Material Terms: As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
1. Scope of License. The App is licensed, not sold, to you for use only under the terms of this EULA. Fly Blade reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with the terms and conditions of this EULA, Fly Blade hereby grants you a personal, limited, revocable, non-transferable license to use the Service solely for your personal, non-commercial use, and to use the App on a single compatible device that you own or control. You may not modify, alter, reproduce, distribute or make the Service available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute, or sublicense the Service. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or Third Party Terms (as defined below)), nor attempt to disable or circumvent any security or other technological measure designed to protect the Service or any content available through the Service. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted herein, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights. The terms of this EULA will govern any updates provided to you by Fly Blade that replace and/or supplement the original App or any other portion of the Service, unless such upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern.
a. Service. The Service allows you to reserve seats in helicopter rides (each such seat, a “Seat”; each such ride, a “Flight”) between the locations described on the Service.
b. Consideration. You may access the Service for free, but in order to reserve a Seat, you will have to pay a fee, as set forth below. You agree to this EULA in consideration of your use of the Service and other good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge.
c. Changes to this EULA. The Service is owned and operated by Fly Blade. Fly Blade reserves the right to revise this EULA in its sole discretion at any time and without prior notice to you other than by posting the revised EULA on the Service. Revisions to this EULA are effective upon posting. The EULA will be identified as of the most recent date of revision. Your continued use of the Service after a revised version of this EULA has been posted by Fly Blade to the Service constitutes your binding acceptance of such revised EULA. Notwithstanding the preceding sentences of this Section 2.c, no revisions to this EULA will apply to any dispute between you and Fly Blade that arose prior to the effective date of such revision.
d. Eligibility. If you are using or opening an account on the Service on behalf of a company, entity, or organization (each, a “Subscribing Entity”), then you represent and warrant that you: (i) are an authorized representative of that Subscribing Entity with the authority to bind such entity to this EULA and (ii) agree to be bound by this EULA on behalf of such Subscribing Entity.
e. Children. The Service is not intended for children under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. By using the Service, you affirm that you are at least 18 years of age. Fly Blade does not seek to gather information from or about children under the age of 13 through the Service.
3. The Service.
b. Depending on how you are accessing the Service, your use of the App may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms.
c. Service Security. You are prohibited from violating, or attempting to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Service, at Fly Blade’s sole discretion. Fly Blade reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the Service.
d. BLADE flights are currently operated by Liberty Helicopter. All scheduled crowdsourced flights posted to and from the Hamptons are sold as agent of Liberty Helicopter. For all flights that are charters to all BLADE destinations, BLADE acts as charter broker on behalf of the traveler.
4. Registration and Eligibility.
b. Accuracy of Information. You agree to provide true, accurate, current, and complete information about yourself as requested in any registration forms required by Fly Blade. You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate. If messages sent to an email address provided by you are returned as undeliverable, Fly Blade reserves the right to terminate your Account immediately with or without notice to you and without any liability to you or any third party.
5. Making a Reservation; Cancellations.
a. Preexisting Flights. The Service will display Seats available on a number of Preexisting Flights (each, a “Preexisting Flight”).
b. Creating a Flight. If you do not see an available Seat at the time and destination you would like to fly, you may charter a Flight (such flight, a “Charter”, and you are the “Initial Seat”) and open such Charter up to other users of the Service.
c. Reserving a Flight. To reserve a Flight, you will need to provide your credit card information and a cell phone number. YOUR FLIGHT IS NOT CONFIRMED UNTIL YOU RECEIVE A CONFIRMATION E-MAIL FROM FLY BLADE.
i. Preexisting Flights. You may cancel your Seat reservation(s) for a Preexisting Flight by providing notice to Fly Blade more than twenty four (24) hours prior to the scheduled departure time of the Flight. You can cancel by calling Fly Blade at 844-FLYBLADE (844-359-2523). In the event of a cancellation, credits and refunds will be provided pursuant to Section 6.c.i.
ii. Charter Flights.
