Effective Date: July 21, 2017
This Service Agreement ("Agreement") governs your access and use of the applications, websites, content, products, and services made available by Mobileoffer, Inc. DBA Freebird Rides and its affiliates, employees, agents, and officers (collectively, "Freebird Rides"). In this Agreement, the words "including" and "include" mean "including, but not limited to."
By accessing or using the Services (defined below) , you confirm your agreement to be bound by this Agreement. If you do not agree to this Agreement, you may not access or use the Services. This Agreement expressly supersedes any prior agreements or arrangements with you. Freebird Rides may immediately terminate this Agreement or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason, and your sole remedy in the event of termination by Freebird rides shall be a refund of any amounts you have paid in advance in exchange for which you have not yet received the goods or services promised.
Freebird Rides may also amend this Agreement from time to time in a manner that does not materially and adversely impact your liability, costs, or obligations under this Agreement. Your continued use of the Services indicates your ongoing acceptance of this Agreement, including any amended terms. If you object to any amended Agreement because it materially and adversely impacts your liability, costs, or obligations under this Agreement, you may reject any amended terms by sending us notice (as hereinafter provided) of your rejection within 7 days after the effective date of the amendment to which you object. Such rejection notice must include a clear reference to the amended items rejected and your name and e-mail address. Upon receipt of your rejection notice, the version of the Agreement that was effective immediately prior to receipt of your rejection notice will remain in effect. ANY OTHER AMENDMENT MUST BE IN WRITING.
You agree that this Agreement is entered into electronically and that Freebird Rides may contact you electronically at the e-mail address and mobile telephone number you provide to us for purposes related to this Agreement, including for marketing purposes. You may opt out of any marketing messages by sending us notice of your opt out to firstname.lastname@example.org.
Freebird Rides agrees to provide the Services and to permit the use of the System in consideration for the Fees (as defined below) and otherwise in accordance with the terms and conditions contained in this Agreement. In consideration of the foregoing, the Parties, intending to be legally bound, agree to the terms set forth below.
"Service(s)" means Freebird Rides' referral service known as Freebird Rides, which is offered through the website http://www.FreebirdRides.com (the "Website") and Freebird Rides' mobile application (the "Application") or as integrated into any other third party website or mobile application and any ancillary online or offline products and services provided to you by Freebird Rides. The Service includes use of the Website and the Application, which provide (1) the ability to offer rideshare reimbursement to customers who wish to visit your establishment ("Customer(s)"), (2) the ability to advertise your products and services to potential Customers via the Application upon terms separately agreed by the parties in writing, and (3) the ability to access certain information related to Customers and their interaction with you, all subject to the terms set forth herein. Freebird Rides reserves the right to add, change, remove and/or modify the Services, including modifications to functionality, presentation and companion products after providing prior notification on the Website. To the extent Freebird Rides includes third party services in the Services, Freebird Rides will have no responsibility or liability with respect to such third party services.
"Software" means the software code used as part of the Service, both in connection with the Services rendered
under this Agreement, together with all other related and accompanying documentation (the "Documentation"), provided
by Freebird Rides via the Service, and any update or a new release of the Software.
"System" means the Software, the Services and all associated processes.
Subject to the terms and conditions of this Agreement and payment of applicable Fees, Freebird Rides hereby grants you, and you hereby accept, a non-exclusive, non-transferable and fully revocable right to use the System.
