Service Terms and Conditions - United States Effective 20 August, 2020.
Welcome to Flyby Food’s Terms of Services. Kiki Airlift Inc. (“Kiki”) owns and operates this website and related mobile app and software. These Terms of Service (the “Terms”) govern the use of Kiki’s services (the “Services”), which include this website and the referenced mobile app and software, as well as any information, data, text, images, videos, audio files, and other materials uploaded to or downloaded from, stored on, obtained via, or transmitted through the Services (collectively, the “Content”). Please read these Terms carefully. By accessing or using the Services or by clicking to accept the Terms when that option is made available to you, you agree to be bound by these Terms. If you do not agree, do not access or use the Services.
Using Flyby Food
Each time you place a delivery order via the Services, the drone pilot will attempt to contact you via two-way communication (e.g., phone) and the delivery drone will not be permitted to drop off the delivery until that communication has been established. For the duration of the drone’s flight in connection with your order, you agree to maintain that communication, provide visual observations to the pilot as requested, and inform the pilot of any hazards that you observe, including any possible hazards at your drop-off location.
By initiating drone delivery to your address or location, you are expressly providing permission for Kiki’s drones to fly and hover over that property and location and make the corresponding delivery, and you represent that you have the authority to provide such permission. Further, you agree to: (a) clear your delivery location of any obstacles prior to delivery; (b) stay at least 5 feet from the drone and delivery area during delivery; (c) not touch the package until the drone is clear of the area; and (d) abide by all safety instructions, rules, and requirements provided to you by Kiki. By initiating an order via the Services, you are expressly acknowledging that you are aware that there are potential risks associated with drone delivery and are consenting to the delivery nonetheless.
Subject to these Terms, Kiki hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, personal license to access and make personal and non-commercial use of the Services solely as permitted by these Terms. This license does not include: any resale or commercial use of any Service; any collection and use of any product listings, descriptions, or prices contained within the Services; any derivative use of any Service or its contents; any downloading, copying, or other use of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools.
You are not allowed to: (a) install or use the Services on a mobile device that you do not own or control; or (b) distribute or make the Services available over a network where it could be used by multiple devices at the same time. The Services are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties, and/or other intellectual or proprietary rights and laws of the United States and other countries. Except as otherwise indicated on the Services and except for the intellectual property of other companies that are displayed on the Services, all intellectual property, such as trademarks, service marks, logos, trade dress, and trade names are proprietary to Kiki. All rights not expressly granted by Kiki herein are specifically reserved.
All payments for the Services are processed by a third-party payment processor (Stripe). When you authorize Kiki (and Stripe) to charge your selected online payment method, you are expressly authorizing Kiki (and Stripe) to charge that payment method for the authorized amount and to use and share your information related to your selected payment method (e.g., your credit card number) to and from third parties for that purpose.
As part of the payment process, you are required to provide current, complete, and accurate payment information. You must keep your account information and payment method current and you must promptly notify Kiki if your payment method is canceled or if you become aware of a potential breach of security.
Kiki reserves the right: (a) to establish, remove, and revise prices, fees, taxes, and surcharges for the Services (and any feature of the Services) at any time; and (b) to consolidate and otherwise incorporate fees and surcharges into the prices listed for food and beverage items delivered via the Services. Kiki may also, in its discretion, make promotional offers with different features and different rates available to different users. Unless made available to you, these promotional offers will have no bearing on your obligation to pay the amounts charged. Payments in connection with the Services are final and non-refundable unless otherwise determined by Kiki. Kiki, in its discretion, may offer credits or refunds on a case-by-case basis.