1. Non-Initial Seat. For Single/Multiple seats --You may cancel your seat reservation for an individual seat or multiple seats purchased on flights by providing notice to BLADE no less than 24 hours prior to the scheduled departure time of the flight. You can cancel by calling us at 844-FLYBLADE (844.359.2523). Please note—upon canceling a seat or seats within the above stated parameters, BLADE will give users BLADE credit that will be applied to the users account and may be used for future travel. BLADE will not offer cash refunds. A cancellation made within 24 hours of flight time will result in a forfeiture of the full ticket price. Any credit not used at the end of the season – as posted September of the season purchased – will expire at the end of the Summer season the next calendar year (Labor Day).
2. Initial Seat. When you launch a charter for crowdsourcing, you assume the full risk of the flight and have a responsibility to fly at the time you scheduled. If you need to cancel, you may do so only under the following conditions: 1) it is at least 24 hours prior to the scheduled flight time AND 2) no additional seats have been sold. In this case you may notify BLADE and cancel your flight for a full refund. If 1 or more people have booked seats on your flight, you may not cancel the flight and will be charged accordingly.
e. Weather Guarantee. If your Flight is cancelled due to inclement weather, we guarantee we will get you to your destination through our partner car services, at no additional cost to you. You will receive a credit for the cost of your Flight in your Account. Any credit not used at the end of the season – as posted September of the season purchased – will expire at the end of the Summer season the next calendar year (Labor Day).
6. Fees; Payments; Refunds and Credits.
a. Fees. The fee for each Seat will be displayed on the Service. Fees are due and payable upon reserving a Seat.
b. Payments. The Service currently uses third parties to process payments. Our third-party payment processors accept payments through various credit cards, as detailed on the applicable payment screen. All monetary transactions on the Service take place in U.S. Dollars.
c. Refunds and Credits.
i. Preexisting Flights. If you have reserved a Seat on a Preexisting Flight and you cancel your Flight more than twenty four (24) hours in advance, in accordance with Section 5.d, Fly Blade will credit your Account with the amount charged for the cancelled Seat. Any credit not used at the end of the season – as posted September of the season purchased – will expire at the end of the Summer season the next calendar year (Labor Day).
1. Non-Initial Seat. If you have reserved a Seat on a Charter and you cancel your Flight more than twenty four (24) hours in advance, in accordance with Section 5.d, Fly Blade will credit your Account with the amount charged for the cancelled Seat. Any credit not used at the end of the season – as posted September of the season purchased – will expire at the end of the Summer season the next calendar year (Labor Day).
2. Initial Seat. If you are the Initial Seat on a Charter and, in accordance with Section 5.d, you cancel more than four (4) hours in advance and no other Seats have been purchased on your Charter, then Fly Blade will provide you with a full refund for your cancelled Seat. If you cancel your Charter and other Seats have been purchased on such Charter, and Fly Blade is able to move such other Seats to a different Flight on the same departure day, then you will receive a credit in your Account for your cancelled Seat. For the avoidance of doubt, if other Seats have been purchased on your Charter and Fly Blade is unable to accommodate those other Seats following your cancellation, you will NOT be provided with any refund or credit.
7. Third Party Materials.
a. You understand that by using the Service, you may encounter data, information, applications, or materials from third parties, including other users of the Service (“Third Party Materials”) and other content, including content from Fly Blade (collectively (including Third Party Materials), “Content”), that may be deemed offensive, indecent, or objectionable, which Content may or may not be identified as having explicit language or other material. Nevertheless, you agree to use the Service, and rely upon any Content accessible through the Service, at your sole risk and that Fly Blade will not have any liability to you for Content that may be found to be offensive, indecent, or that is inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality or otherwise objectionable.