The System is protected by intellectual property laws and international treaty provisions. The System is licensed to you solely for your own internal use and for your own operations. Except as explicitly permitted herein, without the prior written consent of Freebird Rides, you will not (nor allow any third party to) directly or indirectly: (a) allow others to use the System, or use the System for the benefit of third parties; (b) except and only to the extent established by applicable law, attempt to decipher, reverse translate, decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the System by any means whatsoever; (c) develop methods to enable unauthorized parties to use the System or develop any other product containing any of the concepts and ideas contained in the System; (d) modify the System or create a derivative work of any portion of the System; (e) remove any copyright or other proprietary notices from the System; (f) test the System or use the System in connection with any benchmark tests, evaluation or any other tests of which the results are designated or likely to be published in any form or media or otherwise made available to the public; (g) circumvent, disable or otherwise interfere with security-related features of the System or features that enforce limitations on its use; (h) transmit any malicious code, viruses, worms or other items of a destructive or deceptive nature into or in connection with the System; (i) rent, lend, lease, sub-license, assign or transfer the System and/or your rights to the System; (j) make copies of the System or any portions thereof; (k) use the System in a manner that is not in compliance with the Documentation and with Freebird Rides' specific instructions; (l) copy nor modify, adapt or translate into any language the Documentation, nor create derivative works based on the Documentation; (m) violate, or encourage the violation of the legal rights of Freebird Rides, its suppliers or third parties; (n) use the System for any unlawful, invasive, infringing, defamatory or fraudulent purpose; and/or (o) access the System in order to build a competitive solution or to assist any third party to build a competitive solution. You agree to comply with all applicable laws, rules and regulations in connection with your use of the Services.
You acknowledge and agree that use of the System is subject to the terms and conditions of this Agreement and that the Software and the Documentation, including any revisions, corrections, modifications, enhancements and/or upgrades thereto are Freebird Rides' property protected under any applicable laws and treaties. You further acknowledge and agree that all right, title and interests in and to the System, including associated intellectual property rights (including but not limited to, copyrights, trade secrets, trademarks, etc.), evidenced by or embodied in and/or attached/connected/related to the System are and shall remain with Freebird Rides. This Agreement does not convey to you an interest in or to the System, but only a limited right of use of the System, revocable in accordance with the terms and conditions of this Agreement. Nothing in this Agreement constitutes a waiver of Freebird Rides' intellectual property rights under applicable law.
The System is based on software developed and owned by Freebird Rides and/or its licensors, and may use or include third party software, files and components that are subject to open source and third party license terms ("Third Party Components"). Customer's right to use such Third Party Components as part of, or in connection with, the System is subject to any applicable acknowledgements and license terms attached to such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. Such Third Party Components are provided on an "AS IS" basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. Under no circumstances shall the System or any portion thereof (except for the Third Party Components contained therein) be deemed to be "open source" or "publicly available" software. A list of Third Party Components is available in the System or its documentation (the "About Box") and will be updated from time to time. The licenses of certain Third Party Components may require the provision of the source code of these Third Party Components.
Each party may have access to certain non-public and/or proprietary information of the other party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other party, whether written or oral, and any other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the "Confidential Information"). Each party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other party's Confidential Information from disclosure to a third party. Neither party shall use or disclose the Confidential Information of the other party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing party. You agree that Freebird Rides may identify you as a user of the System and use your trademark and/or logo (i) in sales presentations, promotional/marketing materials, and press releases, and (ii) in order to develop a brief customer profile for use by Freebird Rides on our website or printed materials for promotional purposes. Confidential Information does not include information that is (a) previously known to the receiving party, free from any obligation to keep it confidential, (b) publicly disclosed by the disclosing party either prior to or subsequent to the receipt by the receiving party of such information, (c) independently developed by the receiving party without any access to Confidential Information, or (d) rightfully obtained from a third party lawfully in possession of Confidential Information who is not bound by confidentiality obligations to the disclosing party. The receiving party may disclose Confidential Information if the receiving party is required to do so under applicable law, rule or order; provided that the receiving party, where reasonably practicable and to the extent legally permissible, provides the disclosing party with prior written notice of the required disclosure.
Operation of the System and the provision of the Services hereunder requires you to share information related to your customers ("Customer(s)")and their payment and to monitor traffic and content (including encrypted content) transmitted by your networks and require you to provide, upload, transmit, or make accessible to Freebird Rides certain data, including without limitation, data regarding your customers’ personally identifiable information transmitted by your networks (collectively, the "Customer Data"). You agree that Freebird Rides will collect, monitor, store and use the Customer Data, on your behalf, in order to provide the Services. As between you and Freebird Rides, the intellectual property rights and all other rights, title and interest of any nature in and to the Customer Data, which may be stored on the System, are and shall remain the exclusive property of you and your licensors. Freebird Rides shall be considered granted a non-revocable, non-exclusive, assignable, sub-licensable, royalty-free license to use, in accordance with any applicable privacy laws, the Customer Data in order to provide the Services. Except as set forth herein, nothing in this Agreement shall be construed as transferring any rights, title or interests in the Customer Data to Freebird Rides or any third party. Freebird Rides may collect, disclose, publish and use in any other manner anonymous information which derives from the use of the System (i.e., non-identifiable information, aggregated and analytics information) ("Analytics Information")), in order to provide and improve Freebird Rides’ programs and services and for any legitimate business purpose. Freebird Rides is and shall remain the sole owner of the Analytics Information.
