REALflyer Terms of Service
1. Acknowledgement and Acceptance of Terms of Service
The REALflyer Services (the "Services") are owned and operated by REALflyer Incorporated, a California corporation doing business as REALflyer ("REALflyer"), and are offered via the World Wide Web at the URL www.realflyer.com (the "RF Site").
In order to place an order and purchase any of the Services, Customer must read the terms and conditions of this RFTS, and agree to be legally bound by the terms and conditions imposed on Customer by this RFTS. BY COMPLETING THE REGISTRATION PROCESS AND CLICKING THE "SUBMIT" BUTTON, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS RFTS. ANY ORDER OR PURCHASE OF REALFLYER SERVICES BY CUSTOMER CONSTITUTES AN EXPRESS AND IRREVOCABLE ACCEPTANCE OF THIS RFTS.
2. Description of Services
The REALflyer Services comprise the following:
REALflyer may provide Customer with a capability to transmit text and digital image files to REALflyer for the purpose of personalizing REALflyer-compatible templates.
REALflyer may provide Customer with the capability to purchase prints ("Print Job") of REALflyer-compatible templates personalized via the RF Site.
REALflyer may provide Customer with a capability to transmit documents and an associated address list ("Mail Job") to REALflyer for processing and delivery to the United States Postal Services.
REALflyer may provide Customer with the capability to purchase mailing lists for direct marketing purposes. This Service may be offered by a third-party vendor, and use of such Services requires Customer to review and accept a separate Terms of Services specific to list acquisition.
REALflyer may provide Customer with certain design services relating to direct mail and marketing, both the creation of REALflyer-compatible templates, and complete design and creation of REALflyer-compatible templates.
3. Modifications to Terms of Service
REALflyer may amend this RFTS at any time without notice to Customers by posting the changes on the RF Site, and any such changes will be effective seven (7) business days after being posted. Customer's continued use of the Services subsequent to the effectiveness of any amendment to the RFTS constitutes: (1) an affirmative acknowledgment by Customer of the RFTS and its modifications; and (2) an affirmative agreement by Customer to abide and be bound by the RFTS and its modifications.
4. Modifications to Services
REALflyer reserves the right to modify or discontinue any or all of the Services with or without notice to Customers. REALflyer shall not be liable to Customer or any third party should REALflyer exercise its right to modify or discontinue any or all of the Services.
5. Service Warranty
If REALflyer fails to process a direct Mail Job or Print Job in accordance with the specifications submitted by a Customer and accepted by REALflyer, then REALflyer shall repeat the Job in whole or in part as case may be, at no expense to the Customer. If a repeat Job is not feasible, then REALflyer shall, in its sole discretion, issue a credit to the extent of any portion of the Job not processed satisfactorily.
With respect to the Design Services, REALflyer will perform such Service consistent with generally accepted industry standards. If REALflyer fails to perform a Design Service Job in accordance with the specifications submitted by at Customer and accepted by REALflyer, the REALflyer may, in its sole discretion, repeat or revise the Job and/or issue a credit in whole or part.
Because the List Acquisition Service may be offered by a third-party vendor, REALflyer does not make any warranty regarding such Service.
THE ABOVE-STATED WARRANTIES ARE THE ONLY WARRANTIES APPLICABLE TO THE SERVICES, AND ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY. A REPEAT MAILING, IN WHOLE OR IN PART, OR CREDIT IF APPROPRIATE, OR A REPEAT OR REVISED DESIGN SERVICE JOB OR CREDIT IF APPROPRIATE, AS APPLICABLE ARE A CUSTOMER'S SOLE REMEDY FOR ANY BREACH OF WARRANTY. THE WARRANTIES SET FORTH HEREIN WITH RESPECT TO ANY DIRECT MAIL OR PRINT JOB WILL NOT APPLY IN THOSE CASES WHERE THE FAILURE TO PERFORM WAS AS A RESULT OF ERRORS IN INFORMATION SUPPLIED BY A CUSTOMER.
6. Disclaimer of Warranties and Limitation of Liability
(a) THE RF Site AND ITS CONTENTS ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED, EXCEPT AS MAY BE SPECIFICALLY STATED IN THIS RFTS. REALFLYER MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION, CONTENT OR SERVICE PROVIDED THROUGH OR ACCESSIBLE VIA THE RF SITE. WITHOUT LIMITED THE FOREGOING, REALFLYER SPECIFICALLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE RF Site, CONTENT, INFORMATION AND SERVICES, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD-PARTY RIGHTS. REALFLYER WILL NOT BE RESPONSIBLE FOR LOST OR DAMAGED ARTWORK, SLIDES, PHOTOS OR TRANSPARENCIES, WHETHER INTENDED FOR USE IN DIRECT MAIL, PRINTING, FOR THE PURPOSE OF DESIGN SERVICES, OR OTHERWISE. NO ORAL COMMUNICATION OR WRITTEN INFORMATION, OTHER THAN AS CONTAINED IN THIS RFTS, GIVEN BY REALFLYER OR ANY OF ITS EMPLOYEES, OFFICERS, DIRECTORS OR OTHER REPRESENTATIVES SHALL CREATE A WARRANTY. PRICE AND AVAILABILITY INFORMATION IS SUBJECT TO CHANGE WITHOUT NOTICE.
