TERMS OF USE
PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED
BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL
OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY
MANNER.
Effective date: November 18, 2015
Welcome to Freebird. Please read on to learn the rules and restrictions that govern your use of our
application and our website (the “Services”). If you have any questions, comments, or concerns regarding
these terms or the Services, please contact us at support@getfreebird.com.
These terms of use (the “Terms of Use”) are a binding contract between you and Freebird, Inc.
(“Freebird,” “we” and “us”). You must agree to and accept all of the Terms of Use, or you do not have
the right to use the Services. Your use of the Services in any way means that you agree to all of these
Terms of Use, and these Terms of Use will remain in effect while you use the Services. To the extent that
you decide to purchase anything from Freebird, you agree that the additional terms and conditions set
forth below in the “Terms of Service” section shall also apply to you. These Terms of Use include the
provisions in this document, as well as those in our Privacy Policy and the Terms of Service, if
applicable.
Will these Terms of Use ever change?
We are constantly trying to improve our Services, so these Terms of Use may need to change along with
the Services. We reserve the right to change the Terms of Use at any time, but if we do, we will bring it
to your attention by placing a notice within the application, by sending you an email, and/or by some
other means.
If you do not agree with the new Terms of Use, you are free to reject them; unfortunately, that means you
will no longer be able to use the Services. If you use the Services in any way after a change to the Terms
of Use is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms of Use
will be effective unless in writing and signed by both you and us.
What about my privacy?
Freebird takes the privacy of its users very seriously. For the current Freebird Privacy Policy, please click
here.
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain
parental consent before they knowingly collect personally identifiable information online from children
who are under 13. We do not knowingly collect or solicit personally identifiable information from a child
under 13 without obtaining verifiable consent from that child’s parent or guardian (“Parental Consent”),
except for the limited amount of personally identifiable information we need to collect in order to obtain
Parental Consent (“Required Information”). Until we have received Parental Consent, we will only use
Required Information for the purpose of obtaining Parental Consent. If you are a child under 13, please
do not attempt to send any personal information about yourself to us before we obtain Parental Consent,
except for the Required Information in the context of the Parental Consent process. If you believe that a
GDSVF&H\2234523.10
child under 13 has provided us with personal information (beyond the Required Information) without our
obtaining Parental Consent, please contact us at support@getfreebird.com.
What are the basics of using Freebird?
You may be required to sign up for an account with your e-mail address and select a password (“Freebird
User ID”). You promise to provide us with accurate, complete, and updated registration information.
You may not select as your Freebird User ID a name that you do not have the right to use, or another
person’s name with the intent to impersonate that person. You may not transfer your account to anyone
else without our prior written permission.
You represent and warrant that you are an individual of legal age to form a binding contract. Or if you
are agreeing to these Terms of Use on behalf of an organization, entity, or person other than yourself, you
represent and warrant that you are authorized to agree to these Terms of Use on that organization, entity,
or person’s behalf and bind them to these Terms of Use (in which case, the references to “you” and
“your” in these Terms of Use, except for in this sentence, refer to that organization, entity, or person).
You will only use the Services for your personal, non-commercial use, and not on behalf of or for the
benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use
of the Services is prohibited by applicable laws, then you are not authorized to use the Services. We are
not responsible for your using the Services in a way that breaks the law.
You will not share your account or password with anyone, and you must protect the security of your
account and your password. You are responsible for any activity associated with your account.
Your use of the Services is subject to the following additional restrictions:
You represent, warrant, and agree that you will not use the Services or interact with the Services in a
manner that:
(a) Infringes or violates the intellectual property rights or any other rights of anyone else
(including Freebird);
(b) Violates any law or regulation, including any applicable export control laws;
(c) Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise
objectionable;
(d) Jeopardizes the security of your account or anyone else’s (such as allowing someone else to
log in to the Services as you);
(e) Attempts, in any manner, to obtain the password, account, or other security information from
any other user;
(f) Violates the security of any computer network, or cracks any passwords or security
encryption codes;
(g) Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any
processes that run or are activated while you are not logged into the Services, or that
otherwise interfere with the proper working of the Services (including by placing an
unreasonable load on the Services’ infrastructure);
(h) “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or
Content (through use of manual or automated means);
(i) Copies or stores any significant portion of the Content;
(j) Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying
ideas or information of or relating to the Services.