When you register with Freebird Rides, you receive a license to use the System to make offers (each an "Offer") to potential Customers to reimburse them for all or part of their costs incurred riding with rideshare providers to your place of business (your "Establishment"). Specific policies and procedures relating to the process of making and accepting offers are set forth on the System, and such policies and procedures shall be binding upon you.
You will use the System to define the parameters, such as dates and times availability and the amount of your Offer ("Parameters"), and you will set a budget for the total amount you are willing to pay in a given period of time ("Budget"). You are solely responsible to ensure that the Parameters are correctly shown on the System, and you will bear the costs and liabilities arising out of any Parameters that are incorrect for any reason. By way of example only, and not by way of limitation, if you set a Parameter indicating that an Offer is available 24 hours per day, and a Customer hails a ride to your Establishment using the System, but your Establishment is closed because the open time was incorrectly shown (or for any other reason, including reasons beyond your control), you will be liable for any costs arising out of the inability of the Customer to make a purchase.
When a Customer accepts an Offer using the System, the Customer will make payment to the rideshare provider using the Customer’s credit card or other payment method. Upon arrival at your Establishment, the Customer will choose whether to make a purchase of a good or service. If the customer makes a purchase, regardless of the amount of the purchase, your obligation to reimburse the Customer for the Offer amount shall be final.
You hereby authorize Freebird Rides and your credit card company, credit card merchant, and processor, and any other service provider, to communicate with each other, through the System, to convey several items of information related to the Customer and the payment made, including the date and time of purchase, amount of purchase, last four digits of the credit card number, city/state/zip code, and payment card type ("Payment Information"). Payment Information shall be considered Customer Data for purposes of this Agreement.
Freebird Rides will pre-authorize your credit card for the ride reimbursement Budget that you set. When Freebird Rides receives notice of a purchase by the Customer, Freebird Rides will deduct the amount of the Offer from your Budget and communicate to Customer that his or her reimbursement is pending. Once the payment for the Customer’s purchase at your Establishment is settled, Freebird Rides will finalize the reimbursement, and the Customer will be able to move the reimbursed amount to the Customer’s bank account.
At the time payment for the Customer’s purchase is finalized, Freebird Rides will charge your credit card or other payment method the Fees set forth in the Website for the single transaction or for a bundle of multiple transactions, registration form or service orders (collectively, the "Service Order") as applicable to your Agreement (the "Fees"). Unless a Service Order provides otherwise, the Fees shall be in the amount of (1) $2.00 per transaction plus (2) the credit card fees applicable to the total ride reimbursement transaction including the $2.00 fee. The Fees are not refundable, even if payment for a Customer’s purchase at your Establishment is declined, reversed or charged back for any reason.
Freebird Rides reserves the right to modify the Fees at any time, upon 30 days’ prior written notice to Customer, which notice may be provided by e-mail or at the Website; such new prices shall not apply for Services which have already been completed, but shall apply to any Services completed after the effective date of change of the Fees. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and such taxes, levies and duties shall be added to the Fees. In addition to other remedies available to it, Freebird Rides expressly reserves the right to suspend or terminate the Services and notify Customer of such termination or suspension, in the event you fail to pay the Fees in a timely manner, if its payment method does not work correctly, or if the Fees are not received for any other reason. You further agree and acknowledge that Freebird Rides has no obligation to retain your Customer Data if you fail to make payment when due and that the Customer Data be deleted from the Service.
