Updated – 2014-07-07
In the terms set forth below, “WYVERN” is defined as Wyvern Consulting, Ltd. a New Jersey corporation headquartered at The Grist Mill, 10 N Main Street, Suite B, Yardley, PA 19067, USA, as a wholly-owned subsidiary of Nexus Services America, LLC.
“Websites” refers to all pages and applications hosted under the following domains: www.wyvernltd.com and www.weflysafe.com.
“Fee-Based Services” include but are not limited to paid online access to The Wingman Report, the Pilot & Aircraft Safety Survey (“PASS”) program, the Safety Intelligence Report (“SIR”) system, WyvernLtd.com (www.wyvernltd.com), WeFlySafe.com (www.weflysafe.com), Wyvern Basic, Wyvern Premium, or Wyvern Custom; all in the form of either Corporate, Operator or Broker.
”Subscriber” or “Member” means the person or entity that uses any of the WYVERN Websites or Fee-Based Services subject to these Terms of Service.
“Sales Order” or “Sales Agreement” means the form (whether paper or electronic) on which the Subscriber applies for Fee-Based-Services and may include certain additional Terms of Service.
“Terms of Services” or “Terms” include the following provisions as maintained at www.wyvernltd.com and the provisions in your Sales Order that set forth the manner in which WYVERN provides Websites and Fee-Based Services to Subscribers.
Acceptance of Terms
By using any WYVERN Websites or Fee-Based Services, other than to read these Terms for the first time, you agree that your use of any WYVERN Websites or Fee-Based Services will be governed by these Terms. WYVERN reserves the right to change these Terms from time to time. Your continued use of any WYVERN Websites or Fee-Based Services shall be deemed your acceptance of these Terms. Please refer to these Terms periodically for any changes.
Fee-Based Service Charges
Subscriber access to the Fee-Based Services will be activated upon receipt of the executed Sales Agreement and initial term payment and will continue so long as fees are paid according to terms.
Subscriber agrees to pay, using a valid payment method WYVERN accepts, the Fee-Based Services charges set forth in the Sales Agreement. In addition to the charges set forth in the Sales Agreement, Subscriber is responsible for all charges associated with connecting to WYVERN Websites, including without limitation all telephone access lines (including long-distance charges, when applicable), telephone and computer equipment and any service fees necessary to access the Fee-Based Services.
Acceptable methods of payment to WYVERN are credit card, check, or wire / electronic funds transfer. Payment will be made according to the terms of the Sales Agreement signed by the Subscriber. If paying by credit card, Subscriber agrees to remit all payments for Fee-Based Services under the Sales Agreement by credit card, and shall provide WYVERN with the information and authorization necessary to charge such fees to such card. If paying by check, Subscriber agrees to remit all payments for Fee-Based Services under the Sales Agreement by check. Subscriber acknowledges that WYVERN does not accept postdated checks.
WYVERN reserves the right to increase fees and surcharges or to institute new fees at any time and with reasonable advance notice. WYVERN will automatically charge your account for renewal of your Fee-Based Services each month or as otherwise set forth in the Sales Agreement. In the event WYVERN cannot charge the Subscriber account, WYVERN reserves the right to terminate your access to the Fee-Based Services.
Subscriber agrees that WYVERN may charge the credit card or other payment mechanism selected by the Subscriber and approved by WYVERN (“Your Account”) all amounts due and owing for the Services, including service fees, installation fees, subscription fees, overage fees, or any other fee or charge associated with Your Account. You agree that in the event WYVERN is unable to collect the fees owed to WYVERN for the Services through Your Account, WYVERN may take any other steps it deems necessary to collect such fees from Subscriber and that Subscriber will be responsible for all costs and expenses incurred by WYVERN in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that WYVERN may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
Financial Responsibility for Fee-Based Services
Subscriber agrees not to assign, transfer or sublicense rights as a Subscriber to the Fee-Based Services. Subscriber agrees to be financially responsible for all usage or activity on the Subscriber’s Fee-Based Services account.
