INSTRUCTOR - TERMS OF USE

These Instructor - Terms of Use (“Terms”) are a contract between you and Freeplay App Inc. (“Freeplay” or “we”) and govern your access to and use of any Freeplay website, mobile application (such as for iPhone or Android) or content (collectively, the “Site”) in order to offer your own classes, products, and/or services through Freeplay (collectively, the “Services”). Please read these Terms carefully before accessing and using the Site.

 

1. TERMS OF USE.

 

a) Amendment of Terms. Freeplay may amend the Terms from time to time. Unless we provide a delayed effective date, all amendments will be effective immediately upon notification to you of such updated Terms. Your continued access to or use of the Site or your continued offering of Services after such posting constitutes your consent to be bound by the Terms, as amended.

 

b) Additional Terms. In addition to these Terms, when using particular plans, offers, products, services or features, you will also be subject to any additional posted guidelines, or rules applicable to such plan, offer, product, service or feature, which may be posted and modified from time to time. This includes abiding by the general Terms of Use for Freeplay member accounts if you should choose to also access the Site as a member. All such additional terms are hereby incorporated by reference into the Terms, provided that in the event of any conflict between such additional terms and the Terms, the Terms shall control.

 

2. FREEPLAY PLATFORM

 

a) Freeplay Platform. Freeplay is a monthly subscription membership that enables Freeplay members to find and participate in a wide range of fitness and recreational classes and services offered and operated by fitness studios, gyms, trainers, venues, or other third parties that partner with Freeplay (“Partners”). Through the Freeplay platform you may offer Services. Freeplay itself is not a gym, fitness studio, or service provider and does not own, operate, or control any of the classes, services, or facilities accessible through the Site. You accept sole responsibility for the quality and safety of your Services, and agree that Freeplay has no obligation to keep your Services safe or free from defects.

    

b) Member Availability. Freeplay makes no guarantee on the availability of any particular or particular number of members, and makes no guarantees of any particular or particular number of purchases of any Services you offer.

 

c) Use of Freeplay. Your instructor’s access to Freeplay is personal to you and you agree not to create more than one account. You may not transfer or gift classes to third parties, including other Freeplay members. To use Freeplay you must have access to the Internet. We continually update and test various aspects of the Freeplay platform. We reserve the right to, and by using the Site you agree that we may, include you in or exclude you from these tests without notice.

 

3. FEES & PAYMENT

 

a) Fee Collection & Payment. You hereby authorize Freeplay to collect any fees for your Services from the Freeplay members who purchase them, and to pay these fees to you minus any costs or expenses incurred by Freeplay in the collection and processing of these payments. All fee payments to you will be made on a monthly basis for all fees actually collected by Freeplay for your Services in the preceding month, except that fees collected in one month for Services to be rendered in a later month will be paid to you as if those fees were collected in the month when the Services were actually performed. You also agree that Freeplay will have no obligation to pay you, nor liability for not paying to you, any amount based on your Services for which Freeplay has not yet collected the corresponding fees from the purchasing member.

 

b) Refunds. Generally, our fees (including the monthly fee for memberships and any other fees) are nonrefundable. However, if Freeplay refunds any amount to a member, a portion of which Freeplay had already issued as payment to you, then you agree that you will refund such payment to Freeplay, and that Freeplay may collect this refund via deduction from future payments to you.

  

c) Payment Methods. You may edit your preferred method of receiving payments for your Services by accessing your account settings. You accept sole responsibility for providing accurate information regarding your preferred payment methods, including account numbers, card numbers, and routing numbers. Failure to provide accurate payment information may result in a delay of payments until the following month’s payment cycle. Freeplay will have no additional liability for a delay of payment which occurs due to your failure to provide accurate payment information.

    

4. EXPENSES

 

a) Responsible for Expenses. You are responsible for all expenses you incur in the course of developing, offering, or performing your Services, including but not limited to third party charges and fees associated with internet service, telephone and computer equipment, gym or equipment access, sales tax, and any other costs necessary to access the Site.

 

5. TERMINATION OR MODIFICATION BY FREEPLAY.

 

a) Termination or Modification. You understand and agree that, at any time upon immediate notice Freeplay may (1) terminate, cancel, deactivate and/or suspend your account, any Services you offer, any orders placed, or your access to or use of the Site (or any portion thereof) and/or (2) discontinue, modify or alter any aspect, feature, or policy of the Site or your account. This includes the right to terminate or modify any or all of your Services at any time for any reason or for no reason at all. Upon any termination, we may immediately deactivate your account and all related information and/or bar any further access to your account information and the Site.  Freeplay’s sole liability on account of such termination will be to pay to you on the next regular payment date any amounts accrued to you for your Services up to the date of termination. If we determine that you have violated these Terms or otherwise engaged in illegal or improper use of the Site, Freeplay will have no further obligation to make payments to you, regardless of when those payments accrued to your account. You agree that Freeplay will not be liable to you or any third party for any termination or modification to the Site regardless of the reason for such termination or modification. You acknowledge that your only right with respect to any dissatisfaction with any modification or discontinuation of the Site made by us is to cancel or terminate your account.