GDSVF&H\2234523.10
A violation of any of the foregoing is grounds for termination of your right to use or access the Services,
among other legal and equitable remedies available to Freebird.
What are my rights in Freebird?
The materials displayed or performed or available on or through the Services, including, but not limited
to, text, graphics, data, articles, photos, images, illustrations, User Information and so forth (all of the
foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise
to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content
you access through the Services, and you will not use, copy, reproduce, modify, translate, publish,
broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose
any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way
that violates someone else’s (including Freebird’s) rights.
You understand that Freebird owns the Services. You will not modify, publish, transmit, participate in the
transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based
on, or otherwise exploit any of the Services.
Do I have to grant any licenses to Freebird or to other users?
Anything you post, upload, share, store, or otherwise provide through the Services is your “User
Information.” In order for certain functionalities of the Services to operate as intended, you grant us
certain rights in the User Information. Please note that all of the following licenses are subject to our
Privacy Policy to the extent they relate to User Information that is also your personally-identifiable
information.
For all User Information, you hereby grant Freebird a license to translate, modify and reproduce and
otherwise act with respect to such User Information, in each case to enable us to operate the Services, as
described in more detail below. If you provide us (in a direct email or otherwise) with any feedback,
suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the
foregoing, “Public User Information”), then you grant Freebird the licenses above, as well as a license to
display, perform, exploit and distribute your Public User Information, as well as all other rights necessary
to use and exercise all rights in that Public User Information in connection with the Services and/or
otherwise in connection with Freebird’s business, for any purpose. Also, you grant all other users of the
Services a license to access that Public User Information, and to use and exercise all rights in it, as
permitted by the functionality of the Services. You agree that the licenses you grant are royalty-free,
perpetual, sublicensable, irrevocable, and worldwide.
Finally, you understand and agree that Freebird, in performing the required technical steps to provide the
Services to our users (including you), may need to make changes to the User Information to conform and
adapt the User Information to the technical requirements of connection networks, devices, services, or
media, and the foregoing licenses include the rights to do so.
Who is responsible for what I see and do on the Services?
Any information or content transmitted through the Services by you is your sole responsibility, and we
are not liable for any errors or omissions in that information or content or for any damages or loss you
might suffer in connection with it. We cannot control and have no duty to take any action regarding how
you may interpret and use the Content or what actions you may take as a result of having been exposed to
the Content, and you hereby release us from all liability for you having acquired or not acquired Content
through the Services.
GDSVF&H\2234523.10
The Services may contain links, information, data or connections to third party websites or services that
are not owned or controlled by Freebird. When you use the Services, you acknowledge and understand
that Freebird may need to access third party websites or use third party services for certain functionalities,
and you accept that there are risks in doing so, and that Freebird is not responsible for such risks or any
inaccuracies in such third party websites or services. Also, we encourage you to be aware when you leave
the Services and to read the terms and conditions and privacy policy of each third party website or service
that you visit or utilize.
Freebird has no control over, and assumes no responsibility for, the content, accuracy, privacy policies,
data, information or practices of or opinions expressed in any third party websites or by any third party
that you interact with through the Services. In addition, Freebird will not and cannot monitor, verify, or
edit the content of any third party site or service. By using the Services, you release and hold us harmless
from any and all liability arising from your use of any third party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including
payment and delivery of goods or services, and any other terms, conditions, warranties or representations
associated with such dealings, are solely between you and such organizations and/or individuals. You
should make whatever investigation you feel necessary or appropriate before proceeding with any online
or offline transaction with any of these third parties. You agree that Freebird shall not be responsible or
liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between you and a third party regarding the Services or any action you or a third party
takes concerning the Services, you agree that Freebird is under no obligation to become involved. In the
event that you have a dispute with any such third party, you release and covenant not to sue Freebird, its
officers, employees, agents, successors and assigns from claims, demands, and damages of every kind or
nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any
way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do
waive California Civil Code Section 1542, which says: "A general release does not extend to claims
which the creditor does not know or suspect to exist in his or her favor at the time of executing the
release, which, if known by him or her must have materially affected his or her settlement with the
debtor."
Will Freebird ever change the Services?
We are always trying to improve the Services, so they may change over time. We may suspend or
discontinue any part of the Services, or we may introduce new features or impose limits on certain
features or restrict access to parts or all of the Services. We will try to give you notice when we make a
material change to the Services that would adversely affect you, but this is not always practical. Similarly,
we reserve the right to remove any Content from the Services at any time, for any reason (including, but
not limited to, if someone alleges you contributed that Content in violation of these Terms of Use), in our
sole discretion, and without notice.
