These terms of service govern your access to and use of FlyingPenguins’ services and FlyingPenguins’ provision of the same. By accessing or using FlyingPenguins’websites and services, you accept or agree to these terms. If you are entering into or accepting these terms on behalf of a legal entity, you represent and warrant that you have the right, authority, and capacity to bind such entity and its affiliates to these terms, in which case, the term “subscriber” shall refer to such entity and its affiliates, as well as you individually. If you do not have such authority, or if you do not agree to be bound by all of the provisions of these terms, do not access or use FlyingPenguins’services.
By using the services, you agree to these terms of use and the FlyingPenguins privacy policy (located at https://flyingpenguins.me/privacy). If you do not accept these terms of service, you may not access or use the services.
- These Terms of Service.
FlyingPenguins reserves the right, in its sole discretion, to change or modify the Terms of Service, whether in whole or in part, without notice. If FlyingPenguins changes the Terms of Service, Flying Penguins will post such new terms on the Site and any such changes or modifications will become effective upon posting. Your access to and use of the Services, following the posting of any such changes or modifications, will constitute your acceptance of the Terms of Service as revised.These Terms of Service (these “Terms”) are made by and between the party accepting these Terms and/or the party on whose behalf they are accepted (“Subscriber”) and Flying Penguins. “Flying Penguins” means Flying Penguins Inc., a Delaware corporation. For purposes of this Agreement, “Services” means the provision by Flying Penguins of the platform to Subscriber. - Services.
2.1 FlyingPenguins shall host (or have hosted) Flying Penguins’ proprietary system (the “Flying Penguins Platform”) in order for Subscriber to utilize the functionality of the Flying Penguins Platform. Subject to the Subscriber’s compliance with the Agreement, Flying Penguins shall provide Subscriber with access to the Flying Penguins Platform via a web-enabled or mobile user interface.
2.2 Subscriber may access the Flying Penguins Platform via a username and password. Subscriber shall be responsible for: (a) maintaining the confidentiality and security of its password(s), including, but not limited to, (b) immediately notifying Flying Penguins of any loss, or any unauthorized use of, Subscriber’s password(s) or account(s) or any other breach of security that is known or suspected by Subscriber; and (c) requesting, disclosing and using the passwords solely as required to use the Services in accordance with the Agreement. Flying Penguins cannot and will not be liable for any loss or damage arising from Subscriber’s failure to comply with this Section.
2.3 Flying Penguins reserves the right, in its sole discretion, of which Flying Penguins may choose to do at any time, to modify or discontinue, whether temporarily or permanently, the Services, or the content thereof, with or without notice. Subscriber agrees that Flying Penguins will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services. - Security Measures.
Flying Penguins will maintain reasonable administrative, physical, and technical safeguards for the security and integrity of the Services (the “Security Measures”). Flying Penguins will store, process, transmit and disclose electronic data and configurations submitted to the Services by or on behalf of Subscriber, including, without limitation, Self-Assessment Data (“Subscriber Data”), only according to the Agreement. All user interactions within AI-based simulations will be processed securely by the third party AI provider and governed by data processing agreements ensuring compliance with privacy and security best practices. - Acceptable Use.
4.1 Subscriber shall not use the Services:
4.1.1 For the transmission of material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
4.1.2 If Subscriber is a child under the age of 16 or if Subscriber is unable to form a binding contract under applicable law.
4.1.3 In any manner that infringes any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
4.1.4 In any manner that violates the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or these Terms.
4.1.5 To impersonate any person, or misrepresent Subscriber’s identity or affiliation with any person or organization.
4.2 Without limiting the generality of Section
4.1, Subscriber shall not use the Services or any personal data, including DISC-based psychometric / personality assessment data or skills assessment data gathered or provided as part of the Services, as a factor in making or evaluating any employment related decisions. Such data is to be used exclusively for learning and development. - Subscriber’s Responsibilities.
5.1 If Subscriber is entering into this Agreement in its individual capacity, it may be required to take a series of self-assessment tests and provide information about Subscriber (collectively, “Subscriber Data”). Any Subscriber Data that Subscriber provides through the Services becomes a part of Subscriber’s user profile which may also be shared with Subscriber’s associated organization(s), if any. If Subscriber shares Subscriber Data with an organization, other users within that organization may have access to Subscriber’s Subscriber Data. Flying Penguins is not responsible for the accuracy of Subscriber’s Subscriber Data or any information that Subscriber posts to its profile. Flying Penguins cannot prevent such information from being used by others in a manner that may violate this Agreement, the law, or Subscriber’s personal privacy.
