The Terms and Conditions (Client) United States Flyertap A: Las Vegas, NV, USA at: Flyertap.com and/or its affiliates PLEASE READ CAREFULLY this agreement, in the manner it is, in conjunction with an applicable statement of work (“SOW”) and/or PROJECT PLAN (IF it is applicable) and a legally binding Agreement that regulates the delivery of Flyertap TO customers of the Services outlined in this agreement the applicable SOW and/or PROJECT PLAN (IF the latter is applicable).
This agreement contains the following conditions and terms (the “Agreement”) apply to the sale Flyertap an Nevada company with its headquarters in Las Vegas, NV (“Flyertap”) of marketing offline products (as described further below) (the “Services”) as well as any purchases made by you (“You”, “Client”) which became effective on the date of commencement (the “Commencement date”) according to the definition in Section 2 and the entire group is referred to individually or collectively as”a “party” as well as”parties” or “parties”.
By accepting any SOW INCLUDED in this agreement, the client confirms that it Has read, comprehended and accepts the terms of the terms of this agreement.
RECITALS WHEREAS,
Flyertap is in providing marketing offline services and other related services to companies. The client wishes to sign a sign a contract with Flyertap to supply some of the services listed below:
(i) the offline Client acquisition campaign that includes the creation of printed marketing materials and apparel, as well as the supply of various other services related to (the “Campaign Services”);
(ii) (iii) the dissemination of printed marketing materials (the “Distribution Services”) and
(iii) the offering of Application services as defined in the following paragraphs (the “Application Services”) collectively referred to by the term “Services,” and Flyertap will provide the Services in accordance with the terms of and terms of the Agreement or any SOW, and/or Project Plan (if applicable). In regard to the mutual obligations and covenants that are set out in this Agreement, Flyertap and Client hereby acknowledge and agree to the following:
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions in this Agreement, except where the context requires the term “affiliate” means any entity that is controlled directly, or indirectly or is controlled by or shares the control of Flyertap. “Control” to the extent of this definition, refers to direct or indirect control or ownership of greater than 50 percent of the voting rights of Flyertap.
Agreement is the terms of this Agreement in conjunction with any SOW or Project Plan, appendices and annexes. Application(s) refers to the Flyertap website, widgets, or applications made available by Flyertap that are accessible through a mobile or website device. Base Intellectual Property refers to the entirety of Intellectual Property which is created, owned or used by the client. Business Day means any weekday other than the day which is declared a holiday under the Flyertap holiday schedule, as amended each year and at any time. Campaign refers to an instance of an instance of Campaign Services as set out in an statement of Work.
Client is the business or any other person identified on the Statement of Work for the role as Client. Commencement Date is the date that is determined according to the Section 2, or stated in the statement of Work. Confidential Information refers to the information given by Section 8. Contract Material is all the materials and deliverables that are provided to Flyertap to the Customer or developed by Flyertap as part in the course of providing Services regardless of when they were created or developed prior to the expiration date or the Agreement. CPI refers to that the Consumer Price in the United States Index released by the United States Bureau of Labor Statistics.
Fees are the amount paid on behalf of the Customer to Flyertap for the provision of Services, as described in an SOW. It also includes any charges or disbursements owed by the client as specified in an SOW. Force Majeure refers to a situation beyond the control of one party that leads to the other party being in a position to not be able to fulfill within the timeframe required by this Agreement. A bankruptcy event is any of the above such as every liquidation, dissolution, or winding-up of one the other party, or any execution of auction, receivership bankruptcy arrangement, marshalling of assets or liabilities, composition, transfer to creditors Chapter 11 bankruptcy liquidation, readjustment reorganization, or any other similar procedure in relation to a person or its property, its debts or operations, regardless of either voluntary or compulsory.
Intellectual Property Rights means all legal rights, whether current or future, worldwide. intellectual property rights, as well as any other rights to proprietary (including legal rights that require that information to be kept secret) regarding inventions, know-how and copyright, trade secrets, patents, trademarks, designs and trademarks that are created under law of United States, or any other state, country or the jurisdiction. Material is information, property as well as the subjects of any type in intellectual property. Milestone dates refer to for any specific task, the goal date for the completion of the task. Mission refers to an instance in the context of Distribution Services to be provided to the Customer. Products are any products that are provided through Flyertap to the Customer regardless of whether they are described in an SOW or in any other way.
The term “Project Plan refers to that documents (developed by Flyertap as it is required under the SOW) that outlines the materials, services and personnel to be supplied by each party as well as the respective responsibilities of each party in relation to the services to be delivered in this Agreement. The Project Plan will only be prepared if it is it is required in the SOW. Statement of Work (SOW) refers to a written statement of work, which may include the estimate or scope of work given to the Client and describing the products or Services that will be provided. Services is any of the services described in an SOW or in the absence of an SOW the entire range of services that Flyertap offers to the client such as Campaign Services, Distribution Services and Application Services.
