Terms & Conditions
2.1 TakeOff360 provides access to the Site, and as well as via other websites, applications, and platforms that may, from time to time, be included in the Site and in the services that TakeOff360 provides to facilitate the sourcing, reservation, and booking of air charter. Among other things, the Site facilitates the exchange of information, assisting potential booking Operators to match their needs with what aircraft operating Operators offer.
3. ACCESS TO THE TAKEOF360 SERVICES
3.3 MINIMUM REQUIREMENTS. The Site is designed for use only with the Apple TakeOff360 App and certain supported browsers, and is subject to system limitations and minimum operating specifications. The Site may not work properly if used with other browsers or if these limitations and specifications are not met.
3.4 USER ID'S AND PASSWORDS.
3.4.1 The Operator will be provided with one or more user accounts. User accounts may include credentials for access to specific Site as well as general account credentials. The Operator may assign user accounts to its employees and representatives as provided in the Participation Agreement. Employees and representatives to which the Operator has assigned user accounts may only use those user accounts in connection with the services they perform for the Operator’s benefit. Each user account may only be used by the individual user to which the account is assigned. User accounts may not be shared.
3.4.2 The Operator is fully responsible for any and all use of the Site by anyone using a user account provided to the Operator, including ensuring that all such users comply with all terms of this Agreement. All obligations of the “Operator” hereunder shall also apply to anyone using or accessing the Site through the Operator’s account.
3.4.3 Each user ID and each password is confidential and the assigned user may not disclose or share it with any other person, firm or corporation, and it may not be used for any unauthorized purpose. The Operator will use all reasonable efforts to make sure that all persons who are provided with a user ID and password undertake to keep such information confidential and the Operator will implement adequate security measures to make sure that its user IDs and passwords are not disclosed and/or misused.
4.1 USE AND OWNERSHIP
4.1.1 As between TakeOff360 and the Operator, any and all content, data, graphics, images and other information that the Operator transmits through the Site ("Submissions") shall remain the Operator’s sole and exclusive property. The Operator shall be solely responsible for its Submissions. By transmitting Submissions through the Site, the Operator hereby grants TakeOff360, its affiliates, and its and their successors a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, sub-licensable (through multiple tiers) and transferable license: (a) to use, copy, display, perform, transmit and otherwise distribute the Submissions on and through the Site in any and all mediums, now known or hereafter developed, and (b) to create derivative works of the Submissions in order to mask unique identifying data, such as removing the tail number from a submitted photo, and otherwise as reasonably necessary in connection with the operation of the Site. The Operator also grants each user of the Site a non-exclusive license to access the Submissions through the Site and to use, copy, display, transmit, or otherwise distribute its Submissions in relation to their use of the Site. The Operator also agrees that TakeOff360 may, without any obligation to the Operator, use, copy, adapt, create derivative works of, distribute, and otherwise exploit any feedback that the Operator provides to it regarding the Site.
4.1.2 The Operator agrees to only provide Submissions that it has the right to publish and deems suitable for publication on the Site and that, to the best of the Operator's knowledge, are true, accurate current, complete, and not misleading. Subject to Section 4.2.2, any Submission that the Operator provides to TakeOff360 will be deemed public information and not subject to any confidentiality obligation, and TakeOff360 shall have no obligation to maintain its confidentiality.
4.1.3 The Operator may only provide Submissions with information in the form of text, numbers, pdf documents, and digital photos intended to be read and understood by other Operators and Site users.
4.1.4 The Operator agrees to maintain and promptly update Submissions in order to keep information that has been posted or communicated through the Site true, accurate, current, complete and not misleading. The Operator undertakes to continuously provide TakeOff360 all relevant information about the Operator’s business as it relates to the air charter services contemplated or to the Submissions. TakeOff360 agrees to remove any Submission made by the Operator from display through the Site within a reasonable time period after written request from the Operator.
4.1.5 TakeOff360 may remove any of the Submissions from display in its sole discretion, including but not limited to Submissions it deems to be in conflict with these General Terms and Conditions, any other component of this Agreement, or applicable local, state, federal, national, provincial, foreign, and international statutes, treaties, regulations, rules, ordinances, orders, and other laws (each, a “Law”).
4.2.1 The primary objective of TakeOff360 is to store, and exchange information as a neutral business aviation charter sourcing and marketing website and application. Hence, by using the Site the Operator agrees and acknowledges that TakeOff360 may collect, process, and use information in a variety of ways. Such information includes, but is not limited to, information about the Operator or provided by the Operator, Submissions, information regarding activities on the Site and the use of the Site, as well as messages sent or received by the Operator through the Site (all information collected from and about the Operator being “Operator Information”).
4.2.4 The Site is part of a shared technology platform. This means that some Submissions and Operator Information contained therein may be viewable and accessible through through systems operated by others, including but not limited to Avinode, Wyvern Consulting, Ltd. and their affiliates. The Operator acknowledges and consents that the Submissions may be shared across all the systems that make up the shared technology platform.
4.2.5 TakeOff360 may use, copy, transmit, distribute, sell, transfer, disclose, and display any information provided through Submissions and other Operator Information for any purpose in the form of generic statistical data (for the purpose of these General Terms and Conditions, “generic statistical data” means anonymized aggregated data gathered from at least three different companies).
5.1 The Operator may not, and may not attempt to, enter any form of data, device, software or routine that could pose a threat to the security or functionality of the Site, including but not limited to HTML, ASP, XML, viruses, trojans, hyperlinks, auto responders, time bombs or cancel bots.
5.2 The Operator may not, and may not attempt to, damage or interfere with the functionality, security, or proper working of the Site or surreptitiously intercept or expropriate any system, data or information from any of the Site.
5.3 The Operator may not, and may not attempt to, take any action which imposes an unreasonable or disproportionately large load on any of the Site, or any infrastructure connected therewith, including but not limited to “spam”, denial of service attacks, unsolicited mass e-mailing and other techniques.
5.4 The Operator may not, and may not attempt to, use the Site for any illegal purpose or in any way that violates any applicable Law or violates, infringes, or misappropriates the rights of any third party.
5.5 The Operator may not, and may not attempt to, use the Site to harass or harm any individual or entity, or to impersonate any person or entity, or misrepresent the Operator’s affiliation with any person or entity.
5.6 The Operator may not use the Site any purposes other than those expressly authorized by TakeOff360, and may not use the Site for any competing purposes.
5.7 The Operator may not, and may not attempt to, engage in any form of data scraping, unauthorized downloading, or hacking aimed at accessing or retrieving data or content from any of the Site.
5.8 The Operator may not, and may not attempt to, reproduce, reverse engineer, decompile, disassemble, modify or create derivative works with respect to any of the Site or any component thereof.
5.9 The Operator may not, and may not attempt to, download any data sets, directories, or content from any of the Site in order to use it to create or supplement its own or a third party’s data base or service (except with the express written consent from TakeOff360).
5.10 Any breach by the Operator of this Section 5 shall for all purposes be regarded as a “material breach” of this Agreement.
6. CHANGES AND AMENDMENTS
6.1 GENERAL TERMS AND CONDITIONS, SUPPLEMENTAL TERMS.
6.2 PARTICIPATION AGREEMENT. The Participation Agreement may be amended, modified or supplemented by either party sending a requested change to the other party, in accordance with the notice provisions of the Participation Agreement, and the other party confirming the requested change in writing or via email.
