TERMS OF SERVICE
The On the Fly Terms of Service Agreement (“Agreement”) is a legal agreement between you (“you,” “your”) and On the Fly, LLC . and its affiliate or subsidiary entities (collectively, “On the Fly,” “OTF,” “we,” “our” or “us”) governing OTF’s applications (each, an “App” and collectively, the “Apps”), the website located at www.ontheflypos.com (or such other website as OTF may designate from time to time) and services or products offered by or through OTF and/or OTF’s affiliate or subsidiary entities, including software and/or hardware related services or rights of use, (collectively, the “Services”) and hardware products, devices, or equipment (collectively, the “Products”) that OTF may currently or in the future provide or offer. To receive or use the Apps, Products, Services or your OTF Account (as defined below), you must accept all of the terms of this Agreement. If you do not agree with these terms and do not want to be bound by this Agreement, you may not use, access, or order the Apps, Products, Services or your OTF Account.
THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER FOR THE APPS, PRODUCTS OR SERVICES OR BY ACCESSING, USING THE APPS, PRODUCTS, SERVICES OR YOUR OTF ACCOUNT, OR BY DOWNLOADING ANY APP, YOU ARE ACCEPTING AND AGREEING TO THIS AGREEMENT IN ITS ENTIRETY ON BEHALF OF YOURSELF AND THE ENTITY YOU REPRESENT IN CONNECTION WITH SUCH ORDER, USE, DOWNLOAD OR ACCESS. YOU REPRESENT, COVENANT AND WARRANT THAT YOU HAVE THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT, AGREE AND ENTER INTO THIS AGREEMENT IN ITS ENTIRETY ON BEHALF OF YOURSELF AND THE ENTITY YOU REPRESENT. YOU REPRESENT, COVENANT AND WARRANT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO ACCEPT, AGREE AND ENTER INTO THIS AGREEMENT IN ITS ENTIRETY.
THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS AND REQUIRES BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THIS AGREEMENT LIMITS THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. IF YOU SUBSCRIBE TO THE APP, PRODUCTS OR SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THIS AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT OTF’S THEN-CURRENT FEES FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTORENEWAL IN ACCORDANCE WITH SECTION BELOW OR UNLESS OTF GIVES YOU NOTICE THAT IT HAS ELECTED NOT TO RENEW THIS AGREEMENT (IN ITS SOLE AND EXCLUSIVE DISCRETION).
- “Android” means the android operating system using any interface, whether tablet or display screen that operates the Android operating system.
- “iOS” means Apple’s “iOS” operating system used on the iPad, iPod, iPhone or any other Apple-branded products.
- “OTF Backend Portal” means the control panel used to change settings and options for your OTF Account.
- “OTF Account” means an account that is created that allows you to access the Apps, Services or Products provided by OTF.
- “Fees” means the fees paid for your continued use of the Apps, Services or Products based on the subscription you select at the time you create your OTF Account.
- “Software License” means the software license between you and OTF to allow you to use the Apps, Products or Services.
- “Merchant Processing” means a third-party service that a you may choose to sign up with that handles the processing of credit card transactions.
- “Account Activity” means payments made to the OTF Account within the last 30 days; orders recorded by the Services in the last 30 days; and/or clock punches recorded by the Services in the last 30 days.
- “Intellectual Property Rights” means all trademark, trade dress and service mark rights, patent rights, shop rights, mask work right, copyright rights, rights of publicity, goodwill, moral rights, trade secret rights and any and all other intellectual property rights as they may currently exist or exist in the future, and all applications thereof and registrations, renewals and extensions thereof, under the laws of any jurisdiction.
- “Dispute” means a dispute or claim between arising out of or relating to the Apps, Products, Services or your OTF Account or this Agreement and these Terms of Service.
- “User Content” means any content uploaded or changed by you, including but not limited to, text, photos, and other information.
- “User Data” means any data created or modified from your use of the Apps, Products or Services including but not limited to financial data, transaction data, order data, credit card signatures, and logs.