Cancellation of Fee-Based Services
Subscriber acknowledges that all subscription fees are completely non-refundable, except as expressly provided herein or as defined in the Sales Agreement. Subscriber’s continued use of the Fee-Based Services shall be deemed subscriber’s acceptance of the WYVERN Terms and Conditions. Member may cancel services with 90 day written notice sent to Wyvern Consulting, Ltd. at The Grist Mill, 10 N Main Street, Suite B, Yardley, PA 19067, USA and by e-mail to email@example.com. All Sales Agreements, fees and terms found therein will continued to be renewed, by term as outlined in the Sales Agreement, until a new, and superseding Sales Agreement is agreed upon and signed by Wyvern and Member.
Termination of Your Access
You agree that WYVERN, in its sole discretion, may terminate your access to or use of any WYVERN Websites or Fee-Based Services , for any reason, including, without limitation, WYVERN’s belief that you have violated or acted inconsistently with the letter or spirit of these Terms. WYVERN also reserves the right to terminate service if Subscriber uses the software in a manner that is illegal or in violation of any other Terms. You agree that the use of Wyvern logos for your fee-based service are the sole rights of Wyvern and will only be used, in any format, for the term of your agreement. You agree that any termination of your access to any WYVERN Website or Fee-Based Services under any provision of these Terms may occur without prior notice to you, and you also agree that WYVERN will not be liable to you for any termination of your access to any WYVERN Website or Fee-Based Service. If WYVERN terminates your access to any WYVERN Website or Fee-Based Service based on a breach of any portion of these Terms, WYVERN reserves the right to refuse to provide access to WYVERN Websites or Fee-Based Services to you in the future.
WYVERN reserves the right to suspend service for payment delinquency over 30 days.
Any and all content, data, graphics, images and other information that you transmit to WYVERN through its Websites (“Submissions”) shall remain your sole and exclusive property, and you shall be solely responsible for your Submissions. By transmitting your Submissions to WYVERN, you hereby grant WYVERN and its successors a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, sublicenseable (through multiple tiers) and transferable license (with a right to create derivative works) to use, copy, transmit or otherwise distribute, and display your Submissions for any legal purposes whatsoever now known or hereinafter becomes known. You also grant each user of WYVERN’s Websites and technology a non-exclusive license to access your Submission through the Websites and to use, copy, transmit or otherwise distribute, and display your Submission as allowed by the Websites and in accordance with these Terms.
You also agree to maintain and promptly update your Submissions by means of the WYVERN Websites in order to keep that information true, accurate, current and complete.
You further represent and warrant that you own or have the necessary licenses, rights, consents, and permissions to use and authorize WYVERN to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Submissions to enable inclusion and use of the Submissions in the manner contemplated by this Agreement.
Restrictions and Responsibilities
You acknowledge and agree that the Services and the WYVERN company names and logos and all related product and service names, design marks and slogans, are the property of WYVERN or its affiliates or suppliers (collectively, the “Marks”). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of WYVERN or as stipulated in the Sales Agreement or on the sites as fair use to promote your programs. Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain in WYVERN or its third party suppliers, as the case may be.
You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). You agree you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited e-mail to any third party. You hereby agree to indemnify and hold harmless WYVERN against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. Although WYVERN has no obligation to monitor the content provided by you or your use of the Services, WYVERN may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates United States federal, state or other laws that may apply in this jurisdiction or your local area is prohibited. This may include material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights.
WYVERN will not use your customer list or any other customer information for any other purposes than those intended with the service. Your customer and account information will not be shared with any other parties, unless WYVERN is required to disclose such information in connection with legal process or in accordance with any law, regulation or order of a court or regulatory agency of competent jurisdiction. In addition, WYVERN will not use your customer information for the purpose of sending unsolicited commercial e-mail.