Taxes refer to any use, sales or other taxes (other that taxes imposed on Flyertap income) charges for import and export such as custom duties, and similar charges that are applicable to the Services as specified in the SOW that are and imposed by any authority, government or another authority. Third Party Material is Material that is owned by a third party which is incorporated in, or incorporated into the Contract Materials. Flyertap Material is all the material that was created in the course of operation by Flyertap in the prior period to beginning in this Agreement. The term has the meaning as defined in Section 14.
1.2. Interpretation in this Agreement:
The singular contains the plural, and the reverse is true. “Including” as well as similar terms aren’t words of restriction. When a term or expression has a specific meaning, the other words and grammatical variants of that term or expression also have the same meanings. If something must be done or is to be completed on a date that is not an official Business Day then it must be carried out on the next Business Day. Headings are provided for simplicity of reference only and do not affect the interpretation in this Agreement. The amounts of money are as in United States currency unless otherwise stated.
The expressions “in writing” refer to any message that is sent via email, fax transmission or email, or any other type of communication that can be read by the person receiving it.
1.3. Priority order:
The precedence order in this Agreement comprises the following documents that are applicable in the priority order:
(a) a SOW;
(b) a Project Plan (if relevant) as well as
(c) the main body the Agreement and the consequence is that any conflict between these documents will be settled with respect to the prior mentioned document.
2. THE DATE IF COMMENCEMENT
2.1. Acceptance by the Client of the statement of Work (SOW)
The Commencement Date will be the later of the date specified in the Contract Information above, or the client signing a SOW or in any other way communicating to Flyertap about its agreement with the SOW or accepting the Services and/or Products from Flyertap.
3. PROJECT PLANNING
(a) When the SOW requires the creation of the Project Plan, the parties must agree to with the Project Plan prior to the delivery of the Services.
(b) The client must pay Flyertap to develop the Project Plan in accordance with the SOW, or as agreed upon in writing.
(c) the Project Plan will describe:
(i) the obligations of each party as well as the facilities and resources that are provided by each party in the supply of Products and/or for the execution of the Services
(ii) If applicable the Milestone Dates relevant to the provision of the Products and/or the execution of the Services.
(iii) additional information beyond information that are required by the SOW.
(d) After it is determined that the Project Plan has been developed and ratified that the parties have to comply with its terms except if they amend it in writing.
4. SERVICES • GENERAL OBLIGATIONS
4.1. The provision of services.
(a) Flyertap will provide the Client with all services that the Client requests as stated in the SOW and conformity with the terms of this Agreement.
(b) This Agreement obliges Flyertap to offer any services when: (i) the Client is not paying for products or services offered through Flyertap for which the payment is due and/or (ii) The Client is in violated the terms of this Agreement and the violation has not been addressed.
(c) A Change Request. Any party may seek a change to any of the provisions in the SOW by sending a written request for the opposing of the parties (the “Change Request”). The recipient party has the period of five (5) Business Days to decide whether to accept or reject this Change Request. If the rejection isn’t completed within the 5 Business Days period, the Change Request is considered to be mutually accepted. Changes could be made the likes of changes to the scope work or any changes to the estimated fee and schedule. Any Change Order that is accepted is incorporated into this Agreement as a reference and in accordance with the provisions that are contained in the Agreement.
4.2 Cooperation. The client will cooperate reasonably and with good faith Flyertap in the execution of the Services by, including:
(a) Allocating sufficient resources and performing in a timely manner the tasks necessary in order to enable Flyertap to complete its Services pursuant to this Agreement, and each SOW and Plan of Work Plan (if appropriate);
(b) Timely supply any other materials or obligations required by every SOW;
(c) Timely responding to any inquiries of Flyertap pertaining to the provision of Services; (d) Providing adequate, competent staff capable of performing the obligations as per each SOW and the Project Plan (if appropriate) as well as this agreement.
4.3 Delays. Any delays in the execution of the Services or in the delivery of any deliverables that are caused by the Client could cause additional costs for resources time.
(a) Without exclusion of all Force Majeure event as described in Section 15 below, Flyertap is not accountable for any delays (or expenses and losses that result due to delays) that occur in the course of providing the Services caused by any infraction by the Client of this Agreement and/or the applicable SOW or the applicable Project Plan or the late delivery or delivery of instructions or information from the Client or the delays caused by third party contractors and suppliers.
(b) Flyertap will be allowed to extend the time for any deadline, schedule, or milestone that is equal to the length of any delay resulting from Force Majeure as specified in Section 15(a).