Does Freebird cost anything?
The Freebird Services are currently free, but you acknowledge that if you decide to purchase anything
offered for sale by or on behalf of Freebird, such purchase will be governed by additional terms and
conditions set forth below, starting at the “Terms of Service” section.
In addition to the terms and conditions that apply to you if you make a purchase using Freebird, you
understand and acknowledge that Freebird engages a third-party vendor or service provider to process
GDSVF&H\2234523.10
your online credit card payment. You agree that Freebird is not responsible for the processing of your
payment or for any of the information you provide for such payment to be received, or for any events,
losses or damages which result from such payments or disclosures of information to Freebird. You
further acknowledge and agree that you are authorized to use such credit card and that this credit card
information was not unlawfully obtained. You also acknowledge that you are responsible for all charges
incurred by those using your account (including charges incurred by error or otherwise) and for all
charges you incur in connection with any agreement that you may have with your cellular network service
provider and any fees that they may charge, including text messaging, data use or internet access charges.
What if I want to stop using Freebird?
You are free to do that at any time, by contacting us at support@getfreebird.com; please refer to our
Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us
after you have stopped using our Services.
Freebird is also free to terminate (or suspend access to) your use of the Services or your account, for any
reason in our discretion, including your breach of these Terms of Use. Freebird has the sole right to
decide whether you are in violation of any of the restrictions set forth in these Terms of Use.
Account termination may result in destruction of any Content associated with your account, so keep that
in mind before you decide to terminate your account.
If you have deleted your account by mistake, contact us immediately at support@getfreebird.com – we
will try to help, but unfortunately, we cannot promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms of Use shall survive
termination. By way of example, all of the following will survive termination: any obligation you have to
pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual
property rights, and terms regarding disputes between us.
What are the Additional Terms that Apply to Me if I Make a Freebird Purchase?
These terms of service (the “Terms of Service”), set out in the subsequent subsections and sections, set
forth the legally binding terms and conditions that apply whenever you purchase anything online from
Freebird.
Access to Freebird Rebooking Services
While Freebird plans to offer a more complete array of products, features, and services in the future,
Freebird currently only offers access to Freebird rebooking services (“Rebooking Services”) for non-stop
and one-stop flights (i.e., flights with no more than one layover or scheduled stop en route to the intended
destination). Therefore, if you would like to have Rebooking Services for a trip that has two or more
stops between the origin and the intended destination, you must make more than one purchase of
Rebooking Services. Each purchase of Rebooking Services will be regarded as stand-alone. For
example, if you fly on an itinerary from an origin of New York’s John F. Kennedy International Airport
(JFK) to an intended destination of San Francisco International Airport (SFO) with a layover in Chicago’s
O’Hare International Airport (ORD), you have a one-stop flight (“Layover Flight”). However, for
example, if you fly on an itinerary from an origin of New York’s John F. Kennedy International Airport
(JFK) to an intended destination of Los Angeles International Airport (LAX) with a layover in Chicago’s
O’Hare International Airport (ORD) and then San Francisco International Airport (SFO), you have a twostop flight. If you decide to purchase Rebooking Services for the non-stop flight from SFO to LAX
GDSVF&H\2234523.10
separately from the Layover Flight from JFK to SFO through ORD, and your non-stop flight from ORD
to SFO is canceled and gives rise to a Qualified Flight Disruption (defined below) and your non-stop
flight from SFO to LAX is not affected, Rebooking Services arising from the Qualified Flight Disruption
will only be with respect to your flight leg from ORD to SFO and not to your non-stop flight leg from
SFO to LAX.
Please note that Freebird reserves the right, in its sole discretion, to offer to sell or sell such Rebooking
Services and set prices as it determines. You acknowledge that Freebird is not obligated to sell Rebooking
Services for any particular flight and that Rebooking Services may not be available for certain airports,
routes, airlines, or flights.
Freebird is not currently able to provide services to individuals who do not provide Freebird with their
phone number connected to an internet-enabled mobile device capable of receiving SMS text messages
(e.g., an iPhone) (a “Mobile Device”). You acknowledge that even if Freebird accepts your purchase of
Rebooking Services pursuant to these Terms of Service, you may not receive a Freebird Notification
(defined below) if you do not accurately provide Freebird with your Mobile Device phone number and
that your Freebird Purchase is subject to cancelation by Freebird at any time.
