In this Member Terms of Service (“Terms of Service, or “Terms”), “Orby”, “we”, “us”, or “our” refers to Orby, Inc. d/b/a ORBYJets and its affiliates.

1. Scope

These Terms of Service contain terms and conditions governing the contractual relationship between Orby and visitors of our website https://www.orbyjets.com/ and/or mobile application that have created registered accounts to become members (“Members”) with access to and use of our aviation charter sourcing and marketing system (the “Orby Platform”) and other services to which Member has subscribed (together with the Orby Platform, the “Orby Services”).

In addition, certain products and services available from Orby may be subject to supplemental terms and conditions (“Supplemental Terms”), and in the event the Member has elected to receive any such products and services, such Supplemental Terms also apply. These Terms must be read in conjunction with these General Terms and Conditions, any applicable Supplemental Terms, and our Privacy Policy (such agreements, terms, and policies, collectively, this “Agreement”) to form the entirety of the contractual relationship governing the Member’s use of the Orby Services, and all components of this Agreement are binding on the Member. Updates to these Terms of Service may be found on https://www.orbyjets.com/ (the “Site”) and upon request.

2. Orby Services

Orby may provide access to the Orby Platform via various websites of which the main website is the Site, and as well as via other websites, applications, and platforms that may, from time to time, be included in the Orby Services. The Site and Orby Platform are used by Orby’s members to facilitate the sourcing, reservation, and booking of air charter. Among other things, the Site and Orby Platform facilitate the exchange of information, assisting potential booking members to match their needs with what aircraft operating members offer.

3. Access to Orby Services

Access to the Orby Services are granted to the Member on a membership subscription basis. A valid and effective membership subscription requires a current account balance. Access to the Orby Services will be activated once Orby has received payment for the first payment due for the membership subscription. The Member’s right to use Orby Services is contingent upon the Member’s compliance with all terms of this Agreement and continued timely payment of all fees.

Orby Services, as well as the data and information provided through Orby Services, may only be used in support of the Member’s business (and may not be reproduced, sold, rented, or bartered to, or used for the benefit of any third party), subject to the restrictions set forth in this Agreement.

4. Fees

Fees for the Orby Services will be in the amount(s) as determined by Orby in its sole discretion and communicated to Members via the Site or otherwise in writing (“Fees”). Fees will be payable as set forth by Orby to Member in writing. The Member shall be solely responsible for any taxes, levies, duties, assessments, or other similar changes on the Orby Services, other than taxes based on Orby’s gross income or net receipts. Orby reserves the right to increase the prices annually in order to account for inflation and general cost increases. Orby may update the Orby Services from time to time to reflect changes in the Orby Services (including the addition or removal of any services from the Orby Services) and any corresponding fees (including reflecting any increases in the fees due to annual price increases as provided above). Orby will send an email notice to the Member of any such update setting forth the updated Orby Services and fees, and if the Member does not notify Orby within ten (10) business days thereafter of any objection to the updated Fees, or if the Member submits a payment in conformance with the updated such updates, such updates will be deemed to be accepted by the Member.

5. IDS and Passwords

Member accounts may include credentials for access to specific Orby Services as well as general account credentials. The Member may not assign or reassign user accounts without express written consent from Orby. Each user account may only be used by the individual user to which the account is assigned. User accounts may not be shared.

The Member is fully responsible for any and all use of the Orby Services by anyone using a user account provided to the Member, including ensuring that all such users comply with all terms of this Agreement. All obligations of the “Member” hereunder shall also apply to anyone using, or accessing the Orby Services through, the Member’s account.

Each user account is associated with a specific user ID, password and email. Each user ID and each password is confidential and the assigned user may not disclose or share it with anyone else, including other representatives of the Member or third parties, and it may not be used for any unauthorized purpose. The Member will use all reasonable efforts to make sure that representatives who are provided with a user ID and a password undertake to keep such information confidential and the Member will implement adequate security measures to make sure that its user IDs and passwords are not disclosed and/or misused.