7. SUSPENSION, CANCELLATION, AND TERMINATION
7.1 TakeOff360 may suspend the Operator’s right and license to use the Site, or may suspend or terminate the right and license of anyone using any of the Operator’s user accounts to use the Site, or may terminate this Agreement in its entirety (and, accordingly, the Operator’s and all its account user’s rights to use the Site), for cause effective immediately upon notice to the Operator if any of the following occur, or if TakeOff360 has grounds to suspect any of the following: (i) the Operator breaches this Agreement, (ii) the Operator or any such user attempts a denial of service attack on any of the Site; (iii) the Operator or any such user attempts to hack or break any security mechanism on any of the Site or TakeOff360 otherwise determines that the Operator’s or any such user’s use of the Site poses a security or service risk to TakeOff360, any TakeOff360 affiliate, or any user of any Site, or may subject any of them or any third party to liability, damages or danger; (iv) the Operator or any such user otherwise uses the Site in a way that disrupts or threatens the Site; (v) TakeOff360 determines, in its sole discretion, there is evidence of fraud with respect to the Operator’s account; (vi) TakeOff360 receives complaints about the Operator’s (or any such user’s) use of the Site from other Operators, and, if such complaint is susceptible of resolution, such complaint has not resolved to TakeOff360’s satisfaction within ten (10) days after written notice to Operator thereof; (vii) the Operator or any such user uses any of the Site or Marks (as defined below) other than as expressly permitted in this Agreement, and, if such use is susceptible of correction, such use has not ceased within ten (10) days after written notice to Operator thereof; (viii) TakeOff360 receives notice or otherwise determines, in its sole discretion, that the Operator or any such user may be using the Site for any illegal purpose or in a way that violates applicable Law or violates, infringes, or misappropriates the rights of any third party; (ix) TakeOff360 determines, in its sole discretion, that TakeOff360’s provision of the Site to the Operator or any such user is prohibited by applicable law or regulation (including but not limited to the aviation laws and regulations of the United States, Canada, Mexico or any other country) or has become impractical or unfeasible for any legal or regulatory reason; (x) the Operator’s governmental authority to operate aircraft or its Air Carrier and/or Air Operator Certificate(s) is suspended or revoked by such governmental authority; or (xi) subject to applicable Law, upon the Operator’s liquidation, commencement of dissolution proceedings, disposal of its assets, failure to continue its business, assignment for the benefit of creditors, or if it becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding. A breach by the Operator of any other agreement entered into with TakeOff360 or any of its affiliates shall be deemed and treated as a breach of a material provision of this Agreement, and shall entitle TakeOff360 to the same remedies as if the Operator had breached this Agreement.
8. EFFECT OF SUSPENSION, MODIFICATION OF SERVICES, TERMINATION, OR EXPIRATION
8.1 Upon suspension of the Operator’s use of the Site, in whole or in part, for any reason, (i) the Operator will remain liable for all fees, charges, and any other obligations with respect to the Operator’s use of the Site; (ii) fees will continue to accrue for in the event the Site is still in use by the Operator, notwithstanding the suspension; and (iii) all of the Operator’s rights with respect to the suspended Subscribed Services shall be terminated during the period of the suspension.
8.2 Upon termination or expiration of this Agreement for any reason: (i) the Operator remains liable for all fees, charges and any other obligations incurred through the date of termination or expiration with respect to Site; (ii) all of the Operator’s rights under this Agreement and all of the Operator’s rights with respect to the Site shall immediately terminate; and (iii) the rights and obligations of the parties under Sections 4.1.1, 4.2, 5, 8, 19, and 12 through 27 will survive the termination or expiration of this Agreement. No termination or expiration of this Agreement will relieve either party of any liability for any breach of, or liability accruing under, this Agreement prior to termination or expiration.
9. OPERATOR’S REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES
9.1 By entering into this Agreement and by using the Site, the Operator represents,
undertakes and warrants that upon execution of this Agreement and at all times
(a) the Operator is a duly formed and validly existing company, corporation, partnership, sole proprietorship, or similar legal entity under the Laws of its place of business, registration, and formation;
(b) the execution, delivery, and performance of this Agreement is duly authorized by the Operator and this Agreement has been duly executed and delivered for and on behalf of the Operator by persons authorized to do so;
(c) any person that is provided with a user account, and the user ID and the password associated to such account, has the right and authority to act through the Site on behalf of the Operator;
(d) all information provided by or on behalf of the Operator to TakeOff360 or through the Site, is and will be true, correct and not misleading;
(e) the Operator owns and/or has the necessary licenses, rights, consents, and permissions to use and authorize TakeOff360 to use any and all patent, trademark, trade secret, copyright or proprietary rights in and to any and all Submissions to enable inclusion and use of the Submissions by the Site;
(f) when submitting any aircraft availability through the Site with the intent to be displayed to other Operators through the Site, the Operator represents and warrants that (i) the relevant aircraft is available for charter as detailed, (ii) the operator of the aircraft has a valid FAR 135 Air Operator or Air Carrier Certificate for that aircraft, and (iii) the registration number provided is valid and relates to the aircraft offered;
(g) the Operator shall comply with all applicable Laws, as well as all applicable industry standards, including obtaining all necessary permits and/or approvals, in connection with the performance of its obligations under this Agreement, the use of the Site, and the marketing, selling and/or operation of charter flights; and
(h) the Operator is not insolvent, has not gone into liquidation, has not had a receiver appointed for any or all of its assets, has not entered into receivership, is not declared bankrupt, has not taken general measures to cease payments of its debts, has not entered into negotiations for a general agreement with its creditors, has not entered into composition, reorganization or similar arrangements with its creditors.
