Last updated on June 2020
This end user license agreement (this “Agreement”) is a binding agreement. By installing or using the software that is the subject of this Agreement you acknowledge that you have read this Agreement, that you understand it, and that you agree to be bound by its terms. This Agreement expressly supersedes prior agreements or arrangements between Flytrex and you of the same subject matter. If you do not agree with the terms and conditions of this Agreement, do not accept this Agreement and do not install or use the Software.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH FLYTREX ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION.THIS ARBITRATION AGREEMENT WILL PRECLUDE YOU FROM BRINGING ANY CLASS, COLLECTIVE,OR REPRESENTATIVE ACTION AGAINST FLYTREX WITH RESPECT TO THE SOFTWARE OR SERVICES (AS DEFINED BELOW), AND ALSO PRECLUDE YOU FROM PARTICIPATING IN OR OBTAINING RELIEF UNDER SUCH ACTIONS BROUGHT AGAINST FLYTREX BY A THIRD PARTY.BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
1. License and Services
Flytrex Inc. (“Flytrex”) provides services that allow users to arrange and schedule delivery services (the “Services”) through unmanned aerial vehicles (“Drones”) through a proprietary mobile application (the “Software”) and which allow users to purchase certain specified goods as listed in the Software. Subject to the terms and conditions of this Agreement, Flytrex grants you a non-exclusive, non-transferable, non-sublicensable license during the term of this Agreement to use a single copy of the Software, and use the functionality provided by such copy solely for your own personal and non-commercial use. You have no rights in respect of any source code of the Software. The Services are only available in specified locations and may not be available in your location.
2. Drone Access and Safety
To make a delivery, Flytrex Drones may need access to your property or the property designated in your order. You expressly allow Flytrex Drones to overfly and hover over such property for purposes of providing the Services. Flytrex personnel may need to access your property or may otherwise need to contact you in order to provide the Services. You agree that Flytrex may contact you from time to time through various electronic and physical means in connection with the Services. You agree to clear your delivery location of any obstacles prior to delivery. You must maintain a safe distance from all Drones and not approach or touch any package until it is completely released from the Drone and the Drone is clear of the area. You agree to abide by all safety instructions, rules, and requirements provided by Flytrex to you and you acknowledge that you are aware of potential risks and consent to operation of the Drones near you.
3. Orders, Purchases and Returns
Flytrex reserves the right to reject any orders for any reason or impose limits on any order, all in its sole discretion. All goods available for purchase through the Services are subject to availability. All goods purchased through the Software are purchased by Flytrex from the applicable merchant. You have no direct relationship with the applicable merchant. Flytrex will make reasonable commercial efforts to pass through any applicable warranties regarding purchased goods or services, but you understand that you may not always have the benefit of such warranties. ASIDE FROM WARRANTIES THAT FLYTREX MAY PASS THROUGH FROM THE ORIGINAL MANUFACTURER OR RETAILER, YOU RECEIVE ALL GOODS “AS-IS” WITHOUT WARRANTY OF ANY KIND, ANY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW FLYTREX EXPRESSLY DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTIES IN RESPECT OF SUCH GOODS. If any goods are defective, you should notify Flytrex and Flytrex will make reasonable commercial efforts to return such goods to the applicable merchant according to the return or refund policy of the applicable merchant. Flytrex may modify this provision at any time if sales are to be made directly to you by the applicable merchant. Prior to making any order, you should be sure that the applicable goods satisfy your requirements, since Flytrex may not be able to return such goods. YOU UNDERSTAND THAT FLYTREX IS ONLY ABLE TO PROVIDE DRONE DELIVERY SERVICES PURSUANT TO THE FOREGOING TERMS, AND YOU UNDERSTAND THAT SUCH TERMS ARE REASONABLE GIVEN THE INNOVATIVE NATURE OF DRONE DELIVERY SERVICES AND THE HIGH REGULATORY BURDEN ASSOCIATED WITH SUCH SERVICES.
