Welcome to Flite. Flite operates the Flite Platform as a hosted media platform enabling individual and business advertisers to create dynamic, rich, visual applications for advertising, social media, and brand related purposes. By using the Flite Platform you (“Client”) agree to these terms of service (“Agreement”) between you and Flite, Inc. (“Flite” or “we”).
You can accept the Agreement by:
- clicking to accept or agree, where this option is made available to you by Flite in the user interface for access to the Flite Platform website;
- using the Flite Platform. You understand and agree that Flite will treat your use of the Flite Platform as acceptance of these terms, as may be amended from time to time, from that point onwards; or
- entering into an Order Form with Flite, which is governed by this Agreement.
- “Application(s)” means dynamic rich visual advertising product for use with social media and brand development created using the Flite Platform.
- “Client” means the contracting party and its affiliates, directors, employees, and any customers that authorize the contracting party to enter into this Agreement on its behalf for the purpose of advertising.
- “Client Site” means any website owned, controlled, or operated by Client or on which Client otherwise has the right to place advertising.
- “Client Content” or “Content” means any data, information, content, or materials provided by Client for use in connection with creation of Applications or otherwise used in connection with the Flite Platform or Services.
- “Cookie(s)” means any cookie, pixel, beacon, or similar Internet tracking mechanism.
- “Intellectual Property” means patent rights (including without limitation patent applications and disclosures), copyrights, trademarks, trade secrets, moral rights, business methods, know-how, and any other intellectual property or proprietary rights, recognized in any country or jurisdiction in the world.
- “Permitted Uses” mean the following exhaustive list of permitted uses of Visitor Data: uses necessary to (i) perform Flite’s obligations to Client under this Agreement, (ii) generate reports of anonymous, platform-wide statistics for use in analyzing and enhancing Flite Platform, including network performance and reliability, and (iii) comply with disclosure requirements imposed by court order, law, or governmental or regulatory agency.
- “Visitor” means any end user who views, clicks or otherwise has access to a Client Application through a computer or any other device, including mobile telephones, an automated process, use of software or otherwise.
- “Visitor Data” means (i) clicks and actions for each delivered Application, timestamps of advertising Impressions, webpage and website identification numbers, IP addresses, referring URLs, user agent strings, browser, and http header data; (ii) data about a Visitor collected using Cookies that identifies the Visitor and the Visitor’s online activity, including details of pages or objects on a Client Site that the Visitor has clicked on, searches conducted by the User, and the brand, content, and context on the Client Site viewed by the Visitor; and (iii) any other data that can be attributed to a Visitor’s computer or device, in any medium or format, including, without limitation, Cookies or any other identifiers. Visitor Data does not include any personally identifiable information.
- “Impressions” mean the number of times Client’s Application is displayed, whether it is clicked on or not.
- “Flite Platform” or “Platform” means all technology, software, and websites making up the Flite hosted media platform and owned by Flite, including the Flite Application Programing Interface (API), that enables Client and its Users to create Applications for Visitors.
- “Order Form” means a work order or any other writing executed by Client and Flite, including statement of works or otherwise, describing the Services, Client obligations, associated fees, and any additional terms, which shall reference this Agreement and be incorporated herein.
- “Services” means online services delivered or made available by Flite via the Platform and any other ancillary professional services to be delivered by Flite, if any, as set forth in an applicable Order Form including Open Access.
- “Users” mean individuals or companies who are expressly or impliedly authorized by Client to use the Platform or Services.
2. SERVICES AND LICENSE GRANT
- Services. Subject to the terms and conditions of this Agreement and the execution of an Order Form, Flite shall provide Client with the Services as described in the Order From and grants Client a limited, non-exclusive, non-transferable right to use Flite Platform during the Term. Client agrees that the license to the Platform is not contingent on the delivery of any future functionality or features the may be offered by Flite. Client understands that Flite may modify or discontinue certain features of the Flite Platform and/or Service in order to improve or replace such functionalities.