- “Products” means any hardware and/or accessories provided by OTF to merchant for the use with the Apps and delivery of services by OTF.
- “Offline Credit Card Transactions” means encrypted credit card transaction information that is stored locally on an iOS device (or similar) when your network connection is unavailable.
The section headings contained in this Agreement are for reference purposes only and shall not in any way be used to construe meaning, intent or affect the interpretation of this Agreement.
To utilize the Services, you will need to create a OTF Account. During registration you will be asked for both your personal information and information regarding your business. The information that you submit to create your OTF Account must be complete, accurate and up to date. You must also keep the business and personal information in your OTF Account up to date during the term of the subscription (including any renewals). If you open a OTF Account for a company, organization or other entity, you represent, covenant and warrant that you are an authorized representative of the company, organization or other entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement in its entirety on the entity’s behalf. We reserve the right to suspend or terminate any OTF Account that fails to comply with the account registration requirements or that we find to contain information that is untrue, inaccurate, incomplete, or outdated. We reserve the right to suspend or terminate your OTF Account, revoke your Software License and delete all data associated with your OTF Account without prior notice if there has been no Account Activity in your OTF Account for a period of 180 days. You are responsible for all activities that occur under your OTF Account. You agree to immediately notify OTF of any unauthorized use, or suspected unauthorized use of your OTF Account or any other breach of security or strange or unusual activity.
The Services may include software applications and web-based software. You must install any and all software application and web-based software updates to continue using the Services. From time to time older hardware or computer programs may no longer be compatible with the latest software applications and web-based software updates. It is your responsibility to upgrade any hardware or computer programs as needed to continue using the Services.
In General. All Products offered by OTF are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue offering certain Products without prior notice. Prices for the Products are subject to change at any time, but changes will not affect any order for Products you have already placed. Products may be purchased or leased as indicated in your order.
Title. Title for hardware purchased from OTF passes to the purchaser at the time of delivery by OTF to the freight carrier and you will be responsible for any hardware loss or damage that occurs when the hardware is in transit to you. OTF or the applicable third-party financing/rental company approved by OTF (“Financing Partner”) retain title to any hardware you lease or rent from us or the applicable Financing Partner, however, you remain responsible for any hardware loss or damages that occurs when the Product is in transit to you. Our delivery charges and methods are as described on our website from time to time and are subject to change without prior notice.
Returns and Refunds. You may contact us at email@example.com to request a return of Products you purchased from OTF at any time within thirty (30) days of the order date. If OTF determines that you are eligible to return such Products, OTF will provide a return materials authorization (RMA) to you via email. OTF will refund you the amount you paid for the returned Products (less applicable restocking charges) provided that OTF receives such Products, including all Products items if the Products was purchased as part of bundle, freight prepaid by you in new or unused condition, in its original packaging, within ten (10) days of the date the RMA was emailed to you. Risk of loss or damage to the returned Products remains with you until received by OTF. You will bear the cost of freight and insurance of any returned Product. Except as otherwise expressly stated in this Agreement, OTF is under no obligation to refund any amounts you previously paid to OTF for the Products.
Leased or Financed Products. The leased or financed Products shall at all times remain the property of OTF or our Financing Partner (the “Product Owner”). The Product Owner retains and you hereby grant to OTF and the Product Owner, as applicable, a security interest in and to the leased Products. You agree to execute any and all documents and filings to perfect the same. You agree not to permit any third party (other than the Product Owner) to obtain any security interest, lien or other encumbrance on such leased or financed Products. You will promptly return, at your expense, such leased or financed Products to OTF’s or the Product Owner’s designated address when the lease expires or this Agreement terminates. You bear all risk of loss or damage to the leased or financed Products. You will pay for the cost of replacing leased or financed Products if you do not return the leased or financed Product in good working order (normal wear and tear excepted) when the applicable rental, lease or subscription period expires or when this Agreement terminates.