By providing a credit card (or other payment method accepted by Flytrex through the Software), you represent and warrant that you are authorized to use such payment method and that you authorize Flytrex and any applicable third-party payment processor to charge your payment method for the total amount of your order (including any applicable taxes and other charges) and the delivery fee(s). Flytrex reserves the right to suspend or terminate any order for any reason in its sole discretion, including if Flytrex is able to verify or process the payment information you provided. Flytrex makes reasonable commercial efforts to cause that the prices displayed through the Services reflect all applicable taxes and government charges (such as, for example, sales taxes and deposits for reusable or recyclable materials) but the initial displayed price is only an estimate and Flytrex does not guarantee that the displayed price reflects all such charges. If Flytrex determines that the displayed price should be increased or decreased to reflect the actual cost and all such charges, Flytrex will make an appropriate adjustment of the price and adjust the charges to reflect such changes. You agree to have your credit card (or other applicable payment method) charged to reflect such adjustments. Delivery fees are set by Flytrex and will be displayed to you during the checkout process.
Except as expressly permitted hereunder you may not, nor may you assist other parties to (a) copy, modify, or create derivative works of the Software or part thereof, (b) distribute, sell or transfer the Software or Services or part thereof or sublicense your right to use the Software hereunder, or use the Software or Services to provide services to any third party, such as on a timeshare or service bureau basis, (c) reverse-engineer, disassemble, or attempt to derive the source code of the Software, (d) attempt to disable or circumvent any security or access control mechanism of the Software or Services, or (e) remove any trademarks or notices (including copyright notices) from the Software. You may not use the Software in violation of any applicable law or regulation. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, you shall inform Flytrex in writing in each instance prior to engaging in the activities set forth above.
You have no ownership rights in the Software. Rather, you have a license to use the Software solely to receive the Services and only so long as this Agreement remains in effect. Ownership of the Software and all intellectual property rights therein shall remain at all times with Flytrex or its licensors. No rights are granted hereunder by estoppel or by implication. All rights not granted to you herein are reserved to Flytrex or its licensors. Any references to the sale or transfer of the Software herein or in any other communication between Flytrex and you shall mean only the license of the Software pursuant to the terms and conditions of this Agreement. You have no obligation to provide Flytrex with any feedback concerning the Software, the Services or any Drone. Nevertheless, if you provide Flytrex with any feedback concerning the Software, the Services or a Drone, you also provide Flytrex with a non-exclusive, perpetual license to make all uses of such feedback without any obligation to you.
7. Data and Privacy
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE, SERVICES AND ALL PURCHASED GOODS ARE PROVIDED “AS-IS”. FLYTREX (AND ITS LICENSORS AND COMMERCIAL PARTNERS)EXPRESSLY DISCLAIMS ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, SERVICES AND ALL PURCHASED GOODS. FLYTREX DISCLAIMS ANY STATUTORY OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. NO WARRANTY IS MADE THAT THE SOFTWARE,SERVICES AND ALL PURCHASED GOODS WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE AND SERVICES WILL BE CONTINUOUS OR ERROR-FREE, THAT THE SOFTWARE OR SERVICES WILL OPERATE AS INTENDED OR AT ALL UNDER ALL CONDITIONS, OR THAT ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED. Some jurisdictions do not allow disclaimers of implied warranties, so this disclaimer may not apply to you.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,IN NO EVENT SHALL FLYTREX (OR ITS LICENSORS OR COMMERCIAL PARTNERS) BE LIABLE TO YOU OR ANY OTHER ENTITY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES) AS A RESULT OF THE SOFTWARE OR THE USE THEREOF, EVEN IF FLYTREX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF FLYTREX (AND ITS LICENSORS OR COMMERCIAL PARTNERS)FOR THE SOFTWARE AND SERVICES SHALL NOT EXCEED AMOUNTS ACTUALLY PAID BY YOU TO FLYTREX SPECIFICALLY FOR THE DELIVERY OF THE APPLICABLE GOODS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FLYTREX SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY PURCHASED GOODS,AND ANY CLAIMS REGARDING THE RELEVANT GOODS SHOULD BE DIRECTED AGAINST THE MANUFACTURER OR ORIGINAL RETAILER.