5. SERVICES FOR APPLICATION
5.1. The provision of application services and License Grant. (a) In exchange for the that the client pays the fees due under a SOW, and clients’ conformity with the SOW, Flyertap offers clients Client the ability to access an online system that permits Clients to monitor the advancement in the provision of Distribution Services, receive statements of advice, invoices and statements made by Flyertap as well as other features that could be introduced from time to time through Flyertap (the “Application”) with a dashboard on the web (the “Dashboard”) that allows the Client to make a request for Distribution Services via the Application. Flyertap will create an account for the Client (the Client Account (the “Account”) which is Flyertap’s principal communication with the Client is through the contact of the administrator for the Client who is identified via their Dashboard (the “Administrator”). Flyertap will provide the Administrator with the required Dashboard logins.
(b) In exchange for the payment of the fees payable under the SOW, and Client’s acceptance of the SOW. Flyertap provides Client an exclusive, limited, non-exclusive, transferable and non-sub-licensable license to utilize the Application only for the purpose of
(i) accessing and reviewing reports detailing missions;
(ii) managing and updating the Client Account (
iii) reviewing and managing the payment statement;
(iv) settling outstanding balances on the Client Account;
(v) checking the current, appoint new and remove Administrators; and
(vi) reviewing the complete Mission information that could include the number of employees assigned to the Mission Date and time of the Mission, Mission location, Mission Status, amount of marketing materials that is to be dispersed or was distributed, and the amount of fees for the Mission (“Dashboard Information”) All together known as”the “Application Services”. Flyertap retains all rights that are not expressly granted to the client under this Agreement. In the context of this Agreement the reference to the word “Mission” will mean the delivery to Distribution Services by Flyertap for specific dates, times and place.
(c) A Client acknowledges that: (i) to keep the Dashboard login credentials private as well
(ii) to allow only the authorized administrators of the Client login to the Dashboard.
(d) Flyertap reserves the ability to modify, add or modify the functionality and features in The Application as well as the Dashboard at anytime.
5.2. Limitations
(a) The client may make use of to use the Application Services only as permitted within the terms of this Agreement as well as subject to these limitations. The Client must not:
(i) sell, rent, resell, lease or distribute, make use of on timeshares outsource, commercially exploit or make the Application Services available to any third party in any manner;
(ii) reverse engineer decompile, disassemble, or attempt to find objects, source codes, or the structure, ideas knowledge, algorithms or know-how applicable with or relating to the Application Services or any software or data that is related to or relating to the Services;
(iii) modify or translate the application, or make derivative works that are based on or derived from the Application Services;
(iv) copy, store or in any other way access or utilize any information in any of the Application Services for purposes not specifically permitted by the Agreement; (v) upload or distribute any file that contains malware, corrupted files and any similar software or program which could compromise the functioning and functionality Application Services;
(vi) investigate, scan, or check the vulnerability of, or bypass any security mechanism utilized by the server, website or other networks that are connected with or connected to the Application Services; poses or any security or privacy risk to anyone;
(vii) maliciously reduce or impede access to Access to Application Services;
(viii) make use of to use the Application Services to post, advertise, or transmit any illegal, harassing and abusive, libelous or infuriating, harmful or other objectionable content; (ix) use the Application Services for any purpose that is not specifically allowed under the present Agreement;
(x) transmit or publish any content which encourages conduct that could be considered to be a criminal offence or result in civil liability.
(xi) upload content that violates the intellectual property rights or other rights to proprietary rights of any person;
(xii) violate any local state, national, or international law, or any other law or order of a court;
(xiii) misrepresent your identity to another person.
(b) Flyertap reserves the right to terminate the access and use of the Application in case of violations of the terms of this Agreement.
6. INTELLECTUAL PROPERTY
6.1 IP Rights of the Client Property Rights License Grant. The Client is and will always remain the owner of all rights, title and interest in and over the Intellectual Property of Base. The Client consents to Flyertap the irrevocable royalty-free with worldwide rights (with an unlimited sub-license right) to use or permit the use of the Base Intellectual Property in the course of meeting Flyertap’s obligations as well as offer the Services in accordance with this Agreement.
6.2 The rights of Flyertap’s Intellectual Property.
(a) Application Services; Dashboard and Dashboard Data. Flyertap as well as its affiliates own and will remain the sole owners of all rights, title and interest in and around Data from the Application Services, Dashboard and Dashboard Data as well as the latest updates, enhancements, and any new versions thereof and all information related with the usage of Application Services and all related documents and materials made available to Client pursuant to this Agreement. In compliance of section 5.1
(b) and subject to the payment by Client of the fees due pursuant to the SOW and the Client’s conformity with this SOW, Flyertap grants Client an exclusive license to utilize its Application Services.