Freebird is not currently able to provide services to individuals who require a Department of Homeland
Security Redress Control Number (also called a TSA Redress Number) to fly. You acknowledge that
even if Freebird accepts your purchase of Rebooking Services pursuant to these Terms of Service, you
may not be able to use a New Ticket after a Qualified Flight Disruption due to various limitations,
including, but not limited to, the failure to submit a TSA Redress Number.
Purchasing Rebooking Services
By clicking on “Purchase” (or other such similar wording as we may subsequently use), you are placing
an order to purchase Rebooking Services through the Freebird website (“Order”). Please check your
personal information and selections carefully before clicking “Purchase”. Note that any failure by you to
completely and accurately provide the information that Freebird requests may result in the failure of
critically important functionalities of the Freebird services. You agree that Freebird shall be held
harmless from anything that results from your failure or error to supply complete and accurate
information to Freebird, including without limitation, your ability to receive alerts of a Qualified Flight
Disruption (e.g., if you do not accurately provide Freebird with your Mobile Device phone number), your
ability to use Rebooking Services after a Qualified Flight Disruption, and your ability to use a New
Ticket.
Acceptance of Your Order
All Orders are subject to acceptance by us. Once your order has been accepted by us, our payment
processor will charge your debit/credit card for the value of the Rebooking Services, plus any applicable
fees and taxes. Acceptance of your Order shall be deemed to have occurred, and a contract formed for the
purchase of Rebooking Services, when Freebird is notified by our third party payment processor that your
payment has been cleared (a “Freebird Purchase”). All Freebird Purchases are final, non-refundable, noncreditable and non-transferable. Freebird only allows one Freebird Purchase per traveler per non-stop
flight. Freebird reserves the right to not honor duplicate Freebird Purchases for such travelers and not
issue a refund for any such duplicate purchases. If you do not receive a confirmation after attempting to
purchase tickets on the website, or if you experience an error message or service interruption while
attempting to purchase tickets, please check with us to confirm that your order has been placed by
emailing support@getfreebird.com. We recommend that you print the confirmation page for your
records.
GDSVF&H\2234523.10
Errors
In the event that we make a pricing error for the cost of Rebooking Services on our website (“Pricing
Error”), we reserve the right to cancel your Freebird Purchase and refund you the full price you paid for
such Rebooking Services, provided we do so prior to a Qualified Flight Disruption for such Rebooking
Services and within twenty-four (24) hours of Freebird’s discovery of such pricing error.
In the event that you make a Freebird Purchase but do not provide Freebird with your Mobile Device
phone number (“Device Error”), we reserve the right to cancel your Freebird Purchase and refund you the
full price you paid for such Rebooking Services, even if such cancelation occurs after a Qualified Flight
Disruption for such Rebooking Services. A Pricing Error and a Device Error may be hereinafter referred
to individually, or jointly, as an “Error”.
Qualified Flight Disruptions
A “Qualified Flight Disruption” occurs if Freebird receives notification from its third party data service
provider that (a) your flight has been canceled, (b) your flight’s expected departure time has been delayed
for at least four (4) hours unless otherwise specified by Freebird prior to your placement of an Order and
set forth on the confirmation page of the applicable Freebird Purchase , or (c) the arrival time of the first
leg of your Layover Flight does not afford you the greater of (i) more than twenty (20) minutes from the
expected departure time of the second leg of your Layover Flight, or (ii) such period of time as reasonably
determined by Freebird’s then-current proprietary methodology (“Missed Connection”). Freebird’s
current third party data service provider measures the duration of a flight delay by the difference in the
original scheduled departure time and the new expected departure time (or difference in original
scheduled runway departure time and the new estimated runway departure time if certain data is not
available). You acknowledge that the duration of a delay may be calculated using different data or
different methodologies and agree that a Qualified Flight Disruption only occurs if the delay qualifies
according to the methodology employed by Freebird at the time of the delay. For Missed Connections,
Freebird currently uses third party data to calculate the difference between the arrival time of the first leg
of the Layover Flight, as measured using any combination of the difference between (A) the expected
landing time, the actual landing time, the expected gate arrival time, or actual gate arrival time, and (B)
the expected departure time of the second leg of the Layover Flight. You acknowledge that Freebird may
use different data and methodologies to calculate whether a Missed Connection has occurred without
prior notification of such change(s), and agree that a Qualified Flight Disruption by virtue of a Missed
Connection only qualifies if it meets the then-current methodology employed by Freebird.