The data used in compiling and contained in each SIR and PASS report has been obtained from the air charter operators, the National Transportation Safety Board, the Federal Aviation Administration, local regional or state authorities and other publicly available information sources. All information contained in SIR and PASS reports is of an advisory nature only and should not be deemed a recommendation, certification or warranty. The evaluation contained in each SIR and PASS report is intended to validate certain information about the specified operator, aircraft and crew at the time of the Subscriber request. Information about operators, aircraft and crews are subject to change without notice and therefore any use of this information for validation after the specified date is null and void. WYVERN makes no claim as to the veracity of the information contained in any SIR or PASS report. Any conclusions drawn from the data contained in this report are the reader’s alone. Neither WYVERN nor any employee, officer, or affiliate makes any warranty, expressed or implied, or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information contained in any SIR or PASS report. WYVERN will not be held liable for any damages whatsoever arising out of or in connection with the use of the information contained in any SIR or PASS report.
Subscriber acknowledges that any reliance upon any advice, opinion, statement, or other information displayed or distributed through the Websites or Fee-Based Services, including SIR and PASS reports, is at Subscriber’s sole risk. WYVERN reserves the right, in its sole discretion and without notice, to correct any errors or omissions in any portion of the Website, or to deny access to the Website or Fee-Based Services to anyone at any time. Subscriber acknowledges and agrees that WYVERN is not responsible for any materials posted by users of the Website. Neither WYVERN nor its Affiliates shall have any liability arising from Subscriber’s purchases of third-party goods or services based upon the information provided on the Website.
It is understood that in order to use WYVERN websites, a Windows PC with Internet Explorer 9.0 or higher must be used. Additionally, a stable connection to the Internet is required. WYVERN websites may work in a limited manner on Macintosh, Unix, and other platforms, but there is no guarantee of functionality on non-Windows platforms. Additionally, WYVERN websites may work in a limited manner on a non-Internet Explorer web browser (such as Mozilla Firefox), but there is no guarantee of full functionality on web browsers other than Microsoft’s Internet Explorer.
Use of Subscriber Name in Marketing Collateral
Subscriber grants WYVERN the right to mention the Subscriber’s name in WYVERN marketing collateral, through the PASS reporting programs and other means used to promote Subscriber affiliation to any WYVERN programs unless Subscriber requests in writing that WYVERN refrain from such mentions.
WYVERN’s Compliance With Copyright Law
WYVERN will comply with all applicable laws respecting copyright. If you believe your copyright in a work has been infringed through the WYVERN member website, please contact our agent for notice of claims of copyright violation: Wyvern Consulting, Ltd., Attn: Copyright Agent, The Grist Mill, 10 N Main Street, Suite B, Yardley, PA 19067, USA; via e-mail at firstname.lastname@example.org, phone +1 (800) 946-4626; fax +1 (877) 998-3761 . You must provide our agent with the following information in writing: (1) a description of the copyrighted work you believe has been infringed; (2) information sufficient to identify the location of the allegedly infringing material on WYVERN Websites; (3) your address, telephone number, and email address; (4) a statement to the effect that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (4) a declaration, under penalty of perjury, that the information you have provided is accurate and that you are the owner of the copyright involved or you are authorized to act on behalf of that owner; (5) your physical or electronic signature. Upon receiving your complaint, we may remove content that you believe infringes your copyright. In addition, we may take other action against the person or persons responsible for posting or transmitting the infringing material.
Restrictions on Your Use of the WYVERN Websites & Fee-Based Services
WYVERN will take action to prevent the misuse of the WYVERN Websites for any unlawful or objectionable purpose. Accordingly, you agree not to use the WYVERN Websites or Fee-Based Services for any unlawful or objectionable purpose, including without limitation use of the WYVERN Websites to post, upload, or transmit any Content that is: (1) unlawful under the laws of any jurisdiction to which you or WYVERN are subject; (2) harmful, threatening, harassing, defamatory, invasive of the privacy of another, or obscene (including without limitation any images or depictions of child abuse, child pornography, or minors engaged in sexual conduct or explicitly sexual situations); (3) insider information, or any other proprietary or confidential information; (4) an infringement of any patent, trademark, trade secret, copyright or other intellectual property right; (5) falsified, including without limitation the use of forged headers or otherwise manipulated identifiers in order to disguise its origin; (6) containing or transmitting software viruses or any other malicious computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software; (7) an advertisement or solicitation for any products or services. You agree to indemnify and hold harmless WYVERN from any liability incurred as the result of your violation of these Terms.
