Following terms apply to Licenses and services, including the relevant scope of work, provided by Company to Customer.
Licenses & Services
Company may provide Customer subscriptions to Company’s intellectual property – including but not limited to – FlytOS, FlytCloud, FlytAI, FlytSecurity, FlytNow, FlytApps, FlytDock, FlytZip and related interfaces, plugins and APIs, as well as solutions listed at https://flytbase.com. The nature of all such subscriptions shall be non-exclusive, non-transferable, non-assignable and non-sublicensable. Company may also provide Customer services related to demonstration, configuration, customization, testing, integration, training, support and related matters. No source code shall ever be licensed, sold, shared, or made available by Company to Customer under the relevant order form. The specific subscriptions being provided under the relevant order form are specified in the relevant scope of work.
- Company may charge Customer one or more of the following fees:
- On-boarding Fee, payable as per the relevant scope of work
- Monthly Subscription Fee, payable monthly
- Annual Subscription Fee, payable annually
- Any other fee, as per the relevant scope of work
The actual amounts of fees payable are specified in the relevant scope of work.
Company will invoice Customer at the time of execution of the relevant order form, and subsequently as per fees listed in the relevant scope of work. Charges will be payable 10 days from the date of invoice and will be deemed overdue if they remain unpaid thereafter. Payments by Customer that are past due will be subject to a late payment fine of 10% percent on the amount past due and a monthly interest of 1% of the amount past due. If Company is required to pay or collect any local, value-added, goods and services taxes or any other similar taxes or duties arising out of or related to the relevant order form (not including taxes based on Company’s income), then such taxes and/or duties shall be billed to and paid by Customer.
The timelines committed by Company to Customer in the relevant scope of work are to be measured from the date of receipt by Company of the payment made by Customer against the first invoice raised under the relevant order form.
Term and Termination
the relevant order form will commence on its Effective Date. Either party may terminate the relevant order form, without cause, at any time by providing the other party with written notice. The order will automatically terminate on the expiry of subscriptions unless the Customer continues to pay Company the relevant Monthly Subscription Fees and/or Annual Subscription Fees, as per the relevant scope of work. Termination of the relevant order form will not relieve Customer of its obligation to pay all charges that accrued prior to such termination. Termination of the relevant order form will not relieve either party from Non-Disclosure obligations.
The parties may provide to one another information that is confidential (“Confidential Information”). Confidential Information will be limited to information clearly identified as confidential. Confidential Information will not include information which: (a) is or becomes a part of the public domain through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure and had not been obtained by the receiving party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (e) is disclosed by operation of law, provided that the disclosing party receive notice of such disclosure and opportunity to oppose or limit it. The parties agree to hold each other’s Confidential Information in confidence while the Services are being performed and for a period of three (3) years thereafter.
THE LICENSES AND SERVICES TO BE PROVIDED BY COMPANY UNDER THE RELEVANT ORDER FORM ARE FURNISHED AS IS, WHERE IS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Company agrees however to support Customer, in good faith, to use the Licenses and Services during the term of the relevant order form, as specified in the relevant scope of work.
Change Requests and Cooperation
Customer’s request for any change in Licenses or Services must be in writing; this requirement pertains to all such requests including but not limited to requests for changes in project plans, scope, specifications, schedule, designs, or requirements. Company will not be obligated to perform tasks described in Customer’s request until the parties agree in writing to the proposed change.
Customer acknowledges that its timely provision of and access to office accommodations, facilities, equipment, assistance, cooperation, complete and accurate information and data from its officers, agents, and employees, and suitably configured computer products (collectively, “Cooperation”) are essential to performance of any Licenses or Services, and that Company will not be liable for any deficiency in providing Licenses or performing Services if such deficiency results from Customer’s failure to provide full Cooperation.
No Reverse Engineering
Customer may utilize the Licenses provided by the Company solely for the purposes of the relevant order form. Customer shall not, directly or indirectly, reverse engineer or aid or assist in the reverse engineering of all or any part of Company’s products (listed here: https://flytbase.com). Reverse engineering includes, without limitation, decompiling, disassembly, sniffing, peeling semiconductor components, or otherwise deriving source code, algorithms, techniques, processes, and data structures
Limitation of Liability
In no event will either party be liable for any indirect, incidental, regulatory, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party or any other person has been advised of the possibility of such damages. Neither party shall be liable to the other under the relevant order form for any delay or lack of performance (other than non-payment) resulting from a Force Majeure event. Company’s aggregate cumulative liability will in no event exceed US$1000.
Infringement Indemnity and Exclusive Remedy
Subject to “Limitation of Liability” clause above, each party (“Provider”) will defend and indemnify the other party (“Recipient”) against any damages awarded to a third party pursuant to a claim that any information, design, specification, instruction, software, data, or material furnished by the Provider (“Material”) and used by the Recipient hereunder infringes an intellectual property right, provided that: (a) the Recipient notifies the Provider in writing within fifteen (15) days of the claim; (b) the Provider has sole control of the defense and all related settlement negotiations; and (c) the Recipient provides the Provider with the assistance, information, and authority reasonably necessary to perform the above. The Provider will have no liability for any claim of infringement resulting from: (a) the Recipient’s use of a superseded release of some or all of the Material if infringement would have been avoided by the use of a subsequent release of the Material which the Provider provides to the Recipient; (b) any information, design, specification, instruction, software, data, or material not furnished by the Provider; (c) modifications to the Material not made by the Provider; (d) any combination of the Material with material not provided by the Provider, which combination is the basis for such claim; or (e) any Material which is infringing as a result of being based on designs, specifications, or instructions provided by the Recipient. In the event that some or all of the Material is held or is believed by the Provider to infringe, the Provider will have the option, at its expense: (a) to modify the Material to be non-infringing or replace it with non-infringing material; or (b) to obtain for the Recipient a license to continue using the Material. If it is not commercially feasible to perform either of the above options, then the Provider may require from the Recipient return of the infringing Material and all rights thereto.
Severability, Waiver, Assignment, Full Agreement
In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party. This Agreement constitutes the complete agreement between the parties and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement.
The relevant order form, and all matters arising out of or relating to the order will be governed by the laws of California, United States of America.
Each party agrees to comply with all relevant export laws and regulations of the United States and the country or territory in which the Services are provided (“Export Laws”) to assure that neither any deliverable, if any, nor any direct product thereof is (1) exported, directly or indirectly, in violation of Export Laws or (2) intended to be used for any purposes prohibited by the Export Laws, including without limitation nuclear, chemical, or biological weapons proliferation.
Notwithstanding any provision contained in the order, neither party will be liable to the other to the extent fulfillment or performance of any terms or provisions of the order by such party are delayed or prevented by revolution or other civil disorders; acts of terrorism; riots; wars; strikes; fires; floods; storms; earthquakes; acts of God; public health emergencies; embargoes; government action; electrical or power outages, utilities or other telecommunications failures; Internet outages; non-performance by suppliers or subcontractors; or, without limiting the foregoing, any other causes not within its control and which, by the exercise of reasonable diligence, it is unable to prevent. This clause will not apply to the payment of any sums due under the relevant order form by Customer to Company.