Freebird will attempt to notify you of a Qualified Flight Disruption using the contact information that you
provided to Freebird when you made an Order and/or created a Freebird User ID, as applicable (“Freebird
Notification”). Freebird will attempt to provide you with the Freebird Notification by either SMS text
message to your Mobile Device, app notification (if applicable) or email, at its discretion. Freebird
accepts no responsibility if you delete, lose, or otherwise cannot access or receive the Freebird
Notification for any reason (including, without limitation, due to issues with your Mobile Device,
internet, cellular or other communications connectivity or charging or low battery), or if you are unable to
see or understand the communication for any reason.
Upon receipt of the Freebird Notification, subject to these Terms of Service, you are entitled to select
either (I) the ability to book yourself a new ticket via the Freebird website and/or app with (a) the same
origin and intended destination as you originally booked if you purchased Rebooking Services for a nonstop flight or (b) any of the origin to layover airport, layover airport to intended destination, or origin to
intended destination depending on the rebooking methodology employed by Freebird at the time of the
GDSVF&H\2234523.10
Qualified Flight Disruption (a “New Ticket”), or (II) if you are not satisfied with the ability to book a
New Ticket, the ability to select to receive a one hundred dollar ($100) gift card from Freebird, but not
both (I) and (II); provided that within twenty-four (24) hours of Freebird initiating a Qualified Flight
Disruption for you, for (I) you select “Book Flight” (or other such similar wording as we may
subsequently use) and confirm your selection via the Freebird website and/or app, or for (II) you notify
Freebird at support@freebird.com. If you elect to receive (I), a New Ticket, you acknowledge that (a)
such election is subject to published availability at the approximate time of your search and at the time of
Freebird’s attempt to secure such selection by (i) participating airlines, (ii) our third party service
providers, and (iii) limitations of the Freebird technology; (b) your New Ticket may be purchased via a
third party service provider (e.g., travel agent, airline website); (c) if your New Ticket flight is canceled or
delayed, or if you miss your New Ticket flight for any reason (e.g., a missed connection or any other
transportation issue), you are not entitled to any additional services from Freebird; (d) flights and
availability are subject to change for reasons outside of Freebird’s control; (e) once a selection for a New
Ticket has been submitted to Freebird, we may not be able to change or alter your selection; (f) Freebird
is not responsible for ensuring future flight legs are honored by the airline that issued your original ticket
(for example, airlines may choose to cancel all subsequent legs of a trip if the traveler does not fly one of
the prior legs); (g) additional fees may apply (such as baggage and ticketing fees) and Freebird is not
responsible for any additional costs or fees imposed by an airline or your Mobile Device cellular network
service provider (e.g., internet access or SMS text message usage charges); (h) Freebird has no
responsibility with respect to any of your luggage or other personal effects, or any impact or consequence
of you taking advantage of the Freebird services or electing to receive a New Ticket; and (i) you are
solely responsible for checking-in to your new flight, complying with all TSA regulations, obtaining a
boarding pass and boarding such new flight. If you elect to receive (II), a one hundred dollar ($100) gift
card, you acknowledge that such gift card will be provided by a third party service provider of Freebird’s
choice and will be delivered to you via the phone number or email address provided by you when you
purchased Rebooking Services from Freebird. If you select both (I) and (II), Freebird may choose at its
sole discretion which selection to honor.
For questions on TSA compliance, please refer to the official US Department of Homeland Security
Transportation Security Administration (“TSA”) website (http:/www.tsa.gov).
Whether or not you exercise your option pursuant to the terms of the foregoing paragraph to receive either
a (I) New Ticket or (II) a one hundred dollar ($100) gift card, you may retain certain rights in or to your
original ticket (for example, from the issuing airline or your travel agent). Your original ticket may result
in the issuing airline automatically rebooking you on another flight, or offering to provide you with
compensation or other remuneration, such as a refund or credit. Accordingly, you may be entitled to seek
such assistance or consideration from such parties in connection with your original ticket, but you
acknowledge that you do so at your sole discretion and liability. You may also decide to keep your
original ticket as a “back up” option, but please note that Freebird makes no representation as to the
success or viability of any outcome related thereto.