- Limited License for “Open Access” to Flite Design Studio. In the event Client has not entered into an Order Form, Flite grants Client a limited, worldwide, royalty-free, non-assignable, non-transferable and non-exclusive license to use and access the Flite Platform to develop Applications for use by Client in connection with the Flite Platform (“Open Access”) subject to the following:
- Client may not distribute Applications via an ad serving system.
- Flite guarantees no technical support outside of the technical documentation provided at http://help.flite.com.
- Flite reserves the right to discontinue or alter the terms of Open Access at any time in its sole discretion.
- Flite Mark. Flite owns all right, title and interest in and to the Flite trademarks. Client may only use the trademark “Flite” to denote that Client’s Application is “powered by Flite.” All use by Client of the Flite trademark will inure to the exclusive benefit of Flite. Flite shall have the right, in its sole discretion, to disapprove Client’s use of the Flite trademark.
- Third Party Content. The Flite Platform may include the option to purchase certain third party plug-ins or to link to third party sites (“Third Party Content”). Client acknowledges and agrees that Flite is not responsible for such Third Party Content and makes no representations or warranties regarding Third Party Content.
- Maintenance. Flite may, from time to time and in its sole discretion, make maintenance releases of the Flite Platform which may also include third party services. In the event Flite implements, at its option, such maintenance releases as part of the Flite Platform, Client hereby agrees to such implementations. Flite is under no obligation to provide any support under this Agreement, including upgrades or future versions of the Flite Platform, unless otherwise agreed to in writing. Flite may, in its sole discretion, may modify or discontinue certain features to improve functionality of the Flite Platform.
3. CLIENT CONTENT
Client retains all Intellectual Property rights and any other rights Client already holds in the Client Content. Subject to the terms of this Agreement, Client grants Flite a worldwide, royalty-free and non-exclusive license to Flite to display, distribute, and adapt the Client Content solely in order to provide the Services.
- Flite Rights. All rights, title and interest in and to the Platform and all underlying software and technology, and all Intellectual Property rights therein, including any derivative works, modifications, or additions to, and any accompanying printed materials, are and at all times remain the exclusive property of Flite. No provision of this Agreement affects any transfer to Client of any ownership interest therein. The licenses set forth in this Agreement confer neither title to, nor ownership in, the Platform and are not a sale of any rights therein.
- Client Rights. All rights, title and interest in and to the Client Content and all Intellectual Property rights therein, are and at all times remain the exclusive property of Client. All Client Content provided or developed by Client under this Agreement is, and at all times will remain, the exclusive property of Client or its respective owners, and no provision of this Agreement affects any transfer to Flite of any ownership interest therein.
5. FEES AND INVOICES
Client shall pay all fees specified in all applicable Order Forms hereunder. Flite will invoice Client for Services in accordance with the relevant Order Form and such charges are due as stated on the Order Form. Client is responsible for providing complete and accurate billing and contact information to Flite and notifying Flite of any changes to such information. Flite has the right to immediately terminate this Agreement in the event Client fails to pay fees timely. If Flite incurs additional reasonable costs (including but not limited to reasonable attorney fees) in an attempt to recover fees owed, Client will pay such costs and reasonable interest fees. The foregoing rights are in addition to other rights and remedies, which may be available to Flite for non-payment of fees.
- Any information disclosed by one Party to the other in connection with this Agreement, whether disclosed in writing, orally or by inspection, and which is identified in writing as being “Confidential” or “Proprietary,” or by the nature of the circumstances surrounding the disclosure should reasonably be treated as proprietary or confidential, shall be deemed “Confidential Information.” Flite and Client hereby acknowledge and agree the CPM rate and other fees under this Agreement or accompanying statements of work constitute Confidential Information. Both Parties shall maintain all Confidential Information in strict confidence and shall only disclose such Confidential Information to those of its employees who have a need to know such Confidential Information in furtherance of the performance of obligations under this Agreement and who are bound to confidentiality. Each Party shall use all reasonable means necessary to protect Confidential Information. For a period of three (3) years from the date of disclosure of such Confidential Information, neither Party may disclose any Confidential Information to any third party without the other Party’s prior written approval.