Through your relationship with Freebird Rides, you have been selected to participate in Freebird Rides’ Card Linked Offer Program ("Program"), which includes programs managed by the Partner Programs ("Partner Program"). Please email email@example.com to request a current list of Partner Programs as the Partner Program list is updated on a regular basis. Freebird Rides has entered into Agreements with each Partner Program for certain services, on behalf of itself and as the representative of you, to promote you to Partner Program’s customers. In order for Partner Program to perform services in accordance with the Freebird Rides – Partner Program Terms, MasterCard Incorporated, Visa U.S.A. Inc., American Express Company and one or more payment processors engaged by Freebird Rides and/or Partner Program (individually and collectively, "Card Network / Processor") will need to provide Freebird Rides and/or Partner Program with certain information further described below. The purpose of the Terms & Conditions in this section is to ensure that you agree to, and authorize (i) Card Network / Processor monitoring and communicating this information to Freebird Rides and/or Partner Program, and (ii) Freebird Rides and Partner Program using the information for purposes of ensuring accurate rewards eligibility, application of rewards and distribution of offer content.
You hereby authorize Freebird Rides and Card Network / Processor to monitor and release the following information to Partner Program: your Card Network identification number(s) and your payment card transaction information, including, but not limited to, cards registered by Freebird Rides and/or Partner Program customers (including, without limitation, date, purchase amount, encrypted or tokenized card numbers, and payment card type) (each of the foregoing items individually and collectively, "Merchant Information").
You hereby authorize Freebird Rides and Partner Program and each of the third parties with whom Freebird Rides or Partner Program may contract in connection with the Program (each, a "Vendor," which excludes Card Network / Processors), to (i) use or process Merchant Information in order to determine rewards eligibility in the Program (with eligible purchases defined as "Qualified Purchases"), and (ii) communicate Qualified Purchases (date and time, purchase amount, last 4 digits of card, city / state / zip code, and payment card type) to Freebird Rides for purposes of Freebird Rides reporting to and billing you. Each Vendor has confidentiality obligations that prohibit such Vendor from disclosing Merchant Information to third parties.
To the extent you have an agreement with a Card Network / Processor, these Terms & Conditions shall not modify or terminate any such Merchant – Card Network / Processor agreement.
Your Authorization shall remain in full force and effect until you notify Freebird Rides that you elect in writing to stop the transmission of your data to Freebird Rides and Partner Program in connection with the Program. You may notify Freebird Rides by emailing firstname.lastname@example.org. Within a commercially reasonable time frame following receipt of such notice, Freebird Rides shall communicate your notice to Partner Programs, and Partner Programs, Card Network/ Processor and Freebird Rides shall stop the transmission of information as described above.
You obtain, or may obtain, sales information from various sources (e.g., Card Network/Processor monthly reports directly to you, your internal sales records, etc.). This sales information may include some elements of data that are the same as the Redemption Data (defined below). Your use of this separately obtained sales information is not subject to the restrictions in this Section.
You will only use data relating to the Program or Qualified Purchases ("Redemption Data") (whether provided via Freebird Rides or directly to you from Partner Program) to confirm the occurrence of a Qualified Purchase. You will not use the Redemption Data for any other purpose. The Redemption Data is confidential information and, except for employees and subcontractors with a need to know, you will not share it with others. You will keep and/or use the Redemption Data only as long as there is a business need to have it, but not longer than 120 days.
Partner Program, Freebird Rides, Card Network / Processor and agents or subcontractors of any of the foregoing parties will not have any liability for any indirect, consequential, incidental, special or punitive damages, including any lost profits, even if such party has been advised of the possibility of such damages in connection with the Program. Furthermore, in no event will Partner Program’s, Freebird Rides’, Card Network / Processor’s or any of the foregoing parties’ subcontractor’s or agent’s total cumulative liability in connection with the program, from all causes of action of any kind, exceed amounts paid by you to Freebird Rides in Fees in the twelve (12) month period immediately preceding any claim.
In addition, Card Network / Processor will not be liable under any circumstances for (i) the release of or misuse of data provided under this authorization and used in connection with Program transactions by consumers, Freebird Rides, you, Partner Program or subcontractors or agents of any of the foregoing parties; (ii) any errors by or arising from the acts or omissions of consumers, Freebird Rides, you, Partner Program or subcontractors or agents of any of the foregoing parties in connection with a Program transaction.
