are and shall remain liable for the acts and omissions of your Transferees in respect of the Confidential Information as if done or omitted to be done by you.

13.3 Return of Confidential Information
Upon termination or expiration of these Terms, or otherwise upon written request by FlyCode, you shall promptly return to FlyCode its Confidential Information (and if embodied electronically, also permanently erase it), and certify compliance writing.

13.4 Relief
You acknowledge and agree that in the event of a breach or threatened breach of your obligations under Section ‎2 (Limitations) or this Section ‎13, FlyCode may suffer irreperable harm or damage which may not be readily assesable and which the payment of money cannot repair. Accordingly, you agree that FlyCode is and will be entitled to injunctive or equitable relief to enforce the provisions of Section ‎2 (Limitations) or this Section ‎13 or otherwise restrain, prevent, mitigate or remedy an unauthorized use or disclosure or failure to safeguard, its Confidential Information, without providing damages or posting bond of any kind.

14. Compliance with Law

You agree to comply, and shall ensure that your (and any one on your behalf’s) access and use of the Platform and the use of all materials generated through the use of the Platform complies, with all applicable court rulings, laws, regulations, rules and orders (“Laws”).

15. Warranties; Disclaimer

15.1 Mutual Warranties
Each of FlyCode and you represent and warrant (solely with respect to itself) that (a) with respect to FlyCode, and with respect you if you are an organization or entity, such party is duly organized and validly existing under the laws of its jurisdiction of formation, (b) such party has the full power and authority to enter into these Terms and any Order Form or other instrument signed in connection therewith, and perform its obligations hereunder, and each of the foregoing does not require any consent, permit, license or approval that has not been duly obtained; and (c) is not bound by any agreement, obligation or restriction that would interfere with its obligations under these Terms.

15.2 Disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT TO THE EXTENT EXPLICITLY STATED OTHERWISE IN THESE TERMS: THE PLATFORM, ANY PORTION THEREOF, SUPPORT, PROFESSIONAL SERVICES, AND OTHER SERVICES, AND ANY MATERIALS OR INFORMATION PROVIDED OR MADE AVAILABLE BY US OR OTHER FLYDOCE ENTITIES OR PERSONNEL ARE PROVIDED “AS IS”, WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE, TERM OR CONDITION OF ANY KIND WHATSOEVER (WHETHER EXPRESS, IMPLIED OR STATUTORY), INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY, ACCURACY, AVAILABILITY, SECURITY, COMPLETENESS, QUALITY, TITLE, NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED.
WITHOUT LIMITATION TO THE ABOVE, YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE PLATFORM IS AT YOUR OWN RISK AND WHILE THE PLATFORM IS INTENDED TO ASSIST YOU IN THE DEVELOPMENT OF YOUR CODE OR OTHER CUSTOMER CONTENT, FLYCODE MAKES NO, AND HEREBY DISCLAIMS ANY, WARRANTY, REPRESENTATION, GUARANTEE, TERM OR CONDITION, THAT THE PLATFORM WILL IDENTIFY OR RESOLVE, REMEDIATE, OR PROVIDE A WORK AROUND TO, IN WHOLE OR IN PART, OR TO SUIT YOUR PARTICULAR NEEDS, SPECIFICATIONS OR PURPOSES, FULLY OR AT ALL, ANY OR ALL ERRORS, MISTAKES, VULNTERABILITIES, MISCONFIGURATIONS, IMPROPER CODE OR INTEGRATIONS, OR OTHER ISSUES WITHIN THE CUSTOMER CONTENT OR THAT THE RESOLUTIONS, REMEDIATIONS OR SUGGESTIONS OFFERED BY THE PLATFORM WILL NOT IMPACT OTHER ELEMENTS OF THE CUSTOMER CONTENT.

16. Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY, (A) WE AND ALL FLYCODE ENTITIES AND PERSONNEL SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY, OR INDIRECT DAMAGES OR LOSSES OF ANY KIND, OR LOST PROFITS, BUSINESS, REVENUES OR SAVINGS, LOST DATA, DAMAGE OR LOSSES TO GOODWILL, REPUTATION OR BUSINESS, OF USE OR INTERRUPTION THEREOF, OR THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, , ARISING OUT, IN CONNECTION WITH, OR RELATED TO, THESE TERMS, THE SUBJECT MATTER THEREOF, THE PLATFORM OR YOUR OR ANY THIRD PARTY ON YOUR BEHALF’S USE OR ACCESS (OR INABILITY TO USE OR ACCESS THE PLATFORM), THE PROVISION OF (OR ANY FAILURE TO PROVIDE) SUPPORT OR PROFESSIONAL SERVICES OR ANY ACT OR OMISSION BY ANY FLYCODE ENTITIES OR PERSONNEL IN RELATION TO THE FOREGOING (COLLECTIVELY, “AGREEMENT SUBJECT MATTER”); AND (B) THE TOTAL CUMULATIVE LIABILITY OF ALL FLYCODE ENTITIES AND PERSONNEL IN CONNECTION WITH THE AGREEMENT SUBJECT MATTER SHALL NOT EXCEED THE GREATER OF US$100.00, OR THE FEES ACTUALLY PAID TO US BY YOU DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS AND EXCLUSIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW AND REGARDLESS OF THE FORESEEABILITY OR WHETHER ANY FLYCODE ENTITIES OR PERSONNEL WERE ADVISED OR AWARE OF THE POSSIBILITY OF THE DAMAGES OR LOSSES, AND REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (WHETHER IN TORT, BREACH OF CONTRACT OR OTHERWISE).