- Notwithstanding the foregoing, neither party shall have confidentiality obligations with respect to information that: (i) is or has become publicly available without restriction through no fault of the receiving Party or its employees or agents; (ii) was rightfully in the possession of the receiving Party without restriction prior to its disclosure by the disclosing Party; (iii) becomes available to the receiving Party on a non-confidential basis from another source, provided that such source is not and was not bound by a confidentiality agreement or otherwise prohibited from transmitting such information by contractual, legal or fiduciary obligation, or (iv) is independently developed by the receiving Party.
- Further, a Party may disclose Confidential Information as required to be disclosed by court order or law. If a Party receives a demand in a legal proceeding that would require the Confidential Information of the other Party to be disclosed, the receiving Party shall immediately notify the other Party of the demand and reasonably assist the other Party in obtaining a protective order or other relief before such disclosure, at the Disclosing Party’s expense. Each Party’s obligations with respect to Confidential Information shall survive the termination or expiration of this Agreement for any reason.
- Client agrees that Client will not itself or allow any third party to: (i) reverse assemble, reverse compile, or reverse engineer the Platform or the Services or their underlying software, or otherwise attempt to discover any software source code or underlying proprietary information; (ii) remove, efface or obscure any copyright notices, logos, or other proprietary notices or legends (whether Flite, its partners’, or any third party’s) from any Flite materials; (iii) generate automated or fraudulent Impressions or clicks of advertisements on the Flite Platform or through the Services; (iv) use any automated means, including without limitation, agents, robots, scripts or spiders, to access or bypass the Flite Platform or Services to interfere or attempt to interfere with the proper working of the Flite Platform or Services; (v) submit any Content that contains malicious code; collects, reads or stores user information; or interacts with the Flite Platform for any purpose other than the configuration of that Content; (vi) submit any Content that is unlawful, harmful, violent, threatening, defamatory, obscene, infringing, harassing, offensive, or discriminatory; (vii) otherwise use the Platform or Services in any manner which adversely affects Flite or its customers, their data or security, or seek to access the data of any third party without Flite’s prior written authorization; or (viii) use flash Cookies or HTML5 local storage that exploits Visitors’ browsers and software in a way that such Visitors do not reasonably expect, including but not limited to recreating tracking cookies that have been deleted by the Visitor. Client will comply with all applicable laws, restrictions, and regulations of all governmental authorities of the United States and any applicable foreign jurisdiction.
- Without prejudice to any other right or remedy, Flite may immediately suspend Client’s access to the Platform or any portion thereof if Flite believes that Client has failed to comply with this Section 7 (Restrictions) or is using the Platform in a manner that violates any applicable law or regulation, or would otherwise damage Flite’s customers, business, or reputation.
8. TERM AND TERMINATION
- Term. Unless otherwise agreed to in an Order Form, this Agreement will begin upon acceptance of this Agreement noted above or as of the date the first Order Form is placed with Flite, whichever is earlier, and shall continue for the term stated in the Order Form (“Term”). Notwithstanding, in the event there is an outstanding Order Form in effect, or if Client is otherwise utilizing the Flite Platform or Services, this Agreement shall govern. In the event Client is using the Platform as a Trial Account, this Agreement shall govern for as long as the Client is utilizing the Platform or Services, and Client understands that Flite has the ability to terminate such Trial Account at any time unless otherwise agreed.
- Termination. Flite may suspend performance and/or terminate this Agreement immediately, in whole or in part: (i) if Client breaches any term or condition of the Agreement and fails to cure such breach within thirty days after receiving written notice thereof; (ii) if Client becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency or receivership proceeding, or has any petition under bankruptcy law filed against it; or (iii) if Client fails to pay fees in a timely manner.