(b) The Contract Materials. Unless explicitly stated contrary to the SOW the entire Contract Materials created by Flyertap during the process of providing Services to Client are and will remain the sole property of Flyertap. Client promptly and unconditionally assigns to Flyertap without further action, all rights, titles and other rights Client may have with respect to any contract Material (including the moral rights that any of the employees of the Client may enjoy). In the event that any of the personnel of the Client have moral rights with respect to any Contract Material the Client is required to obtain and provide to Flyertap their moral rights. and consent to the assignment of that right to Flyertap.
(c) Contract Material License Grant. In exchange for payment by the Client of the Fees due under an SOW and compliance by the Client to the terms of SOW Flyertap gives to Client (subject to the payment of all amounts due pursuant to this Agreement) the right to use a royalty-free perpetual, non-transferrable, non-transferrable license, without ability to grant sublicenses, to utilize the Contract Materials to be used by the Client for internal business operations, only relating to the purpose of the business or project that the Services are related (the “Contract Material License”).
(d) Logos and names of the Client. If Flyertap must communicate the names, trademarks or trademarks belonging to Client (hereinafter referred to as the Client (hereafter”the “Client Trademarks”), Client consents to Flyertap permission to make use of its Client Trademarks in all marketing materials created by Flyertap (including without limitation, Flyertap’s social media profiles, website profiles and slides). On request by the Client, Flyertap shall include a trademark attribution notice that informs that the Client owns its trademarks on marketing materials where the logo or name of the Client are displayed.
(e) The Preparatory Materials. Flyertap and its affiliates remain the sole owners of all drafts, masters rushes, and other preparatory materials and the Client shall not be entitled to the originals. The Client is entitled to request duplicates of these documents at an extra cost.
7. FEES
7.1. Fees. The Client is required to pay Flyertap the fees in respect of the Services according to the terms of this Agreement and the conditions of a SOW. 7.2. Payment and invoice. Except as stated in a SOW Client must pay all Fees in full prior to the time that any Services or Products are provided through Flyertap directly to Client. After signing a SOW Flyertap issues an invoice Client for the Services to be delivered as per this Agreement, a SOW or the Plan of Work Plan. Client is required to pay Flyertap the fees set out in the invoice of Flyertap in the fourteenth (14) business days following when the invoice is issued. invoice by Flyertap.
7.3. Out of scope services. If Flyertap offers the Customer services that are not within the scope of services described in an SOW The services are subject to an additional Fee or other charge at the Flyertap standard hourly rates that are in effect, and which will be fully paid prior to when the additional services are provided.
7.4. Invoices with disputes. If a client wishes to contest an invoice, it should: (a) pay Flyertap every part of the invoice that are not in dispute; in addition, (b) In the event that the client is in good faith and contests the accuracy of the invoiced amount the client must pay prior to the due date for invoice the amount that it is in good faith believes to be accurate, and send a written notice of the reasons that the remainder of the invoice is not correct, and the supporting documents. If that the parties are not able to settle the dispute, either of them can pursue every remedy offered by law or the courts to enforce their rights under this agreement. If it is agreed that Client is required to pay the amount in dispute, Client shall then pay interest beginning from and ending on the date of payment up to, but not including, the date on which the amount disputed receives by Flyertap in the amount of 2 percent per month as specified in section 7.5 below.
7.5. Failure to pay. If the client does not pay the amount due under this Agreement on the due date (except in cases where the amount is validly contestable pursuant to
7.4, Flyertap may (without prejudicing all other rights to which it has the right): (a) charge the Client interest on the due amount and not paid for the period that the amount is owed by the Client at a rate of 2% per month and calculated daily. (b) suspend the performance of Flyertap’s obligations in this Agreement without obligation to the client for any damage or loss suffered or incurred as a result of suspension, until the amount is paid in full.
7.6. The rights of other parties and their obligations are are not affected. The use the rights of Flyertap in respect of one or more of Flyertap’s rights in Section
7.5 is not a repercussion on:
(a) the Client’s obligations and
(b) the rights and remedies Flyertap might have with respect to the breach by the Client in the terms of this Agreement and any contract in between Flyertap with the client.
7.7. Variation. The Fees stated in the SOW could be revised each year and the first price review taking place (12) 12 months following the date of the commencement in this Agreement. Flyertap may alter the fees when it receives with ten (10) days written notice to the Customer. The new prices will be applied immediately to any SOW that are issued following the notice period. Any increase in Fees is the greater of the change in CPI between the anniversary date and date the Fee was set for the first time or 5percent.
7.8. Expenses. The Client must reimburse Flyertap and/or reimburse Flyertap for any costs the Client must pay or incurs pursuant to the SOW, or in any other way in order to supply the Products or Services.
