BLACKBIRD IS NOT AN FAA LICENSED PART 135 OPERATOR OR A DIRECT OR INDIRECT AIR CARRIER. YOU AGREE THAT IF YOU BOOK A FLIGHT VIA THE PLATFORM, THEN (A) BLACKBIRD MAY ACT AS YOUR AGENT IN ARRANGING SUCH FLIGHT WITH AN INDEPENDENT, LICENSED AIR CARRIER, AND (B) BLACKBIRD’S LIABILITY TO YOU SHALL BE LIMITED AS SET FORTH IN SECTION 10.
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 20 for the details regarding your agreement to arbitrate any disputes with Blackbird.
Your Information. To use the Platform, you must register an account. When you register an account or ask that we assist you in booking a flight offered by a Third-Party Provider, you may be required to provide us with some information about yourself or the person who will be flying, such as a name, date of birth, photograph, information from government identification documents, certain vital information like weight and height, mailing address, email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times.
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.
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.
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.
Reservations. When you use the Platform to view information about a flight or send a booking request to a Third-Party Provider, you will be able to see a flight’s points of departure and arrival, as well as a date and time.
Cancellations. A Third-Party Provider may occasionally cancel a booked flight due to circumstances beyond their control, examples of which are set forth in Section 18 and include governmental action or severe weather. If a booked flight is cancelled by a Third-Party Provider, we will notify you promptly (via the Blackbird mobile app or to your then-current contact information listed in your account) and you will have the option to receive either a full refund or credit towards your next booking. You may also submit a request through the Platform to cancel a booked flight at any time and for any reason. We will notify you if your cancelation is eligible for a refund.
Documentation. The Third-Party Provider with whom you have booked a flight will require you to possess and produce certain documents, including a valid government-issued photo identification, prior to embarking on such flight. If you are unable to produce such documents upon request by Blackbird or the Third-Party Provider, then you will not be permitted to embark and your reservation may be canceled without refund.
use the Platform for any illegal purpose or in violation of any local, state, national, or international law or regulation;
violate any right of Blackbird or a third party, including by infringing or misappropriating any intellectual property right;
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;
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;
solicit personal information from other users of the Platform;
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;
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;
sell or otherwise transfer (a) the access granted under these Terms, (b) any ticket you have booked via the Platform, (c) any Materials (as defined in Section 15), or (d) any right or ability to view, access, or use any Materials; or
attempt to do any of the acts described in this Section 7, or assist, encourage, permit, or request any third party to engage in any of the acts described in this Section 7.
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 11) 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 AIR CARRIERS OR OPERATORS. IT IS THE RESPONSIBILITY OF THE APPLICABLE THIRD-PARTY PROVIDER OR AIRCRAFT OPERATOR TO OFFER THE TRANSPORTATION SERVICES THAT YOU SCHEDULE USING THE PLATFORM. THE PLATFORM PROVIDES INFORMATION AND A MEANS OF OBTAINING TRANSPORTATION SERVICES FROM THIRD-PARTY PROVIDERS, BUT DOES NOT, AND IS NOT INTENDED TO, PROVIDE TRANSPORTATION SERVICES OR ACT IN ANY WAY AS A TRANSPORTATION CARRIER. CERTAIN INFORMATION ACCESSABLE THROUGH THE PLATFORM, INCLUDING FLIGHT-RELATED INFORMATION, IS MADE AVAILABLE BY THIRD-PARTY PROVIDERS AND WITHOUT LIMITING THE OTHER PROVISIONS OF THIS SECTION 9 THE BLACKBIRD ENTITIES DO NOT CONTROL, AND MAKE NO WARRANTIES CONCERNING, SUCH INFORMATION. AS SET FORTH IN SECTION 10, THE BLACKBIRD ENTITIES HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSPORTATION 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 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 PLAFORM), OR LOSS OF DATA RESULTING FROM USE OF OR ACCESS TO THE PLAFORM 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.
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 20.4(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.
THIRD-PARTY PROVIDER SERVICES. THE QUALITY OF THE TRANSPORTATION SERVICES SCHEDULED THROUGH THE PLATFORM IS ENTIRELY THE RESPONSIBILITY OF THE THIRD-PARTY PROVIDER WHO ULTIMATELY PROVIDES SUCH TRANSPORTATION SERVICES TO YOU. YOU UNDERSTAND THAT BY USING THE PLATFORM, YOU MAY BE EXPOSED TO TRANSPORTATION THAT IS 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 THIRD-PARTY PROVIDERS, INCLUDING WITHOUT LIMITATION, DEATH, BODILY INJURY, EMOTIONAL DISTRESS.
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.
COMPLIANCE WITH LAWS AND REGULATIONS. BLACKBIRD MAY CONNECT YOU WITH THIRD-PARTY PROVIDERS WHO PROVIDE TRANSPORTATION SERVICES, BUT BLACKBIRD DOES NOT ASSESS THE SUITABILITY, LEGALITY, OR SKILL OF ANY THIRD-PARTY PROVIDER. 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.
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.
Allocation of risk. THE PROVISIONS OF SECTION 9 AND THIS SECTION 10 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 10 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Additional Terms. Your use of the Platform is subject to all additional terms, policies, rules, or guidelines applicable to the Platform or certain features of the Platform that we may post on or link to from the Platform (the “Additional Terms”), such as rules that apply to a particular feature or content available on the Platform, subject to Section 14. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
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 20.2, 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.
Exceptions. Despite the provisions of Section 20.1, 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.
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.
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.
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.
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.
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.
Enforceability. If Section 20.6 is found to be unenforceable or if the entirety of this Section 20 is found to be unenforceable, then the entirety of this Section 20 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to these Terms.