- Effect of Termination. Upon any termination or expiration of this Agreement, all rights and licenses herein will terminate and all fees owed to Flite shall be paid immediately. Section 4, 6, 7, 9, 10, 11, 12, 14, 17, 18 and 19 shall survive termination of this Agreement along with any other section that may be reasonably deemed to survive such termination.
9. REPRESENTATIONS AND WARRANTIES
- Each Party to this Agreement represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder, and (ii) when executed and delivered by such Party, this Agreement will constitute a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
- Client represents and warrants that: (i) the Client Content does not and will not infringe third-party Intellectual Property rights, rights of publicity or privacy, or contract rights; (ii) Client has authority to license the Client Content to Flite as provided in this Agreement; (iii) Client is responsible for all third parties engaged by Client to create Applications, or otherwise access the Platform, and will ensure that such third parties, including independent contractors, agents, and affiliates, comply with this Agreement and the Flite Terms of Service; (iv) Client has the right to place Applications on media properties requested by Client via the Platform and such placement of Applications will not infringe or violate any third party rights or laws; and (v) Client complies with all applicable data, privacy, and security laws and standards, including current Online Behavioral Advertising Principles issued by the Federal Trade Commission, and provides its Visitors with proper notices and disclosures of how Visitor information (including Visitor Data) that is collected through the Flite Platform is used and obtaining the Visitors’ consent to such use.
Client agrees to defend, indemnify, and hold harmless Flite and its affiliates, and respective directors, officers, employees, agents, successors, and assigns, from and against any liabilities (including but not limited to reasonable attorneys’ fees incurred) related to or arising out of any third-party allegation or claim based on (i) any breach of any of this Agreement by Client; (ii) use of the Visitor Data or any personally identifiable information of Visitors by Client; (iii) unauthorized acts of Client’s Users in violation of this Agreement; or (iv) any violation or alleged violation of applicable law or standards in relation to activities contemplated by this Agreement.
Flite agrees to defend, indemnify, and hold harmless Client and its affiliates, and their respective directors, officers, employees, agents, successors, and assigns, from and against any liabilities (including but not limited to reasonable attorneys’ fees incurred) related to or arising out of any third-party allegation or claim that the Flite Platform infringes a third party’s Intellectual Property rights; provided that notice of the claim is promptly given to Flite and Flite has the ability to control the defense. If Client’s use of the Platform is, or in Flite’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Flite may, in its sole discretion: (a) substitute, as agreed to by Client, substantially functionally similar services; (b) procure for Client the right to continue using the Platform; or if (a) and (b) are commercially unreasonable, (c) terminate this Agreement and refund to Client the fees paid by Client for the portion of the Term that Services were paid for by Client but not rendered by Flite. The foregoing indemnification obligation of Flite shall not apply: (1) if the Platform is modified by any party other than Flite, but solely to the extent the alleged infringement is caused by such modification; (2) if the Platform is combined with other non-Flite products or processes not authorized by Flite, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Platform; or (4) any action arising as a result of Client Content and materials or any third-party content or components contained within the Platform. THIS SECTION STATES CLIENT’S SOLE AND EXCLUSIVE REMEDY AND FLITE’S ENTIRE LIABILITY FOR ANY CLAIM OF INFRINGEMENT ARISING OUT OF OR RELATED TO THE PLATFORM OR ANY OTHER SERVICES PROVIDED UNDER THIS AGREEMENT.