10. TAKEOFF360’S REPRESENTATIONS, UNDERTAKINGS AND WARRANTIES
10.1 By entering into this Agreement and by providing Site access, TakeOff360
represents, undertakes and warrants that upon execution of this Agreement and
receipt of the Operatorship Fee that:
(a) TakeOff360 is duly incorporated and validly existing under the laws of the State of Delaware; and
(b) the execution, delivery and performance of this Agreement is duly authorized by TakeOff360 and has been duly executed and delivered for and on behalf of TakeOff360 by persons authorized to do so.
10.2 Subject to Section 11, TakeOff360 shall use commercially reasonable efforts to keep the Site available twenty four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, TakeOff360 reserves the right to make the Site unavailable from time to time in order to install new releases, to perform maintenance, or to undertake activities to protect or improve the Site or the information provided through it. TakeOff360 will make reasonable efforts to notify Operators in advance of any planned system downtime expected to last more than 30 minutes by posting notices on the Site and/or by sending an e-mail notification to the Operator at the e-mail address associated with the Operator’s user account(s) that have administrative rights. TakeOff360 does not assume responsibility for unavailability and downtime caused by force majeure or other events and circumstances beyond TakeOff360’s control. The failure in the transfer of data, problems inherent in the use of communication facilities and failures caused by any Operator not adhering to TakeOff360’s instructions or policies will always be considered circumstances beyond TakeOff360’s control.
11. RIGHT TO DISCONTINUE OR MODIFY SERVICES
11.1 TakeOff360 reserves the right to discontinue or suspend providing the Site, in whole or in part, and to modify the Site or any nature, features, functions, scope, or operation thereof, at any time and from time to time. TAKEOFF360, ITS AFFILIATED ENTITIES, AND ITS AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, AND LICENSORS (COLLECTIVELY, THE “TAKEOFF360 PARTIES”) SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY SUCH DISCONTINUANCE, SUSPENSION, OR CHANGES, OR FOR TERMINATING ANY RIGHTS GRANTED HEREIN, REMOVING ANY SUBMISSIONS, OR SUSPENDING, MODIFYING, OR TERMINATING THE OPERATOR’S OPERATORSHIP OR THE OPERATOR’S ACCESS TO THE SITE (OTHER THAN WITH RESPECT TO ANY REFUNDS THAT MAY BE PAYABLE IN ACCORDANCE WITH SECTION 8 ABOVE).
