BLACKBIRD DOES NOT PROVIDE AIR TRANSPORTATION AS AN FAA CERTIFICATED DIRECT AIR CARRIER OR AIR OPERATOR (I.E. A PART 135 OPERATOR); BLACKBIRD DOES NOT OWN, MAINTAIN, OR OPERATE AIRCRAFT AND DOES NOT DIRECTLY EMPLOY FLIGHT CREW. BLACKBIRD MAY ACT AS AN AGENT TO USERS OR AN AGENT TO PART 135 AIR CARRIERS OR OPERATORS. YOU AGREE THAT THE SERVICES, AIRCRAFT AND RELATED ASSETS PROVIDED BY A THIRD-PARTY PROVIDER, WHETHER OR NOT ARRANGED OR HIRED THROUGH THE PLATFORM (“TRANSPORTATION-RELATED SERVICES”) ARE THE RESPONSIBILITY OF THAT THIRD-PARTY PROVIDER, AND THAT IN ALL CASES BLACKBIRD’S LIABILITY TO YOU SHALL BE LIMITED AS SET FORTH IN SECTION 13.
These Terms provide that all disputes between you and BlackBird will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except with respect to matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 23 for the details regarding your agreement to arbitrate any disputes with BlackBird.
1. BlackBird Platform Overview. The Platform provides a marketplace that enables users to (a) connect with and lease aircraft from third parties that own, lease, or otherwise control aircraft (“Aircraft Providers”) and to find and hire flight crews (“Flight Crews”), (b) join flights with third-party operators or other BlackBird users on the Platform (“Third-Party Operators”), (c) book a flight with an on-demand or scheduled service FAA-certificated and Department of Transportation-authorized Part 135 air operator, or (d) request and book a single entity charter. Third-Party Operators, Aircraft Providers, Flight Crews, and BlackBird users are collectively referred to in these Terms as “Third-Party Providers”.
2. Eligibility. You must be at least 18 years of age to use the Platform. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Platform; and (c) your registration and your use of the Platform will not violate any law or regulation. If you are a parent or legal guardian of a minor using the Platform, you agree to be bound by these Terms in respect of such minor’s use of the Platform.
3. Accounts and Registration
3.2 Account Security. When you register an account, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com.
4.1 Limited License. Subject to your complete and ongoing compliance with these Terms, BlackBird grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Platform obtained from a legitimate marketplace (e.g., Apple Store or Google Play) on a mobile device that you own or control; and (b) access and use the Platform.
4.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Platform; (b) make modifications to the Platform; or (c) interfere with or circumvent any feature of the Platform, including any security or access control mechanism. If you are prohibited under applicable law from using the Platform, you may not use it.
5. Services; Cancellations; Documentation
5.1 Services. You may use the Platform to search for services with Third-Party Providers, arrange a new service by leasing an aircraft from an Aircraft Provider or hire Flight Crew to operate the aircraft. By booking any service, arranging or boarding a flight, or otherwise receiving Transportation-Related Services, you agree to abide by User Terms and Conditions (available here).
5.2 Service Options. When you arrange a service by leasing an aircraft or hiring Flight Crew through the Platform, you may have the option to designate the flight as a community flight or a private flight. If you choose to make your flight a community flight, you agree to be bound by the terms of the Community Flight Agreement and acknowledge that BlackBird may make the flight available to other members of the BlackBird community. As the creator of the flight, you maintain operational control, as set forth in the Aircraft Lease Agreement and cannot be compensated by BlackBird or such other community members. If you elect to make your flight a private flight, other users of the Platform will not be able to join the flight and additional fees and service charges may apply, which will be displayed to you during the checkout process.
5.3 Cancellations. A flight may occasionally be cancelled due to circumstances beyond your control, including in cases of governmental action or severe weather. In the event of such cancellation, we will notify you promptly and provide you with a refund in accordance with our cancellation policy (available here), as may be updated from time to time. You may also submit a request through the Platform to cancel a flight. We will accept or deny the cancellation request in accordance with our cancellation policy, and BlackBird will notify you if your cancelation is eligible for a refund.