New Tickets
If you elect to receive a New Ticket after providing proper notice to Freebird of a Qualified Flight
Disruption, subject to the terms and conditions of these Terms of Service, confirmation of a New Ticket
will be delivered to you electronically via the email address or phone number provided by you when you
purchased Rebooking Services from Freebird. Please note that we reserve the right to make the
confirmation of a New Ticket available to you in any reasonable format (for example, by SMS text
message of an applicable confirmation code). Your receipt of an electronic confirmation from Freebird
may not constitute all that is required for you to board a flight, and it is solely your responsibility to take
GDSVF&H\2234523.10
all steps necessary (e.g., complete check-in for your new flight, obtain a boarding pass, arrive at the gate
in sufficient time, comply with all TSA regulations) to use your New Ticket.
If Freebird is unable to purchase the New Ticket selected by you for any reason, you acknowledge that
Freebird may choose to contact you, using any of the forms of contact information you provided to
Freebird in either creating your Freebird User ID or when you made an Order, to discuss alternative
options available to you and Freebird in accordance with the terms of this Terms of Service.
The New Ticket is your responsibility from the time Freebird transmits the confirmation of the New
Ticket, which may be before your receipt of the electronic confirmation of the New Ticket. Freebird
accepts no responsibility if you cannot access the confirmation, delete your confirmation email or other
correspondence or if your printed email confirmation or other correspondence is lost or stolen. If a
replacement ticket is, at our sole discretion, subsequently offered by us, we reserve the right to charge you
a reasonable replacement fee to cover costs.
It is your responsibility to check that your New Ticket has been delivered to you, and check for any errors
or omissions. Please report any issues to us as soon as possible. A failure to report a problem with your
New Ticket reasonably promptly and in any case in good time prior to the scheduled departure time
thereof may result in you not being able to use the New Ticket (even if the error or omission was initially
our fault).
You acknowledge that your use of a New Ticket is subject to additional terms and conditions as imposed
by the applicable airline, which may include terms that restrict your ability to resell or transfer a New
Ticket. Please be aware that Freebird is not liable for any additional terms and conditions imposed by any
third party, including the commercial airline, with respect to your use of the New Ticket.
Freebird Purchase Cancelations and Refunds
Once we have accepted your Freebird Purchase you will not have a right to cancel your Freebird Purchase
or obtain a refund except in accordance with this section.
You are entitled to a refund of the greater of one hundred dollars ($100) or three times the price paid by
you to Freebird for the Freebird Purchase if you (a) do not receive the correct tickets due to a fault or
breach of contract by us and we are not able to provide any replacement tickets, or (b) if Freebird elects to
cancel or terminate your Freebird Purchase for any reason either before or after the existence or
notification of a Qualified Flight Disruption, except in the event of an Error, in which case you are only
entitled to receive a refund as set forth above in the paragraph entitled “Errors”. You acknowledge and
agree that Freebird reserves the right to cancel or terminate your Freebird Purchase for any reason or no
reason at all, with or without advance notice.
What else do I need to know?