7.9. Taxes. Except as stated otherwise any prices or other amounts due are exempt of all taxes, levies or duties or similar assessments by governmental authorities that are of any kind, for example for instance, value-added sales and use taxes, as well as withholding taxes which are liable to any authority whatsoever (collectively “Taxes”). The Customer is responsible for paying any taxes incurred in the purchase of the Services. If Flyertap is legally required to collect Taxes the amount of these tax will be charged at the expense of Client and Client will be responsible for the payment unless Client can provide Flyertap with an exemption certificate from taxation issued by the taxing authority in charge. To be clear, Flyertap is solely responsible for taxes assessed against Flyertap according to Flyertap’s income as well as its property and employees.
8. CONFIDENTIAL INFORMATION
8.1. Define Confidential Information. “Confidential Information” means all information provided by a person (“Disclosing the Party”) in relation to another of the parties (“Receiving Partie”) in writing, or verbally as written, or verbally, which is classified as confidential or can be regarded as confidential based on how the material is used and reasons for its disclosure. Confidential Information for each parties includes all terms and provisions of the Agreement and the SOWs and Project Plan (including pricing) and marketing and business strategies, plans information, data, technologies and technical information, plans for products and designs, as well the business procedures disclosed by that party.
8.2. Exclusions. The exclusions are, however Confidential information does not contain all information or data that (i) will become available to the public in violation of any duty due by the Disclosing Party, (ii) was in the possession of the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation due towards the Disclosing Party, (iii) is received from a third-party with no breach of any obligation towards the Disclosing Party, or (iv) was independently designed in the Receiving Party.
8.3. Protection. Security. Receiving Party will use the same level of care it employs to ensure confidential information of its confidential information (but no less than the reasonable level of care) in order to
(i) not utilize any confidential Information that is the property of the Disclosing Party for any reason that is not within the scope of this Agreement and
(ii) other than as permitted from the Disclosing Party in writing and limit the access of Confidential Information that belongs to the Disclosing Party to those of its Affiliates and personnel and contractors that require access to the information for purposes that are in accordance with the terms of this Agreement and are bound by confidentiality agreements signed in conjunction with the Receiving Party containing protections not substantially less protective of Confidential Information than those set forth in the Agreement. The parties will not disclose the provisions of the Agreement as well as the terms of any SOW and Project Plan to any third person other than its affiliates or accountants, legal counsel or other professionals without prior written approval, provided that the party who makes any disclosure to its Affiliates or legal counsel, accountants or other third parties is responsible for the affiliate’s, legal counsel’s or accountant’s conformity with the “Confidentiality” clause.
8.4. Permitted Disclosures. Contrary to anything in this Agreement the parties will not disclose Confidential Information or to any other person without written consent from the opposing party. Without limiting the above, any party is permitted to disclose Confidential Information only with the written consent by the opposite Party
(i) in the event that it is necessary by a tribunal or government institution,
(ii) as otherwise legally required,
(iii) to legal counsel of the parties,
(iv) in confidence with respect to the respective bankers, accountants and financing sources as well as to any other advisors of a professional nature,
(v) in confidence for the purpose of an actual or planned merger or acquisition transaction or similar transaction; or
(vi) in the event that they are required to do so under law. If this is the case, then in that event the Party who is required to divulge the information will make every effort to provide the other party with prior notice of the obligation.
8.5. The right to equitable relief. The parties acknowledge that any violation of covenants and obligations contained in this Agreement can cause irreparable harm that requires a remedy in law might not be accessible. So, the non-breaching party is entitled to seek any remedy that is at hand under the law of equity, including injunctive relief in addition to any other remedies that might be available under the law.
9. NON-SOLICITATION
9.1 Non-Solicitation. For the duration of the contract and for 12 (12) months after that (collectively”the “Non-Solicitation period”) The Client agrees to not whether directly or through indirect means, attempt to solicit or solicit the hiring and services offered by any one of employees of Flyertap or its Affiliates or consultants engaged in the execution of this Agreement and/or the SOW or Project Plan, when such solicitation is conducted by the client through using Flyertap’s proprietary information. Both parties agree they are aware that (i) any publication or other public advertisement that is not addressed specifically addressed to the person is not considered to be a solicitation within the reason of this Section as well (ii) that this provision
9.1. is not designed to restrict the right of an individual to switch job. After the termination of this Agreement The Client shall not claim to be in any manner currently associated to or involved in the activities of Flyertap.
9.2 Reasonability of Restrictive Covenant. The Client acknowledges having carefully read and analyzed the provisions of Section 9.1 of the Agreement and accepts that the terms and conditions that are set forth in it are reasonable and fair they are backed by legal evidence, and are necessary to safeguard Flyertap’s legitimate business interests. Flyertap.
10. PRIVACY
(a) In the performance of the obligations they have in this Agreement and in performing their respective obligations under this Agreement, each party must adhere to the applicable privacy and data protection laws. Concerning any data that the Client grants Flyertap access to or ownership with the intention for providing services and the Client assures Flyertap that its access or possession (as appropriate) to that end is in compliance with applicable privacy and protection laws.