The Member agrees that users may receive emails from the Site and may manage their email preferences in the user profile.

6. Submissions

Use and Ownership

As between Orby and the Member, any and all content, data, graphics, images and other information that the Member transmits through the Site, the Orby Platform, or other Orby Services (“Submissions”) shall remain the Member’s sole and exclusive property. The Member shall be solely responsible for its Submissions. By transmitting Submissions through the Site, the Orby Platform, or the other Orby Services, the Member hereby grants Orby, its affiliates, and its and their successors a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, sub-licensable (through multiple tiers) and transferable license: (a) to use, copy, display, perform, transmit and otherwise distribute the Submissions on and through the Orby Services, in any and all mediums, now known or hereafter developed, and (b) to create derivative works of the Submissions in order to mask unique identifying data, such as removing the tail number from a submitted photo, and otherwise as reasonably necessary in connection with the operation of the Orby Services. The Member also grants each user of the Orby Services a non-exclusive license to access the Submissions through the Orby Services and to use, copy, display, transmit, or otherwise distribute its Submissions in relation to their use of the Orby Services. The Member also agrees that Orby may, without any obligation to the Member, use, copy, adapt, create derivative works of, distribute, and otherwise exploit any feedback that the Member provides to it regarding the Orby Services.

The Member agrees to only provide Submissions that it has the right to publish and deems suitable for publication on the Site and the Orby Platform and that, to the best of the Member’s knowledge, are true, accurate current, complete, and not misleading. Subject to the Privacy Policy and our General Terms and Conditions, any Submission that the Member provides to Orby will be deemed public information and not subject to any confidentiality obligation, and Orby shall have no obligation to maintain its confidentiality.

The Member may only provide Submissions with information in the form of text, numbers, pdf documents, and digital photos intended to be read and understood by other members.

The Member agrees to maintain and promptly update Submissions in order to keep information that has been posted or communicated through the Orby Services true, accurate, current, complete and not misleading. The Member undertakes to continuously provide Orby, through the Orby Services, all relevant information about the Member as it relates to the Orby Services or to the Submissions. Orby agrees to remove any Submission made by the Member from display through the Orby Services within a reasonable time period after written request from the Member.

Orby may remove any of the Submissions from display in its sole discretion, including but not limited to Submissions it deems to be in conflict with these Terms of Service, any other component of this Agreement, or applicable local, state, federal, national, provincial, foreign, and international statutes, treaties, regulations, rules, ordinances, orders, and other laws (each, a “Law”).

Processing and Use of Member and Client Information

The primary objective of the Orby Services is to store, analyze and exchange information. By using the Orby Services the Member agrees and acknowledges that Orby may collect, process, and use information in a variety of ways. Such information includes, but is not limited to, information about the Member or provided by the Member (including name and contact details of the Member’s representatives and clients), Submissions, information regarding activities on the Site and Orby Platform and the use of the Orby Services, as well as messages sent or received by the Member through the Orby Services (all information collected from and about the Member being “Member Information”).

Subject to our Privacy Policy, Orby may use, copy, transmit, distribute, sell, transfer, disclose, and display any information provided through Submissions and other Member Information for its legitimate business purposes.

PCI Compliance

We follow the Payment Card Industry Data Security Standard (PCI-DSS) when handling credit card data. Orby currently accepts VISA, MasterCard, Discover, and American Express as authorized payment methods for Orby Services. All payment transactions are processed by our third-party payment processor in adherence to PCI-DSS, and other applicable standards. For more information regarding such collection and use, please review our Privacy Policy. Orby at its sole election may discontinue support for any payment method or it may support additional payment methods (i.e., Apple Pay, Google Wallet, or Amazon Payments) and we will update these Terms accordingly.

7. Prohibited Conduct

The Member may not, and may not attempt to, enter any form of data, device, software or routine that could pose a threat to the security or functionality of the Orby Services, including but not limited to HTML, ASP, XML, viruses, trojans, hyperlinks, auto responders, time bombs or cancel bots.