This Agreement is effective commencing on the date of the Service Order, or the date upon which Customer has subscribed through the Website to the Service (May 31, 2017) and until terminated by Freebird Rides or you upon thirty (30) days prior written notice (the "Term").
Upon any violation by you of any of the provisions of this Agreement, which has not been remedied within seven (7) days after you have been given written notice of the violation, which may be made via email, rights to use the System shall terminate.
Termination by you shall not relieve you from your obligation to pay any Fees for which you have become obligated during the Term.
Upon termination or expiration of this Agreement: (i) Freebird Rides will cease from providing the Services hereunder, the license granted to you under this Agreement shall expire, and you shall discontinue all further use of the System; (ii) you shall immediately permanently delete all copies of the Documentation in your possession or control; (iii) Freebird Rides shall immediately permanently delete all Customer Data provided by you pursuant to this Agreement, provided that the Freebird Rides will retain any Analytics Information which is derived from the use of the System and from the provision of the Services; (iv) any sums paid by you until the date of termination are non-refundable, and you shall not be relieved of your duty to discharge in full all due sums owed by you to Freebird Rides under this Agreement until the date of termination or expiration hereof, which sums shall become immediately due and payable on the date of termination or expiration the Agreement. Upon termination or expiration of this Agreement, Customer will lose all access to the System. You are responsible to download your Customer Data prior to termination of this Agreement. Termination of this Agreement shall not limit Freebird Rides from pursuing any other remedies available to it under the applicable law.
The provisions of this Agreement that, by their nature and content, must survive any expiration or termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive, including without limitation, the provisions regarding Title and Intellectual Property, Third Party Components, Confidentiality, Fees, Limitation on Warranty. Limitation of Liability, Indemnification, and Miscellaneous.
Freebird Rides warrants for your benefit alone, that the System, if operated as specifically directed by Freebird Rides, shall operate substantially in accordance with the functional specifications in the Documentation and as specifically provided by Freebird Rides. Freebird Rides does not warrant, however, that the use of the System will be uninterrupted or that use of the System will be error free or secure. Freebird Rides’ sole liability and your sole and exclusive remedy for any breach of this warranty by Freebird Rides shall be the repair of the defect that does not meet this limited warranty, within reasonable time. The foregoing warranty applies only to failures in operation of the System that are reproducible in standalone form and does not apply (i) if the defect is caused by faulty maintenance, installation or set-up, by alterations undertaken without Freebird Rides’ consent or by faulty repairs; (ii) if the defect would have been avoided by the use of a current update of the System that Freebird Rides makes generally available to its customers; (iii) if the defect is caused by the combination, operation or use of the System with software, hardware or other materials not licensed hereunder and not conforming to Freebird Rides’ specifications set forth in the Documentation; (iv) if the System is otherwise operated in violation of this Agreement or other than in accordance with the Documentation; (v) if the defect is caused due to problems inherent to the use of the internet and/or electronic communications.
EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, THE LICENSE TO USE THE SYSTEM AS SET FORTH HEREIN, IS PROVIDED FOR THE USE OF THE SYSTEM "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, AND FREEBIRD RIDES DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; NO LICENSOR, DEALER, DISTRIBUTOR, RESELLER, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. FREEBIRD RIDES SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO, ALTERATION AND/OR LOSS TO THE CUSTOMER DATA.