(b) when processing or accessing the Client’s information, Flyertap will comply with the reasonable policies of the Client that have been made known in writing to Flyertap via written.
11. REPRESENTATIONS and WARRANTIES, as well as DISCLAIMERS
11.1. Representations. Each party warrants that it has signed this Agreement and is in lawful authority to do so.
11.2. The Flyertap Limited Warranty applies to Campaign and Distribution Services. Flyertap guarantees it will ensure that Campaign and Distribution Services will be carried out in a professional and courteous way and will conform to the specifications outlined in the SOW or Project Plan and for a period of seven (7) days following the time that the Campaign Services and Distribution Services were completed (“Warranty Timeline”). If any of the Campaign Services and/or Distribution Services are not performed in a manner that is substantially conforms to the SOW, Client will notify Flyertap in writing within the warranty period. The notice from the client must clearly detail and describe any alleged violation of the provisions of the SOW. The sole and only remedy for the Client and Flyertap sole responsibility is the re-performance of the relevant Campaign Services or Distribution Services. If Flyertap cannot perform these Campaign Services and/or Distribution Services the Client will be legally entitled to recoup the costs due for the deficient services to Flyertap for the faulty Campaign Services and/or Distribution Services. The preceding paragraphs are the Client’s sole and exclusive remedy for warranty claims relating to the Campaign and Distribution Services.
11.3. Disclaimer for the other Services. EXCEPT as EXPRESSLY in SECTION
11.2 Flyertap and its SUPPLIERS DISCLAIMS ANY OTHER CONDITIONS and representations, warranties EXPRESS or implied, which includes the, but not limited to any implied warranties of quality, FITNESS FOR A specific purpose, warranties of quality, performance, and non-infringement or any other warranties arising from the course of dealing, or a course of dealing, TRADE Usage .
11.4. Application Services: No Service Guarantee. CLIENT ACKNOWLEDGES AND CONSENTS THAT the APPLICATION SERVICES and DASHBOARD are provided “AS is”. CLIENT AGREES AND ACKNOWLEDGES THAT Flyertap does not warrant that the application services will be uninterrupted or error-free. CLIENT ADDS ACKNOWLEDGES and agrees that the application MAY be unavailable at ANY moment or for ANY reason (e.g., MAINTENANCE). Flyertap does not represent or guarantee that the application is secured from hacking or OTHER illegal intrusions, or that the application is safe for the client is protected from any such intrusions.
12. INDEMNIFICATION
12.1 The mutual indemnification. Each of the parties (the “Provider”) is responsible for defending the other (the “Recipient”) in the event of a claim made or filed against the Recipient by any third party who claims that any design, information or specification, instruction software, data, or materials provided by the Provider under this Agreement (“Material”) violates or violates the rights of a right to the intellectual property of a third-party and indemnifies the Recipient against any damages, attorney’s fees and costs ultimately awarded against the Recipient in connection with of, or in respect of the amount paid by the Recipient in an agreement that is approved in writing by the Provider of any such Claim, provided that the recipient:
(a) promptly gives the Provider a written notice of the Claim in writing;
(b) provides the Provider with sole control over its defense as well as the settlement of any Claim (except the fact that the Provider will not resolve any Claim unless it unconditionally releases the recipient from all responsibility) and (c) provides the Provider with any reasonable assistance at the expense of the Provider. The Provider shall not be held in obligation to settle any claim if
(i) it stems from specific specifications, or from any other Material supplied from the opposing party or
(ii) the claim is based on the Recipient’s use of a modified or modified version of the Material in the event that it could be avoided through using a later and unaltered copy of the Material that was made available to the recipient. If any or the entire Material is believed to be infringed or reasonable to believe by the Provider that it may violate or violate the rights of another the rights of others, the Provider can in its sole discretion and without cost to the recipient
(A) change or substitute the Material in a manner that it can not alleged to infringe or to be misappropriated,
(B) obtain a license to allow the Recipient to continue usage of the Material according to the terms of this Agreement or (C) request the that the affected Material as well as all rights to it to the Recipient. If the Provider exercise (C) or (C), either one of the parties can terminate the relevant SOW as well as the Project Plan upon ten (10) days of written notice within 30 days following the Provider’s decision to exercise such option subject to being subject to the “Consequences of Termination” Section below.
12.2 Exclusive Remedy. This “INDEMNIFICATION” Section outlines the sole liability of the party that indemnifies and the INDEMNIFIED Party’s sole remedy against, THE other party for any type of claim outlined in this SECTION 12
13. LIMITATION OF LIABILITY
13.1. Limitation of the liability. EXCEPT WITH RESPECT TO CLAIMS PURSUANT TO SECTION 12 AND/OR FOR ANY BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 8, IN NO EVENT SHALL Flyertap’S AGGREGATE LIABILITY WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, STATEMENT OF WORK AND/OR PROJECT PLAN EXCEED THE TOTAL NET AMOUNT PAID BY CLIENT UNDER THE SOW FOR THE SPECIFIC SERVICES OUT OF WHICH THIS LIABILITY AROSE.
13.2. Exclusion of Consequential and Related Damages. In no case will any the party or its affiliates BE LIABLE for any claim that arises out of or in connection with this agreement for any LOST profits, REVENUES Goodwill, INCIDENTAL, SPECIAL INDIRECT or consequential, BUSINESS interruption or punitive damages regardless of the basis of LIABILITY and HOWEVER CAUSED whether in TORT, CONTRACT or STRICT LIABILITY products LIABILITY or NEGLIGENCE, and regardless of whether or not the party was or should have BEEN aware or advised of the possibility of such damages. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CLIENT. This agreement lays out specific legal rights and remedies, and CLIENT may also have other rights that differ from state to State. The DISCLAIMER, EXCLUSIONS and LIMITATIONS of LIABILITY under this agreement will not apply to the extent allowed by applicable law.
14. TERMS AND TERMINATION
14.1. Term. This Agreement starts at The Commencement Date and remains in effect until
(i) that the parties are in compliance with their obligations, or
(ii) met their obligations or
(ii) until it is terminated pursuant to this Section.
14.2. A Termination to Convenience. Any party can terminate this Agreement at anytime to be convenient upon 30 (30) calendar days notice in writing to either. Unless the parties agree in writing, termination in accordance with this Section 14.2 does not relieve Client from its obligations under any SOW or Project Plan in effect when either party ends this Agreement and the obligations under these agreements continue to be under the control of this Agreement. The termination of this Section 14.2 is not a waiver Client of the obligation of paying for Service or costs incurred or paid under any SOW and/or Project Plan.
14.3. Termination on Cause. Any party can terminate this Agreement immediately following a written notice when:
(i) the other party is in breach of any of the provisions in this Agreement or an SOW or Project Plan and does not remediate the violation in fourteen (14) business days following receiving a written notice from the other party or (ii) the other party has committed a material violation of this Agreement and/or any SOW or Project Plan that is not likely to be rectified. Flyertap can end this Agreement by giving the receipt of a written notice from Client in the event that client: (i) ends or ceases operations,
(ii) becomes insolvent, (iii) admits its in writing that it is unable to meet its obligations, and makes an assignment in the interest of creditors or
14.4. Effects of termination. If the notification of termination has been issued pursuant to Section 14.2 or Section 14.3 the total amount due to Flyertap pursuant to this Agreement or that could be payable had it not due to the termination be due and payable, in the amount legally permitted be due immediately and payable. Also:
(a) each party may take possession of any property that is in the custody, possession or the possession of the opposing;
(b) Flyertap may keep any money that are paid for the Services offered to Flyertap when it receives notification of termination.
(c) Flyertap may charge for any Services provided for which there has never been a fee or charged.
(d) Flyertap may charge for all disbursements, costs and other expenses incurred in the expectation of meeting all the obligations in the SOW including the cost of any products or Services that are purchased on behalf of or as on-supply to the client prior to the date of termination (except in the event that the Customer has previously paid the fee for these things);
(e) each of the parties may demand the other to deliver to it, or remove or erase, or obtain the delivery or erasure (as required) any materials that contain the Confidential Information of the Client and to confirm that it has complied with the obligations and
(f) each party is entitled to take any additional or alternate remedies that are provided by law.
14.5 Surviving Conditions. The provisions of this Agreement or the SOW or Project Plan will survive any expiration or termination, if in its terms and the context in which it is designed to last, such as sections entitled “Contract Material License Grant” as well as “Fees”, “Confidentiality”, “Representations, Warranties and Disclaimers”, “Indemnification”, and “Limitation of Haftung”.
14.6 A credit note
(a) In the event that the client ends this Agreement or orders that the delivery of services provided by Flyertap cease, all paid but not yet repaid fees will remain with Flyertap and the company will issue an account credit note, which will remain valid for a time of 12 months beginning from the date of termination.
(b) the credit note can be applied to costs for distribution or travel costs and permit costs as well as bonus costs. Printing costs cannot be refunded once digital proofs are approved by the client
(c) Unused credit note expires after the 12-month period.
15. Force Majeure
(a) Flyertap will not be held liable for any delay or inability to fulfill its obligations under an SOW or under this Agreement when the delay is due, in total and in parts, due to incidents, circumstances or other causes beyond Flyertap’s control and without fault of Flyertap such as, but not limited too, strikes, God’s intervention and lockouts, riots earthquakes, acts of war or explosions, and failure of internet (collectively known as “Force Majeure”).