Warranty Disclaimer. Neither Freebird nor its licensors or suppliers makes any representations or
warranties concerning any content contained in or accessed through the Services, and we will not be
responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in
or accessed through the Services. We (and our licensors and suppliers) make no representations or
warranties regarding suggestions or recommendations of services or products offered or purchased
through the Services. Products and services purchased or offered (whether or not following such
recommendations and suggestions) through the Services are provided “AS IS” and without any warranty
of any kind from Freebird or others (unless, with respect to such others only, provided expressly and
unambiguously in writing by a designated third party for a specific product). THE SERVICES,
GDSVF&H\2234523.10
REBOOKING SERVICES AND CONTENT ARE PROVIDED BY FREEBIRD (AND ITS
LICENSORS AND SUPPLIERS) ON AN “AS-IS, AS AVAILABLE” BASIS, WITHOUT
WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON
HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT
APPLY TO YOU. NO REPRESENTATIVE OF FREEBIRD IS AUTHORIZED MAKE ANY OTHER
REPRESENTATION OR WARRANTY OR MODIFY THIS WARRANTY IN ANY WAY EXCEPT IN
A WRITTEN AMENDMENT OF THESE TERMS OF USE SIGNED BY A DULY AUTHORIZED
REPRESENTATIVE OF FREEBIRD.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER
NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT
LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL FREEBIRD
(OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR
(A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND,
INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE,
ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY
AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THREE
TIMES THE AMOUNTS PAID BY YOU TO FREEBIRD IN CONNECTION WITH THE SERVICES
OF THE APPLICABLE FREEBIRD PURCHASE (WITHOUT LIMITING ANY AMOUNTS PAID OR
PAYABLE TO YOU IN CONNECTION WITH THE REQUESTED REBOOKING SERVICES OF A
QUALIFIED FLIGHT DISRUPTION THAT IS CANCELED BY FREEBIRD), OR (C) ANY MATTER
BEYOND OUR REASONABLE CONTROL. LIABILITY FOR EXPENSES INCURRED IN
CONNECTION WITH YOUR TRIP (INCLUDING, WITHOUT LIMITATION, ACCOMMODATION
OR TRANSPORT COSTS) AND ANY LOSS OF ENJOYMENT IS EXPRESSLY EXCLUDED. ANY
AND ALL LIABILITY FOR ERRORS OR OMISSIONS MADE BY OUR THIRD PARTY SERVICE
PROVIDERS IS EXPRESSLY EXCLUDED. FURTHERMORE, YOU ACKNOWLEDGE AND
AGREE THAT YOU ASSUME ALL RISKS INCIDENTAL TO THE EVENT FOR WHICH A NEW
TICKET IS ISSUED, WHETHER BEFORE, DURING OR AFTER, AND YOU WAIVE ANY CLAIMS
FOR PERSONAL INJURY OR DEATH AGAINST FREEBIRD, ITS MANAGEMENT, OFFICERS,
DIRECTORS, OWNERS, EMPLOYEES OR AGENTS ON BEHALF OF YOURSELF AND ANY
ACCOMPANYING INDIVIDUAL. FREEBIRD ACCEPTS NO RESPONSIBILITY FOR ANY LOSS
OR DAMAGE OF PERSONAL PROPERTY IN CONNECTION WITH YOUR USE OF THE
FREEBIRD SERVICES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO
YOU.
Indemnity. To the fullest extent allowed by applicable law, You agree to indemnify and hold Freebird, its
affiliates, officers, agents, employees, and partners harmless from and against any and all claims,
liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising
from or in any way related to any third party claims relating to (a) your use of the Services (including any
actions taken by a third party using your account), and (b) your violation of these Terms of Use. In the
event of such a claim, suit, or action (“Indemnified Claim”), we will attempt to provide notice of the
Indemnified Claim to the contact information we have for your account (provided that failure to deliver
such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms of Use or your rights or obligations
hereunder, or your Services account, or any Rebooking Services that you purchase, in any way (by
GDSVF&H\2234523.10
operation of law or otherwise) without Freebird’s prior written consent. We may transfer, assign, or
delegate these Terms of Use and our rights and obligations without consent.
Choice of Law; Arbitration. These Terms of Use are governed by and will be construed under the laws of
the Commonwealth of Massachusetts, without regard to the conflicts of laws provisions thereof. Any
dispute arising from or relating to the subject matter of these Terms of Use shall be finally settled in
Suffolk County, Massachusetts, in English, in accordance with the Streamlined Arbitration Rules and
Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one
commercial arbitrator with substantial experience in resolving intellectual property and commercial
contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with
such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of
competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall
have the right to pursue injunctive or other equitable relief at any time, from any court of competent
jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in
the state or federal courts located in, respectively, Suffolk County, Massachusetts, or the United States
District Court for the District of Massachusetts. Any arbitration under these Terms of Use will take place
on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND
AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND FREEBIRD ARE EACH
WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Miscellaneous. The failure of either you or us to exercise, in any way, any right herein shall not be
deemed a waiver of any further rights hereunder. If any provision of these Terms of Use is found to be
unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so
that these Terms of Use shall otherwise remain in full force and effect and enforceable. You and Freebird
agree that these Terms of Use are the complete and exclusive statement of the mutual understanding
between you and Freebird, and that it supersedes and cancels all previous written and oral agreements,
communications and other understandings relating to the subject matter of these Terms of Use. You
hereby acknowledge and agree that by using the Services, you do not create or otherwise establish an
employee, agent, partner, or joint venture relationship with Freebird, and you do not have any authority of
any kind to bind Freebird in any respect whatsoever.
GDSVF&H\2234523.10