The information provided in each PASS Report or SIR Report is the property of WYVERN. Subscriber may not alter any PASS or SIR report in any way for any purpose. Subscriber may not download, display, reproduce, create derivative works from, transmit, sell, distribute, or in any way exploit the Websites or any portion thereof for any public and/or commercial use without the prior written permission of WYVERN. Systematic retrieval of the Content or other data from this Site to create or compile, directly or indirectly, in whole or in part, a collection, compilation, database or directory without the express written permission of WYVERN is strictly prohibited. Subscriber also agrees not to use any trademarks, service marks, names, logos, or other identifiers of WYVERN or its employees, licensors, independent contractors, providers and affiliates (collectively, “Affiliates”) without the prior written permission of WYVERN or the relevant Affiliate.
Use of WYVERN Data & Applications by Third-Party Websites
Each and every application or website page containing WYVERN data and/or applications shall conspicuously display the required notice, Powered by Wyvern logo, the entire notice being a hyperlink to “http://www.wyvernltd.com” where technically possible. Alternate wording for this hyperlink may be used only if explicitly agreed to in writing by WYVERN prior to use.
Links to External Websites
Wyvern Consulting, Ltd., PASS, and SIR are trademarks of Wyvern Consulting, Ltd., a New Jersey corporation. All rights reserved. All other trademarks appearing on the WYVERN websites are the property of their respective owners.
Wyvern, Wyvern PASS, Wyvern Authorized Broker, WeFlySafe.com and The Wyvern Report are registered trademarks of Wyvern Consulting, Ltd, a wholly-owned subsidiary of Nexus Services America, LLC. All rights reserved. All other trademarks appearing on the Wyvern websites are the property of their respective owners.
Subscriber agrees to indemnify, defend and hold harmless WYVERN, and its officers, directors, employees, agents, licensors, and suppliers from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of these Terms, or any negligent or wrongful activity related to the use of WYVERN Websites and Fee-Based Services by you or any other person accessing the WYVERN Websites and Fee-Based Services using your account.
Severability & Waiver
The invalidity of any term or provision of these Terms will not affect the validity of any other provision. Waiver by WYVERN of strict performances of any provision of these Terms will not be a waiver of or prejudice WYVERN’s right to require strict performance of the same provision in the future or of any other provision of these Terms.
No Third Party Beneficiaries
These Terms create no third party rights or obligations between WYVERN and any other person. It is understood and agreed that the parties do not intend that any third party should be a beneficiary of these Terms.
DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE WEBSITES (INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, FEE-BASED SERVICES, MATERIALS AND INFORMATION MADE AVAILABLE THEREON OR ACCESSED BY MEANS THEREOF) ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WYVERN DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE WEBSITES OR THE FEE-BASED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR FEE-BASED SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY, OR THAT THE SITE, INCLUDING THE SERVER(S) ON WHICH THE WEBSITES ARE OPERATED, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WYVERN AND ITS AFFILIATES DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPATABILITY, SECURITY, ACCURACY, OR NON-INFRINGEMENT.