Mobile Devices and Third-Party Carriers
Use of your OTF Account and services requires compatible computer and/or mobile devices and an internet connection that meets certain minimum speed requirements, which you are responsible for providing. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Apps, Products, Services or your OTF Account. You are responsible for determining the compatibility of the Apps, Products or Services with other products and services you use. OTF is not liable for any required or necessary agreements with the mobile device provider or internet service provider and does not warrant that the Services or the OTF Account will be compatible. Any mobile device that has been illegally altered or modified in any way is not a compatible device. You understand and accept that use of such a device is prohibited, a violation of the terms of this Agreement, and could result in the suspension or termination of your OTF Account.
Unauthorized, Improper or Illegal Use
If it is determined that your OTF Account has been used for potential or actual immoral, unsuitable, injurious, destructive, improper, illegal or criminal purposes you acknowledge and authorize OTF to share any information about you, your OTF Account, your use of the Apps, Products or Services and any other data deemed necessary or appropriate by OTF (in its sole and exclusive discretion) to the appropriate law enforcement agencies. In addition, you acknowledge and authorize OTF to share any information about you, your OTF Account, your use of the Products or Services and any other information or data requested by a third-party in response to answering or responding to a valid subpoena issued by a court or administrative agency. You are responsible for verifying that the Apps, Products, Services or your OTF Account and the functionality of the Apps, Products, Services or OTF Account comply with all applicable laws, including but not limited to local, state, and federal laws, that may govern your use of the Apps, Products, Services, or your OTF Account or the features contained within the Apps, Products, Services, or your OTF Account. You agree that you will not use the Apps, Products, Services, or your OTF Account or certain features contained within the Apps, Products, Services or your OTF Account, if it is not legal to do so in your location. Your use of the Apps, Products, Services, or your OTF Account and the features contained therein constitute your representation that such use and features do not violate any applicable local, state, or federal laws. You agree to fully and wholly indemnify and hold harmless OTF in any liability arising out of your use of the Apps, Products, Services, or your OTF Account or the features of the Apps, Products, Services, or your OTF Account in the event such use or features violate any applicable local, state or federal laws, and you agree not to pursue any damages or remedies against OTF relating to or arising out of the same. You are solely responsible for your use of the Apps, Products, Services, or your OTF Account and the features therein, and you agree that such use by you is a waiver of any claims you may have against OTF in the event such use, the Apps, Products, Services, or your OTF Account or the features of the Apps, Products, Services, or your OTF Account violate any applicable local, state, or federal laws.
Accepting Credit Card Payments
OTF does not directly handle processing of credit card transactions. Our Services simply facilitates transacting credit cards through integrated third-party Merchant Service Processing partners. By transacting credit cards through our Services, you must agree to the terms and conditions set by the Merchant Service Processor being used.
- You are responsible for verifying that your credit card batch is settled and that all amounts are correct on a daily basis. It is your responsibility to notify OTF immediately, if you notice a problem with authorizations, tip amounts, transacting payments, processing, batching, the settlement amount or any strange or unusual activity. Your failure to notify OTF of an error in authorizations, tip amounts, transacting payments, processing, batching, the settlement amount or any strange or unusual within seven (7) days of the date of a discrepancy, shall constitute a waiver of liability to OTF.
- OTF is not liable for any damages if the error was caused by you, misuse of the Apps, Products, Services or your OTF Account, or the Merchant Service provider.
- OTF may offer a feature that facilitates transacting Offline Credit Card Transactions with the Apps, Products, Services or your OTF Account. If you choose to utilize this feature you agree that OTF is not liable for any damages or losses from the use of this feature. The use of this feature is at your sole risk. To the maximum extent permitted by applicable law, this feature is provided on an “As Is” and “As Available” basis without any guarantee or warranty of any kind by OTF.