5.4 Documentation. You may be required to possess and produce certain documents, including valid government-issued photo identification, prior to participating in booked services. If you are unable to produce such documents upon request by BlackBird or a Third-Party Provider, then you will not be permitted to utilize the services, which may be canceled without refund.
5.5 Security Screening. Prior to boarding, you may be required to submit to a security screening. By submitting a booking request, arranging a flight, or seeking to board a flight, you agree that you and your possessions may be subject to a security screening as a condition to boarding the flight. If you do not clear the security screening or if you refuse to follow the security screening procedures, you will not be permitted to board the aircraft, and your reservation may be canceled without refund.
5.6 Medically Fit to Travel. You must be medically fit to travel via aircraft. As a condition to boarding the flight, you represent and warrant that you are medically fit to travel, and you accept responsibility and liability for any personal health conditions that may arise as a result of flying.
6. Payment. You may be required to pay fees for services requested through the Platform (“Fees”). Before you pay any Fees, you will have an opportunity to review and accept the Fees that you will be charged. All Fees are in U.S. dollars and are refundable only as set forth in Section 5.3. You authorize BlackBird to charge such Fees to the payment method you specify at the time of purchase. If you pay any Fees with a credit card, we may seek pre-authorization of your credit card account prior to your purchase. To the extent any portion of the Fees includes amounts payable to Flight Crew (pursuant to the Pilot Services Agreement) or Aircraft Providers (pursuant to the Aircraft Lease Agreement) (such amounts “Provider Fees”), you authorize BlackBird to collect the Provider Fees from you and remit such Provider Fees to the Flight Crew or Aircraft Provider, as applicable, in accordance with this Section 6. All payments are nonrefundable, except as set forth in Section 5.3.
7. Mistaken Fees and Fares. BlackBird reserves the right to cancel bookings that were issued with erroneous pricing due to a technical failure or other mistake (such fees, “Mistaken Fees”). BlackBird may cancel such booking any time prior to service, notify you of the same, and refund the total amount of the Mistaken Fees you paid in respect of such canceled booking.
8. Prohibited Conduct. YOU AGREE NOT TO:
8.1 use the Platform for any illegal purpose, or in violation of any local, state, national, or international law or regulation;
8.2 violate any right of BlackBird or a third party, including by infringing or misappropriating any intellectual property right;
8.3 perform any fraudulent activity including (a) providing any false personal information to BlackBird, (b) creating a false identity or impersonating any other person in any way, (c) making a booking for the purpose of holding or blocking seats in order to obtain lower fares, or making any booking that is otherwise abusive, (d) claiming a false affiliation or (e) accessing any other Platform account without permission;
8.4 copy, distribute, relist, display, mirror, frame or otherwise embed the Platform, or any portion thereof, in or through any other application or website without first obtaining BlackBird’s express written consent;
8.5 solicit personal information from other users of the Platform;
8.6 interfere with security-related features of the Platform, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Platform except to the extent that the activity is expressly permitted by applicable law;
8.7 interfere with the operation of the Platform or any user’s enjoyment of the Platform, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Platform; (c) collecting personal information about another user or third party without consent; or (d) interfering with, intruding into, or disrupting any network, equipment, or server connected to or used to provide the Platform;
8.8 sell or otherwise transfer (a) the access granted under these Terms, (b) any services you have arranged via the Platform, (c) any Materials (as defined in Section 18), or (d) any right or ability to view, access, or use any Materials; or
8.9 attempt to do any of the acts described in this Section 8, or assist, encourage, permit, or request any third party to engage in any of the acts described in this Section 8.
9. User Content
9.1 User Content Generally. Certain features of the Platform may permit users to upload content to the Platform, including messages, reviews, photos, video, images, data, text, and other types of works (“User Content”) and to publish User Content on the Platform. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Platform.
9.2 Limited License Grant to BlackBird. By providing User Content to or via the Platform, you grant BlackBird a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed, including for the purposes of promoting BlackBird and the Platform.
9.3 Limited License Grant to Other Users. By providing User Content to or via the Platform, you grant other users of the Platform a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Platform.