12. NO RESPONSIBILITY FOR OTHER OPERATORS, THIRD PARTY CONTENT, OR THIRD PARTY SERVICES
12.1 The Operator acknowledges that TakeOff360 is neither a broker nor an operator of charter flights. TakeOff360 is not a party to transactions or contractual arrangements that may arise between its Operators, even if TakeOff360 facilitates those transactions or arrangements, or the payments related thereto. Because Operators are independent entities with their own operating policies, procedures and processes, and because they operate independently of TakeOff360, TakeOff360 cannot and will not control or monitor their actions. TakeOff360 does not investigate or endorse any of the Operators with whom it has entered into Operator Participation Agreements, their services or the quality or legality thereof, or their ability to pay for services. Any agreements entered into by the Operator, anyone using the Operator’s user account, the Operator’s employees, contractors, and representatives, the Operator’s clients, the users of any applications provided by Operator for access to the Site, and all other persons to whom the Operator provides access to any Site (collectively, the “Operator Parties”) with any Operator or other user of the Site as a result of the use of the Site are at the sole discretion and risk of such Operator Party, and each Operator Party bears the full responsibility for the performance of all agreements entered into with TakeOff360 Operators and users. TakeOff360 has no responsibility to intervene in any disputes between Operator Parties, to terminate or suspend any Operator Party’s right to use the Site based on any complaint by any other Operator Party or for any other reason, or to provide contact information for any Operator Party to any other Operator Party. WITHOUT LIMITING THE GENERALITY OF SECTIONS 14 AND 15 OF THESE GENERAL TERMS AND CONDITIONS, THE OPERATOR ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TAKEOFF360 SHALL NOT BE RESPONSIBLE FOR, AND SHALL NOT INCUR ANY LIABILITY TOWARDS THE OPERATOR PARTIES FOR ANY LOSS OR DAMAGE (INCLUDING WITHOUT LIMITATION, FINANCIAL LOSS, LOSS OF BUSINESS, PROPERTY DAMAGE, EMOTIONAL DISTRESS, PERSONAL INJURY, OR DEATH) RESULTING FROM OR ARISING OUT OF: (A) ANY INFORMATION PROVIDED OR ANY REPRESENTATION MADE BY ANY OPERATOR OR ANY OTHER SITE USER (B) ANY AGREEMENTS ENTERED INTO BY ANY OPERATOR PARTY WITH A OPERATOR OR ANY OTHER SITE USER; (C) ANY PAYMENTS OWED BY ANY OPERATOR OR ANY OTHER SITE USER TO ANY OPERATOR PARTY; OR (D) ANY SERVICES RENDERED BY, OR ANY ACTS OR OMISSIONS OF, ANY OPERATOR OR ANY OTHER SITE USER (INCLUDING WITHOUT LIMITATION ANY AIR CHARTER SERVICES, OR ANY DELAY, ACCIDENT, OR COMPLICATIONS RELATED THERETO), REGARDLESS OF WHETHER TAKEOFF360 FACILITATED THE UNDERLYING TRANSACTIONS AND REGARDLESS OF THE BASIS OF SUCH CLAIMS, AND THE OPERATOR, ON BEHALF OF ITSELF AND THE OTHER OPERATOR PARTIES, HEREBY WAIVES AND RENOUNCES ANY RIGHT IT OR THEY MAY OTHERWISE HAVE TO CLAIM INDEMNIFICATION FROM ANY TAKEOFF360 PARTY IN SUCH RESPECT.
12.2 Content available through the Site includes information, software, and other content provided by the Operators of TakeOff360’s services, data providers, and other third parties (“Third Party Content”). In addition, portions of the Site may allow the Operator or other Operator Parties to use third party products and services, such as payment services, and may link to other websites operated by, or content provided by, third parties. In addition, other websites may link to the Site or other Site. These other products, services, websites, and resources are referred to here as “Third Party Services”. Use of Third Party Services is subject to the license agreements, terms and conditions, privacy policies, and other policies and agreements applicable to those Third Party Services. TakeOff360 has no control over any Third Party Content, any Third Party Services, or any content available on or through any Third Party Services, which are made available to the Operator or other Operator Parties through the Site and other Site only as a convenience. TAKEOFF360 SHALL HAVE NO RESPONSIBILITY FOR, AND SHALL HAVE NO LIABILITY ARISING OUT OF OR RELATED TO, ANY THIRD PARTY CONTENT, THE USE OR DOWNLOADING OF ANY THIRD PARTY CONTENT, THIRD PARTY SERVICES, OR THE CONTENTS OF ANY THIRD PARTY SERVICES. THE AVAILABILITY OF ANY THIRD PARTY CONTENT OR THIRD PARTY SERVICES ON THE SITE OR OTHER SITE IS NOT AN ENDORSEMENT OF SUCH THIRD PARTY CONTENT OR THIRD PARTY SERVICES, THE PROVIDERS OF SUCH THIRD PARTY CONTENT, OR THE OPERATORS OF THOSE THIRD PARTY SERVICES.