OTF’s Fees do not include Taxes (as defined below), unless expressly indicated otherwise by OTF on an invoice. If any Apps, Products or Services, or payments for any Apps, Products or Services, under this Agreement are subject to Tax in any jurisdiction and you have not remitted the applicable Tax to OTF, you will be responsible for the payment of such Tax and any related penalties or interest to the relevant tax authority. You represent and covenant that you will indemnify OTF and its affiliates or subsidiary entities for any liability or expense OTF or its affiliates or subsidiary entities may incur in connection with such Taxes, including penalties, late charges or interest. Upon our request, you will provide OTF with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable Taxes. For purposes of this section, “Tax” or “Taxes” shall mean any and all sales, use, property, value added, or other transactional taxes, duties, levies or other amounts arising out of or related to your purchase, subscription to or use of the Apps, Products or Services. Taxes do not include OTF’s income taxes in the United States of America. You agree to make all payments of Fees to OTF in United States dollars free and clear of, and without reduction for, any Taxes. All amounts payable to OTF will be grossed-up to the extent there is any legally required withholding so that OTF receives from you in United States Dollars the amount OTF contemplated. Any Taxes imposed on payments of Fees to OTF will be your sole responsibility, and you will provide OTF with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such Taxes have been paid by you.
In order to access or use the Apps, Products, Services or the OTF Account you agree to pay all Fees to OTF in accordance with the terms accepted and agreed in writing in the order form. Except as set forth in this Agreement, all Fees are nonrefundable and will be charged by ACH. We reserve the right to change the Fees for any subsequent subscription period upon notice to you. If you do not consent to the increase in the Fees, you will need to cancel your subscription. If you qualify for and obtain financing from one of our Financing Partners under our Financing Program, you will not have to pay us directly for the applicable Fees that were covered by the Financing Program during the designated term or rental or subscription period in your order with OTF. However, you will have to pay the Financing Partner in accordance with your separate agreement(s) with the Financing Partner, and the Financing Partner will have to pay us in accordance with our agreement with them. Your obligation to pay the Financing Partner is independent from these Terms of Service and survives any termination or expiration of this Agreement or these Terms of Service. Financing Partners are independent of OTF. OTF is not responsible for such Financing Partners and Financing Partners are not responsible for OTF.
By providing credit card information and/or banking information for ACH monthly payment, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to immediately charge your bank account other payment method for all fees and charges due and payable to OTF hereunder and that no additional notice or consent is required. If the payment information you provide cannot be verified, is invalid or is otherwise not acceptable, your use of the Services may be suspended or terminated and OTF can do so without prior warning and without liability. In the event you want to change or update payment information associated with your OTF Account, you can do so at any time by logging into your OTF Account and editing your payment information.
Your subscription with OTF will continue indefinitely until terminated in accordance with this Agreement. Upon signing, you will be charged a full month of service regardless of the date of subscription. There is no proration of fees for the month. After the initial month, license subscriptions are charged at the beginning of the month for the entire month in advance for that month.
After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically renew on each anniversary of the following month (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at OTF’s then current price for such subscription. You agree that your subscription will be subject to this automatic renewal feature unless you cancel your subscription at any time prior to the Renewal Commencement Date by sending a request for termination by accessing the portal and/or by emailing firstname.lastname@example.org or if OTF notifies you that it is not renewing your subscription (in its sole and exclusive discretion). You may cancel your subscription at any time without any termination fee save for payment of the current monthly term. If you cancel your subscription, you may use your subscription until the end of the month in which you canceled the subscription. After that month, your licenses will be terminated and you will no longer have access to the Products and Services and your subscription will no longer be renewed. However, you will not be eligible for a prorated refund of any unused or inactive portion of the month in which you cancelled. By subscribing, you authorize us (or our third-party payment processor) to immediately charge your bank account for any initial fees, any products purchased via OTF and the first month of service. After the initial month, we will charge you at the commencement of each month for the services and any Products you may have chosen.
You acknowledge and agree that OTF will charge all applicable fees and charges due upon order placement and prior to shipment of any Products.