b. You agree and understand that the Service contains proprietary content, information, and material that is protected by applicable intellectual property and other laws, including, but not limited to, copyright, and that you will not use such proprietary content, information, or materials except for permitted use of the Service. No portion of the Service may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, and you will not exploit the Service in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Service in any manner to harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party, and that Fly Blade is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, illegal, or other harmful messages or transmissions that you may receive as a result of using the Service.
c. In addition, third party services and Third Party Materials that may be accessed from, displayed on, or linked to from your device are not available in all languages or in all countries. Fly Blade makes no representation that such services and materials are appropriate or available for use in any particular location. To the extent you choose to access such services or materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including, but not limited to, applicable local laws. Fly Blade and its licensors reserve the right to change, suspend, remove, or disable access to such services at any time without notice. In no event will Fly Blade be liable for the removal of or disabling of access to any such services. Fly Blade may also impose limits on the use of or access to certain services at any time, in any case and without notice or liability.
8. Your Use of the Service and the Content. You rights to use the Service are expressly conditioned on the following:
a. You may access the Service for your personal and informational purposes only, and solely as intended through the provided functionality of the Service and as permitted under this EULA.
b. Unless expressly permitted, you may not alter, modify, create derivative works of, sell, license, or in any way exploit any part of the Service.
c. Unless expressly permitted, you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream, or broadcast any part of the Service without Fly Blade’s prior written authorization, including, by way of example and not limitation, by doing or engaging in any of the following without Fly Blade’s express written consent:
i. altering, defacing, mutilating, or otherwise bypassing any approved software through which the Service is made available; and
ii. using any trademarks, service marks, design marks, logos, photographs, or other content belonging to Fly Blade or obtained from the Service.
d. You agree not to bypass, circumvent, damage, or otherwise interfere with any security or other features of the Service (including Content and collectively, “Service Materials”) designed to control the manner in which the Service is used, harvest or mine Content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage.
e. You agree not to undertake, cause, permit, or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of any aspect of the Service or Content or any part thereof, or attempt to do any of the foregoing, except and solely to the extent permitted by this EULA, the authorized features of the Service or Content, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Fly Blade.
f. You agree not to use, display, mirror, frame, or utilize framing techniques to enclose the Service or the Content, or any portion thereof, through any other application or website, unless and solely to the extent Fly Blade makes available the means for embedding any part of the Service or the Content.
g. You agree not to access, tamper with, or use non-public areas of the Service, Fly Blade’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Fly Blade’s providers.
h. You agree not to harass, abuse, harm, or advocate or incite harassment, abuse, or harm of another person or group, including Fly Blade employees.
i. You agree not to provide any false personal information to Fly Blade.
j. You agree not to create a false identity or impersonate another person or entity in any way.
k. You agree not to create a new account with Fly Blade, without Fly Blade’s express written consent, if Fly Blade has previously disabled an account of yours.
l. You agree not to solicit, or attempt to solicit, personal information from other users of the Service.
m. You agree not to restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about users of the Service.
n. You agree not to use the Service, without Fly Blade’s express written consent, for any commercial purpose, including communicating or facilitating any commercial advertisement or solicitation.
o. You agree not to gain unauthorized access to the Service, to other users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service.
p. You agree not to post, transmit or otherwise make available any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service.
q. You agree not to interfere with or disrupt the Service, networks, or servers connected to the Service or violate the regulations, policies or procedures of such networks or servers.
r. You agree not to violate any applicable federal, state, or local laws or regulations or the EULA.
s. You agree not to assist or permit any persons in engaging in any of the activities described above.
9. Third Party Software. The software you download consists of a package of components, including certain third party software (“Third Party Software” and together with the App, the “Package”) provided under separate license terms (the “Third Party Terms”), as described in more detail at the bottom of this EULA. Your use of the Third Party Software in conjunction with the App in a manner consistent with the terms of this EULA is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in this EULA is intended to impose further restrictions on your use of the Third Party Software.
