Terms & Conditions

E-FLI ONLINE SKYDIVING TEACHING AND E-LEARNING AGREEMENT

By using this product you agree to the terms of the Agreement set out below.

1. INTERPRETATION
1.1    The definitions and rules of interpretation in this clause apply in this Agreement.

Accounts: accounts must be purchased in advance to enable each Student to access E-FLI and their profile page.  All prices are shown in USD. Accounts are valid for 12 months from date of activation.

Administrator: a person employed or contracted by you who has specific administrator access permissions to the Site.

Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.

Buyer: a person employed or contracted by you who has specific buyer access permissions to the Site.

Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.

Charges: see Accounts.

Confidential Information:  information that is proprietary or confidential.

Contact Details: your contact details including business name, address, telephone and fax number and email addresses.

Content: any content created by you or Users and uploaded or inputted in the Site.

Control Panel: the graphic user interface accessed by you prior to creating the Site.

Corporate Site: the E-FLI corporate site situate at www.e-fli.com

Effective Date: the date of your acceptance of this Agreement.

HJM: Hip Joint Media, a company incorporated in England and Wales with company number 06579095 whose registered office is at Centre Gate, Colston Avenue,Bristol, BS1 4TR. United Kingdom

Instructor: a person employed or contracted by you to teach skydiving who has specific instructor access permissions to the Site.

Instructor Page: the page or pages on the Site accessible by each of your Instructors.

Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any applications), including copyright, know-how, confidential information, domain names, trade marks, patents, design rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.

Normal Business Hours:  9.00am to 5.00pm GMT, Monday to Friday.

Service: the service provided by HJM under the brand “E-FLI” consisting of internet access to customized software for skydiving businesses enabling such businesses to provide e-learning facilities to its Students and Instructors which includes provision of access to the Site using user names and passwords enabling Users to upload Content to the Site, together with a content management system and product administration interface enabling you to keep the Site updated.

Site: the website created by you when you customize the Control Panel, which is accessible by you entering a user name and password, and which includes main E-FLI application and Control Panel.

Software: HJM's proprietary software in machine-readable object code form which permits you to upload Content to the Site, keep the Site updated and provides the functionality of and/or subsists in the Control Panel.

Student: a Student who is enrolled on your skydiving courses and to whom you provide specific Student access permissions to the Site.

Student Page: the page or pages on the Site accessible by each of your Students on payment of Accounts by you for each Student.

Users: Students, Instructors, Buyers and Administrators.

1.2    Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3    A person includes a corporate or unincorporated body (whether or not having separate legal personality).
1.4    Words in the singular shall include the plural and vice versa and a reference to one gender shall include a reference to the other genders.
1.5    Any reference to any legislation includes any modifications or re-enactments of such legislation.
1.6    A reference to writing or written includes faxes but not e-mail.

2    THE SERVICE
2.1    In consideration of payment of the Charges by you, HJM agrees to provide the Service to you and you agree to subscribe to the Service upon and subject to the terms of this Agreement.
2.2    HJM will provide the Service and/or permit you to access the Service by electronic file transfer over the internet. You are responsible for the provision of the necessary software telecommunications lines and equipment to enable you to receive the Service.

3    YOUR ACCOUNT
3.1    When you register for the Service, you will be prompted to provide a user name and password and to provide your Contact Details.  You will then gain access to the Control Panel.  The Dashboard will take you through the Control Panel so that you can customize it (by choosing your own colors, uploading your company logo and specifying content) to your own design so as to create the Site.
3.2    HJM recommends that in customizing the Control Panel, you choose appropriate colors so that the Site is legible to Users.
3.3    The Service provides different access permissions for different Users.  When you register you automatically have access to a Buyer and Administrator account and at least one Instructor account.  Additional Buyer, Administrator and Instructor accounts can be set up by the Administrator free of charge. Student access rights can be set up and bought in accordance with clause 9.2 below.
3.4     HJM is entitled to audit the use of the Site to ensure that the number of Users who have access to the Site equal the number of User Accounts you have set up, or the number of Accounts you have paid for.  HJM is entitled to disable any Student access permissions in relation to any Students who are no longer enrolled, or who have completed, their skydiving course with you.
3.5    You will ensure that your Contact Details are up to date.
3.6    You will ensure that, and shall procure that the Users ensure that, user names and passwords are kept confidential, are not written down, and are not disclosed to third parties.

4    USE OF SERVICE
4.1    HJM grants to you and the Users a non-exclusive non-transferable license to use the Software as part of the Service in accordance with this Agreement.
4.2    You will not redistribute or resell the Service or the Software or any part of them.
4.3    You shall not:
4.3.1    Copy the Software;
4.3.2    Sub-license, merge or modify the Software; or
4.3.3    Disassemble, decompile, reverse engineer or create derivative works based on the whole or any part of the Software.
4.4    You shall ensure and procure that the Users comply with the terms of clauses 4.2 and 4.3.