The Member may not, and may not attempt to, damage or interfere with the functionality, security, or proper working of any of the Orby Services or surreptitiously intercept or expropriate any system, data or information from any of the Orby Services.

The Member may not, and may not attempt to, take any action which imposes an unreasonable or disproportionately large load on any of the Orby Services, or any infrastructure connected therewith, including but not limited to “spam”, denial of service attacks, unsolicited mass e-mailing and other techniques.

The Member may not, and may not attempt to, use the Orby Services for any illegal purpose or in any way that violates any applicable Law or violates, infringes, or misappropriates the rights of any third party.

The Member may not, and may not attempt to, use the Orby Services to harass or harm any individual or entity, or to impersonate any person or entity, or misrepresent the Member’s affiliation with any person or entity.

The Member may not use the Orby Services any purposes other than those expressly authorized by Orby, and may not use the Orby Services for any purposes that compete with Orby and the Orby Services.

The Member may not, and may not attempt to, engage in any form of data scraping, unauthorized downloading, or hacking aimed at accessing or retrieving data or content from any of the Orby Services.

The Member may not, and may not attempt to, reproduce, reverse engineer, decompile, disassemble, modify or create derivative works with respect to any of the Orby Services or any component of any of them.

The Member may not, and may not attempt to, download any data sets, directories, or content from any of the Orby Services in order to use it to create or supplement its own or a third party’s data base or service (except with the express written consent from Orby).

Any breach by the Member of this Section 7 shall for all purposes be regarded as a “material breach” of this Agreement.

8. Orby Services

Orby provides a range of different services to its members, which may from time to time include marketplace services, business management tools, customized mobile and web-based application solutions, and application programming interface access. Any products and services created by or modified by Orby at the request of the Member may be made available to other Members by Orby, without restriction, unless otherwise specifically agreed between Orby and the Member.

9. Changes and Amendments

Orby may update or change these Terms of Service, any Supplemental Terms, and/or the Agreement at any time and in its sole discretion, by making updates wherever such terms are made available to Members, or emailing to the Member at the email address the Member has provided to Orby, a change notice or a revised Agreement. If any modification is unacceptable to the Member, the Member’s only recourse is to terminate its use of the Orby Services and to give Orby a notice of termination in accordance with Section 10. The Member’s continued use of any Orby Services following the effective date of any revised Agreement or Terms of Service that was posted on the Site or emailed to the Member as provided in this section will constitute the Member’s binding acceptance of the update or change.

10. Suspension, Cancellation, and Termination

Orby may suspend the Member’s right and license to use any one or more individual Orby Services, or may suspend or terminate the right and license of anyone using any of the Member’s user accounts to use any one or more individual Orby Services, or may terminate this Agreement in its entirety (and, accordingly, the Member’s and all its account user’s rights to use all Orby Services), for cause effective immediately upon notice to the Member if any of the following occur, or if Orby has grounds to suspect any of the following: (i) the Member breaches this Agreement, (ii) the Member or any such user attempts a denial of service attack on any of the Orby Services; (iii) the Member or any such user attempts to hack or break any security mechanism on any of the Orby Services or Orby otherwise determines that the Member’s or any such user’s use of the Orby Services poses a security or service risk to Orby, any Orby affiliate, or any user of any Orby Services, or may subject any of them or any third party to liability, damages or danger; (iv) the Member or any such user otherwise uses the Orby Services in a way that disrupts or threatens the Orby Services; (v) Orby determines, in its sole discretion, there is evidence of fraud with respect to the Member’s account; (vi) Orby receives complaints about the Member’s (or any such user’s) use of the Orby Services from other Members; (vii) the Member or any such user uses any of the Orby Services or Marks (as defined below) other than as expressly permitted in this Agreement, and, if such use is susceptible of correction, such use has not ceased within ten (10) days after written notice to Member thereof; (viii) Orby receives notice or otherwise determines, in its sole discretion, that the Member or any such user may be using the Orby Services for any illegal purpose or in a way that violates applicable law or violates, infringes, or misappropriates the rights of any third party; (ix) Orby determines, in its sole discretion, that Orby’s provision of any of the Orby Services to the Member or any such user is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; (x) the Member is in default of any payment obligations under this Agreement; or (xi) subject to applicable Law, upon the Member’s liquidation, commencement of dissolution proceedings, disposal of its assets, failure to continue its business, assignment for the benefit of creditors, or if it becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding; or (xii) Orby has reason to believe, in its sole discretion, that the Member may cause Orby to breach Orby’s internal risk policy. A breach by the Member of any other agreement entered into with Orby or any of its affiliates shall be deemed and treated as a breach of a material provision of this Agreement and shall entitle Orby to the same remedies as if the Member had breached this Agreement. If Orby has suspended the Member’s rights and license pursuant to this Section 10, and such suspension has lasted ninety (90) days, this Agreement shall terminate without any further action by Orby or notification to the Member.