11 . Ownership. The Service, and the media and materials contained therein, including all intellectual property rights therein, is the sole and exclusive property of Fly Blade and its licensors. Except for the limited license expressly granted by and to you under this EULA, no other rights, licenses, or immunities are granted or will be deemed to be granted under this EULA, either expressly, or by implication, estoppel or otherwise. All rights not expressly granted by a party hereunder are expressly reserved.
12 . Feedback. While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending Fly Blade or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Fly Blade, you agree that:
a. Fly Blade has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b. Feedback is provided on a non-confidential basis, and Fly Blade is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
c. You irrevocably grant Fly Blade perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
13 . Termination. The EULA is effective until terminated by you or Fly Blade. Your rights under this EULA will terminate automatically without notice from Fly Blade if you fail to comply with any term(s) of this EULA (including by violating any license restriction provided herein). You may terminate this EULA by uninstalling the App. Upon any termination of this EULA, you must immediately cease all use of the Service, and destroy all copies, full or partial, of the App.
14 . Indemnity. You agree to indemnify and hold Fly Blade, and its members , employees, agents, successors, and assigns harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to (a) your access, use, or misuse of the Service or Content, or (b) your violation of this EULA. Fly Blade will use reasonable efforts to notify you of any such claim, action, or proceeding for which it seeks an indemnification from you upon becoming aware of it, but if Fly Blade is unable to communicate with you in a timely manner because of an inactive or erroneous e-mail address for you, your indemnification obligation will continue notwithstanding Fly Blade’s inability to contact you in a timely manner.
15 . NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE, THE PACKAGE, AND SERVICE MATERIALS ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, THE PACKAGE, AND ALL SERVICE MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND FLY BLADE HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FLY BLADE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THE PACKAGE, OR SERVICE MATERIALS, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE SERVICE, PACKAGE, OR SERVICE MATERIALS WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE, THE PACKAGE OR SERVICE MATERIALS WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE, OR THAT ANY DEFECTS IN ANY OF THE FOREGOING WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FLY BLADE OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY NOT EXPRESSLY PROVIDED FOR IN THE EULA. SHOULD THE SERVICE, PACKAGE, OR SERVICE MATERIALS PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING WILL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
16 . LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL FLY BLADE OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, THE PACKAGE, OR SERVICE MATERIALS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF FLY BLADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL FLY BLADE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE GREATER OF THE AMOUNTS PAID TO FLY BLADE BY YOU IN THE PRECEDING 12 MONTHS OR ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OF CERTAIN TYPES OF DAMAGES OR LIABILITIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING WILL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
FLY BLADE DOES NOT PROVIDE TRANSPORTATION SERVICES AND IS NOT A TRANSPORTATION CARRIER. IT IS UP TO THE THIRD-PARTY TRANSPORTATION PROVIDER, DRIVER, OR VEHICLE OPERATOR TO OFFER TRANSPORTATION SERVICES WHICH MAY BE SCHEDULED THROUGH THE SERVICE. FLY BLADE OFFERS INFORMATION AND A METHOD TO OBTAIN SUCH THIRD-PARTY TRANSPORTATION SERVICES, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE TRANSPORTATION SERVICES OR ACT IN ANY WAY AS A TRANSPORTATION CARRIER, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSPORTATION SERVICES PROVIDED TO YOU BY SUCH THIRD PARTIES.