17. Indemnification

Upon our first demand, you shall (a) defend, FlyCode and all other FlyCode Entities and Personnel, from and against any demands, claims, actions, proceedings, notices of fines nor intent to fine (collectively, Claims”) and (b) indemnify and hold harmless each of the FlyCode Entities and Personnel from all damages, liabilities, losses, costs, expenses, sanctions, and awards and reasonable attorney’s fees and litigation costs, resulting from such Claim, to the extent the Claim arises, or if true would arise (i) from your Customer Content or (ii) your violation of these Terms.

18. Relationship

The relationship between you and us is that of independent contractors. Nothing in these Terms will be construed to establish any partnership, joint venture or agency relationship between us. Neither of your or us has or will have the power or authority to bind the other or incur any obligations on the other’s behalf.

19. Reference Customer

You agree that FlyCode may use your name and logo on its website and in its promotional materials to state that you are a customer of FlyCode and that you use our Platform.

20. Assignment

You may not assign or delegate these Terms, in whole or in part, or any rights or obligations hereunder to any other party, without our written consent. FlyCode may do so without your consent or any other restriction. Any assignment or delegation in violation of the above shall be null and void. Subject to the foregoing, these Terms shall bind and benefit the parties and their respective successors, heirs and assigns.

21. Force Majeure

FlyCode shall not be liable for any delay or failure to perform any obligation under these Terms caused fire, flood, act of God, acts of government, an act or omission of civil or military authority of a state, electrical outages, network failures, strike, lockout or other labor problem, failures of subcontractors or suppliers, or by war, riot, embargo or civil disturbance, breakdown, mass illness, outbreaks, pandemics, shut-downs, lock-downs, government instructions not open or go to businesses or place of work, any government-declared disaster, emergency or force-majeure or other instances outside of the reasonable control of the non-performing Party.

22. Notices

You agree that we may deliver notices under these Terms or in connection with the Platform or of any other kind to you within the platform (such as via pop up, or to the notices, message or similar section of your account) or by email to the address designed by you in the Order Form, in your Platform account or from which you may communicate with us, our affiliates or agents. Notices and other communications pursuant to these Terms shall be in writing and shall be deemed to have been duly made as of the date delivered or transmitted, and shall be effective upon receipt. Notices sent to FlyCode must be sent to the following email address: fly@flycode.com. Notices of a legal nature or under these terms must also be sent to FlyCode’s mailing address at: 334 West 89th Street, Unit 3, New York, New York, 10024.

23. Disputes

24.1
In these Terms, “Affiliates” means, with respect to any person, organization or entity (a “party”), any person, organization or entity controlling, controlled by or under common control with, such party, where “control” means (i) the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of a person, organization or entity, whether through the ownership of voting securities, by contract or otherwise; (ii) owning more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity, or (iii) the power to directly or indirectly elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity.

24.2
These Terms and Order Form(s) entered into between you and FlyCode, and all exhibits attached thereto, constitute the entire agreement between us and supersede any prior or contemporaneous understandings made between you FlyCode and you. In the event of any contradiction between these Terms and any exhibit, Order Form, or other notice, statement, declaration by FlyCode or any FlyCode Entities and Personnel, including, without limitation, on our Website, these Terms shall prevail, unless expressly stated in writing with respect to the contradicting term that the contradicting term prevails. Any terms in any purchase order or similar document issued which contradict or are in addition to those set forth in these Term, shall be of no force and effect, even if the purchase order is accepted by FlyCode.

24.3
If any provision of these Terms is held to be invalid or unenforceable, (i) the remainder will remain in full force and effect, and (ii) the invalid provision shall be substituted with a provision that most closely approximates the original legal and economic effect of the invalid provision.

24.4
No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. No waiver under these Terms shall be deemed a waiver of any subsequent breach or operate as a continuing waiver, unless expressly agreed otherwise in writing by the waiving party.

24.5
Headings are for convenience and shall not be used in interpreting these Terms.

24.6
Any right or remedy set forth in these Terms is, unless stated otherwise, without exclusion of, or limitation to, other rights or remedies available to a party.

24.7
This Agreement may be executed in any number of counterparts.