OTF may use third party service providers for payment services (e.g., credit card transaction processing, merchant settlement, and related services). Where applicable, you agree to be bound by such third-party payment processors’ terms and conditions in connection with such services. You hereby consent to provide and authorize OTF and any third-party payment processor to share any information and payment instructions you provide to the extent required to complete the payment transactions in accordance with this Agreement, including personal, financial, credit card payment, and transaction information.
OTF reserves the right to include and utilize tools, capabilities and methods in our software and applications to allow remote access to the devices or computers that contain the software or application or the computer network to which the devices or computers are connected. We may use this remote access functionality to log in to the devices or computers to monitor, modify, alter or otherwise manipulate the data on the remote device for the purpose of providing technical support and ensuring that the Services function as intended.
By accepting this Agreement, you acknowledge and accept that OTF will post disclosures and notices required by law and any other information deemed pertinent by electronic means to include on any OTF maintained website, via email, or in your OTF Account. For contractual purposes, you (i) consent to receive communications from OTF in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that OTF provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. These notices will be considered received after 24 hours of posting on a OTF maintained website, immediately upon transmission to your OTF Account, or notice via email and continued use of the Services.
Where OTF requires that you provide an email address, you are responsible for providing OTF with your most current email address. In the event that the last email address you provided to OTF is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, OTF’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give written notice to OTF at the following address: 5300 NW 77th CT., Doral, Florida 33166. Such notice shall be deemed given when received by OTF by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
You understand that you are able to upload or customize User Content and do so willingly without any obligation. You also agree that any User Content uploaded or customized is your own or you have explicit permission from the owner of the content to use it in connection with the Service. You hereby grant, and you represent and warrant that you have the right to grant, to us a fully paid, royalty free, perpetual, irrevocable, worldwide, nonexclusive, and fully sublicensable license to license, reproduce, distribute, modify, adapt, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content (in whole or in part) for the purposes of including your User Content in the Services and operating, providing and promoting the Services.
- We reserve the right to edit, modify or delete User Content at our discretion.
- We may use any User Content for advertising or any other purposes.
- We take no responsibility and are not liable for any loss or damage to User Content.
- We reserve the right to edit, modify or delete User Data at our discretion.
- We take no responsibility and are not liable for any loss or damage to User
Copyright and Trademark Infringement
OTF respects and honors trademark and copyright rights of others and we ask that you do the same. Any valid notices of copyright or trademark infringement to OTF may be responded to with suspension or termination of Services of any OTF Account who violates the copyrights and trademarks of others.
OTF utilizes policies, procedures, and technical measures to protect your personal information from accidental loss or malicious acquisition, use, alteration, or access. OTF cannot guarantee that unauthorized personnel will never be able to access your information by circumventing or breaking the measures in place to prevent such activity. Your acknowledgement of this Agreement represents your understanding that you provide your personal information at your own risk.
This Agreement commences on the date when you first use the Services and continues for a one year term, unless terminated earlier in accordance with this Agreement. The subscription term will automatically renew in accordance with this Agreement.
OTF may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Services without any notice and liability for any reason, including if in OTF’s sole determination you violate any provision of this Agreement or fail to make monthly payments for the licenses.
Upon termination of this Agreement for any reason, you must immediately stop using the Services and your license to use the Services provided under this Agreement shall end. Upon your termination of this Agreement, OTF will provide you with seven (7) days to allow you to extract your User Content and User Data that OTF has stored on its servers as of the termination date. Subject to the foregoing sentence and applicable law and card association rule requirements, OTF will delete User Content and User Data stored on OTF’s servers upon your termination of this Agreement, and OTF will not be liable to you or any third party for termination of access to the Services or deletion of your User Content and User Data.