YOU HEREBY AGREE THAT IN NO EVENT SHALL FREEBIRD RIDES OR ITS SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE SALE OF, USE OF OR INABILITY TO USE THE SYSTEM, EVEN IF FREEBIRD RIDES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FAILURE OF ANY ESSENTIAL PURPOSE. THIS LIMITATION IS AN ESSENTIAL PART OF THE AGREEMENT BETWEEN YOU AND FREEBIRD RIDES. IN NO EVENT WILL FREEBIRD RIDES BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT FREEBIRD RIDES ACTUALLY RECEIVED FROM YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE GIVING RISE TO THE LIABILITY OCCURS. YOU ACKNOWLEDGE THAT THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK, AND THAT FREEBIRD RIDES WOULD NOT PROVIDE THE SYSTEM EXCEPT UNDER THE TERMS OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
Freebird Rides acknowledges and agrees to defend, at its expense, any third party action or suit brought against you alleging that the System infringes intellectual property rights held by any third party ("IP Infringement Claim"), and Freebird Rides will pay any damages awarded in final judgment against you that are attributable to any such claim; provided that (i) you notify Freebird Rides promptly in writing of such claim; and (ii) you grant Freebird Rides authority to handle the defense or settlement of any such claim, suit or proceeding and will provide Freebird Rides with all reasonable information and assistance, at Freebird Rides’ expense. Freebird Rides will not be bound by any settlement that you enter into without our prior written consent. If the System becomes, or in Freebird Rides’ opinion is likely to become, the subject of an IP Infringement Claim, then Freebird Rides may, at its sole option and expense (a) procure for you the right to continue using the System; (b) replace or modify the System to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot accomplished despite Freebird Rides’ reasonable efforts, then Freebird Rides may discontinue providing the Services and grant you credit for the price of the Services already paid by you with respect to the period following such event. Notwithstanding the foregoing, Freebird Rides shall have no responsibility for IP Infringement Claim resulting from or based on: (i) modifications to the System made by a party other than Freebird Rides or its designee; (ii) your failure to use updated or modified System provided by Freebird Rides specifically to avoid infringement; or (iii) combination or use of the System with equipment, devices or software not supplied or authorized by Freebird Rides or not in accordance with Freebird Rides’ instructions. THE FOREGOING TERMS STATE FREEBIRD RIDES’ SOLE AND EXCLUSIVE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
You agree to defend, indemnify and hold harmless Freebird Rides, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney's fees) arising from or related to: (i) your unauthorized use of the System; (ii) your violation of any term of this Agreement (including without limitation any warranties provided herein); (iii) any third party claim, suit or proceeding that use of the Customer Data within the scope of this Agreement infringes any privacy right of a third party; (iv) any claim arising out of your or your agents’ acts or omissions in or about your Establishment, including without limitation claims related to personal injury, death, or any other tortious conduct of you or your agents; and (v) any breach of contract or other legal claims arising between you and the Customer regarding a Customer’s interaction with you.
You agree to comply with all applicable government trade and export control laws and regulations with respect to the System. You agree that the System will not be transferred or exported into any country or used in any manner prohibited by any applicable laws in any jurisdiction.
Each party acknowledges that if it breaches any obligations or undertakings contained in this Agreement, the other party may suffer immediate and irreparable harm for which there may be no adequate remedy at law, and in addition to all other remedies, the injured party shall be entitled to specific performance and injunctive relief and any other appropriate equitable remedies to prevent a threatened breach or to correct an actual breach and to enforce this Agreement. Unless otherwise set forth in this Agreement, such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of the provisions of this Agreement shall remain in full force and effect. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. Freebird Rides shall not be liable for failing or delaying performance of its obligations and/or failure of operation of the System and/or failure to grant the Services resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles and without regard to the United Nations Convention on Contracts for the International Sale of Good. Any legal action or proceeding relating to this Agreement shall be instituted exclusively in any state or federal court in the State of California. The parties agree to submit to the jurisdiction of, and agree that venue is proper in, the aforesaid courts in any such legal action or proceeding. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. This Agreement and any exhibit or schedule thereto including a Service Order, sets forth the entire understanding and agreement between you and Freebird Rides, it supersedes any prior proposal, representation and understanding concerning the System, and may be amended only in writing signed by both parties, except as provided herein. If you are a corporation, partnership or similar entity, then the license to use the System granted hereunder is deemed to be accepted by a person authorized to sign for and bind the entity. Except as expressly permitted hereunder, any attempt by you to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void ab initio. This Agreement shall be binding upon and inure to the benefit of each party’s heirs and legal representatives. Neither party may assign or subcontract its rights under this Agreement without the prior written consent of the other party; provided, however, that each party may assign this Agreement to (A) any legal entity or company which either party directly or indirectly (i) owns or controls, (ii) is owned or controlled by or (iii) is under common ownership or control with, or (B) a successor in a merger, acquisition or other consolidation including, without limitation, the sale of all or substantially all of its stock or assets, or business to which this Agreement applies. There are no third party beneficiaries to this Agreement.