FLY BLADE MAY INTRODUCE YOU TO THIRD-PARTY TRANSPORTATION PROVIDERS TO PROVIDE YOU TRANSPORTATION, BUT FLY BLADE DOES NOT ASSESS THE SUITABILITY, LEGALITY, OR ABILITY OF ANY THIRD-PARTY TRANSPORTATION PROVIDER AND YOU EXPRESSLY WAIVE AND RELEASE FLY BLADE FROM ANY AND ALL LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD-PARTY TRANSPORTATION PROVIDER. YOU ACKNOWLEDGE THAT FLY BLADE DOES NOT MONITOR ANY THIRD-PARTY TRANSPORTATION PROVIDER’S ON-GOING COMPLIANCE WITH ANY AND ALL LICENSING AND/OR PERMITTING RULES AND REGULATIONS, AND FLY BLADE WILL NOT BE RESPONSIBLE FOR ANY LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO A THIRD-PARTY TRANSPORTATION PROVIDER’S FAILURE TO MAINTAIN A CURRENT LICENSE AND/OR PERMIT. FLY BLADE WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING FLY BLADE’S SERVICES RESTS SOLELY WITH YOU. FLY BLADE WILL NOT ASSESS THE SUITABILITY, LEGALITY, OR ABILITY OF ANY SUCH THIRD PARTIES AND YOU EXPRESSLY WAIVE AND RELEASE FLY BLADE FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE SERVICE, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE SERVICE.
THE QUALITY OF THE TRANSPORTATION SERVICES SCHEDULED THROUGH THE SERVICE IS ENTIRELY THE RESPONSIBILITY OF THE THIRD-PARTY PROVIDER WHO ULTIMATELY PROVIDES SUCH TRANSPORTATION SERVICES TO YOU. YOU UNDERSTAND THAT BY USING THE SERVICE, YOU MAY BE EXPOSED TO TRANSPORTATION THAT IS POTENTIALLY DANGEROUS, HARMFUL, OR OTHERWISE UNSAFE AND THAT YOU USE THE SERVICE AT YOUR OWN RISK.
IN NO EVENT WILL FLY BLADE, ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, DEATH, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF THIS SERVICE, PERSONS YOU MEET THROUGH THE SERVICE OR FLIGHTS YOU BOOK THROUGH THE SERVICE.
17 . THIRD PARTY DISPUTES. ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY AND YOU IRREVOCABLY RELEASE FLY BLADE AND ITS MEMBERS, AFFILIATES, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
18 . Dispute Resolution.
a. Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND FLY BLADE AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THE EULA OR YOUR USE OF THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
i. Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Fly Blade, to you via any other method available to Fly Blade, including via e-mail. The Notice to Fly Blade should be addressed to c/o 12 East 12th Street #12SW, New York, NY 10003, Attn: Chief Operating Officer (the “Arbitration Notice Address”). The Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (the “Demand”). If you and Fly Blade do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Fly Blade may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (the “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org. If you are required to pay a filing fee to commence an arbitration against Fly Blade, then Fly Blade will promptly reimburse you for your confirmed payment of the filing fee upon Fly Blade’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
ii. Arbitration Proceeding. The arbitration will be conducted in the English language. A single independent and impartial arbitrator will be appointed pursuant to the Rules, as modified herein. You and Fly Blade agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (A) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (B) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (C) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
iii. No Class Actions. YOU AND FLY BLADE AGREE THAT YOU AND FLY BLADE MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
iv. Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of New York in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this EULA.
b. Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Fly Blade seeks equitable relief of any kind. You acknowledge that, in the event of a breach of this EULA by Fly Blade or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Fly Blade, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this EULA.
c. Claims. You and Fly Blade agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this EULA or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
d. Improperly Filed Claims. All claims you bring against Fly Blade must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Fly Blade may recover attorneys' fees and costs up to $5,000, provided that Fly Blade has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
e. Modifications. In the event that Fly Blade makes any future change to the Mandatory Arbitration provision (other than a change to Fly Blade’s Arbitration Notice Address), you may reject any such change by sending us written notice within 30 days of the change to Fly Blade’s Arbitration Notice Address, in which case your account with Fly Blade and your license to use the Service will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive the termination of this EULA.
f. Enforceability. If only Section 18.a.iii or the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 19 will govern any action arising out of or related to this EULA.
19 . Governing Law. The laws of the State of New York, excluding its conflicts of law rules, govern this EULA and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
20 . Assignment. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law, or otherwise, without the prior written consent of Fly Blade. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App from your mobile device prior to such disposition. Fly Blade may assign this EULA, including all its rights hereunder, without restriction.