Subject to this Agreement, we grant you a nontransferable, nonexclusive, without rights of sublicense, revocable, limited use license to use and access, solely for your own personal, noncommercial use (i) the App on any compatible device that you own or control, and (ii) the other aspects of Services. Furthermore, with respect to any App accessed through or downloaded from the Google Play Store or Apple App Store (each an “App Store” and references to the App Store include the corporate entity and its subsidiaries making the App Store available to you), you agree to comply with all applicable third party terms of the App Store (the “Usage Rules”) when using the App. To the extent the terms of this Agreement provide for usage rules that are less restrictive than or otherwise in conflict with the Usage Rules, the more restrictive term applies.
The rights granted to you in this Agreement are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services or any leased or rented Products; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Apps, Products or Services, except to the extent such restriction is prohibited by law; (iii) you agree not to access the Services in order to build a similar or competitive service; (iv) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services or any other system, device or property of OTF’s; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by OTF; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Apps, Products or Services. Any future release, update, or other addition to functionality of the Services shall be subject to this Agreement.
Ownership of Services
The Services are licensed and not sold. OTF reserves all rights not expressly granted to you in this Agreement. This Agreement does not grant you any rights to OTF’s service marks or trademarks, or any other intellectual property rights. The Services are protected by intellectual property laws, including but not limited to trademark, patent, trade secret and copyright laws. OTF owns all Intellectual Property Rights in the Services. There are no implied licenses granted under this Agreement.
Any ideas, suggestions or comments submitted, including but not limited to ideas for new products or ways to improve the Services, is gratuitous and at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such feedback. You agree that we may use the feedback in any way and that you waive any right to any compensation or other benefit from our use of the idea.
You will indemnify, defend, and hold us, our officers, executives, agents, independent contractors, representatives and employees harmless from and against any and all claims, losses, damages, claims, judgments, penalties, interest, tax assessments, and expense arising from any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement; (ii) your use of, or inability to use the Apps, Products or Services; (iii) your violation of any law, rule or regulation of the United States or any other country; (iv) any person’s or entity’s access and/or use of the Apps, Services or Products with your unique username or password; (v) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights.
You may not use, export, import, or transfer the App, Products or Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained or use the App, Products or Services and any other applicable laws. In particular, but without limitation, the App, Products or Services may not be exported or reexported (i) into any United States embargoed countries, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services or Products you 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. You acknowledge and agree that products, services or technology provided by OTF are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, reexport, or transfer OTF products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Representation and Warranties
You represent and warrant to OTF that: (i) you are eighteen (18) years of age or older; (ii) you are eligible to register and use these Services and have the power, ability, and right to enter into a perform under this Agreement; (iii) the name used to create the OTF Account is your name or the name of your business under which you will utilize the Services; (iv) you will not, directly or indirectly, use the Apps, Products or Services for illegal, immoral or fraudulent activity or to interfere with these Services; (v) your use of the Apps, Product and Services will comply with this Agreement.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, To the maximum extent permitted by applicable law, YOUR USE OF THE APPS, PRODUCTS AND Services IS AT YOUR SOLE RISK AND THE APPS,PRODUCTS AND Services AND ANY CONTENT, APPS, PRODUCTS, SERVICES OR INFORMATION PROVIDED BY the APPS, PRODUCTS AND Services is provided on an “As Is” and “As Available” basis, WITH ALL FAULTS AND without any guarantee or warranty of any kind, STATUTORY, expressed or implied, including without limitation THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NONINFRINGEMENT, all of which ARE EXPRESSLY disclaimed. No oral or written information or advice from OTF will create a warranty not expressly stated herein. Without limiting the foregoing, OTF does not warrant that the APPS, PRODUCTS OR Services ARE reliable, correct, or accurate; that the APPS, PRODUCTS OR Services ARE virus free or contain no harmful components or code; that the APPS, PRODUCTS OR Services will be available at any given time or location, secure, or uninterrupted; that the APPS, PRODUCTS OR service will meet your requirements; or that any defects or errors will be corrected. Any downloaded content through the use of the APPS, PRODUCTS OR Services is at your own risk and you are solely responsible for any damage or loss of information that results from such downloads. if permitted in OTF’s agreements with third-party suppliers, OTF will flow down to you any warranties applicable to the APPS, PRODUCTS OR Services provided by such third-party suppliers. OTF DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY APP, PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH OR IN CONNECTION WITH THE APPS, PRODUCTS OR Services (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY APPS, PRODUCTS AND SERVICES CONNECTED THROUGH THE SERVICES OR FINANCING PRODUCTS OR SERVICES) OR ANY HYPERLINKED WEBSITE OR SERVICE, AND OTF WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRDPARTY.