(b) THE FOREGOING IS A COMPREHENSIVE LIMITATION OF LIABILITY. AS A CUSTOMER, YOUR USE OF THE RF Site, CONTENT AND SERVICES IS AT YOUR OWN RISK. NEITHER REALFLYER NOR ANY OF ITS EMPLOYEES, OFFICERS, DIRECTORS OR OTHER REPRESENTATIVES WILL BE LIABLE FOR ANY COMPENSATORY, DIRECT, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, OR ANY CLAIMS OF THIRD PARTIES ARISING FROM THE USE OF THE RF Site, ITS CONTENT OR THE SERVICES, REGARDLESS OF THE LEGAL THEORY (E.G., CONTRACT, STATUTORY, OR TORT, INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION ANY DAMAGES ARISING OUT OF RELIANCE BY A CUSTOMER ON INFORMATION OBTAINED FROM REALFLYER OR THE RF Site, OR FOR DAMAGES THAT RESULT, IN WHOLE OR PART, FROM ANY MISTAKE, OMISSION, VIRUS, DELAY IN OPERATION, INTERRUPTION OF SERVICE, OR COMMUNICATIONS FAILURE, WHETHER OR NOT CAUSED BY AN ACT OF GOD. Some states do not allow the exclusion or limitation of liability for certain damages, e.g., consequential or incidental damages, so the above exclusions may not apply to some Customers. In such circumstances, REALflyer's liability shall be limited to the fullest extent permitted by law.
7. Customer Conduct and Responsibilities
(a) All information requested on a Customer's original sign-up or registration with REALflyer shall be referred to herein as registration data ("Registration Data"). If any information provided by Customer is inaccurate, REALflyer retains the right to terminate Customer's access to and rights to use the Services.
(b) Upon registration, Customer must establish a User Id and Password. Each Customer is solely responsible for maintaining the confidentiality of his/her/its User Id and Password, and for the uses of Customer's REALflyer account, whether or not expressly authorized by Customer.
(c) Each Customer's access to and use of the RF Site and Services is subject to all applicable local, state, national and international laws and regulations. As a Customer, you agree to be solely responsible for the contents of your transmissions to the RF Site and use of the Services. Further, you agree: (1) to comply with all US law regarding the transmission of technical data exported from the United States through or using the Services; (2) not to use the Services for illegal purposes; (3) not to interfere or disrupt networks connected to the Services; and (4) to comply with all regulations, policies and procedures of networks connected to the Services. Customer agrees not to transmit or to use the Services to transmit any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature, or to interfere with, abuse or otherwise violate the legal rights of any third party using the RF Site or Services. Customer further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, gives rise to civil liability or otherwise violates any applicable local, state, national or international law or regulation, including but not limited to any material or information that infringes any patent, trademark, trade secret, copyright or any other proprietary rights of any party, or any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. Attempts to gain unauthorized access to other computer systems are prohibited. REALflyer may, at its sole discretion, immediately terminate Services should Customer's conduct fail to conform to these terms and conditions of the RFTS.
(d) With respect to the Direct Mail Services offered by REALflyer, Customer specifically agrees to abide by all applicable state, federal and international law regarding direct mail, as applicable, and to comport with the guidelines established by the Direct Marketing Association.