Upon receipt of a revised version of these Terms, the Member shall have the right to terminate this Agreement in its entirely as of the revision date, provided that Orby has received the Member’s written termination notice before such revision date.

11. Effect of Suspension, Modification of Services, Termination, or Expiration

Upon suspension of the Member’s use of any Orby Services, in whole or in part, for any reason, (i) the Member will remain liable for all fees, charges, and any other obligations with respect to the suspended Orby Services; (ii) fees will continue to accrue for any Orby Services that are still in use by the Member, notwithstanding the suspension; and (iii) all of the Member’s rights with respect to the suspended Orby Services shall be terminated during the period of the suspension.

Upon termination or expiration of this Agreement for any reason: (i) the Member remains liable for all fees, charges and any other obligations incurred through the date of termination or expiration with respect to the Orby Services; (ii) all of the Member’s rights under this Agreement and all of the Member’s rights with respect to the Orby Services shall immediately terminate; and (iii) the rights and obligations of the parties that by their nature should survive termination or expiration of this Agreement will survive the termination or expiration of this Agreement. No termination or expiration of this Agreement will relieve either party of any liability for any breach of, or liability accruing under, this Agreement prior to termination or expiration.

Refunds will only be issued for pre-paid future services, subject to any limitations and fee minimums under these Terms of Service and any Supplemental Terms. No refunds will be given for periods that have already passed or with respect to any services that have been rendered. The amount of any refund will be issued in the form of a credit to the Member’s account and applied to the Member’s next payment obligation and/or invoice.

12. Member’s Representations, Undertakings and Warranties

By entering into this Agreement and by using any Orby Service, the Member represents, undertakes and warrants that upon execution of this Agreement and at all times after that, as applicable:

• the execution, delivery, and performance of this Agreement is duly authorized by the Member and this Agreement has been duly executed and delivered for and on behalf of the Member by persons authorized to do so;
• any person that is provided with a user account, and the user ID and the password associated to such account, has the right and authority to act through the Orby Services on behalf of the Member;
• all information provided by or on behalf of the Member to Orby or through the Orby Services, is and will be true, correct and not misleading;
• the Member owns and/or has the necessary licenses, rights, consents, and permissions to use and authorize Orby to use all patent, trademark, trade secret, copyright or proprietary rights in and to any and all Submissions to enable inclusion and use of the Submissions by the Orby Services;
• when submitting any aircraft availability through the Orby Services with the intent to be displayed to other Members through the Orby Services, the Member represents and warrants that (i) the relevant aircraft is available for charter as detailed, (ii) the operator of the aircraft has a valid Air Operation Certificate or Part 135 Certificate for that aircraft, and (iii) the registration number provided is valid and relates to the aircraft offered;
• the Member shall comply with all applicable laws, as well as all applicable industry standards, including obtaining all necessary permits and/or approvals, in connection with the performance of its obligations under this Agreement, the use of the Orby Services, and the marketing, selling and/or operation of charter flights; and
• the Member is not insolvent, has not gone into liquidation, has not had a receiver appointed for any or all of its assets, has not entered into receivership, is not declared bankrupt, has not taken general measures to cease payments of its debts, has not entered into negotiations for a general agreement with its creditors, has not entered into composition, reorganization or similar arrangements with its creditors.

13. Availability

Orby reserves the right to make the Site, the Orby Platform, and the other Orby Services unavailable from time to time in order to install new releases, to perform maintenance, or to undertake activities to protect or improve the Site, the Orby Platform, and the other Orby Services or the information provided through them. Orby will make reasonable efforts to notify members in advance of any planned system downtime by posting notices on the Site and/or by sending an e-mail notification to the Member at the e-mail address associated with the Member’s user account(s) that have administrative rights. Orby does not assume responsibility for unavailability and downtime caused by force majeure or other events and circumstances beyond Orby’s control, it being understood that failure in the transfer of data, problems inherent in the use of communication facilities and failures caused by any Member not adhering to Orby’s instructions or policies will always be considered circumstances beyond Orby’s control.

14. Right to Discontinue or Modify Services

Orby reserves the right to discontinue or suspend providing the Orby Services, in part or in their entirety, and to modify the Orby Services or any nature, features, functions, scope, or operation thereof, at any time and from time to time. ORBY, ITS AFFILIATED ENTITIES, AND ITS AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, AND LICENSORS (COLLECTIVELY, THE “ORBY PARTIES”) SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY SUCH DISCONTINUANCE, SUSPENSION, OR CHANGES, OR FOR TERMINATING ANY RIGHTS GRANTED HEREIN, REMOVING ANY SUBMISSIONS, OR SUSPENDING, MODIFYING, OR TERMINATING THE MEMBER’S MEMBERSHIP OR THE MEMBER’S ACCESS TO THE ORBY SERVICES.

15. No Responsibility for Other Members, Third Party Content, or Third Party Services

The Member acknowledges that Orby is neither a broker nor an operator of charter flights. Orby is not a party to transactions or contractual arrangements that may arise between its members, even if Orby facilitates those transactions or arrangements, or the payments related thereto. Because Orby’s members are independent entities with their own operating policies, procedures and processes, and because they operate independently of Orby, Orby cannot and will not control or monitor their actions. Orby does not investigate or endorse any of its members, their services or the quality or legality thereof, or their ability to pay for services. Any agreements entered into by the Member, anyone using the Member’s user account, and representatives, and all other persons to whom the Member provides access to any Orby Services (collectively, the “Member Parties”) with any Orby member or other user of the Orby Services as a result of the use of the Orby Services are at the sole discretion and risk of such Member Party, and each Member Party bears the full responsibility for the payment and performance of all agreements entered into with Orby members and users. Orby has no responsibility to intervene in any disputes between Member Parties, to terminate or suspend any Member Party’s right to use the Orby Services based on any complaint by any other Member Party or for any other reason, or to provide contact information for any Member Party to any other Member Party. WITHOUT LIMITING THE GENERALITY OF THESE TERMS, THE MEMBER ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ORBY PARTIES SHALL NOT BE RESPONSIBLE FOR, AND SHALL NOT INCUR ANY LIABILITY TOWARDS THE MEMBER PARTIES FOR ANY LOSS OR DAMAGE (INCLUDING WITHOUT LIMITATION, FINANCIAL LOSS, LOSS OF BUSINESS, PROPERTY DAMAGE, EMOTIONAL DISTRESS, PERSONAL INJURY, OR DEATH) RESULTING FROM OR ARISING OUT OF: (A) ANY INFORMATION PROVIDED OR ANY REPRESENTATION MADE BY ANY MEMBER OR ANY OTHER ORBY SERVICES USER (B) ANY AGREEMENTS ENTERED INTO BY ANY MEMBER PARTY WITH A MEMBER OR ANY OTHER ORBY SERVICES USER; (C) ANY PAYMENTS OWED BY ANY MEMBER OR ANY OTHER ORBY SERVICES USER TO ANY MEMBER PARTY; OR (D) ANY SERVICES RENDERED BY, OR ANY ACTS OR OMISSIONS OF, ANY MEMBER OR ANY OTHER ORBY SERVICES USER (INCLUDING WITHOUT LIMITATION ANY AIR CHARTER SERVICES, OR ANY DELAY, ACCIDENT, OR COMPLICATIONS RELATED THERETO), REGARDLESS OF WHETHER ORBY FACILITATED THE UNDERLYING TRANSACTIONS AND REGARDLESS OF THE BASIS OF SUCH CLAIMS, AND THE MEMBER, ON BEHALF OF ITSELF AND THE OTHER MEMBER PARTIES, HEREBY WAIVES AND RENOUNCES ANY RIGHT IT OR THEY MAY OTHERWISE HAVE TO CLAIM INDEMNIFICATION FROM ANY ORBY PARTY IN SUCH RESPECT.

Content available through the Orby Services includes information, software, and other content provided by the members of Orby’s services, data providers, and other third parties (“Third Party Content”). In addition, portions of the Orby Services may allow the Member or other Member Parties to use third party products and services, such as payment services, and may link to other websites operated by, or content provided by, third parties. In addition, other websites may link to the Site or other Orby Services. These other products, services, websites, and resources are referred to here as “Third Party Services”. Use of Third Party Services is subject to the license agreements, terms and conditions, privacy policies, and other policies and agreements applicable to those Third Party Services. Orby has no control over any Third Party Content, any Third Party Services, or any content available on or through any Third Party Services, which are made available to the Member or other Member Parties through the Site and other Orby Services only as a convenience. THE ORBY PARTIES HAVE NO RESPONSIBILITY FOR, AND WILL HAVE NO LIABILITY ARISING OUT OF OR RELATED TO, ANY THIRD PARTY CONTENT, THE USE OR DOWNLOADING OF ANY THIRD PARTY CONTENT, THIRD PARTY SERVICES, OR THE CONTENTS OF ANY THIRD PARTY SERVICES. THE AVAILABILITY OF ANY THIRD PARTY CONTENT OR THIRD PARTY SERVICES ON THE SITE OR OTHER ORBY SERVICES IS NOT AN ENDORSEMENT OF SUCH THIRD PARTY CONTENT OR THIRD PARTY SERVICES, THE PROVIDERS OF SUCH THIRD PARTY CONTENT, OR THE OPERATORS OF THOSE THIRD PARTY SERVICES.

WITH RESPECT TO ANY ISSUES ARISING OUT OF OR RELATING TO ANY THIRD PARTY CONTENT, THIRD PARTY SERVICES, OR ANY AGREEMENTS WITH, SERVICES RENDERED BY, OR ACTS OR OMISSIONS OF ANY MEMBER, ANY OTHER ORBY SERVICES USER, OR ANY OTHER THIRD PARTY, THE MEMBER HEREBY AGREES, ON ITS OWN BEHALF AND ON BEHALF OF THE OTHER MEMBER PARTIES, TO ONLY SEEK LEGAL REDRESS FROM SUCH OTHER MEMBER, USER, OR THIRD PARTY, AND NOT ANY ORBY PARTY.

16. Disclaimer of Warranties

TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SITE AND THE OTHER ORBY SERVICES IS AT THE MEMBER PARTIES’ SOLE RISK. ORBY PROVIDES THE SITE, THE ORBY SERVICES, AND ALL OTHER MATERIALS PROVIDED BY ANY ORBY PARTY IN CONNECTION WITH THE MEMBER PARTIES’ USE OF THE ORBY SERVICES “AS IS”, “WHERE IS”, AND “AS AVAILABLE”. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE ORBY PARTIES MAKE NO WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. THE ORBY PARTIES DISCLAIM ALL EQUITABLE INDEMNITIES.

EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE ORBY PARTIES MAKE NO REPRESENTATION OR WARRANTY THAT: (A) THE ORBY SERVICES WILL MEET THE MEMBER PARTIES’ REQUIREMENTS, (B) THE INFORMATION, INCLUDING THIRD PARTY CONTENT, AVAILABLE THROUGH THE ORBY SERVICES WILL BE ACCURATE, TRUTHFUL, COMPLETE, LAWFUL, RELIABLE, OR OF ANY PARTICULAR QUALITY, (C) THE ORBY SERVICES WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY, OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, TIMELY, ACCURATE, SECURE, ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (D) THAT ANY MESSAGES OR OTHER INFORMATION TRANSMITTED OR PURPORTED TO BE TRANSMITTED THROUGH THE ORBY SERVICES WILL BE TRANSMITTED TIMELY, ACCURATELY, OR AT ALL.

NO ADVICE OR INFORMATION OBTAINED BY ANY MEMBER PARTY FROM ANY ORBY PARTY OR FROM ANY THIRD PARTY OR THROUGH THE SITE OR ANY OTHER ORBY SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

17. Limitation of Liability

IN NO EVENT SHALL ANY ORBY PARTY BE LIABLE TO ANY MEMBER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA OR OTHERWISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY ORBY SERVICES OR THE USE THEREOF, OR ANY OTHER MATERIALS PROVIDED BY ANY ORBY PARTY IN CONNECTION WITH THE USE OF THE ORBY SERVICES USE THEREOF, WHETHER BASED IN CONTRACT, WARRANTY, TORT, OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH ORBY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

The cumulative liability of the Orby Parties to the Member Parties with respect to this Agreement and the Orby Services shall in no event exceed an amount corresponding to the Fees actually paid by the Member in the preceding twelve (12) months. The cap on liability set forth in the preceding sentence shall not apply to losses or damages caused by the willful misconduct by Orby, its officers, employees, agents, or representatives.

18. Exclusions and Limitations

Some jurisdictions do not allow the limitation of certain warranties or the limitation or exclusion of liability for indirect, consequential, incidental, special, punitive, or exemplary damages. Accordingly, some or all of the above exclusions or limitations may not apply to the Member Parties. To the extent the Orby Parties may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of liability of the Orby Parties shall be the minimum permitted by applicable Law.

19. Indemnification

SUBJECT TO THE LIMITATIONS SET FORTH IN THESE TERMS, THE MEMBER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE ORBY PARTIES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, EXPENSES, AND DAMAGES, INCLUDING WITHOUT LIMITATION, FINANCIAL LOSS, LOSS OF BUSINESS, PROPERTY DAMAGE, EMOTIONAL DISTRESS, PERSONAL INJURY, OR DEATH, (INCLUDING ATTORNEY’S FEES) RESULTING FROM: (A) ANY AND ALL BREACHES OF ANY PROVISIONS OF THIS AGREEMENT BY ANY MEMBER PARTY, (B) ANY AND ALL USE OR MISUSE OF THE ORBY SERVICES BY ANY MEMBER PARTY, AND (C) ANY AND ALL SERVICES RENDERED BY, OR ANY ACTS OR OMISSIONS OF, ANY MEMBER PARTY (INCLUDING WITHOUT LIMITATION ANY AIR CHARTER SERVICES, OR ANY DELAY, ACCIDENT, OR COMPLICATIONS RELATED THERETO).

20. Ownership

Nothing in this Agreement shall mean that any of Orby’s ownership, intellectual property rights, license rights, or the like, or part thereof, is assigned, sub-licensed or transferred to the Member.

With respect to ownership of data and information on the Site and available through the other Orby Services, each member only owns the information provided through its own Submissions. As between the Member and Orby, all other data, source code, and any other code and information are owned by Orby.

