Effective January 1, 2014
Flyover Intellectual Property
For certain aspects of the Website, you may be asked to register an account. In the event you agree to register an account, you will select and/or receive a username and password upon providing registration information and successfully completing the registration process. This account is personal to you, and you will not share it or allow any other person to utilize your account. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. You agree to immediately notify Flyover in the event (a) your registration information changes, or (b) you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You also agree that you will provide truthful and accurate information during the registration process. Flyover may refuse to grant a particular username to you for any reason, including, without limitation, in the event Flyover determines that such username impersonates someone else, is protected by trademark or other proprietary right law, or is vulgar or otherwise offensive.
You acknowledge that the Website may contain or provide access to information, software, photos, video, text, graphics, music, sounds, or other material provided by Flyover or third parties (collectively, “Content”) that are protected by copyrights, patents, trademarks, trade secrets, or other intellectual property laws, and that these rights are valid and protected in all forms, media, and technologies existing now or hereafter developed.
Flyover welcomes your comments, feedback, information, or materials regarding the Website, Content, or Flyover’s products or services (collectively, “Feedback”). If you submit Feedback to Flyover, please note that your Feedback shall become the property of Flyover. By submitting your Feedback to Flyover, you agree to assign, and hereby irrevocably assign to Flyover, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. Flyover shall be free to use your Feedback on an unrestricted basis. You hereby assign and/or waive, as the case may be, any moral rights that you may have in or to the Feedback.
Flyover may allow users to place Orders for products, subscriptions, and/or services via the Website or through its third-party affiliate. “Order” shall mean any order placed by a user for products, subscriptions, and/or services via the Website that is accepted by Flyover. In the event that you are a user placing an Order to purchase products, subscriptions, and/or services, you are subject to the additional terms of this section. Please note that in some cases, you may be directed to a third-party website make purchases. In such an event, the purchase terms in this section do not apply, and your purchase will be governed by the terms of such third-party website. By making such purchases, you hereby agree that Flyover has no responsibility, and shall have no liability, for any claim related to your purchases on such third-party websites.
Upon placing an Order, you shall pay to Flyover the purchase price as set forth in the “Shopping Cart” or similar ordering mechanism. Flyover or its third-party affiliates may utilize the services of certain third-party payment processors to process payments of credit cards and other accepted methods of payment. Your purchase is subject to any additional terms and conditions imposed by such third-party payment processors. The purchase price and any applicable fees or taxes shall be applied to your chosen method of payment upon submission of your order.
Prices and availability of products are subject to change without notice. Errors will be corrected where discovered, and Flyover reserves the right to revoke any stated offer and to correct any errors, inaccuracies, or omissions, including after an order has been submitted and whether or not the order has been confirmed and your payment method accepted and charged. In the event your payment method has been accepted and charged, Flyover will issue you the appropriate credit within a reasonable time after your order has been revoked.
In the event you purchase a product that must be shipped to you, such products will be shipped by Flyover and/or its third-party contractors within a reasonable time after processing of your order. Shipment time will vary depending on the shipping method and service you select. Flyover does not guarantee delivery at any certain time and is not responsible for shipping delays.
In the event you purchase products that embody or otherwise contain Content owned by Flyover or other parties, you agree to the following restrictions regarding such products and the Content or other information contained or embodied therein: (a) you may not resell any Content or otherwise profit from its use or display; (b) you may not, nor will you allow any other party to, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, sublicense or create derivative works or compilations incorporating such Content without the express permission of the owner of such Content; (c) you will not otherwise violate any additional legal or contractual restrictions governing use of the Content; and (d) you will not obscure or remove any proprietary rights notices contained in or on the Content.
In the event a product ordered by you is damaged upon receipt, Flyover, at its sole option, may provide a replacement product or refund the purchase price. Damaged products that Flyover will accept for return or refund include products that are missing, torn, or physically damaged or inoperable.
In the event that you provide any Feedback via the Website, you hereby make the following additional representations and warranties to Flyover: (1) you are owner of such Feedback or otherwise have the right to grant Flyover the licenses or assignments granted pursuant to this Agreement; (2) you have secured any and all consents necessary to post the Feedback and to grant the foregoing licenses or assignments; (3) the Feedback does not violate the rights of any third party, including, without limitation, the intellectual property, privacy, or publicity rights of any third party, and such Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (4) the use of any Feedback will not result in harm or personal injury to any third party; and (5) all factual information contained in the Feedback is true and accurate.
Flyover uses reasonable efforts to maintain the Website, but Flyover is not responsible for any defects or failures associated with the Website, any part thereof, any Content posted using the Website, or any damages (such as lost profits or other consequential damages) that may result from any such defects or failures. The Website may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which Flyover may undertake from time to time; or (c) causes beyond the control of Flyover or which are not foreseeable by Flyover.
Flyover is not a backup service for storing user content, and Flyover shall have no liability regarding any loss of user content. You are solely responsible for creating backups of any user content you post using the Website.
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:
TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE WEBSITE, ANY CONTENT, AND ANY PRODUCTS OR SERVICES PROVIDED VIA THE WEBSITE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT ALLOWED BY LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE AND NON-INFRINGEMENT.
WITHOUT LIMITATION, COMPANY MAKES NO WARRANTY THAT THE WEBSITE, ANY CONTENT, OR ANY PRODUCTS OR SERVICES PROVIDED VIA THE WEBSITE WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION FOUND THEREON WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED THROUGH THE WEBSITE WILL MEET YOUR EXPECTATIONS.
ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT ALLOWED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE WEBSITE, ANY CONTENT OR ANY PRODUCTS OR SERVICES PURCHASED VIA THE WEBSITE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEBSITE OR OTHERWISE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; OR (D) ANY OTHER MATTER RELATING TO THE WEBSITE, ANY CONTENT, OR THE PURCHASE OF COMPANY’S PRODUCTS OR SERVICES. IF YOU ARE DISSATISFIED WITH THE WEBSITE, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USE OF THE WEBSITE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS. TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE WEBSITE OR PURCHASING ANY CONTENT OR PURCHASING COMPANY’S PRODUCTS OR SERVICES OR ANY AMOUNT RETAINED BY COMPANY FOR PROVIDING THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless Flyover, its officers, members, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including attorneys’ fees and costs and expenses, arising out of or in any way connected with (a) your access to or use of the Website or any part thereof, (b) any User Content you post via the Website, (c) a breach or alleged breach by you of any of your representations, warranties, covenants or obligations under this Agreement, (d) infringement or misappropriation of any intellectual property or other rights of Flyover or third parties by you, (e) any negligence or willful misconduct by you, (f) any other claim related to your performance under this Agreement, or (g) your use of any Content, services or products provided by Flyover.
Term and Termination
Governing Law and Other Miscellaneous Terms
The parties and their respective personnel are and shall be independent contractors, and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
You acknowledge and agree that any expenses that you incur in furtherance of this Agreement are voluntary in nature and are made with the knowledge that this Agreement may be terminated as provided herein. You shall not make a claim against Flyover, and Flyover shall not be liable with respect to the recoupment of any expenditures or investment made by you in anticipation of the continuation of this Agreement beyond the term hereof.
The parties agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to Flyover which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that Flyover has the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance or other equitable relief without prejudice to any other rights and remedies Flyover may have for your breach of this Agreement.
If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting and construing this Agreement.
If the performance of any part of this Agreement by either party (other than payment of money) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor dispute, act of God, telecommunications failure or any other cause beyond the control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause.
This Agreement, including any other agreements or additional terms referenced herein, constitutes the complete and exclusive statement of the Agreement between the parties with respect to the Website, Content, and products and services offered via the Website, and, unless otherwise expressly provided herein, it supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Website, Content, and products and services sold via the Website. If any provision of this Agreement is found unlawful or unenforceable in any respect, the court shall reform such provision so as to render it enforceable or, if it is not possible to reform such provision so as to make it enforceable, then delete such provision. As so reformed or modified, the court shall fully enforce this Agreement. The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.
The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement.
Flyover makes no representation that the Website, Content or other material or information on the Website is appropriate to or available in locations outside of the United States. You may not use the Website or export Content in violation of United States export laws, regulations or restrictions. If you access the Website from outside of the United States, you are responsible for compliance with all applicable laws.
Copyright and Copyright Notices
Flyover respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Flyover’s Copyright Agent the following information:
- an electronic or physical signature of the owner or person authorized to act on behalf of the owner of the copyright interest;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Website sufficient to allow us to locate the allegedly infringing material;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Please contact Flyover’s Copyright Agent for Notice of Claims of copyright infringement at: [email protected] Copyright owners and agents acknowledge that failure to comply with all of the requirements of the foregoing may result in an invalidity of the DMCA notice.
Counter-Notice. If you believe that the User Content that was removed (or to which access was disabled) is not infringing, or that you have authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the User Content, you may send a counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the User Content was removed or disabled as a result of mistake or a misidentification of the User Content; and
- your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Kansas and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Flyover may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed User Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the person providing such User Content, the removed User Content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at Flyover’s sole discretion.