 

b) Infringing or Fraudulent Activity. Freeplay does not permit any copyright infringing, fraudulent, abusive, or illegal activities and reserves the right to terminate access to the Site and remove all content submitted by any persons who are found to be infringers, to be committing fraud or abuse, or to be conducting illegal activities whether or not such infringements, fraud, abuse, or illegal activities take place on the Site. Any such activities will be a material violation of these Terms. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Site may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Freeplay may have at law or in equity.

 

6. PUBLICITY & MARKETING; NON-CIRCUMVENTION; SITE ACCESS.

 

a) Publicity & Marketing. You may not use the Freeplay name, logo, or trademarks for any purpose without the prior written consent of Freeplay, except you may use Freeplay’s name and the library of materials at www.freeplayapp.com in accordance with these Terms and only for as long as your Account remains active and in good standing. You may use the Site to advertise only your Services, and any advertisement for products or services not available through Freeplay is a material violation of these Terms.

 

b) Non-Circumvention. You may not knowingly attempt to solicit any member or actively prospective member of Freeplay to avoid creating a Freeplay membership, to cancel or cease renewal of a Freeplay membership, or to seek any product or services that is available through Freeplay, including your Services, from any source other than through Freeplay. A violation of this non circumvention obligation is a material violation of these Terms, and this obligation shall survive the termination of your account with Freeplay for a period of 12 months. For clarity, any attempts during a class or service offered through Freeplay to advertise products, classes, or services that are not offered through Freeplay will be a violation of this non circumvention obligation. Also, for clarity, any public or published statements by you which Freeplay believes in its sole discretion are injurious to Freeplay’s reputation, band, or public image will be a violation of his non circumvention provision.

 

c) Account Information. You agree that the information you provide to Freeplay at registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your account.

 

7. PRIVACY.

 

Your privacy is important to Freeplay. The Freeplay Privacy Policy is hereby incorporated into these Terms by reference. Please read the privacy policy carefully for information relating to Freeplay’ collection, use, and disclosure of your personal information.

 

8. PROHIBITED CONDUCT.

 

You promise not to:

  • Harass, threaten, or defraud users, members, or staff of Freeplay or Partners;

  • Make unsolicited offers, advertisements, proposals, or send junk mail or “spam” to users;

  • Impersonate another person or access another’s account without that person’s permission;

  • Share Freeplay-issued passwords with any third party or encourage any other user to do so;

  • Permit third parties to use any Partner facilities under your account;

  • Misrepresent the source, identity, or content of information transmitted via the Site, including deleting the mark of copyright or other proprietary rights;

  • Upload material (e.g. virus) that is damaging to computer systems or data of Freeplay or users of the Site;

  • Upload copyrighted material that is not your own or that you do not have the legal right to distribute, display, and otherwise make available to others; or

  • Upload or send to Site users pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content.

 

9. PROHIBITED USES.

 

As a condition of your use of the Site, you will not use the Site for any purpose that is unlawful or prohibited by these Terms. You may not use the Site in any manner that, in our sole discretion, could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the Site. You may not attempt to gain unauthorized access to the Site, nor any part of the Site, other accounts, computer systems, or networks connected to the Site, nor any part of them, through hacking, password mining, or any other means, nor interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site. You may not remove, circumvent, disable, damage, or otherwise interfere with security-related features of the Site, any features that prevent or restrict use or copying of any content accessible through the Site, nor any features that enforce limitations on the use of the Site or the content therein. You may not obtain or attempt to obtain through the Site any materials or information through any means not intentionally made available through the Site. You agree neither to modify the Site in any manner or form, nor to use modified versions of the Site, including (without limitation) for the purpose of obtaining unauthorized access to the Site. The Site may contain robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site.

 

Freeplay reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion.

 

10. SUBMITTED CONTENT.

 

a) User Submissions. The Site provides certain features which enable you and other users to submit, post, and share content with other users, which may include without limitation text, graphic, and pictorial works, advertisements for your Services, or any other content submitted by you and other users through the Site (“User Submissions”). User Submissions are displayed for informational purposes only and are not controlled by Freeplay. Freeplay cannot guarantee any anonymity or confidentiality with respect to any User Submissions, and strongly recommends that you think carefully about what you upload to the Site. You understand that all User Submissions are the sole responsibility of the person from whom such User Submission originated. This means that you, and not Freeplay, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit, or otherwise make available through the Site.

 

b) Right to Remove or Edit User Submissions. Freeplay makes no representations that it will publish or make available on the Site any User Submissions, and reserves the right, in its sole discretion, to refuse to allow any User Submissions on the Site, or to edit or remove any User Submission at any time with or without notice. Without limiting the generality of the preceding sentence, Freeplay complies with the Digital Millennium Copyright Act, and will remove User Submissions upon receipt of a compliant takedown notice (see the “Digital Millennium Copyright Act” section below).