5.2 Subscriber will be responsible for the performance of its personnel (including employees and contractors) in compliance with the Agreement. Subscriber enters into the Agreement on behalf of its affiliates that make use of the Services.
5.3 Subscriber (a) shall comply with the Flying Penguins Acceptable Use Policy in Section 4 of this Agreement (the “AUP”); (b) shall use the Services in accordance with the Agreement; (d) shall prevent unauthorized access to or use of the Services; (e) shall promptly notify Flying Penguins of any unauthorized access or use of the Services; (f) shall not use the Services to store, transmit or display Subscriber Data for fraudulent purposes or in violation of applicable laws and governmental regulations; (g) shall, unless otherwise agreed upon in writing by Flying Penguins, not make the Services available to, or use the Services for the benefit of, anyone other than Subscriber’s own personnel or end users; (h) shall not use the Services to store, transmit or display any disabling codes or instructions, spyware, Trojan horses, worms, viruses or other software routines that facilitate or cause unauthorized access to, or disruption, impairment, disablement, or destruction of, the Services, data or other materials (“Malicious Code”); (i) shall not interfere with or disrupt the integrity or performance of the Services or any third-party technology contained therein; (j) shall not attempt to gain unauthorized access to any of Flying Penguins’ datacenters, systems or networks; (j) shall not permit direct or indirect access to or use the Services in a way that circumvents a usage or capacity limit of the Services or use the Services to access or use any of Flying Penguins’ intellectual property except as permitted under the Agreement; (k) shall not sell, resell, license, sublicense, distribute, redistribute, rent, or lease the Services except as permitted under this Agreement or otherwise agreed upon in writing by Flying Penguins; (l) shall not copy, modify or create a derivative work of the Services or any part, feature, function, or user interface thereof; (m) shall not access the Services or use the Documentation to develop a competitive product or service; (n) shall not reverse engineer, decompile, translate, disassemble or otherwise attempt to extract any or all of the source code of the Services; (o) shall not alter, remove or obscure any copyright, trademark or other proprietary notices or confidentiality legend on the Services; and (p) shall obtain and maintain any required consents necessary to permit the processing of Subscriber Data by Flying Penguins under the Agreement. - Term and Termination.
FlyingPenguins reserves the right, in its sole discretion, to terminate your access to all or part of the Services, with or without notice. Upon termination or expiration of this Agreement: (a) the license granted to the Services will terminate; (b) Subscriber will immediately cease using the Services, and (c) Flying Penguins will have no further obligation to provide access to the Services or Subscriber Data. - Survival.
Any term or condition that by its nature is clearly intended to survive the expiration or termination of the Agreement, shall survive any expiration or termination of the Agreement, including this Section 7, and Sections 1, 2, 4, 5, 8, 9, 11, 12, 13 and 14. - Confidentiality.
8.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has business, technical or financial information relating to Disclosing Party’s business which it has disclosed or may disclose in connection with this Agreement that is either marked as confidential or proprietary or that, given the nature of the information or the circumstances of the disclosure, reasonably ought to be considered to be confidential (“Confidential Information”). FlyingPenguins’ Confidential Information includes non-public information regarding features, functionality, and performance of the Services, as well as all non-public user-visible aspects of the Services. Subscriber’s Confidential Information includes information provided by Subscriber to FlyingPenguins to enable the provision of the Services as well as all Subscriber Data. 8.2 Non-Use. Receiving Party agrees that it will take reasonable measures to protect the Confidential Information of Disclosing Party. Without limiting the foregoing, Receiving Party will take at least those measures that it takes to protect its own confidential information of similar character, but never less than a standard of reasonable care. Receiving Party agrees: (i) not to use any Confidential Information of Disclosing Party for any purpose except to perform its obligations or to exercise its rights under this Agreement and (ii) not to disclose any Confidential Information of Receiving Party to third parties or to such party’s employees, officers, agents, contractors or other representatives (“Personnel”), except to those Personnel of Receiving Party who are required to have such Confidential Information in order to perform work in connection with this Agreement and are subject to confidentiality obligations as least as protective as those of this Agreement.8.3 Exceptions. Disclosing Party agrees that these confidentiality and restricted use obligations will not apply to any information that Receiving Party can document: (a) is or becomes generally available to the public through no action or inaction of the Receiving Party; (b) was in its possession or known by it prior to receipt from Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of or reference to any Confidential Information of Disclosing Party. Nothing in this Section 10 precludes either party from disclosing the other party’s Confidential Information as required by law or a legal process, provided that such party (a) gives the other party prior written notice sufficient to permit the other party to contest the disclosure or seek a protective order (or other confidential treatment) and (b) reasonably cooperates with the other party (at the other party’s expense) in limiting the disclosure. 