8. Proprietary Rights
Customer acknowledges and agrees that REALflyer, and/or REALflyer's licensors, retain all right, title, and interest including, without limitation, all patents, trademarks, trade names, inventions, copyrights, know-how, and trade secrets embodied in or otherwise relating to, the software and other technology used to provide the Services (collectively, the "RF Technology") and the RF Site and in all content of the RF Site, including but not limited to text, software, music, sound, photographs, video, and graphics (the "RF Site Content"). The RF Site Content is subject to and protected by U.S. and international copyright laws, trademarks, service marks, patents or other proprietary rights and laws; therefore Customer is only permitted to use the RF Site Content as expressly authorized. Customer may not reproduce, distribute, or make derivative works of the Site Content, without the express written permission of REALflyer. REALflyer retains all rights not specifically granted to Customer. Without limiting the generality of the foregoing, Customer agrees not to reverse engineer, decompile, disassemble, or otherwise attempt to derive the source for the RF Technology, or otherwise use or copy the RF Technology or RF Site Content, except that Customer may, during the term of this RFTS, access and use the RF Technology solely through the user interface provided at the RF Site for the sole purpose of placing and confirming the status of Job Orders for Services. The Services are offered for sale and are sold by REALflyer subject in every case to the condition that such sale does not convey any license, expressly or by implication, to manufacture, duplicate, resell or otherwise copy or reproduce any of the RF Site Content or RF Technology. REALflyer, the REALflyer logo, "Instant Design and Print," are trademarks or service marks of REALflyer, i.e., REALflyer Incorporated.
Customer agrees to indemnify and hold harmless REALflyer, its parents, subsidiaries, affiliates, officers and employees, from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Customer's use of the RF Site and Services, the violation of this RFTS by Customer, or the infringement by Customer, or other user of the Services using Customer's computer, of any intellectual property or other legal right of any person or entity. This indemnification applies to, but is not limited to, any misuse by Customer of the Direct Mail Service offered by REALflyer.
10. Links to other Web Sites
The RF Site may now or in the future contain links to other websites. Such linked web sites are operated by third parties and are not under the control of REALflyer, and therefore REALflyer is not responsible for the content of any linked site, the services that may be available on a linked site, the links that may be contained within a linked site, or any updates or changes to such linked sites. These links are provided to Customers only as a convenience, and REALflyer may terminate such links at any time without notice.
Either Customer or REALflyer may terminate the Services with or without cause at any time and effective immediately. Termination shall be accompanied by a written notice to the other party. REALflyer shall not be liable to Customer or any third party for termination of Services. Should Customer object to any terms and conditions of the RFTS or any subsequent modifications thereto or become dissatisfied with the Services in any way, Customer's only recourse is to immediately: (1) discontinue use of the RF Site and Services; and (2) notify REALflyer of termination. Upon termination of the Services, Customer's right to use the Services immediately ceases. Customer shall have no right and REALflyer will have no obligation thereafter to forward any unread or unsent messages to Customer or any third party.
All notices to a party shall be in writing and shall be made either via email or conventional mail. REALflyer may broadcast notices or messages via email to inform Customer of changes to the RFTS, the Services, or other matters of importance; such broadcasts shall constitute notice to Customer.
13. Governing Law and Venue
The RF Site (excluding any links to third-party websites) is controlled by REALflyer from its offices within the State of California. Because the RF Site may be accessed from any or all of the 50 states, as well as other countries, Customer and REALflyer agree that the internal laws and statutes of the State of California, excluding its conflict of law provisions, will govern and apply to your use of the RF Site and Services, and this RFTS shall likewise be so governed and construed. Customer and REALflyer hereby agree the federal and state courts having jurisdiction in the County of San Bernardino, California shall be the sole venue and shall have exclusive jurisdiction to adjudicate any dispute arising out of this RFTS or Customer's use of the RF Site and Services. In connection therewith, Customer and REALflyer each expressly consent to the exclusive personal jurisdiction of the federal and state courts having jurisdiction within the County of San Bernardino, California. Customer and REALflyer further agree that any cause of action arising out of or related to the RFTS and/or the RF Site and Services must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
If any provision of this RFTS is held by a court or other tribunal of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties, and all other provisions shall remain in full force and effect. REALflyer's failure to exercise or enforce any right or provision of the RFTS shall not constitute a waiver of such right or provision unless acknowledged and agreed to by REALflyer in writing. Your use of the RF Site, however, may be subject to additional policies, disclaimer, or caveats that may appear throughout the RF Site. If you violate the terms of this RFTS, REALflyer reserves the right to terminate providing Services to you without notice. Your sole recourse or remedy is to receive a refund for prepaid but unused Services, if applicable. This RFTS may not be assigned or transferred by Customer, by operation of law or otherwise, without the prior written consent of REALflyer. REALflyer may assign or transfer this RFTS without consent to its successor in connection with a merger, consolidation, or other form of corporate reorganization, or in connection with the sale of all or substantially all of its assets. Any purported assignment in violation of the foregoing shall be void and invalid. The section titles in the RFTS are solely used for the convenience of the parties and have no legal or contractual significance. This RFTS shall be binding upon and inure to the benefit of REALflyer and Customer, and their respective permitted successors, assigns and transferees. This RFTS comprises the entire agreement between you ("Customer") and REALflyer, and supersedes any prior or contemporaneous negotiations, discussions or agreements.
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Terms Of Service
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