Processing and Calculation Errors
You agree that OTF is not responsible for any monetary losses or damage that you may suffer while using the App, Services or Products. It is your responsibility to verify that calculations made by the Apps, Products or Services are correct and, if applicable, include the appropriate taxes, gratuities, and other fees.
Limitation of Liability
To the maximum extent permitted by applicable law, under no circumstances is OTF liable for any direct, indirect, punitive, incidental, special, consequential, or exemplary damages, including without limitation damages for lost profits, goodwill, use, data, or other intangible losses, that result from the use of, inability to use, or unavailability of the Apps, Products or Services. Under no circumstances will OTF be liable for any damage or loss resulting from hacking, tampering, or otherwise illegally tampering or using the Apps, Products or Services or your OTF account, or the information contained therein. To the maximum extent permitted by applicable law, OTF assumes no responsibility or liability for any (i) Any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (ii) any interruption or termination of communication to or from the Apps, Products or Services; (iii) any bugs, viruses, worms, trojan horses, or the like that may be transmitted to or through the Apps, Products or Services; (iv) any errors or missing information in any content or data or for any loss or damage incurred as a result of the use of any content or data posted, emailed, transferred, transmitted, or otherwise made available through the Apps, Products or Services; (v) User Content or the defamatory, offensive, or illegal conduct of any third-party. This limitation of liability section applies regardless of whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if OTF has been advised of the possibility of such damages.
ACCESS TO, AND USE OF, THE APPS, PRODUCTS AND SERVICESIS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OTF’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (I) THE FEES PAID BY YOU to OTF IN THE PRECEDING TWELVE (12) MONTHS OR (II) FIFTY U.S. DOLLARS (U.S. $50.00). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. IF YOU ARE NOT PAYING OTF DIRECTLY FOR A PRODUCT OR SERVICE BECAUSE YOU ARE FINANCING THROUGH OUR FINANCING PARTNER AS DESCRIBED IN THESE TERMS OF SERVICE OR OUR ORDER WITH YOU, THEN CLAUSE (A) ABOVE WILL BE THE AMOUNT YOU WOULD HAVE PAID OTF HAD YOU NOT FINANCED THROUGH OUR FINANCING PARTNER AND PAID US DIRECTLY. YOU AGREE THAT NEITHER OUR SUPPLIERS, FINANCING PARTNERS, NOR OUR LICENSORS WILL HAVE ANY LIABILITY OF ANY KIND (WHETHER DIRECT OR INDIRECT) ARISING FROM OR RELATING TO THIS AGREEMENT.
IF YOU BECOME DISSATISFIED IN ANY WAY WITH THE APPS, PRODUCTS OR SERVICES OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF THE APPS, PRODUCTS OR SERVICES. HOWEVER, THIS WILL NOT LIMIT YOUR OBLIGATION TO PAY AMOUNTS DUE OR PREVIOUSLY FINANCED OR ENTITLE YOU TO ANY REFUND.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OTF AND YOU AND IN SUCH JURISDICTIONS, THE LIABILITY OF OTF IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
No Warranties or Liability for Beta-Testing of New Apps, Products or Services
From time to time, we may request, and you may agree (at your sole discretion) to beta-test new Apps, Products or Services that we intend to release (each, a “New Offering”). During the period when you are beta-testing a New Offering, you agree to: (i) Utilize the New Offering in the same manner in which you have used previous Apps, Products or Services from OTF; (ii) Promptly notify OTF of any operational or other issues arising out of or related to your usage of the New Offering; and (iii) Make members of your staff reasonably available to assist OTF in trouble-shooting any operational, reporting, processing or other issues with a New Offering. You acknowledge and agree that OTF shall not be liable to you, your customers or other third-parties for consequential, exemplary, incidental, direct or indirect damages (including legal fees and expenses or cost of replacement) or loss of profits, data, goodwill or opportunities in connection with your beta-testing of a New Offering.