The Services may display, include, or make available content, data, information, applications, or materials from third parties (“Third-Party Information”) or provide links to certain third-party web sites. By using the Services, you acknowledge and agree that Kiki is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Information or web sites. Kiki does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third party services, Third-Party Materials or websites, or for any other materials, products, or services of third parties. <h2> Indemnification </h2>You agree to indemnify, defend, and hold harmless Kiki Airlift, Inc., and its partners, owners, parent organizations, subsidiaries, and affiliates, and their respective directors, officers, stockholders, agents, servants, employees and attorneys (collectively, “Indemnified Parties”), from and against any and all claims, demands, causes of action, proceedings, losses, damages, fines, penalties, liabilities, judgments, orders, costs and expenses (including reasonable attorneys' fees and legal costs) sustained or incurred by or asserted against the Indemnified Parties by reason of, arising from, or in any way attributable to: (a) your violation or breach of the Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your use or misuse of the Services or any Content; or (d) any negligence or wrongful act or omission of or by you, your account, or anyone acting on your behalf.
LIABILITY LIMITATION and DISCLAIMER
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL KIKI BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE). KIKI ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE SERVICES. KIKI ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE SERVICES, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THE SERVICES, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL KIKI'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, OR TORT EXCEED (A) THE AMOUNT PAID BY YOU TO KIKI, IF ANY, OR (B) $1,000 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PROVIDED BY LAW. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. YOU AND KIKI AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND KIKI AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE FAIR AND REASONABLE.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THIS AGREEMENT OR THE SERVICE WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court located in Los Angeles, CA if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to the Terms. If you do not want to arbitrate disputes with Kiki and you are an individual, you may opt out of this arbitration agreement by contacting Kiki through the contact information provided below within 30 days of the day you first access or use the Services. If you intend to seek arbitration, you must first send written notice to Kiki of your intent to arbitrate (“Notice”) to the contact information provided below. The Notice must (a) describe the nature and basis of the claim or disput; and (b) set forth the specific relief sought. If you and Kiki do not reach an agreement to resolve the claim within 30 days after the notice is received, you or Kiki may commence an arbitration proceeding. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules as modified by these Terms, including the AAA’s Supplementary Procedures for Consumer Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. The number of arbitrators shall be one. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by the Terms. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Kiki will reimburse all AAA filing, administration, and arbitrator fees paid by you for claims totaling less than $10,000, unless the arbitrator determines that either the substance of your claim or the relief sought is improper or not warranted, as measured by the standards set forth in Federal Rule of Civil Procedure 11(b), in which case the payment of all such fees shall be governed by the AAA Rules. In such case, you agree to reimburse Kiki for all payments previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence shall not apply to the paragraph below. YOU AND KIKI EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Further, you agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding, and that if this specific provision is found to be unenforceable, then the entirety of this arbitration clause shall be null and void. If for any reason a claim proceeds in court rather than in arbitration YOU AND KIKI HEREBY EACH WAIVE ANY RIGHT TO A JURY TRIAL.
Upon termination of this agreement for any reason or no reason: (i) your access rights will terminate and you must immediately cease all use of the Services; and (ii) any provision of these Terms that contemplate or govern performance or observance subsequent to termination of these Terms will survive the termination of these Terms, including without limitation the following sections: (i) “Drone Operations;” (ii) “Intellectual Policy;” (iii) “Indemnification;” (iv) “LIABILITY LIMITATION and DISCLAIMER;” (v) “Dispute Resolution;” (vi) “Termination;” and (vii) “Severability and Waiver.”
Governing Law and Jurisdiction
The terms, conditions, and policies contained in these Terms shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles.
Severability and Waiver
If any portion of these Terms is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible except that in the event of unenforceability of the class action waiver, the entire arbitration agreement shall be unenforceable, and the remainder of these Terms shall continue to be enforceable and valid according to the terms contained herein. Any waiver of any rights under these Terms must be in writing.
Kiki may revise these Terms from time to time. The most current version will always be located here. If the revision, in Kiki’s discretion, is material, Kiki will notify you via email to the email address associated with your account or by posting notice to its website. In consideration for your access to the Services, you agree to check back here from time to time to determine if the Terms have been revised. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.
The Services are operated and provided by: Kiki Airlift, Inc.
195 Church St. FL. 17
New Haven CT, 06510
Effective: 20 August, 2020.