12.3 WITH RESPECT TO ANY ISSUES ARISING OUT OF OR RELATING TO ANY THIRD PARTY CONTENT, THIRD PARTY SERVICES, OR ANY AGREEMENTS WITH, SERVICES RENDERED BY, OR ACTS OR OMISSIONS OF ANY OPERATOR, ANY OTHER SITE USER, OR ANY OTHER THIRD PARTY, THE OPERATOR HEREBY AGREES, ON ITS OWN BEHALF AND ON BEHALF OF THE OTHER OPERATOR PARTIES, TO ONLY SEEK LEGAL REDRESS FROM SUCH OTHER OPERATOR, USER, OR THIRD PARTY, AND NOT TAKEOFF360.
13. DISCLAIMER OF WARRANTIES
13.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SITE IS AT THE OPERATOR PARTIES’ SOLE RISK. TAKEOFF360 PROVIDES THE SITE AND THE OPERATOR PARTIES’ USE OF THE SITE IS “AS IS”, “WHERE IS”, “AS AVAILABLE” AND “WITH ALL FAULTS.” EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TAKEOFF360 MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. TAKEOFF360 DISCLAIM ALL EQUITABLE INDEMNITIES.
13.2 EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TAKEOFF360 MAKES NO REPRESENTATION OR WARRANTY THAT: (A) THE SITE WILL MEET THE OPERATOR PARTIES’ REQUIREMENTS, (B) THE INFORMATION, INCLUDING THIRD PARTY CONTENT, AVAILABLE THROUGH THE SITE WILL BE ACCURATE, TRUTHFUL, COMPLETE, LAWFUL, RELIABLE, OR OF ANY PARTICULAR QUALITY, (C) THE SITE WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY, OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, TIMELY, ACCURATE, SECURE, ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (D) THAT ANY MESSAGES OR OTHER INFORMATION TRANSMITTED OR PURPORTED TO BE TRANSMITTED THROUGH THE SITE WILL BE TRANSMITTED TIMELY, ACCURATELY, OR AT ALL.
13.3 NO ADVICE OR INFORMATION OBTAINED BY ANY OPERATOR PARTY FROM TAKEOFF36 OR FROM ANY THIRD PARTY OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
14. LIMITATION OF LIABILITY14.1 IN NO EVENT SHALL TAKEOFF360 BE LIABLE TO ANY OPERATOR PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA OR OTHERWISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY SITE OR THE USE THEREOF, OR ANY OTHER MATERIALS PROVIDED BY TAKEOFF360 IN CONNECTION WITH THE USE OF THE SITE USE THEREOF, WHETHER BASED IN CONTRACT, WARRANTY, TORT, OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT TAKEOFF360 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. EXCLUSIONS AND LIMITATIONS15.1 Some jurisdictions do not allow the limitation of certain warranties or the limitation or exclusion of liability for indirect, consequential, incidental, special, punitive, or exemplary damages. Accordingly, some or all of the above exclusions or limitations may not apply to the Operator Parties. To the extent TakeOff360 may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of liability of TakeOff360 shall be the minimum permitted by applicable Law.
16. INDEMNIFICATION16.1 SUBJECT TO THE LIMITATIONS SET FORTH IN THESE GENERAL TERMS AND CONDITIONS, THE OPERATOR AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS TAKEOFF360 FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, EXPENSES, AND DAMAGES, INCLUDING WITHOUT LIMITATION, FINANCIAL LOSS, LOSS OF BUSINESS, PROPERTY DAMAGE, EMOTIONAL DISTRESS, PERSONAL INJURY, OR DEATH, (INCLUDING ATTORNEY’S FEES) RESULTING FROM: (A) ANY AND ALL BREACHES OF ANY PROVISIONS OF THIS AGREEMENT BY ANY OPERATOR PARTY, (B) ANY AND ALL USE OR MISUSE OF THE SITE BY ANY OPERATOR PARTY, AND (C) ANY AND ALL SERVICES RENDERED BY, OR ANY ACTS OR OMISSIONS OF, ANY OPERATOR PARTY (INCLUDING WITHOUT LIMITATION ANY AIR CHARTER SERVICES, OR ANY DELAY, ACCIDENT, OR COMPLICATIONS RELATED THERETO).