21 . Survival. The provisions of the EULA that are intended to survive the termination of the EULA by their nature will survive the termination of the EULA, including, but not limited to, Sections 3 (The Service), 8 (Your Use of the Service and Content), 9 (Third Party Software), 10 (Consent to Use of Data), 11 (Ownership), 12 (Feedback), 13 (Termination), 14 (Indemnity), 15 (No Warranty), 16 (Limitation of Liability), 17 (Third Party Disputes), 18 (Dispute Resolution), 19 (Governing Law), 20 (Assignment), 21 (Survival), 22 (Consent to Electronic Communications), 23 (Miscellaneous), and 24 (Contacting Fly Blade).
24 . Contacting Fly Blade. You can contact Fly Blade, Inc. by email at [email protected], or by U.S. mail at c/o Evan Licht, 499 E. 34th Street, New York, NY 10016.
25 . BLADE Referral Program Rules and Guidelines: The BLADE Referral Program allows you to share with others a personal referral code via text, email, and other social means in exchange for Account credit (“Referral Credits”). If an individual who has not previously had an Account registers for a new Account using your personal referral code, they will get a $100 Referral Credit for use only toward their first Flight, and you will receive a $50 Referral Credit to your Account if that individual’s books their first Flight within 90 days of their signing up for an Account using your personal referral code. Referral Credits are only valid for 90 days and expire 90 days after they post to an Account. You agree that Referral Credits (a) can only be used for Flights, (b) are not valid for cash, (c) may expire prior to your use, and (d) may be disabled at any time for any reason without liability to Fly Blade. Fly Blade reserves the right to withhold or deduct Referral Credits if Fly Blade believes that the use or redemption of the your referral code was fraudulent, illegal, in error, or otherwise in violation of this EULA or any other applicable terms.
26 . In the event that you are late for your BLADE charter, there will be a charge of $250 per 10 minutes the helicopter is spinning, waiting past your scheduled departure time. These costs are derived from a combination of idle time, repositioning costs, and duty hours.
NOTICE REGARDING APPLE. You acknowledge that this EULA is between you and Fly Blade only, not with Apple, and Apple is not responsible for the App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby 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. If Fly Blade provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail.
PUBLIC CHARTER OPERATOR-PARTICIPANT AGREEMENT
This Agreement sets forth the terms and conditions under which we, Fly Blade, Inc., 499 East 34th Street, New York City, NY 10016 the Charter Operator (Fly Blade or Operator), in return for payment of the amount indicated as the total charter price, agree to provide you (Participant) a charter flight.
RESPONSIBILITY: Fly Blade, as the charter operator and principal, is responsible to you for arranging and providing all of the services and accommodations offered in connection with these charter flights, provided, however, that in the absence of negligence on our part, we are not responsible for personal injury or property damage caused by an air carrier, hotel, or other suppliers of any of the services being offered in connection with the charter.
RESERVATIONS AND PAYMENT: Reservations may be made through the Fly Blade mobile application (the “App”) only after you agree to Fly Blade’s Terms of Service for the use of its App and this Operator-Participant Agreement and full payment is made by credit card. Reserving a Flight. To reserve a Flight, you will need to provide your credit card information and a cell phone number. YOUR FLIGHT IS NOT CONFIRMED UNTIL YOU RECEIVE A
CONFIRMATION E-MAIL FROM FLY BLADE.Payment: You authorize Fly Blade to assess payment in full via your credit card once your flight is confirmed and we send your confirmation email.
CHARTER PRICE: The price for each seat is displayed on the App or our website by itinerary. The stated price includes all applicable taxes and fees. Except for "major changes," or otherwise as described below, no refund or credit will be made for any transportation, accommodations, or services included in the charter price which you voluntarily do not use.