This Agreement shall come into effect as of the day that you accept its terms and shall continue in effect until terminated according to the provisions hereof (the “Term”). Either party may terminate this Agreement at any time with written notice. Flytrex may terminate the Service or your participation in the Service at any time for any reason with or without notice to you. This Agreement shall automatically terminate if you violate its terms. Upon the expiry or termination of this Agreement, you shall cease all use of the Services and Software and shall delete all copies of the Software from your devices. The rights and obligations of the parties as set forth in Sections 2 – 13 shall survive the termination or expiration of this Agreement for any reason.
Flytrex may amend this Agreement from time to time. Amendments will be effective upon the posting by Flytrex of such updated Agreement at this location or upon Flytrex’s notification to you of such updated Agreement. Your continued access or use of the Software or Services after such posting or notification confirms your consent to be bound by such amended Agreement. If you do not agree to such amended Agreement, you must cease all use of the Software and Services.
This Agreement constitutes the entire agreement between the parties hereto. Any amendment or modification of this Agreement shall only be effective if it is in writing and signed by both parties hereto. Any waivers of any condition of this Agreement must be in writing, and the waiver of any requirement in certain situations or circumstances shall not be interpreted as the waiver of such requirement in other situations or circumstances. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, such provision shall be interpreted as necessary to give maximum effect to its provisions as possible under applicable law and the remainder of this Agreement shall remain in effect. Flytrex may assign or transfer any of its rights or obligations hereunder without your consent. You may not assign any of your obligations or rights hereunder. Flytrex communicates with its users electronically and on-line and, as such, you consent to receive all communications and notices electronically from Flytrex (including through the Software) or to an email address that you have provided to Flytrex. All such communications or notifications shall be considered as having been provided in writing. You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. Flytrex reserves the right to update or modify the Software at any time, from time to time in its sole discretion, including without limitation to increase or change functionality of the Software. Flytrex may cease providing or maintaining the Software at any time.
13. Governing Law
This Agreement shall be construed in accordance with the laws of the State of New York, United States, without reference to its choice of law rules.
14. Arbitration Agreement
This Section 19 sets forth a binding arbitration agreement between you and Flytrex (the “Arbitration Agreement”). In this Arbitration Agreement, you agree: (a) to arbitrate all claims relating to either the Software or the Services, (b) to waive your right to a trial by jury; and (c) to waive any right to proceed on a class basis in arbitration or otherwise. The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), or your use of the Software or the Services, regardless of the date of accrual and including past, pending, and future claims, shall be binding arbitration administered by JAMS pursuant to its Streamlined Arbitration Rules & Procedures. The arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Upon either party’s request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted filing of confidential information must be done under seal. If you are a consumer, as defined by JAMS in its Consumer Minimum Standards, you may request that the arbitration hearing be conducted in the area in which you reside. Otherwise, the hearing (if any) shall take place in Tel Aviv, Israel. You and Flytrex agree that (a) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; (b) there is no right or authority for any dispute to be brought in a purported representative capacity or as a private attorney general; and (c) no arbitration shall be joined with any other arbitration. The language to be used in the arbitral proceedings shall be English. Notwithstanding the foregoing, nothing herein shall prevent a party from seeking an injunction or other equitable relied in any court of competent jurisdiction to prevent a breach or threatened breach of any provision of this Agreement. EACH PARTY WAIVES ITS RIGHT TO GO TO COURT, TO A TRIAL BY JURY, AND TO PARTICIPATE IN A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE PROCEEDING WITH RESPECT TO ANY CLAIM SUBJECT TO ARBITRATION
15. US Government Restricted Rights
The Software is provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in applicable laws and regulations. Use of the Software and related materials by the U.S. Government constitutes acknowledgment of Flytrex’s proprietary rights in same.