9.4 User Content Representations and Warranties. BlackBird disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Platform. By providing User Content via the Platform, you affirm, represent, and warrant that:
(i) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize BlackBird and users of the Platform to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by BlackBird, the Platform, and these Terms;
(ii) your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause BlackBird to violate any law or regulation; and
(iii) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, hateful, or otherwise inappropriate.
9.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. BlackBird may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Platform, you may be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against BlackBird with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, BlackBird does not permit copyright-infringing activities on the Platform.
10. Digital Millennium Copyright Act
10.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Platform, you may contact our Designated Agent at the following address:
BlackBird Air Inc.
ATTN: Ruddman Davis
333 Kearny Street
San Francisco, CA 94108
Any notice alleging that materials hosted by or distributed through the Platform infringe intellectual property rights must include the following information:
(i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(ii) a description of the copyrighted work or other intellectual property that you claim has been infringed;
(iii) a description of the material that you claim is infringing and where it is located on the Platform;
(iv) your address, telephone number, and email address;
(v) a statement by you that you have a good faith belief that the use of the materials on the Platform of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
(vi) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
10.2 Repeat Infringers. BlackBird will promptly terminate the accounts of users that are determined by BlackBird to be repeat infringers.
11. Termination of Use; Discontinuation and Modification of the Platform. You may terminate your account at any time by contacting us at firstname.lastname@example.org. If you terminate your account, you remain obligated to pay any outstanding Fees incurred prior to termination. If you violate any of these Terms at any time, then you no longer have our permission to use the Platform, notwithstanding any permission granted elsewhere in these Terms. In addition, we may terminate your user account on the Platform or suspend or terminate your access to the Platform at any time, for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Platform or any of its features at any time, temporarily or permanently, without notice. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform.
12. Disclaimers; No Warranties
THE PLATFORM AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND THE BLACKBIRD ENTITIES (AS DEFINED IN SECTION 14) DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE BLACKBIRD ENTITIES DO NOT PROVIDE TRANSPORTATION SERVICES, AND ARE NOT DIRECT OR INDIRECT AIR CARRIERS OR OPERATORS. IT IS THE RESPONSIBILITY OF THE APPLICABLE THIRD-PARTY PROVIDER TO PROVIDE THE TRANSPORTATION-RELATED SERVICES. THE PLATFORM PROVIDES INFORMATION AND A MEANS OF OBTAINING TRANSPORTATION-RELATED SERVICES FROM THIRD-PARTY PROVIDERS, BUT DOES NOT, AND WILL NOT BE DEEMED TO, PROVIDE SUCH TRANSPORTATION-RELATED SERVICES, OR ACT IN ANY WAY AS A TRANSPORTATION CARRIER. CERTAIN INFORMATION ACCESSIBLE THROUGH THE PLATFORM, INCLUDING FLIGHT-RELATED INFORMATION (IF ANY), IS MADE AVAILABLE BY THIRD-PARTY PROVIDERS; AND WITHOUT LIMITING THE OTHER PROVISIONS OF THIS SECTION 12. THE BLACKBIRD ENTITIES DO NOT CONTROL, AND MAKE NO WARRANTIES CONCERNING, SUCH INFORMATION. AS SET FORTH IN SECTION 13, THE BLACKBIRD ENTITIES HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSPORTATION-RELATED SERVICES PROVIDED TO YOU BY SUCH THIRD PARTIES.
THE BLACKBIRD ENTITIES DO NOT WARRANT THAT THE PLATFORM OR ANY PORTION OF THE PLATFORM, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE PLATFORM, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE, INFORMATION, MATERIALS, OR CONTENT, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BLACKBIRD OR THE PLATFORM, WILL CREATE ANY WARRANTY REGARDING ANY OF THE BLACKBIRD ENTITIES OR THE PLATFORM THAT IS NOT EXPRESSLY STATED IN THESE TERMS, AND NO AGENT OR EMPLOYEE OF BLACKBIRD IS AUTHORIZED TO MAKE ANY WARRANTY OR GUARANTEE EXCEPT AS SET FORTH IN THE TERMS OF THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT FLYING IS INHERENTLY DANGEROUS AND MAY LEAD TO SERIOUS INJURY OR DEATH, AND YOU AGREE TO ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR DEALING WITH ANY OTHER PLATFORM USER OR YOUR USE OF OR ACCESS TO THE PLATFORM AND ANY MATERIALS OR CONTENT AVAILABLE ON THE PLATFORM. YOU USE AND ACCESS THE PLATFORM, ANY MATERIALS OR CONTENT AVAILABLE ON THE PLATFORM, AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR OTHER EQUIPMENT USED IN CONNECTION WITH THE PLATFORM), OR LOSS OF DATA RESULTING FROM USE OF OR ACCESS TO THE PLATFORM AND MATERIALS OR CONTENT AVAILABLE ON THE PLATFORM.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. BlackBird does not disclaim any warranty or other right that BlackBird is prohibited from disclaiming under applicable law.
13. Limitation of Liability
13.1 NO CONSEQUENTIAL DAMAGES. IN NO EVENT WILL THE BLACKBIRD ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) RELATED TO THIS AGREEMENT OR THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, EVEN IF THE BLACKBIRD ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT AS PROVIDED IN SECTION 23.4(ii), THE AGGREGATE LIABILITY OF THE BLACKBIRD ENTITIES TO YOU FOR ALL MATTERS ARISING OUT OF THIS AGREEMENT OR RELATED TO THE PLATFORM IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO BLACKBIRD FOR ACCESS TO AND USE OF THE PLATFORM IN THE 12 MONTHS PRIOR TO THE EVENTS OR CIRCUMSTANCES GIVING RISE TO CLAIMS; OR (B) $100.
13.2 TRANSPORTATION-RELATED SERVICES. THE QUALITY OF THE TRANSPORTATION-RELATED SERVICES IS THE SOLE RESPONSIBILITY OF THE THIRD-PARTY PROVIDER WHO ULTIMATELY PROVIDES SUCH TRANSPORTATION-RELATED SERVICES TO YOU, INCLUDING PURSUANT TO THE APPLICABLE AGREEMENT BETWEEN YOU AND SUCH THIRD-PARTY PROVIDER. YOU UNDERSTAND THAT BY USING THE PLATFORM, YOU MAY BE EXPOSED TO ACTIVITIES THAT ARE POTENTIALLY DANGEROUS, HARMFUL, OR OTHERWISE UNSAFE AND THAT YOU USE THE PLATFORM AT YOUR OWN RISK. IN NO EVENT WILL THE BLACKBIRD ENTITIES 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 SERVICES OF OR ASSETS PROVIDED BY THIRD-PARTY PROVIDERS, INCLUDING WITHOUT LIMITATION, DEATH, BODILY INJURY, OR EMOTIONAL DISTRESS.
13.3 EXCEPTIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
13.4 COMPLIANCE WITH LAWS AND REGULATIONS. BLACKBIRD MAY CONNECT YOU WITH THIRD-PARTY PROVIDERS WHO PROVIDE YOU WITH TRANSPORTATION-RELATED SERVICES, BUT BLACKBIRD DOES NOT ASSESS THE SUITABILITY, LEGALITY, OR SKILL OF ANY THIRD-PARTY PROVIDER TO PROVIDE THOSE SERVICES. IN PARTICULAR, BLACKBIRD WILL NOT BE RESPONSIBLE FOR ANY LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO A THIRD-PARTY PROVIDER’S FAILURE TO (1) MAINTAIN A CURRENT LICENSE AND/OR PERMIT, OR (2) OTHERWISE COMPLY WITH ALL APPLICABLE LAWS OR REGULATIONS. BLACKBIRD WILL NOT BE A PARTY TO DISPUTES, OR NEGOTIATIONS RELATED TO DISPUTES, BETWEEN YOU AND ANY THIRD-PARTY PROVIDER. RESPONSIBILITY FOR THE DECISIONS YOU MAKE WHEN YOU ENGAGE A THIRD-PARTY PROVIDER THROUGH THE PLATFORM RESTS SOLELY WITH YOU.
13.5 DISPUTES WITH THIRD PARTIES. ANY DISPUTE YOU HAVE WITH A THIRD-PARTY IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE BLACKBIRD ENTITIES 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.
