Last Updated: May 2012
THIS AGREEMENT, AS MAY BE AMENDED FROM TIME TO TIME, CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (“YOU”) AND SAPIENT CORPORATION (“SAPIENT”). YOUR USE OF FlySmart SHALL CONSTITUTE YOUR ACCEPTANCE OF AND AGREEMENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY (OR CANNOT COMPLY WITH) ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ATTEMPT TO ACCESS OR USE FlySmart.
By using FlySmart or any element thereof, you represent that you have read and understood this Agreement and agree to be bound by its terms and conditions. You acknowledge that this Agreement and its terms herein are solely between Sapient and you. Except as otherwise expressly set forth herein, Sapient, not any of the wireless carriers and/or device manufacturers, is solely responsible for FlySmart and the content thereof, subject to the terms and conditions herein.
Sapient may from time to time amend the terms of this Agreement, in its sole discretion, and will notify you by posting such amended Agreement at http://www.ionosplatform.com and/or the app store from which you initially accessed FlySmart. Your continued use of FlySmart following the posting of any amendment will be deemed your acceptance of the amended Agreement. If you do not agree to be bound by (or cannot comply with) the Agreement as amended, your only remedy is to cease to use FlySmart.
(i) Service. You may use FlySmart only in accordance with the terms and conditions of this Agreement and any amendments as well as any additional terms that may be presented in connection with any particular feature or function of FlySmart. FlySmart is made available to you for your personal use. You understand and agree that you may not transmit or re-transmit, broadcast or re-broadcast or make any commercial use of FlySmart, including the Downloads, for any reason without Sapient’s express prior written approval. In addition, you may not attempt (or authorize, encourage or support others’ attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with FlySmart, including the Downloads and underlying platform technology. You agree to advise Sapient promptly of any such unauthorized use(s) or attempt(s). This Agreement and the rights granted to you herein do not permit you to use FlySmart on any Wireless Device that you do not own or control, nor shall you distribute or make available FlySmart over a network where it may be used by multiple devices at the same time. FlySmart IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
SAPIENT DOES NOT PROMOTE, RECOMMEND OR CONDONE USE OF FlySmart DURING CERTAIN ACTIVITIES, SUCH AS AUTOMOBILE DRIVING, WHERE THERE IS RISK OF ACCIDENT, PERSONAL INJURY, PROPERTY DAMAGE OR DEATH. YOU AGREE NOT TO USE FlySmart DURING SUCH ACTIVITIES, AND WARRANT, REPRESENT AND CERTIFY TO SAPIENT THAT YOU WILL NOT DO SO.
(ii) Downloads. FlySmart may make available to you certain downloadable content, elements, features, information and applications that you may be permitted to download to your Wireless Device through FlySmart (collectively, the “Downloads”). You understand and acknowledge that the Downloads made available as part of FlySmart are owned by Sapient, its business partners, affiliates and/or licensors, as applicable, and are protected by intellectual property laws. Sapient grants you a limited, non-exclusive, non-transferable, revocable right to download the Downloads to your compatible Wireless Device solely for your own non-commercial use. You understand and agree that you may not download, reproduce, modify, display, perform, transfer, distribute or otherwise use the Downloads except as expressly provided in this Agreement. You understand and agree that you may not authorize, encourage or allow any Downloads used or obtained by you to be reproduced, modified, displayed, performed, transferred, distributed or otherwise used by any other party, and you agree that you will take all reasonable steps to prevent any unauthorized reproduction and/or other use of them. You further acknowledge that select Downloads may not be available in all areas, and as a result, you may not be able to access all Downloads and related applications that are otherwise available to users of FlySmart.
(iii) Availability of FlySmart. FlySmart is generally available 24 hours a day, 7 days a week. Sapient reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, FlySmart (or any element or feature thereof) with or without notice to you. Neither Sapient nor Sapient Entities (defined below) shall be liable for any damages arising from any interruption, suspension, or termination of FlySmart. In the event Sapient’s right to make certain Downloads, applications and tools available to you over FlySmart expires, Sapient is not be required to deliver to you the license necessary to play back, utilize and deploy any such Downloads, applications and tools after the end of the period in which such rights expire. If Sapient ceases making any such rights available, you shall cease to use the applicable Downloads immediately.
(iv) Customer Support. Please direct any questions concerning FlySmart to Sapient by e-mail at: email@example.com. You acknowledge that Sapient is solely responsible for addressing any customer and technical support issues that arise in connection with your use of FlySmart. The foregoing notwithstanding, you are not entitled to, nor is Sapient warranting that you will receive any updates, upgrades, or corrections to FlySmart, nor any particular support services.