You further acknowledge and agree that there are no warranties (express, implied or statutory), including, without limitation, all warranties of merchantabilty, fitness for a particular purpose and any warranties arising from course of performance and that OTF does not warrant that any New Offering will be error-free, uninterrupted, virus-free or secure.
By agreeing to beta-test a New Offering, you fully and forever release and discharge OTF, all predecessors and successors, subsidiaries, affiliates, assigns, officers, directors, trustees, executives, agents and attorneys (past and present) from any and all claims, demands, liens, agreements, contracts, covenants, actions, suits, causes of action, obligations, controversies, debts, costs, expenses, damages, judgments, orders and liabilities, of whatever kind or nature, direct or indirect, in law, equity or otherwise, whether known or unknown, arising out of or related to your beta-testing of such New Offering.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without OTF’s prior written consent, but may be assigned by OTF without restriction and without your consent. Any assignment or transfer in violation of the foregoing will be null and void.
Disputes & Arbitration
In the event that a dispute arises, you agree that you will contact OTF Support to give us the opportunity to resolve the dispute. Either party may request arbitration if your dispute cannot be resolved within 60 days after presenting the dispute to the other party. All disputes that cannot be resolved informally (excluding claims for injunctive or other equitable relief as set forth below) shall be resolved by binding arbitration on an individual basis under the terms of this Section. This Section applies to you and OTF, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of App, Products or Services or the OTF Account provided under this Agreement.
The arbitration of any Dispute shall be initiated through the American Arbitration Association and conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by this Agreement. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. The arbitration hearing will be held in Miami, Florida, and unless the parties jointly agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing.
The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Any arbitration shall be confidential, and neither you, nor OTF nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. If any portion of this Section is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the American Arbitration Association.
Notwithstanding the foregoing, OTF may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights in any court of competent jurisdiction.
ALL DISPUTES MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Section. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and OTF in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND OTF WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. In any circumstances where this Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Miami, Florida, for such purpose and waive any arguments for forum non conviens.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, consistent with the Federal Arbitration Act, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Time to Initiate a Dispute
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AND OTF AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Right to Amend
OTF reserves the right to alter or add to the terms of this Agreement at any time, and to delete, discontinue, change, or impose conditions at our sole discretion on any feature or function of the App, Services or Products with or without notice that we determine to be reasonable in the circumstances, including such notice on our website at www.ontheflypos.com or any other affiliated website maintained by us for the purposes of providing Services in terms of this Agreement. Any use of the App, Services or Products after our publication of any changes shall constitute your acceptance of this Agreement as modified.
Third-Party Products and Services
The Services may contain links to third-party websites and applications and advertisements for third parties (collectively, “Third-party Websites, Applications & Ads”). When you click on a link to a third-party website, application or ad, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-party Websites, Applications & Ads are not under the control of OTF and OTF is not responsible for any Third-party Websites, Applications & Ads. OTF provides these Third-party Websites, Applications & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-party Websites, Applications & Ads, or their products or services. You use all links in Third-party Websites, Applications & Ads at your own risk. When you leave our Services, this Agreement no longer governs. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-party Websites, Applications and Ads, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Force Majeure. OTF shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to this Agreement or the Services, please contact us at: On the Fly, LLC. 5300 NW 77th Ct., Doral, Florida 33166. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
All provisions of this Agreement which by their nature should survive, shall survive termination of this Agreement, including without limitation, ownership provisions, warranty disclaimers, limitation of liability and the arbitration agreement.