(b) If the duration of a delay or failure of Flyertap to meet the obligations it has incurred due to Force Majeure exceeds sixty (60) days each party can immediately end the Agreement upon giving written notice in writing to the opposing party in which case Flyertap is not deemed to have violated this Agreement.
(c) In the event that it is determined that this Agreement is terminated in accordance with 15(b) of the Agreement, 15(b), Flyertap will refund any amounts that the Client previously paid pursuant to this Agreement for Services that were not rendered because of Force Majeure. (d) To avoid any ambiguity of doubt, the compliance with an Public Health Order, Government decree or similar regulation, rule or obligation as a result of an outbreak of the Covid-19 Pandemic which results in delays is not considered to be a Force Majeure Event giving rise to a right to cancel pursuant to clause
15. If there is a delay, any money paid by the client will be retained by Flyertap as a credit to the customer for the non-executed cost and put towards the campaign costs. The campaign will begin when it is allowed and the credit will be applied to
16. MISCELLANEOUS
16.1. Subcontractors. Flyertap can, at the sole discretion of Flyertap, subcontract the execution of all or a portion of its obligations in this Agreement. Without limiting the broader scope of Section 16.1 The Client agrees that Flyertap may subcontract services related to distribution Distribution Services to independent contractors.
16.2. Relationship between the parties. The relationship between the parties in this Agreement is one is one of contractors who are independent. Each party is not deemed to be an agent, employee or partner, franchisor, franchisee, or an official representative for the opposing for any reason and neither party will be granted any right, power or the authority to impose any obligation or obligation for the other.
16.3. Entire Agreement; Modification. The Agreement, SOW and Project Plan (as relevant) represent the complete arrangement between both parties regarding the provision of the products and/or Services. It supersedes any prior representations, declarations and agreements or commitments, whether written or in written form. Any modification or amendment to any clause of this Agreement is binding unless the terms of the agreement are in writing and which are signed by the parties.
16.4. Assignment. This Agreement is binding and confer the rights of any authorized inheritors, successors, and assigns. The parties cannot transfer or assign this Agreement either in whole or part, by virtue of law or other means without the other party’s express written permission. If you attempt to transfer or to assign this Agreement without this written consent is invalid and null. Despite the foregoing however, neither of the parties may transfer or assign the terms of this Agreement without consent of the acquiring or the surviving entity in an acquisition or merger in which the party is the acquirer (whether through merger or acquisition, reorganization or the sale of shares) as well as to the buyer of all or a substantial portion of the assets of that party. Flyertap can assign or transfer or transfer this Agreement to its affiliates.
16.5. Waiver. Any waiver of the terms in this Agreement or of a party’s rights and recourses under this Agreement must be signed in writing in order to be valid. The failure, inattention or inability of any party in enforcing the conditions of the Agreement as well as its right or remedy at any point and at any time, is not to be taken as a waiver of the right in this Agreement and does not in any way impact the validity of the entire or any of the provisions in this Agreement or limit the other party’s rights to pursue further actions. The exercising or enforcement by any the other of any remedy or right granted under this Agreement does not preclude the exercise by that the other party of any remedy or right in this Agreement or any other right or remedy that the party is legally entitled to apply.
16.6. The governing law. This Agreement is to be read and interpreted according to California law. State of California, without considering conflict of law principles. The parties agree to the sole jurisdiction and jurisdiction of the federal and state courts within San Francisco County, California to resolve any dispute that arise out of or in connection with this Agreement.
16.7. Notices. Any notice that is required or permitted by the provisions of the Agreement or as required by law, must be written and sent (a) personally, (b) through first class registered post or air mail, if appropriate or posted and fully paid to the address specified in the preamble to this Agreement or (c) by facsimile. Notices are deemed to have been served upon actual personal delivery, which is four (4) working days following the date of deposit in the mail as stated above or after the receipt of a facsimile confirmation. Each party can change its address for notice with a notifying the other party according to the provisions of this section 16.7.
16.8. Severability. If any provision, or a portion of the provisions contained in this Agreement is declared unenforceable, invalid, or illegal in any way, that clause of this Agreement is implemented to the greatest extent permitted by applicable law to effect the intentions that the two parties have in mind, while the remaining provisions of this Agreement will remain with full force and in full force and. The parties will discuss in good faith a legally binding alternative to any provision that is invalid or unenforceable which most closely reflects the intended purpose and economic impact of the clause.
16.9. Construction. The headings of sections in this Agreement are intended for convenience only and should not be used for interpreting this Agreement.
16.10. No third party beneficiaries. The parties in this Agreement expressly agree that there aren’t any third party recipients of this Agreement.
16.11. Counterparts. Signatures scanned by facsimile or electronically on this Agreement along with an SOW or Project Plan will bind the parties in the same way as the originals. This Agreement can be executed in multiple counterparts. Each is a unique document and all the counterparts create one arrangement between both parties.