8.4 Return of Confidential Information. Promptly following the earlier of (i) the expiration or termination of this Agreement, or (ii) the request of Disclosing Party, Receiving Party will return to Disclosing Party, or, at Disclosing Party’s option, destroy after a reasonable time thereafter all Confidential Information of the Disclosing Party that are in written, electronic or other tangible form, including, without limitation, all copies and derivatives of such Confidential Information. Although Recipient shall return and/or destroy Confidential Information as described above, the parties acknowledge and agree that, due to the nature of computer information storage systems and email communications, even if a file is “deleted”, a shadow or backup copy may remain within Recipient’s computer systems or its backup systems.8.5 Equitable Remedies. The parties acknowledge that disclosure or use of the other party’s Confidential Information in violation of the Agreement may cause irreparable harm to the Disclosing Party for which monetary damages may be an inadequate remedy and difficult to ascertain. Each party agrees that the Disclosing Party will have the right to seek injunctive or other equitable relief for any violation of the confidentiality provisions of the Agreement by the Receiving Party, in addition to any other rights and remedies that the Disclosing Party may have.8.6 Redundancy. Notwithstanding anything to the contrary in this Agreement, FlyingPenguins will have no obligation to erase any Confidential Information which has been included in FlyingPenguins redundant copies of data but will continue to delete such copies in accordance with its standard record retention policy. If return or destruction is not feasible, FlyingPenguins shall inform Subscriber of the reason it is not feasible and shall continue to extend the protections of this Section to such Confidential Information and limit further use and disclosure of such Confidential Information to those purposes that make the return or destruction of such Confidential Information infeasible., FlyingPenguins shall retain such information as FlyingPenguins reasonably determines necessary to demonstrate to Subscriber or any regulatory authority FlyingPenguins ‘s compliance with this Agreement or any applicable law or regulation. Any Confidential Information not returned or destroyed as permitted by this Section shall continue to be subject to the protections of this Section 10 for so long as it is retained, and the party retaining such Confidential Information shall limit use and disclosure of such Confidential Information to the purposes for which such party did not return or destroy such Confidential Information. At such time as a party’s basis for retaining such information ceases to exist, such party shall return or destroy such information as set forth above. - Licenses and Proprietary Rights.
9.1 Subscriber Data.As between Subscriber and FlyingPenguins, Subscriber owns all Subscriber Data and, except as specifically provided in this Agreement or otherwise agreed to in writing between the parties, FlyingPenguins has no right to access or use such Subscriber Data. During the Term, Subscriber grants to FlyingPenguins a non-exclusive, non-transferable, non-assignable (except as permitted herein), royalty-free license to access and use Subscriber Data in order to provide the Services to Subscriber and as necessary to monitor and improve the Services provided to Subscriber. FlyingPenguins will not: (a) modify Subscriber Data, (b) disclose Subscriber Data except as compelled by law (subject to the requirements of this Agreement) or as expressly permitted in writing by Subscriber, or (c) access Subscriber Data except to provide the Services to Subscriber, prevent or address service or technical problems, or at Subscriber’s request in connection with Subscriber support matters. For the avoidance of doubt, FlyingPenguins may use, reproduce and disclose Subscriber Data that is anonymized, de-identified, or is otherwise not reasonably associated or linked to Subscriber or any other identifiable individual person or entity (“Anonymized Data”) for product improvement and other purposes consistent with FlyingPenguins’ Privacy Policy. 9.2 Proprietary Rights.The Services and the FlyingPenguins Platform are the proprietary information of FlyingPenguins. Subject to the limited rights expressly granted in the Agreement, FlyingPenguins and FlyingPenguins’ licensors reserve all right, title, and interest in and to the Services, FlyingPenguins Platform, including all related intellectual property rights, as well as all derivative works made by any person or entity in or to the foregoing. No rights are granted to Subscriber except as expressly set forth in the Agreement. - Export Compliance.
The Services and the FlyingPenguins Platform, may be subject to export laws and regulations of the United States and other jurisdictions, and any use or transfer of the Services or the FlyingPenguins Platform must be permitted under these laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Subscriber shall not enable use of the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation. - Limitation of Liability.