“Orby,” the Orby logo, and other names, logos, and materials displayed on the Site and the other Orby Services constitute trademarks, trade names, service marks, and logos (each, a “Mark”) of Orby, its affiliates, licensors, or other entities. Ownership of the Marks and the goodwill associated with the Marks remains with Orby or those other persons or entities. Orby grants the Member the limited right to display the Marks solely as they appear on the Orby Services and the components thereof. The Member agrees not to remove any Marks or any other proprietary notices from any components of any Orby Services.

21. Export Control and Restricted Countries

The Member may not use, export, re-export, import, or transfer any Orby Services except as permitted under all applicable laws. In particular, but without limitation, no Orby Service may be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. The Member represents and warrants that (i) no Member Party is resident or citizen of, and no aircraft listed by any Member Party is located or registered 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) no Member Party is listed on any U.S. Government list of prohibited or restricted parties. No Member Party may use any Orby Services for any purpose prohibited by U.S. Law or any other applicable Law.

22. Legal Status

No agency, partnership, joint venture or any other relationship of such kind is intended or created by the Member’s entry into this Agreement or the Member’s use of the Orby Service, or the information exchanged by such means.

23. Entirety of the Agreement

Both parties confirm that this Agreement represent the entire understanding and constitute the entire agreement between the parties in relation to its subject matter, and supersedes all prior agreements, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, agent, employee, or representative of either of the parties.

24. Assignments

Orby may assign this Agreement to any other entity that, at the time of such assignment, either directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Orby.

The Member may not assign this Agreement to any other party without the prior written consent of Orby, such consent not to be unreasonably withheld or delayed.

25. Electronic Communications Notice

When the Member uses the Orby Services or send emails to Orby, the Member is communicating with Orby electronically. The Member consents to receiving communications from Orby electronically (such as by email or by posting notices on the Site). The Member agrees that all agreements, notices, disclosures, and other communications that Orby provides to the Member electronically satisfy any legal requirement that such communications be in writing. In order to access any such communications, the Member must have a computer or mobile device. In addition, the Member hereby consents to Orby sending it email or other communications related to the Orby Services from time to time. If the Member wishes to withdraw its consent for Orby to communicate with it electronically, it must terminate its use of the Orby Services and all of its users accounts.

26. Interpretation

The headings of these Terms, and the other components of this Agreement, are for convenience only and shall not affect the interpretation of any provision of this Agreement.

The provisions of this Agreement shall be construed according to their fair meaning and neither for nor against the party which caused such provisions to be drafted.

27. Partial Invalidity And Waiver

If any provision of these General Terms and Conditions or any other component of this Agreement, or the application of them, is declared or deemed void, invalid or unenforceable in whole or in part for any reason, the parties shall amend these Terms and/or such other component of this Agreement, as shall be necessary to give effect to the spirit and purpose of these Terms and the other components of this Agreement, as far as possible. If the parties fail to amend these Terms and/or such other component of this Agreement, the provision which is void, invalid, or unenforceable shall be deleted and the remaining provisions of these Terms and the other components of this Agreement shall continue in full force and effect.

Waiver by one party of strict performances of any provision of these Terms or any other component of this Agreement will not be a waiver of or prejudice to such party’s right to require strict performance of the same provision in the future or of any other provision.

28. Governing Law and Dispute Resolution

This Agreement This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of any conflict of law provisions.

ORBY AND THE MEMBER EACH AGREE THAT EACH OF THEM, AND EACH OF THE ORBY PARTIES AND MEMBER PARTIES, MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER OR IN ANY REPRESENTATIVE CAPACITY OR PROCEEDING.

The United Nations Convention on the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement.

The Member acknowledges that a breach of any of the provisions of the Agreement, or use of the Orby Services other than as expressly authorized, is likely to cause Orby immediate and irreparable harm, loss or damage, and the Member therefore agrees that Orby shall be entitled to seek injunctive relief against the Member with respect to any such breach, without requirement to post bond.