11. DISCLAIMER OF WARRANTY AND LIMITATIONS ON LIABILITY
- IN NO EVENT SHALL FLITE OR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH ANY CLAIMS ARISING OUT OF THIS AGREEMEMENT FOR (I) ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS OR LOSS OF GOODWILL) WHETHER UNDER TORT, CONTRACT, OR OTHER THEORIES OF RECOVERY EVEN IF THE OTHER PARTY WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY DIRECT DAMAGES IN EXCESS OF THE AMOUNT PAID BY CLIENT TO FLITE UNDER THIS AGREEMENT DURING THE IMMEDIATE PRECEDING THREE (3) MONTHS FROM THE DATE IN WHICH THE CLAIM AROSE. ALL CLAIMS MUST BE MADE NO LATER THAN ONE YEAR FROM THE DATE OF OCCURRENCE (EXCEPT FOR INDEMNIFICATION CLAIMS WHICH NOTICE MUST BE GIVEN PROMPTLY TO THE INDEMNIFYING PARTY) OR SUCH CLAIMS ARE EXPRESSLY WAIVED.
- NO WARRANTY. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE FLITE PLATFORM, SERVICES AND ANY MATERIALS OR OTHER PLATFORM PROVIDED BY OR ON BEHALF OF FLITE PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS” AND FLITE HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING REPRESENTATIONS AS TO THE QUALITY OF THE FLITE PLATFORM, SERVICES OR ANY ASSOCIATED PRODUCTS, THE EFFECT THE PLATFORM OR SERVICES MAY HAVE ON CLIENT’S BUSINESS, THIRD PARTY CONTENT, NON-INFRINGEMENT, TIMELINESS, NON-INTERRUPTION, MERCHANTABILITY, INTEGRATION, OR FITNESS FOR ANY PARTICULAR PURPOSE. CLIENT UNDERSTANDS THAT FLITE IS NOT RESPONSIBLE FOR CLIENT CONTENT OR THIRD PARTY CONTENT AND IS UNDER NO OBLIGATION TO MAINTAIN CLIENT’S WEBSITE OR ANY THIRD PARTY WEBSITE.
Except as explicitly stated otherwise, legal notices shall be served on Flite at the following address:
ATTN: Legal Department
23 Geary Street
San Francisco CA 94108
Notice shall be given to Client at the email address Client provides to Flite during the registration process. Notice will be deemed given twenty-four hours after email is sent, unless the Flite is notified that the email address is invalid. Alternatively, Flite may give Client legal notice by mail to a postal address, if provided by Client through the Flite Platform or on an applicable Order Form. In such case, notice will be deemed given three days after the date of mailing.
Client may not assign all or any of its rights under this Agreement without the prior written consent of Flite.
14. SEVERABILITY/NO WAIVER
If a court of competent jurisdiction finds any term of this Agreement unenforceable, that term will be deleted and modified to effect the parties’ intent in accordance with the law, and all other terms will continue in full force. No provision of this Agreement may be waived unless in writing, and no waiver of one provision of this Agreement shall be deemed to be a waiver of any other provision.
15. FORCE MAJEURE
Flite will not be liable for any failure to perform due to unforeseen circumstances or causes beyond Flite’s reasonable control, including acts of God, war, government intervention, riot, embargoes, acts of civil or military authorities, earthquakes, hacker attacks, fire, flood, accident, strikes, and the inability to secure transportation, facilities, fuel, energy, third party services, labor or materials.
16. RELATIONSHIP OF THE PARTIES
Neither Party hereto will be deemed the agent or legal representative of the other for any purpose whatsoever and each Party will act as an independent contractor with regard to the other in its performance under this Agreement. Nothing herein will authorize either Party to create any obligation or responsibility whatsoever, express or implied, on behalf of the other or to bind the other in any manner, or to make any representation, commitment or warranty on behalf of the other.
17. GOVERNING LAW & VENUE
This Agreement shall be governed by the laws of the state of California, without regard to the conflicts of law provisions or principles of such jurisdiction. Any action or proceeding arising out of or relating to this Agreement shall be commenced and litigated to conclusion only in a state or federal court located in San Francisco, California, and the Parties agree that such courts shall have exclusive jurisdiction over all actions arising under this Agreement.
18. ENTIRE AGREEMENT
Last Updated: JANUARY 4, 2016