In no event will FlyingPenguins’ aggregate liability arising out of or related to the agreement exceed the total amount actually paid by subscriber and its affiliates hereunder for the services giving rise to the liability in the twelve (12) months preceding the first incident out of which the liability arose. the above limitations will apply whether an action is in contract or tort and regardless of the theory of liability. - Exclusion of Consequential and Related Damages.
In no event will FlyingPenguins have any liability to any other party for any lost profits, lost opportunities, or indirect, special, incidental, consequential, cover, or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party has been advised of the possibility of these types of damages or a party’s remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law. - Disclaimers.
The services are provided "as is" and FlyingPenguins makes no warranty or guaranty of any kind, whether express, implied, statutory, or otherwise, and FlyingPenguins specifically disclaims all warranties, whether implied, express, or statutory, including any implied warranty of title, merchantability, fitness for a particular purpose, or non-infringement, to the maximum extent permitted by applicable laws or governmental regulations. - Indemnification.
Subscriber will indemnify and defend FlyingPenguins against any and all third party claims, demands, suits or proceedings (each a “Claim Against FlyingPenguins”) and all related judgments, liabilities, awards, damages, costs, including reasonable attorneys’ fees and expenses, arising out of or in connection with, (i) Subscriber Data, or (ii) Subscriber’s use of the Services in breach of the Agreement, provided FlyingPenguins: (a) promptly gives Subscriber written notice of the Claim Against FlyingPenguins; (b) gives Subscriber sole control of the defense and settlement of the Claim Against FlyingPenguins (except that Subscriber may not settle any Claim Against FlyingPenguins unless it unconditionally releases FlyingPenguins of all liability related to the Claim Against FlyingPenguins); and (c) give Subscriber all reasonable assistance in connection with the defense or settlement of such Claim Against FlyingPenguins, at Subscriber’s expense. The above defense and indemnification obligations do not apply to the extent a Claim Against FlyingPenguins arises from the Services or FlyingPenguins’ breach of the Agreement. Except with respect to a dispute between Subscriber and FlyingPenguins, Subscriber will reimburse FlyingPenguins for all costs and reasonable attorneys’ fees for responding to third party or governmental requests for information arising out of or in connection with Subscriber Data or Subscriber’s use of the Services. - Privacy Policy.FlyingPenguins will process personal information in accordance with its privacy policy available at https://flyingpenguins.webflow.io/privacy-policy (the “Privacy Policy”).
- Assignment.
Neither party may assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld) provided, however, either party may assign the Agreement in its entirety, without the other party’s consent (a) to its affiliate or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. - Governing Law; Dispute Resolution; Arbitration; Class Action Waiver.
17.1 Subscriber’s use of the Services and this Agreement, shall be governed in accordance with the laws of the State of Delaware, without regard to conflict of law provisions.17.2 Any dispute, claim or controversy among the parties arising out of or relating to these this Agreement or the Services (“Dispute”) shall be finally resolved by and through binding arbitration in accordance with the Federal Arbitration Act to the exclusion of any other Federal, state or municipal law of arbitration. Both the foregoing agreement of the parties to arbitrate any and all Disputes, and the results, determinations, findings, judgments and/or awards rendered through any such arbitration, shall be final and binding on the parties and may be specifically enforced by legal proceedings in any court of competent jurisdiction. - Force Majeure.
Except for payment obligations under the Agreement, neither party will be liable for failure to perform or inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control, including, for example, an act of God, natural disaster, act of war or terrorism, riot or civil unrest, labor conditions, governmental action, disruption of telecommunications, failure or delay of internet services providers or internet disturbance, disruption of power or other essential services. - Equitable Relief.
The parties agree that a material breach of the Agreement adversely affecting FlyingPenguins intellectual property rights in the FlyingPenguins Platform may cause irreparable injury to FlyingPenguins and/or its licensors for which monetary damages would not be an adequate remedy and FlyingPenguins shall be entitled to equitable relief (without a requirement to post a bond or prove actual or monetary damages) in addition to any rights or remedies it may have. - Updates to this Terms of Service.
We periodically review this Terms of Service to ensure it is up to date. Any changes to the Terms of Service will be posted on this page and will become effective as of the Effective Date above. If we make a material change in the Terms of Service, we will post a prominent notice or provide other notice as required by law. We encourage you to periodically review this page for the latest information on our Terms of Service.
