FAQ PARTNER 
WITH US
INVESTORS

Flex Membership Share, Inc.

Terms of Service

PLEASE READ THIS SELLER TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE” OR “TERMS”) CAREFULLY. BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF FLEX MEMBERSHIP SHARE, INC. (THE “COMPANY”) (COLLECTIVELY, THE “WEBSITE”), THE COMPANY’S MOBILE APPLICATION(S) (THE “MOBILE APP(S)”, AND TOGETHER WITH THE WEBSITE, THE “APPS”) IN ANY WAY, INCLUDING USING THE SERVICES AVAILABLE IN CONNECTION WITH THE APPS (“SERVICES”), YOU REPRESENT THAT (1) YOU HAVE READ AND AGREE TO THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF SERVICE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE APPS OR THE SERVICES.

THE TERMS OF SERVICE INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.

THE TERMS OF SERVICE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

  1. Services. The Services allow Users to find and buy day passes for gyms and other fitness studios (“Gyms”) without the need to purchase a membership or monthly pass. Such Users are considered “Buyers”. A User that uses the Services to offer day passes in connection with their existing memberships or monthly passes from Gyms (each a “Pass”) for use by others in exchange for payment is a “Seller.” A “User” is a Buyer or a Seller. We do not own or control the Passes; each Seller is the owner or controller of the Passes such Seller posts for sale through the Services.
  2. Use of the Services. The Services and the information and content available on the Services are protected by copyright laws throughout the world. Subject to the Terms, the Company grants you a limited license to use the Services for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by the Company in a separate license, your right to use any Services is subject to the Terms.
    1. Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services, including the Apps; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of the Company; (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Services in order to build a similar or competitive service, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Terms. The Company, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Services terminates the licenses granted by the Company pursuant to the Terms.
  3. Registration
    1. Registering Your Account. In order to access certain features of the Services you may be required to register for an account (“Account”).
    2. Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18+) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (x) notify the Company immediately of any unauthorized use of your password or any other breach of security; and (y) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. The Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by the Company, or if you have been previously banned from use of any of the Services.
  4. Sale Conditions. As a Seller, you agree to comply with our rules for listing your Passes and that:
    1. You authorize Passes related to your Account to be sold by Flex.
    2. You are responsible for registering and paying for your membership or subscription with the Gym for which your Passes relate.
    3. You will not attempt to utilize a Gym for which you have sold an applicable Pass on the day or time such Pass is valid for the Buyer.
    4. You will not contact a Buyer of your Passes and if you have any issues with the Buyer, you will contact the Company.
    5. The appearance or placement of your Passes in search and browse results through the Services will be controlled exclusively by the Company and depend on a variety of factors, including, but not limited to, Gym location relative to the Buyer and the cost of the Passes to the Buyer.
  5. Fees.
    1. Buyer Fees. If you are a Buyer, you agree to pay the fees described in the Services, for any Passes you purchase through your use of the Services. All information that you provide to us or our third party payment processor must be accurate, current and complete. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARD(S) OR OTHER PAYMENT MEANS USED FOR ANY PAYMENT, AND YOU AUTHORIZE US TO CHARGE SUCH CARD. You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism).
    2. Credits and Payments to Sellers. If you are Seller, the Company will credit your Account with the amounts described in the Services (“Credits”), within thirty (30) days of the sale of the Passes to which such Credit relates. All such Credits will remain in your Account for you to utilize in purchasing Passes from other Sellers through the Services. Upon termination of your Account, or upon your request, the Company will pay you the balance of the Credits associated with your Account within thirty (30) days of such termination or request. Unless otherwise prohibited by applicable law, in the event that such Credits are less than $20.00 at the time of your request for payment, the Company will withhold such payment until such date as the aggregate amount of Credits in your Account exceeds that threshold. Upon termination of your Account or these Terms the forgoing threshold shall not apply and any remaining Credits will be paid to you by Flex within thirty (30) days of the effective date of such termination.
    3. Taxes. We may charge the Buyer or the Seller any taxes assessed on the transactions that are part of the Services.
  6. Responsibility for Content. You acknowledge that the Company has no obligation to pre-screen User Content, although the Company reserves the right in its sole discretion to pre-screen, refuse or remove any User Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. In the event that the Company pre-screens, refuses or removes any User Content, you acknowledge that the Company will do so for the Company’s benefit, not yours. Without limiting the foregoing, the Company shall have the right to remove any User Content that violates the Terms or is otherwise objectionable. As used herein, “User Content” means any content uploaded to, posted on, transmitted or otherwise made available by you or any other User through the Services.
  7. Ownership
    1. Services. Except with respect to User Content, you agree that the Company and its licensors own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
    2. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of the Company.
    3. Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post a photograph of another person without that person’s permission.
    4. License to Your Content. You grant the Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) uploaded to or made available by you to the Services for the purposes of operating and providing the Services to you and to our other Users. You agree that you, not the Company, are responsible for all of Your Content that you make available on or in the Services. As used herein, “Your Content” means any data, information, images, videos, sounds, audio files, works of authorship, content or other materials you upload to, or make available on, the Services.
    5. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to the Company (“Feedback”) is at your own risk and that the Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to the Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services.
    6. Reviews. The Services may host User Content that is related to reviews of certain Gyms. Such reviews are opinions and are not the opinion of Company, have not been verified by Company, and you should undertake your own research to be satisfied concerning any specific User.
    7. Your Conduct. While using or accessing the Services you agree that you will not, under any circumstances:
      1. Breach or circumvent any laws, third party rights or our systems, policies, or determinations of your Account status;
      2. Interfere with or damage Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
      3. Interfere with any other User’s use of the Services;
      4. Post false, inaccurate, misleading, defamatory or libelous content;
      5. Take any action that may undermine our feedback or ratings systems;
      6. Transfer your Account and username to another party without our consent;
      7. Bypass any robot exclusion headers, interfere with the working of the Services, or impose an unreasonable or disproportionately large load on our infrastructure;
      8. Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
      9. Use the Services to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers; or
      10. Upload, transmit, or otherwise make available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
  8. User Data. You acknowledge and agree that you do not and should not have access to data regarding other Users, in connection with your use of, and participation in, the Services. You are expressly prohibited from collecting any data regarding other Users. The Company may terminate your use of and access to the Services at its sole discretion if it suspects your violation of this section.
  9. Investigations. The Company may, but is not obligated to, monitor or review the Services and User Content at any time. Without limiting the foregoing, the Company shall have the right, in its sole discretion, to remove any of your Content for any reason (or no reason), including if such User Content violates the Terms or any applicable law. Although the Company does not generally monitor User activity occurring in connection with the Services or User Content, if the Company becomes aware of any possible violations by you of any provision of the Terms, the Company reserves the right to investigate such violations, and the Company may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove User Content, in whole or in part, without prior notice to you.
  10. Interactions with Others.
    1. User Responsibility. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that the Company reserves the right, but has no obligation, to intercede in such disputes.
    2. Content Provided by Other Users. The Company is not responsible for and does not control User Content. The Company has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
    3. Third-Party Services. The Services may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (collectively, “Third-Party Websites & Ads”). Such Third-Party Websites are not under the control of the Company. The Company is not responsible for any Third-Party Websites & Ads. The Company provides these Third-Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services. You use all links in Third-Party Websites & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
    4. Use of Passes and Gym. While using a Seller’s Pass you are responsible for your use of the applicable Gym including your adherence to any specific rules or registration requirements of the Gym, your conduct while using the Gym, and any damages to the Gym’s property caused by your use or conduct.
  11. Your Warranties. You represent and warrant that: (a) you have full right, power and authority to enter into and perform these Terms without the consent of any third party; (b) your performance of its obligations hereunder and its participation in the Services does not violate any contract or agreement to which you are bound; and (c) you are authorized to provide access to your Passes (as a Seller).
  12. Indemnification. You agree to indemnify and hold the Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your User Content; (b) your use of, or inability to use, the Services; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. The Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Services.
  13. Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES, INCLUDING YOUR USE OF ANY GYM OR PARTICIPATION IN ANY FITNESS ACTIVITY, IS AT YOUR SOLE RISK, AND THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
    1. No Liability for Conduct of Other Users or Gyms. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES OR ANY GYM. YOU UNDERSTAND THAT THE COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES, THE CONDUCT OF ANY EMPLOYEE OR OTHER REPRESENTATIVE OF ANY GYM, OR TO THE SAFETY, CLEANLINESS, OR RELIABILITY OF ANY GYM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND ANY GYM.