17.1 Nothing in this Agreement shall mean that any of TakeOff360’s ownership, intellectual property rights, license rights, or the like, or any part thereof, is assigned, sub-licensed or transferred to the Operator or to any third person.
17.2 With respect to ownership of data and information on the Site, each Operator only owns the information provided through its own Submissions, subject to the provisions of Section 4. As between the Operator and TakeOff360, all other data, source code, and any other code and information are owned by TakeOff360.
17.3 “TakeOff360,” and the TakeOff360 logo constitute trademarks, trade names, service marks, and logos (each, a “Mark”) of TakeOff360. Ownership of the Marks and the goodwill associated with the Marks remains with TakeOff360. TakeOff360 grants the Operator the limited right to display the Marks solely as they appear on Site and the components thereof. The Operator agrees not to remove any Marks or any other proprietary notices from any components of any Site.
18. INFRINGEMENT CLAIMS
TakeOff360 respects the intellectual property rights of others. Accordingly, TakeOff360 has a policy of removing Third Party Content that violates copyright, trademark, or other intellectual property Laws, and in certain cases suspending access to all or any portion of the Site to a Operator who uses the Site in violation of any such Law and/or terminating in appropriate circumstances access to the Site and the user account of a Operator who uses the Site in violation of any such Law. TakeOff360 has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with Title 17 of the United States Code, Section 512. If the Operator or any other person believes its copyright, trademark, or other intellectual property right is being infringed by another Operator or other user of any of the Site, it may provide written notice to TakeOff360 for notice of claims of infringement: The written notice must: (a) contain the physical or electronic signature of the claimant; (b) identify the copyrighted work, trademark, or other intellectual property alleged to have been infringed; (c) identify the allegedly infringing material in a sufficiently precise manner to allow TakeOff360 to locate that material; (d) contain adequate information by which TakeOff360 can contact the claimant (including postal address, telephone number, and e-mail address); (e) contain a statement that the claimant has a good faith belief that use of the copyrighted material, trademark, or other intellectual property is not authorized by the owner, the owner's agent, or the Law; (f) contain a statement that the information in the written notice is accurate; and (g) contain a statement, under penalty of perjury (in the case of a claim of copyright infringement), that the claimant is authorized to act on behalf of the copyright, trademark, or other intellectual property right owner.
19.1 The parties undertake to keep confidential the terms of the Participation Agreement, including but not limited to information regarding prices, service levels, and payment terms.
19.2 Notwithstanding Section 20.1, the parties may disclose any information that it
is otherwise required to keep confidential under this clause:
(a) to such employees, professional advisers, consultants or officers of either party as are reasonably necessary to advise either party in relation to the Participation Agreement, if the disclosing party ensures that the people to whom the information is disclosed keep it confidential as if they were themselves bound by these provisions; or
(b) to the extent that the disclosure is required:
(i) by Law; or
(ii) by a regulatory body, tax authority, or securities exchange; or
(iii) to make any required filing with, or obtain any authorization from, a regulatory body, tax authority or securities exchange; or
(iv) to protect either party’s interest in any legal proceedings.
The parties shall in each case set forth in subsection (b) above use reasonable endeavors to consult the non-disclosing party and take into account any reasonable requests the non-disclosing party may have in relation to the disclosure before the disclosing party makes it.
19.3 This Section 19 shall survive termination or expiration of the Participation Agreement and remain in effect for a period of two (2) years thereafter.
20. EXPORT CONTROL AND RESTRICTED COUNTRIES
The Operator may not use, export, re-export, import, or transfer the Site or the data and information contained on the Site except as permitted under all applicable Laws. In particular, but without limitation, neither the Site nor any of the data and information contained therein may be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. The Operator represents and warrants that (i) no Operator Party is resident or citizen of, and no aircraft listed by any Operator Party is located or registered 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) no Operator Party is listed on any U.S. Government list of prohibited or restricted parties. No Operator Party may use any Site for any purpose prohibited by U.S. Law or any other applicable Law.