(v) Government Users. FlySmart and its related documentation and materials are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
(vi) Communicating with FlySmart and Sapient. When you use FlySmart and/or communicate with Sapient in any manner, you are communicating electronically. You consent to receive communications from Sapient by electronic means, which may include electronic mail, posting notices on Sapient websites or applications, SMS text messages or other means selected and used by Sapient from time to time. You agree that all agreements, notices, disclosures and other communications that Sapient provides to you electronically satisfy any legal requirement that such communications be in writing.
(vii) Hardware, Equipment and Internet Access. You are responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access or otherwise use FlySmart, including, without limitation, compatible Wireless Devices and other hardware devices, software, and other Internet, wireless, broadband, phone or other mobile communication device connection services. You are responsible for ensuring that such equipment or ancillary services are compatible with FlySmart and you are responsible for all charges incurred in connection with use of FlySmart in connection with all such equipment and ancillary services. When Internet access is not available and/or if your Wireless Device is not otherwise compatible for any reason, FlySmart will have limited functionality. Without limiting the generality of the foregoing, you acknowledge that your use of FlySmart may cause you to incur third party (e.g., your wireless Internet access or telephone provider) fees or charges in connection with your use of data, messaging and other wireless access. Check with your wireless access provider to verify whether any such fees or charges may apply to you. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS OR USE FlySmart, OR ANY OTHER APPLICATION OR SERVICE THROUGH THE SOFTWARE ON YOUR MOBILE DEVICE.
Sapient is not responsible to you for any content or materials constituting all or part of FlySmart that you might find objectionable.
Sapient makes no representations that FlySmart is appropriate or available for use in any location outside the United States. Those who access or use FlySmart from other jurisdictions are entirely responsible for compliance with all local laws. By using FlySmart, you hereby agree to abide by United States, Canadian and other applicable export control laws. You acknowledge that neither FlySmart nor any of its underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country subject to a United States embargo, or (ii) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. By using FlySmart you are agreeing to the foregoing and are representing and warranting that (i) no United States federal agency has suspended, revoked, or denied your export privileges, (ii) you are not located in or under the control of a national or resident of any such country or on any such list, and (iii) you will not export or re-export FlySmart to any prohibited country, or to any prohibited person, entity, or end-user as specified by United States export controls. You are further responsible for complying with all trade regulations and laws, both foreign and domestic.
(i) General. FlySmart contains or comprises materials protected by copyright and other intellectual property rights that are owned by Sapient and/or one or more of the Sapient Entities. Your rights with respect to your use of the same are governed by all the terms and conditions of this Agreement, all applicable laws, including but not limited to, intellectual property laws, and any applicable end-user license agreements. For the avoidance of doubt, your use of FlySmart is strictly under license, and you will not obtain any ownership interest in or to FlySmart through this Agreement or otherwise. Nothing in this Agreement constitutes a waiver of Sapient’s rights under United States or international copyright law or any other federal or state law. THE USE OF FlySmart OR ANY PART THEREOF, EXCEPT FOR USE AS EXPRESSLY PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.
(ii) Notices. Sapient respects the intellectual property rights of others, and it expects you to do the same. If you know of or suspect that any third party user’s use of FlySmart constitutes copyright infringement, please send a notice to Sapient via email to firstname.lastname@example.org.
FlySmart is a trademark of Clear Channel Outdoor, Inc. All other trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with FlySmart are the property of Sapient and/or the Sapient Entities, or have been properly licensed to Sapient for use in connection with FlySmart. Any trademarks, service marks, logos and other inidica of origin that relate to the iPhone or other Apple products are the exclusive property of Apple, and those which relate to Blackberry are the exclusive property of RIM, those which relate to Android are the exclusive property of Google, and those which relate to Bing are the exclusive property of Microsoft. Other trademarks that are adopted from time to time by Sapient and used in connection with FlySmart are those of its rightful owner. You may not copy, display or use any of these marks without prior written permission of the applicable mark owner.
If Sapient: (a) receives a notice alleging that you have engaged in any form of infringing behavior, or (b) reasonably suspects that your use of FlySmart violates Sapient’s or others’ intellectual property rights, Sapient may, in its sole discretion, suspend or terminate your use of FlySmart with or without notice to you. If Sapient suspends or terminates your access to FlySmart under this paragraph or otherwise, it shall have no liability or responsibility to you. Any unauthorized use terminates the permission or license granted hereunder by Sapient.
Sapient and/or its business partners may present advertisements and promotional materials on or through FlySmart. Your participation in any promotional event is subject to the terms and conditions associated with that event. Your correspondence or business dealings with, or participation in promotions of, any third-party advertisers on or through FlySmart, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You agree that neither Sapient nor Sapient Entities or its business partners shall be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on FlySmart.
FlySmart may present links to retailers and/or other third-party websites not owned or operated by Sapient. These links are provided only as a convenience to you. Neither Sapient nor any of the Sapient Entities are responsible for the availability of these outside websites or their contents. You understand and agree that neither Sapient nor Sapient Entities are responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such website or goods or services available through any such website. You should direct any concerns regarding these third-party websites to those websites’ administrators.