13.6 WAIVER. YOU HEREBY WAIVE AND RELINQUISH ANY RIGHT OR BENEFIT WHICH YOU MAY HAVE UNDER SECTION 1542 OF THE CALIFORNIA CIVIL CODE (OR ITS EQUIVALENTS UNDER THE LAWS OF ANY STATE OR OTHER JURISDICTION) WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXISTS IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR”.
13.7 ALLOCATION OF RISK. THE PROVISIONS OF SECTION 12 AND THIS SECTION 13 ALLOCATE RISKS BETWEEN THE PARTIES, AND BLACKBIRD’S PRICING REFLECTS THIS ALLOCATION. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Indemnity. You are responsible for your use of the Platform and any Transportation-Related Services you receive, and you will defend and indemnify BlackBird and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “BlackBird Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Platform; (b) your breach of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or violation of any applicable law or regulation; (c) any dispute or issue between you and any third party, including any Third-Party Provider; (d) Transportation-Related Services received by you, whether or not arranged or hired through the Platform. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
15. Third-Party Services and Linked Websites. BlackBird may provide tools on the Platform that enable you to export information to third party services, including features that allow you to link your account on the Platform with an account on a third party service, such as Twitter or Facebook, or our implementation of third party buttons (such as “like” or “share” buttons). By using any of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Platform may also contain links to third-party websites. Such websites are not under our control and we are not responsible for their content.
17. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Platform. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was effective at the time the dispute arose.
18. Ownership; Proprietary Rights. The Platform is owned and operated by BlackBird. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Platform (“Materials”) provided by BlackBird are protected by intellectual property and other laws. All Materials are the property of BlackBird or our third-party licensors. BlackBird reserves all rights to the Materials not expressly granted in these Terms.
19. Feedback. If you choose to provide us with input and suggestions regarding problems with or proposed modifications or improvements to the Platform (“Feedback”), then you hereby grant BlackBird a perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Platform and create other products and services.
20. Governing Law. These Terms are governed by the substantive and procedural laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and BlackBird agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts with jurisdiction over Santa Clara County, California for the purpose of litigating any dispute.
21. Force Majeure. BlackBird shall not be liable for any default or delay in the performance of its obligations under these Terms to the extent its performance is delayed or prevented due to causes beyond its reasonable control, such as acts of God, natural disasters, terrorist acts, war or other hostilities, labor disputes, civil disturbances, the actions or omissions of third parties, electrical or communication system failures, or governmental action.
23. Dispute Resolution and Arbitration
23.1 Generally. In the interest of resolving disputes between you and BlackBird in the most expedient and cost effective manner, and except as described in Section 23.2, you and BlackBird agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BLACKBIRD ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
23.2 Exceptions. Despite the provisions of Section 23.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
23.3 Arbitrator. Any arbitration between you and BlackBird will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting BlackBird. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
23.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). BlackBird's address for Notice of Arbitration is: BlackBird Air Inc., c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or BlackBird may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or BlackBird must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by BlackBird in settlement of the dispute prior to the award, BlackBird will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
23.5 Fees. If you commence arbitration in accordance with these Terms, BlackBird will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse BlackBird for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
23.6 No Class Actions. YOU AND BLACKBIRD AGREE THAT EACH 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, unless both you and BlackBird agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
23.7 Modifications to this Arbitration Provision. If BlackBird makes any future change to this arbitration provision, other than a change to BlackBird's address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to BlackBird's address for Notice of Arbitration, in which case your account with BlackBird will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
23.8 Enforceability. If Section 23.6 is found to be unenforceable or if the entirety of this Section 23 is found to be unenforceable, then the entirety of this Section 23 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 20 will govern any action arising out of or related to these Terms.
25. Contact Information. The Platform is offered by BlackBird Air Inc., located at BlackBird Air Inc., c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
26. Notice Regarding Apple. To the extent that you use our mobile applications on an iOS device, the terms of this Section 26 apply. You acknowledge that these Terms are between you and BlackBird only, not with Apple, and Apple is not responsible for the Platform or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Platform. If the Platform fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Platform. Apple is not responsible for addressing any claim by you or any third party relating to the Platform or your possession or use of the Platform, including: (a) product liability claims; (b) any claim that the Platform fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Platform or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Platform. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you. 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.