5    INTELLECTUAL PROPERTY
5.1    HJM confirms that it has all the rights in relation to the Software and the Service that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
5.2    Subject to clause 5.3, HJM retains all Intellectual Property Rights in its trade marks, the Default Site, the Software and any tools or software or materials used to create or which subsist in the Service, and nothing in this Agreement shall be taken to grant any rights to you in respect of such Intellectual Property Rights save as specifically set out in this Agreement.
5.3    Title to and ownership of all Intellectual Property Rights embodied by or otherwise incorporated into the Content shall remain with you. Except as expressly provided in this Agreement, nothing shall be construed to grant to HJM any right, title or interest in or to the Content, save for a non-exclusive license to HJM and its representatives and website host provider to enable them to display the Content on the Site.
5.4    You are responsible for the Content created by you and the Users.  You shall indemnify HJM against all costs, claims, damages, losses and expenses arising as a result of any claim or action that the Content infringes any Intellectual Property Rights belonging to a third party.
5.5    HJM shall indemnify you against all costs, claims, damages, losses and expenses arising as a result of any claim or action that its trade marks, the Default Site, the Software and any tools or software or materials used by HJM to create or which subsist in the Service (excluding the Content) infringes any Intellectual Property Rights belonging to a third party.
5.6    The indemnities in the above clauses are subject to the following conditions:
5.6.1    the person relying on the indemnity (the “Indemnified”) promptly notifying the other (the “Indemnifior”) in writing of the claim or action;
5.6.2    the Indemnified making no admissions or settlements without the Indemnifior’s prior written consent;
5.6.3    the Indemnified giving the Indemnifior all information and assistance that the Indemnifior may reasonably require; and
5.6.4    the Indemnified allowing the Indemnifior complete control over any negotiations, litigation and the settlement of any claim or action.
5.7    The indemnity in clause 5.5 may not be invoked to the extent that the action or claim arises out of HJM´s compliance with any designs, specifications, materials or instructions of you.

6    SUPPORT
6.1    HJM shall maintain the Corporate Site and the Control Panel by carrying out updates and modifications at its discretion.  Such maintenance and support should not affect your ability to access the Site or the Service however HJM reserves the right to carry out any maintenance and support which may affect your ability to access the Site or the Service.  HJM will use all reasonable endeavors to notify you in advance of any anticipated significant periods of downtime.  HJM shall at all times endeavor to keep any service interruptions to a minimum.
6.2    If you consider that the Software or Control Panel includes a defect or could have useful added functionality, please contact HJM at info@e-fli.com and we will acknowledge your email within 24 hours however such acknowledgement may not include any fix or error correction and we will notify you when any fix or error correction in relation to your query is due.

7    YOUR CONTENT
7.1    The Software enables you and the Users to upload content to the Site so that Users can view the Content.  You shall ensure that at all times the Content:
7.1.1    is accurate, not defamatory or any person, not obscene or hateful or inflammatory;
7.1.2    does not promote discrimination based on race, gender, religion, nationality, disability, sexual orientation or age;
7.1.3    does not infringe the Intellectual Property Rights of any third party;
7.1.4    is genuinely held (where it states opinions);
7.1.5    is clear that it emanates from you and from no-one else;
7.1.6    complies with the law applicable in England and Wales and in any country from which it is posted; and
7.1.7    complies with the rules of the United States Parachute Association or rules which impose standards which are no less rigorous than those of the USPA.
7.2    If the Content does not conform to the provisions of this Agreement, HJM reserves the right to suspend your access to the Service and/or terminate this Agreement under clause 14.3.1.
7.3    HJM shall take regular back-ups of the Content.  In the event of any loss or damage to your Content, your sole and exclusive remedy shall be for HJM to use reasonable commercial efforts to restore the lost or damaged Content from the latest back-up of such Content maintained by HJM. HJM shall not be responsible for any loss, destruction, alteration or disclosure of Content caused by any third party (except those third parties sub-contracted by HJM to perform services related to Content maintenance and back-up).

8    HJM'S OBLIGATIONS  AND LIABILITY
8.1    HJM undertakes that the Service will be provided with all reasonable skill and care.  HJM does not warrant that your use of the Software and the Service will be uninterrupted or error-free.   You acknowledge that you are accessing the Service over the internet and therefore HJM is not liable for any inability to access the Service due to any internet problems or for any other reason which is outside its control.
8.2    In creating the Control Panel, Software and Corporate Site, HJM has complied and shall continue to comply with the rules of the US Parachute Association and the rules of the British Parachute Association.  HJM is not and shall not be liable for any Content posted by any User nor for any losses, damages, expenses, claims or any other liability that results from your or your Users use of the Service.

9    CHARGES AND PAYMENT
9.1    When you register to the Service you will not be charged a set up fee.
9.2    You shall have the ability to create and grant access to Students by purchasing Accounts from the Control Panel or by using the “buy” button on the Corporate Website, www.e-fli.com.
9.3     All amounts and fees stated or referred to in this Agreement are inclusive of value added tax or any other sales tax.