You understand and agree that any unauthorized use of FlySmart would result in irreparable injury to Sapient and/or the Sapient Entities for which money damages would be inadequate, and in such event Sapient and/or the Sapient Entities, as applicable, shall have the right, in addition to other remedies available at law and in equity, to obtain immediate injunctive relief against you. Nothing contained in this paragraph or elsewhere in this Agreement shall be construed to limit remedies or relief available pursuant to statutory or other claims that Sapient and/or the Sapient Entities may have under separate legal authority, including but not limited to, any claim for intellectual property infringement.
You agree to indemnify and hold harmless Sapient and the Sapient Entities from and against any and all claims, actions, demands, causes of action and other proceedings arising from or concerning your use and/or alleged use of any aspect of FlySmart (collectively “Claims”), and to reimburse Sapient on demand for any losses, costs, judgments, fees, fines and other expenses incurred (including attorneys' fees and court costs) as a result of any Claims.
(i) Disclaimer. You understand and agree that your use of FlySmart is at your own sole risk. FlySmart IS PROVIDED “AS IS” AND WITHOUT WARRANTY BY SAPIENT OR ITS AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS, AND/OR SUPPLIERS (COLLECTIVELY, THE “SAPIENT ENTITIES”), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, SAPIENT AND THE SAPIENT ENTITIES, AS APPLICABLE, EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT. THERE IS NO WARRANTY THAT FlySmart WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE. SAPIENT AND/OR THE SAPIENT ENTITIES, AS APPLICABLE, DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF FlySmart WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. YOU WILL NOT HOLD SAPIENT AND/OR THE SAPIENT ENTITIES, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING FlySmart OR USING FlySmart INCLUDING, BUT NOT LIMITED TO, ANY INFECTIONS OR CONTAMINATIONS OF YOUR DEVICES YOU USE TO ACCESS THE SAME OR TO TRANSFER DOWNLOADS THAT MAY RESULT FROM THAT USE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO SAPIENT AND/OR THE SAPIENT ENTITIES AS APPLICABLE. IN ADDITION, UNDER NO CIRCUMSTANCES SHALL SAPIENT AND/OR THE SAPIENT ENTITIES AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF FlySmart.
(ii) Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL SAPIENT AND/OR THE SAPIENT ENTITIES AS APPLICABLE, BE LIABLE TO YOU FOR ANY (i) CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, or (ii) DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, OR ANY SIMILAR DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE FlySmart, EVEN IF SAPIENT AND/OR THE SAPIENT ENTITIES AS APPLICABLE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, SAPIENT AND/OR THE SAPIENT ENTITIES AS APPLICABLE, SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED $100. IN NO EVENT SHALL SAPIENT’S AND/OR THE SAPIENT ENTITIES’, AS APPLICABLE, TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING FROM OR RELATED TO THIS AGREEMENT, FlySmart, OR YOUR INABILITY TO USE FlySmart EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING FlySmart.
(i) UN Convention of Contracts. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
(ii) Choice of Law; Venue. The laws of the Commonwealth of Massachusetts, excluding its conflicts-of-law rules, govern this Agreement and your use of FlySmart. You expressly agree that the courts in the Commonwealth of Massachusetts have exclusive jurisdiction over any claim or dispute with Sapient or relating in any way to your account or your use of FlySmart. You further agree and expressly consent to personal jurisdiction over you in the federal and state courts of Massachusetts in connection with any such dispute including any claim involving Sapient or any of the Sapient Entities.
(iii) Awards to China Residents. If you are located in the Peoples Republic of China, and in the event that an award granted by a court of competent jurisdiction in Commonwealth of Massachusetts is not at the relevant time recognized or enforceable through the courts of the Peoples Republic of China you agree that Sapient may, in its sole discretion, choose to pursue any dispute or claim by way of arbitration through the Arbitration Committee of China International Economic Cooperation and Trade. Both parties will accept and abide by the ruling of such arbitration and both parties shall agree that Chinese law shall apply to the explanation, implementation and dispute settlement of this Agreement and any arbitration ruling. Nothing herein shall prevent Sapient from applying to the courts of the Peoples Republic of China for injunctive or other interim relief.
This Agreement and any other terms or documents referred to herein represent your entire agreement with Sapient with respect to your use of FlySmart. You understand and agree that, except as expressly set forth herein, this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Sapient’s failure to pursue any available claim or defense pursuant to this Agreement or otherwise will not be a waiver of such claim or defense. The headings used in this Agreement are for convenience only, and will have no effect on the interpretation or legal enforceability of the terms herein.
Copyright (c) 2012 Sapient Corporation and/or its suppliers. 131 Dartmouth Street, Boston, MA 02116. This product may incorporate one or more pending patents. All rights reserved. Sapient is a registered trademark of Sapient Corporation, and IONOS is a trademark of Sapient Corporation.