AIRLINE AND AIRCRAFT: Public charter flights pursuant to this Operator-Participant Agreement will be operated by Corporate Flight Management (CFM) using Canadair Regional Jet aircraft or by CFM or other licensed carriers using comparable aircraft. Fly Blade and the carrier used reserve the right to change the carrier or substitute aircraft if necessary, such as for operational or safety reasons.
BAGGAGE: For Domestic flights, the carrier accepts one carry-on roller bag and one checked bag per person. ***PLEASE NOTE: If you have additional baggage needs, contact a Fly Blade team member. The carrier reserves the right to refuse carriage of a bag or bags that are deemed too heavy or too large. Fly Blade will not be liable for loss, damage, or delay in the delivery of the passenger’s luggage to his or her destination.
SECURITY AGREEMENT: Your payments are protected by a surety bond that we have obtained from ACSTAR Insurance Company. Unless you file a claim with us, or, if we are not available, with the securer within 60 days after the completion of the charter, the securer will be released from all liability to you under the security agreement
CANCELLATION, REFUNDS, AND CREDITS: If you cancel your reservations your right to receive a credit or a refund is limited, as set forth below. Requests to cancel and for credit or a refund must be made by calling Fly Blade at 844-FLYBLADE (844-359-2523).
No refund is due for cancellations made by you after confirmation of your flight. However, if you cancel your reservation by providing notice to Fly Blade more than 7 days prior to the scheduled departure time of the Flight, Fly Blade will credit your account with the amount charged for the cancelled reservation. You may apply that credit toward a future flight during the charter program, provided space is available at the time you make a new reservation. No refund or credit is due for cancellations made 7 days or less before scheduled departure. You must use any credits by the end of this charter program, which is 04/16/2017, or you will forfeit them and no refund or credit card chargeback will be provided.
Substitution: Participants may furnish Fly Blade with a Substitute Participant if done within the above cancellation time limits, i.e., more than 7 days before a flight is scheduled to operate. Fly Blade will accept such Substitute Participant upon payment by the Substitute Participant for the flight. In that event, Fly Blade will refund to the participant whose place is taken on the flight the amount he or she paid after subtracting a $25.00 Administrative Fee per change from the amount paid for each substituted passenger. Substitutions must be made prior to Participant cancelling and receiving a credit, which credit must be used by Participant.
Major Changes: After you make payment, if we make major changes prior to departure you have the right to cancel and receive a full refund. The following are major changes: (1) a change in the departure or return date, unless the change results from a flight delay experienced by the air carrier. (If, however, the delay is longer than 48 hours, it will be considered a major change.) (2) a change in the origin or destination city, unless the change affects only the order in which cities named in a tour package are visited; (3) a substitute of any hotel not listed in this contract; and (4) a price increase of more than 10 percent occurring 10 or more days before departure. In no event can we increase your price less than 10 days before departure. If a major change must be made in the program, we will notify you within 7 days after first learning of the change, but in any event at least 10 days prior to the scheduled departure. If, less than 10 days before scheduled departure we become aware that a major change must be made, we will notify you as soon as possible.
Within 7 days after receiving notification of a major change but in no event later than departure, you may cancel your reservation and you will receive a full refund within 14 days after cancelling. If a major change occurs after the departure of the flight, which you are unwilling to accept, we will refund, within 14 days after your scheduled return date, that portion of your payment that applies to the services not accepted.
If we must cancel the charter, we will notify you in writing within 7 days of the cancellation, but in no event later than 10 days before the scheduled departure date. We have no right to cancel the charter less than 10 days before departure, except for circumstances that make it physically impossible to perform the charter trip. If that occurs, we will notify you as soon as possible, but not later than the scheduled departure date. If the charter is canceled, and you do not elect any alternative transportation offered, we will make a full refund to you within 14 days after cancellation.
The rights and remedies made available under this contract are in addition to any other rights or remedies available under applicable law. However, we offer refunds under this contract with the express understanding that the receipt of that refund by a passenger waives the additional remedies.