21. LEGAL STATUS
TakeOff360 and the Operator are independent contractors. No agency, partnership, joint venture or any other relationship of such kind is intended or created by the Operator’s entry into this Agreement or the Operator’s use of the Site, or the data or information exchanged by such means.
22. ENTIRETY OF THE AGREEMENT
23.1 Neither party shall assign this agreement in whole or in part without the consent of the other and any such attempted assignment shall be void. Notwithstanding the foregoing, TakeOff360 may assign this Agreement to any other entity that, at the time of such assignment, either directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with TakeOff360.
24. ELECTRONIC COMMUNICATIONS NOTICE
When the Operator uses the Site or send emails to TakeOff360, the Operator is communicating with TakeOff360 electronically. The Operator consents to receiving communications from TakeOff360 electronically (such as by email or by posting notices on the Site). The Operator agrees that all agreements, notices, disclosures, and other communications that TakeOff360 provides to the Operator electronically satisfy any legal requirement that such communications be in writing. In order to access any such communications, the Operator must have a computer or mobile device. In order to retain copies of any such communications, the Operator must have a printer or data storage device. If the Operator has a printer, it may print paper copies of any such communications for its own use. In addition, the Operator hereby consents to TakeOff360 sending it email or other communications related to the Site from time to time. If the Operator wishes to withdraw its consent for TakeOff360 to communicate with it electronically, it must terminate its use of the Site and all of its user accounts.
25.1 The headings of these General Terms and Conditions, and the other components of this Agreement, are for convenience only and shall not affect the interpretation of any provision of this Agreement.
25.2 The provisions of this Agreement shall be construed according to their fair meaning and neither for nor against the party which caused such provisions to be drafted.
25.3 In the event of conflict between the provisions of the Participation Agreement and these General Terms and Conditions, the provisions of the Participation Agreement shall prevail.
26. PARTIAL INVALIDITY AND WAIVER
26.1 If any provision of these General Terms and Conditions or any other component of this Agreement, or the application of them, is declared or deemed void, invalid or unenforceable in whole or in part for any reason, the parties shall amend these General Terms and Conditions and/or such other component of this Agreement, as shall be necessary to give effect to the spirit and purpose of these General Terms and Conditions and the other components of this Agreement, as far as possible. If the parties fail to amend these General Terms and Conditions and/or such other component of this Agreement, the provision which is void, invalid, or unenforceable shall be deleted and the remaining provisions of these General Terms and Conditions and the other components of this Agreement shall continue in full force and effect.
26.2 Waiver by one party of strict performances of any provision of these General Terms and Conditions or any other component of this Agreement will not be a waiver of or prejudice to such party’s right to require strict performance of the same provision in the future or of any other provision.
27. GOVERNING LAW AND DISPUTES
27.1 This Agreement shall be interpreted and construed according to, and governed by, the substantive laws of the State of California, excluding any such laws that might direct the application of the Laws of another jurisdiction. Any controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The number of arbitrators shall be one. The seat of arbitration shall be San Francisco, California, USA. The language to be used in the arbitral proceedings shall be English. The parties agree that no depositions may be taken in the arbitral proceedings and that the controversy or claim will be decided upon submission of documents without oral hearing.
27.2 Except as may be required by applicable Law, neither party nor their respective representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
27.3 TAKEOFF360 AND THE OPERATOR EACH AGREE THAT EACH OF THEM, AND EACH OF THE TAKEOFF360 PARTIES AND OPERATOR PARTIES, MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A CLASS OPERATOR OR IN ANY REPRESENTATIVE CAPACITY OR PROCEEDING.
27.4 The United Nations Convention on the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement.
27.5 The Operator acknowledges that a breach of any of the provisions of the Participation Agreement, including but not limited to these General Terms and Conditions and the Operatorship Rules, or use of the Site other than as expressly authorized, is likely to cause TakeOff360 immediate and irreparable harm, loss or damage, and the Operator therefore agrees that TakeOff360 shall be entitled to seek injunctive relief against the Operator with respect to any such breach, without requirement to post bond.
Last Updated: Nov 1, 2015