10    CONFIDENTIALITY
10.1    Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement.  A party's Confidential Information shall not be deemed to include information that:
10.1.1    is or becomes publicly known other than through any act or omission of the receiving party; or
10.1.2    was in the other party's lawful possession before the disclosure; or
10.1.3    is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
10.1.4    is independently developed by the receiving party, which independent development can be shown by written evidence; or
10.1.5    is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2    Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
10.3    Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
10.4    Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.5    You acknowledge that the Software constitutes HJM's Confidential Information and HJM acknowledges that the Content is your Confidential Information.
10.6    This clause 10 shall survive termination of this Agreement, however arising.

11    INDEMNITY
11.1    You shall defend, indemnify and hold harmless HJM against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) or any liability arising out of or in connection with your and/or your Users use of the Software or Service, provided that:
11.1.1    you are given prompt notice of any such claim;
11.1.2    HJM provides reasonable co-operation to you in the defense and settlement of such claim, at your expense; and
11.1.3    you are given sole authority to defend or settle the claim.

12    LIMITATION OF LIABILITY
12.1    This clause 12 sets out the entire financial liability of HJM (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you in respect of:
12.1.1    any breach of this Agreement;
12.1.2    any use made by you of the Services or the Software or any part of them; and
12.1.3    any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
12.2    Except as expressly and specifically provided in this Agreement:
12.2.1    you assume sole responsibility for results obtained from the use of the Software and the Service by you and the Users or any action or inaction taken, and for conclusions from such use. HJM shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to HJM by you in connection with the Service, or any actions taken by HJM at your direction; and
12.2.2    all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
12.3    Nothing in this Agreement excludes the liability of HJM:
12.3.1    for death or personal injury caused by HJM's negligence; or
12.3.2    for fraud or fraudulent misrepresentation.
12.4    Subject to clause 12.3 and clause 12.2:
12.4.1    HJM shall not be liable for any loss of profits, loss of business, depletion of goodwill and/or similar losses or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising; and
12.4.2    HJM's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid for the Services during the 12 months preceding the date on which the claim arose.

13    DATA PROTECTION
13.1    By registering your Contact Details with us and registering Instructors and Students to the Service, you agree that we can contact you and the Users about our products and services.  We recommend that you make your Users aware of this.  Your data privacy is important to us therefore we will always provide you with the ability to opt out of any communications sent to you and we will not transfer your personal data to any third parties without your consent.

14    TERM AND TERMINATION
14.1    This Agreement shall commence on the Effective Date and shall continue unless otherwise terminated as provided in this clause 14.
14.2    HJM shall be entitled to terminate this Agreement on 12 month’s written notice or on 1 month’s written notice as provided by clause 15.2.
14.3    Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:
14.3.1    the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
14.3.2    an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
14.3.3    an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
14.3.4    a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
14.3.5    the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
14.3.6    the other party ceases, or threatens to cease, to trade; or
14.3.7    there is a change of control of the other party within the meaning of section 840 of the Income and Corporation Taxes Act 1988; or
14.3.8    the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
14.4    On termination of this Agreement for any reason:
14.4.1    all licenses granted under this Agreement shall immediately terminate;
14.4.2    each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
14.4.3    HJM may destroy or otherwise dispose of any of the Content in its possession or on its servers unless HJM receives, no later than ten days after the effective date of the termination or expiry of this Agreement, a written request for the delivery to you of the then most recent back-up of the Content. HJM shall use reasonable commercial efforts to deliver the back-up to you within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by HJM in returning or disposing of the Content; and
14.4.4    the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

15    GENERAL
15.1    You warrant that you have the legal power to enter into this Agreement on behalf of the business you are employed by or on your own behalf if you are a sole trader.
15.2    HJM shall have the ability to vary the terms of this Agreement on 30 days written notice to you (which shall include an email notice).  You will be deemed to accept such variations unless you provide written notice of your rejection prior to the expiry of the 30 day notice period.  If you reject such variations, HJM shall be entitled to terminate this Agreement on 1 month’s written notice.
15.3    HJM shall have no liability to you under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of HJM or any other party), act of God, war, riot, civil commotion, compliance with any law or governmental order, rule, regulation or direction, fire, flood or storm provided that you are notified of such an event and its expected duration.
15.4    A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
15.5    Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
15.6    If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
15.7    This Agreement, and any documents referred to in it, constitute the whole Agreement between the parties and supersede any previous arrangement, understanding or Agreement between them relating to the subject matter they cover.
15.8    Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
15.9    You shall not, without the prior written consent of HJM, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
15.10    HJM may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
15.11    This Agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, anyone else.
15.12    Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post (or air mail if abroad) or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this Agreement.
15.13    A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).  A notice sent by air mail shall be deemed to have been received 5 Business Days after posting.
15.14    This Agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.
15.15    The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement.