Terms of Use

Last Updated Date: January 1, 2015

360fly, Inc. (“360fly”) provides its services through our websites accessible at 360fly.com, www.gopano.com and any other website for which 360fly owns the domain registration (the “Site”), its proprietary video viewing platform and the services made available by 360fly therein, including the “360fly ecosystem,” and certain mobile applications or game system platforms that allow you to access the 360fly services (collectively, the “Service”). These detailed Terms of Use which incorporate our Privacy Policy and Copyright Policy, (“TOU”), govern your use of the Service. It is therefore important that you read and understand these TOU.

Acceptance of the TOU

YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICE OR BY UPLOADING OR POSTING ANY CONTENT (AS DEFINED BELOW) ON THE SERVICE, YOU, YOUR HEIRS, AND ASSIGNS (COLLECTIVELY, “YOU”) ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TOU, WHETHER OR NOT YOU HAVE REGISTERED ON OR THROUGH THE SERVICE. IF YOU DO NOT AGREE TO THESE TOU, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE OR CONTENT. If you accept or agree to these TOU on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these TOU and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

Certain areas of the Service, including, but not limited to, the areas of the Service through which you may purchase 360fly products, may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions (“Product-Specific Terms”). If there is a conflict between these TOU and terms and conditions posted for a specific area of the Service, the Product-Specific Terms will take precedence with respect to your use of or access to that area of the Service.

Eligibility

The Service is intended solely for persons who are 13 or older. Any access to or use of the Service by anyone under 13 is expressly prohibited. By accessing or using the Service you represent and warrant that you are 13 or older.

Account Registration

In order to access or use certain features of the Service you may be required to create an account (“Account”) and become a “Registered User” of the Service. During the registration process you will be required to provide certain information and establish a username and a password. You agree to provide accurate, current and complete information during the registration process and at other times when you use the Service and to update such information to keep it accurate, current and complete. 360fly reserves the right in its sole discretion to refuse to keep Accounts for, or provide services to, any individual. 360fly reserves the right to suspend or terminate your Account if any information provided during the registration process or at other times proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify 360fly of any unauthorized use of your Account.

Privacy

See 360fly’s Privacy Policy here for information and notices concerning 360fly’s collection and use of your personal information.

Ownership and Intellectual Property

The Service and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these TOU, 360fly and its licensors exclusively own all right, title and interest in and to the Service and Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service or Content.

All trademarks, service marks, logos, trade names and any other proprietary designations of 360fly used herein are trademarks or registered trademarks of 360fly. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

Your License to Use the Services

“Content” on the Service means any links, text, graphics, images, music, audio, video, photos, information, code, or other materials available on the Service. Subject to your compliance with these TOU, 360fly grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use the Service, and to access, use, view and print any Content solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service or Content, except as expressly permitted in these TOU. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by 360fly or its licensors, except for the licenses and rights expressly granted in these TOU..

User Submitted Content

We may, in our sole discretion, permit you to submit, post, upload, publish, email, send or transmit Content on or through the Service or in response to or in connection with Content previously provided via the Service. We may occasionally ask you to resubmit Content to us in a different form. Unless otherwise agreed in writing, 360fly does not claim any ownership rights in your Content and nothing in these TOU will be deemed to restrict any rights that you may have to use and exploit your Content. By making available any Content through the Service, you hereby grant to 360fly a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, reference, store, cache, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such Content on and through third-party distribution channels selected by, but not affiliated with, 360fly, in any form, medium or technology now known or later developed, in whole or in part, for any purposes, including for both commercial and non-commercial purposes, subject to any limitations on use of your private Content, if applicable, in the 360fly Privacy Policy; you also grant 360fly the right to sublicense these rights to third parties for distribution via third party distribution channels, which may include viral distribution of your Content. You agree that neither 360fly nor any third party distribution channels have any obligation to provide any compensation to you for your Content or the licenses granted herein. You understand that 360fly does not guarantee any confidentiality with respect to Content you submit. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these TOU.

Notwithstanding the above, if you submit Content to 360fly for 360fly, in its sole discretion, to consider using for its own purposes, you may be asked to agree to a separate license agreement that will supersede this provision with respect to such Content. You acknowledge and agree that 360fly has no obligation to use any Content that you submit and that you have no obligation to agree to license terms other than those presented in this TOU.

You acknowledge and agree that you are solely responsible for all Content that you make available through the Service. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Content that you make available through the Service or you have all rights, licenses, permissions, consents and releases that are necessary to grant to 360fly the rights in such Content, as contemplated under these TOU; and (ii) neither the Content nor your posting, uploading, publication, submission or transmittal of the Content or 360fly’s use of the Content (or any portion thereof) on, through or by means of the Service or otherwise will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

Idea or Proposal Submissions/Feedback

For any proposals or ideas that you submit to 360fly, in addition to any other representations or warranties in these TOU, you represent and warrant that you have the right to disclose such ideas or proposal to 360fly and that such disclosure does not violate the rights of any other person or party. You will indemnify and hold harmless and defend 360fly from and against any claims, losses, expenses and liabilities arising from breach by you of the foregoing representation and warranty.

By submitting your idea or proposal you acknowledge and recognize that 360fly has a number of well-established product lines and is continually busy working on new products, services and technologies, and as such, 360fly may currently or in the future be internally developing proposals, ideas or information or receiving proposals, ideas or information from others that are likely to be similar to the proposals or ideas provided by you. Accordingly, nothing in this TOU shall be construed as a representation or inference that 360fly will not independently develop or authorize the development of products, services or ideas, for itself or for others, that may compete with or be similar to the proposals or ideas you submit. Moreover, 360fly assumes no fiduciary or confidential obligation of any kind with respect to any proposals, ideas or suggestions made by you that relate to 360fly product lines or services. You understand we cannot and do not agree to treat as confidential your ideas, proposals, products, improvements or any other information you may decide to submit or disclose to us, even if the documents are marked as confidential or you indicate the confidential nature of the information, except to the extent covered by a separate written nondisclosure agreement, if any, we may choose to enter into with you. You also understand and agree that 360fly’s willingness to review any proposals or ideas is not an admission by 360fly of novelty, priority, or originality and does not impair 360fly’s right to contest existing or future patents or copyrights claiming the ideas. You agree that 360fly assumes no liability in reviewing these proposals or ideas and agree to rely solely upon such protection as may be afforded under the Patent and Copyright Statutes of the United States of America.

If you choose to provide feedback, comments and suggestions for improvements to the Service or otherwise (in written or oral form) (“Feedback”), you acknowledge and agree that all Feedback will be the sole and exclusive property of 360fly and you hereby irrevocably assign to 360fly and agree to irrevocably assign to 360fly all of your right, title, and interest in and to all Feedback, including any intellectual property rights therein.

Copyright Policy

360fly respects copyright law and expects its users to do the same. 360fly has adopted and implemented a policy that provides for the termination in appropriate circumstances of registered users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.

General Prohibitions

You agree not to do any of the following:

Post, upload, publish, submit or transmit any Content (including any links thereto)that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances. Use, display, mirror or frame the Service, or any individual element within the Service, 360fly’s name, any 360fly trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without 360fly’s express written consent; Access, tamper with, or use non-public areas of the Service, 360fly’s computer systems, or the technical delivery systems of 360fly’s providers; Attempt to probe, scan, or test the vulnerability of any 360fly system or network or breach any security or authentication measures; Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by 360fly or any of 360fly’s providers or any other third party (including another user) to protect the Service or Collective Content; Attempt to access or search the Service or Collective Content or download Content or Collective Content from the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by 360fly or other generally available third party web browsers; Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; Use any meta tags or other hidden text or metadata utilizing a 360fly trademark, logo URL or product name without 360fly’s express written consent; Use the Service or Collective Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms of Use; Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service or Collective Content to send altered, deceptive or false source-identifying information; Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service or Collective Content; Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service; Collect or store any personally identifiable information from the Service from other users of the Service without their express permission; Impersonate or misrepresent your affiliation with any person or entity; Violate any applicable law or regulation; or Encourage or enable any other individual to do any of the foregoing. 360fly will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. 360fly may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Use. You acknowledge that 360fly has no obligation to monitor your access to or use of the Service or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms of Use, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. 360fly reserves the right, at any time and without prior notice, to remove or disable access to any Content, including, any Collective Content, that 360fly, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms of Use or otherwise harmful to the Service.

Links

The Service contains links to other websites and online resources and you understand that by using the Service and accessing third party links, you may be exposed to content that is offensive, harmful, inaccurate or otherwise inappropriate. You understand and agree that 360fly is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

Feedback

If you choose to provide feedback, comments and suggestions for improvements to the Service or otherwise (in written or oral form) (“Feedback”), you acknowledge and agree that all Feedback will be the sole and exclusive property of 360fly and you hereby irrevocably assign to 360fly and agree to irrevocably assign to 360fly all of your right, title, and interest in and to all Feedback, including any intellectual property rights therein.

Sweepstakes and Contests

360fly may operate sweepstakes, contests and similar promotions (collectively, “Promotions”) through the Service. You should carefully review the rules (e.g., the “Official Rules”) of each Promotion in which you participate through the Service, as they may contain additional important information about 360fly’s rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotions. To the extent that the terms and conditions of such Official Rules conflict with these Terms of Use, the terms and conditions of such Official Rules will control.

Modification

360fly reserves the right, at its sole discretion, to modify, discontinue or terminate the Service or to modify these Terms of Use, at any time and without prior notice. If we modify these Terms of Use, we will post the modification on the Site or via the Service or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms of Use. By continuing to access or use the Service after we have posted a modification on the Site or via the Service or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms of Use. If the modified Terms of Use are not acceptable to you, your only recourse is to cease using the Service.

Termination and Account Cancellation

If you breach any of these Terms of Use, 360fly will have the right to suspend or disable your Account or terminate these Terms of Use, at its sole discretion and without prior notice to you. 360fly reserves the right to revoke your access to and use of the Service and Content at any time, with or without cause. You may cancel your Account at any time by contacting 360fly Support.

Disclaimers

THE SERVICE AND COLLECTIVE CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, 360FLY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. 360FLY MAKES NO WARRANTY THAT THE SERVICE OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. 360FLY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH THE SERVICE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SERVICE.NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM 360FLY OR THROUGH THE SERVICE OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE.

Indemnity

You agree to defend, indemnify, and hold 360fly, its subsidiaries and affiliates, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Service or Collective Content, or your violation of these Terms of Use.

Limitation and Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICE AND COLLECTIVE CONTENT REMAINS WITH YOU. NEITHER 360FLY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT 360FLY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL 360FLY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR COLLECTIVE CONTENT EXCEED ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN 360FLY AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Proprietary Rights Notices

All trademarks, service marks, logos, trade names and any other proprietary designations of 360fly used herein are trademarks or registered trademarks of 360fly. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

Controlling Law and Jurisdiction

These Terms of Use and any action related thereto will be governed by the laws of the Commonwealth of Pennsylvania without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in Pittsburgh, Pennsylvania and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

Entire Agreement

These Terms of Use constitute the entire and exclusive understanding and agreement between 360fly and you regarding the Service and Collective Content, and these Terms of Use supersede and replace any and all prior oral or written understandings or agreements between 360fly and you regarding the Service and Collective Content.

Assignment

You may not assign or transfer these Terms of Use, by operation of law or otherwise, without 360fly’s prior written consent. Any attempt by you to assign or transfer these Terms of Use, without such consent, will be null and of no effect. 360fly may assign or transfer these Terms of Use, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Use will bind and inure to the benefit of the parties, their successors and permitted assigns.

Notices

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms of Use, will be in writing and given by 360fly (i) via email (in each case to the address that you provide) or (ii) by posting to the Service. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Dispute Resolution

You and 360fly agree that any dispute, claim or controversy arising out of or relating to these Terms of Use or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site or Service (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and 360fly are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and 360fly otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms of Use.

Changes. Notwithstanding the provisions of the “Modification” section above, if 360fly changes this “Dispute Resolution” section after the date you first accepted these Terms of Use (or accepted any subsequent changes to these Terms of Use), you may reject any such change at 360fly Support within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of 360fly’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and 360fly in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms of Use (or accepted any subsequent changes to these Terms of Use).

General

The failure of 360fly to enforce any right or provision of these Terms of Use will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of 360fly. Except as expressly set forth in these Terms of Use, the exercise by either party of any of its remedies under these Terms of Use will be without prejudice to its other remedies under these Terms of Use or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Use will remain in full force and effect.

Contacting 360fly

If you have any questions about these Terms of Use, please contact 360fly Support; support@360fly.com.