LIMITATION OF LIABILITY
USE OF THIS WYVERN FEE-BASED SERVICES AND WEBSITES IS AT SUBSCRIBER’S OWN RISK. SUBSCRIBER ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM SUBSCRIBER DOWNLOADING AND/OR USE OF FILES, INFORMATION, COMMUNICATIONS, CONTENT, OR OTHER MATERIAL (INCLUDING WITHOUT LIMITATION SOFTWARE) ACCESSED THROUGH OR OBTAINED BY MEANS OF WYVERN WEBSITES. UNDER NO CIRCUMSTANCES SHALL WYVERN OR ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, OR ANY THIRD-PARTY PROVIDER OF TELECOMMUNICATIONS OR NETWORK SERVICES OR SITE SOFTWARE FOR WYVERN OR ITS AFFILIATES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO SUBSCRIBER’S USE OF OR INABILITY TO USE WYVERN WEBSITES OR WYVERN FEE-BASED SERVICES, EVEN IF WYVERN, ITS AFFILIATES, OR THEIR PROVIDERS OF TELECOMMUNICATIONS OR NETWORK SERVICES OR SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE TOTAL LIABILITY OF WYVERN AND ITS AFFILIATES HEREUNDER IS LIMITED TO THE AMOUNT, IF ANY, ACTUALLY PAID BY SUBSCRIBER FOR ACCESS TO AND USE OF THE WEBSITES AND FEE-BASED SERVICES. SUBCRIBER HEREBY RELEASES WYVERN AND ITS AFFILIATES FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION.
WYVERN has the right to modify these terms and any policies affecting WYVERN Webites or Fee-Based Services. Any modification is effective immediately upon posting to the Website or distribution to you via electronic mail or conventional mail. Your continued use of the WYVERN Websites or Fee-Based Services following notice of any modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s).
WYVERN has the right to modify, suspend or discontinue WYVERN Websites or Fee-Based Services or any portion thereof at any time, including the availability of any area of the WYVERN Websites or Fee-Based Services. WYVERN may also impose limits on certain features and services or restrict Subscriber access to parts or all of the WYVERN Websites or Fee-Based Services without notice or liability. Subscriber agrees that WYVERN will not be liable for any modification, suspension or discontinuance of WYVERN Websites or Fee-Based Services.
These terms constitute the entire agreement between Subscriber and WYVERN with respect to all WYVERN Websites and Fee-Based Services and supersedes all prior agreements between Subscriber and WYVERN. Failure by WYVERN to enforce any provision of these terms shall not be construed as a waiver of any provision or right.
You acknowledge that no joint venture, partnership, employment, or agency relationship exists between you and WYVERN as a result of your use of any WYVERN Websites or Fee-Based Services. This Agreement constitutes the entire agreement between WYVERN and you with respect to your use of WYVERN Websites and Fee-Based Services and it supersedes all prior or contemporaneous communications and proposals, whether oral or written, between WYVERN and you with respect to WYVERN.
THE PARTIES SHALL ATTEMPT TO RESOLVE ANY DISPUTES ARISING UNDER THE TERMS OF THIS AGREEMENT FIRST BY GOOD FAITH DISCUSSIONS AND SETTLEMENT. IF THEY ARE UNABLE TO DO SO WITHIN THIRTY (30) DAYS OF NOTICE BY EITHER PARTY, EITHER PARTY MAY, AT ANY TIME BRING AN ACTION TO RESOLVE THE DISPUTE BY BINDING ARBITRATION. THE ARBITRATOR SHALL CONSIDER THE DISPUTE AT ISSUE IN NEW YORK, NY, AT A MUTUALLY AGREED UPON TIME WITHIN THIRTY (30) DAYS OF THE DESIGNATION OF THE ARBITRATOR. THE ARBITRATION PROCEEDING SHALL BE HELD IN ACCORDANCE WITH THE RULES FOR ARBITRATION OF THE AMERICAN ARBITRATION ASSOCIATION IN EFFECT ON THE DATE OF THE INITIAL REQUEST BY THE INSTRUCTING PARTY, THAT GAVE RISE TO THE DISPUTE TO BE ARBITRATED (AS SUCH RULES ARE MODIFIED BY THE TERMS OF THIS AGREEMENT OR MAY BE FURTHER MODIFIED BY MUTUAL AGREEMENT OF THE PARTIES). THE PREVAILING PARTY IN ANY DISPUTE SHALL BE ENTITLED TO AN AWARD OF ITS OR THEIR REASONABLE ATTORNEYS’ FEES AND COSTS. ANY ARBITRATION SHALL TAKE PLACE IN NEW YORK COUNTY, NY.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW JERSEY, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW JERSEY OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW JERSEY.