  14. Limitation of Liability
    1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR YOUR USE OF ANY GYM OR PARTICIPATION IN ANY RELATED FITNESS ACTIVITY, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY THE COMPANY IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER.
    3. Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
    4. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
  15. Termination and Suspension. These Terms shall commence on the date you accept them (in accordance with the preamble) and shall continue for a period of one (1) year, unless terminated earlier in accordance with the terms herein (the “Initial Term”). These Terms shall automatically renew for successive one (1) year periods (each, a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either party gives written notice of non-renewal at least thirty (30) days prior to the expiration of the then current-term. Either party may terminate these Terms upon written notice if the other party materially breaches these Terms and does not cure such breach (if curable) within thirty (30) days after written notice of such breach. The Company may also terminate or suspend your right to use the Services if Company believes your actions may lead to possible legal liabilities; if the Company believes such action will improve the security of our community or reduce another User’s exposure to financial liabilities; if the Company believes you are infringing the rights of third parties; if the Company believes you are acting inconsistently with the spirit of these Terms; if despite our reasonable endeavors, the Company is unable to verify or authenticate any information you provide; or if you fail to pay all amounts charged to your Account by the payment due date. In addition to terminating or suspending your Account, Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Even after your right to use the Services is terminated or suspended, these Terms will remain enforceable against you.
  16. General Provisions
    1. Electronic Communications. The communications between you and the Company use electronic means, whether you visit the Services or send the Company e-mails, or whether the Company posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from the Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
    2. Release. You hereby release the Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services or any interaction between you and any User. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
    3. Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without the Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    4. Force Majeure. The Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
    5. Limitations Period. YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE SERVICES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
    6. Dispute Resolution.
      1. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings will be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
      2. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: 1023 Walnut Street, Boulder, CO 80302. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
      3. Arbitration Rules. Arbitration shall be initiated through the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The JAMS Streamlined Arbitration Rules governing the arbitration are available online at http://www.jamsadr.com/. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
      4. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
      5. Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the JAMS Rules for the pertinent claim.
      6. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
      7. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
      8. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
      9. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
      10. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
      11. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
      12. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
      13. Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
      14. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
      15. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
      16. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Denver County, Colorado, for such purpose.
    7. Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Colorado, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
    8. Notice. Where the Company requires that you provide an e-mail address, you are responsible for providing the Company with your most current e-mail address. In the event that the last e-mail address you provided to the Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, the Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to the Company at the following address: 1023 Walnut Street, Boulder, CO 80302. Such notice shall be deemed given when received by the Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
    9. Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    10. Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    11. Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
    12. Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
    13. Supplemental Terms. Your use of, and participation in, certain Services may be subject to additional terms and such terms will either be listed in the Terms of Service or will be presented to you for your acceptance before you use the supplemental Service.
    14. Amendment. PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY THE COMPANY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, the Company will make a new copy of the Terms of Service on the Apps. We will also update the “Last Updated” date on the Terms of Service. If we make any material changes, and you have registered with us to create an Account, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. The Company may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s).

Last Updated: March 8, 2018