 

c) License Grant by You to Freeplay. You retain all your ownership rights in original aspects of your User Submissions. By submitting User Submissions to Freeplay, you hereby grant Freeplay and its affiliates, sublicensees, partners, designees, and assignees of the Site (collectively, the “Freeplay Licensees”) a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license to use, reproduce (including by making mechanical reproductions), distribute, modify, adapt, translate, prepare derivative works of, publicly display, publish, publicly perform, and otherwise exploit your User Submissions and derivatives thereof in connection with the Site and Freeplay’s (and its successors’) business, including, without limitation, for marketing, promoting, and redistributing part or all of the Site (and derivative works thereof), in any media formats and through any media channels now known or hereafter discovered or developed.

 

d) User Submissions Representations and Warranties. You are solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use, and authorize Freeplay to use all patent, trademark, copyright, or other proprietary rights in and to your User Submissions to enable inclusion and use of your User Submissions in the manner contemplated by Freeplay and these Terms, and to grant the rights and license set forth above, and (ii) your User Submissions, Freeplay’s or any Freeplay Licensee’s use of such User Submissions pursuant to these Terms, and Freeplay’s or any of Freeplay Licensee’s exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) cause injury to any other person; (c) violate these Terms or any applicable law or regulation; or (d) require obtaining a license from or paying fees or royalties to any third party for the exercise of any rights granted in these Terms, including, by way of example and not limitation, the payment of any royalties to any copyright owners, including any royalties to any agency, collection society, or other entity that administers such rights on behalf of others. Freeplay may, but is not obligated to, monitor and edit or remove any activity or content, including but not limited to content that Freeplay determines in its sole discretion to be violative of the standards of this Site. Freeplay takes no responsibility and assumes no liability for any User Submissions.

 

e) Inaccurate or Offensive User Submissions. You understand that when using the Site, you may be exposed to User Submissions from a variety of sources and that Freeplay does not endorse and is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable. YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST FREEPLAY WITH RESPECT THERETO.

 

f) Feedback. If you provide Freeplay with any comments, bug reports, feedback, or modifications proposed or suggested by you to the Site (“Feedback”), Freeplay shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Site. You hereby grant Freeplay a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.

 

11. OWNERSHIP; PROPRIETARY RIGHTS.

 

The Freeplay website and mobile applications are owned and operated by Freeplay. The visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software), services, and all other elements of the Site provided by Freeplay (“Materials”) are protected by the copyright, trade dress, patent, and trademark laws of Canada, the Unites States, the United Kingdom and other countries, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any content uploaded by you, all Materials contained on the Site are the copyrighted property of Freeplay or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Freeplay or its affiliates and/or third-party licensors. Except as expressly authorized by Freeplay, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.

 

12. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS.

 

The Site may include links or access to other web sites or services (“Linked Sites”) solely as a convenience to users. Freeplay does not endorse any such Linked Sites or the information, material, products, or services contained on other linked sites or accessible through other Linked Sites. Furthermore, Freeplay makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through linked sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.

 

Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Site are solely between you and such advertiser. YOU AGREE THAT FREEPLAY WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SITE.

 

13. NOTICE.

 

Except as explicitly stated otherwise, legal notices will be served, with respect to Freeplay, on Freeplay’ national registered agent, and, with respect to you, to the email address you provide to Freeplay during the registration process. Notice will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. Notice delivered by mail will be deemed given three days after the date of mailing.

 

14. DISCLAIMERS; NO WARRANTIES.

 

THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FREEPLAY, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND PARTNERS, DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.

 

WITHOUT LIMITING THE FOREGOING, FREEPLAY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS (I) THAT THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) REGARDING THE USE OF THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. ANY MATERIAL OR DATA THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE SITE IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.

 

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

 

15. INDEMNITY FOR INJURY.

 

 

to the fullest extent permitted by law, you release, indemnify, and hold harmless Freeplay, its parent, subsidiaries, affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns, from any and all responsibility, claims, actions, suits, procedures, costs, expenses, damages, and liabilities arising out of or in any way related to your services, including with respect to bodily injury, physical harm, illness, death, or property damage to any member arising from the use of your services.

 

16. INDEMNITY FOR VIOLATION.

 

You agree to indemnify and hold harmless Freeplay, its affiliated companies, and its suppliers and partners from any claims, losses, damages, liabilities, including attorneys’ fees, arising out of your misuse of the Site, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants.

 

17. LIMITATION OF LIABILITY AND DAMAGES.

 

UNDER NO CIRCUMSTANCES WILL FREEPLAY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE, EVEN IF FREEPLAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, FREEPLAY’S LIABILITY FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

 

FREEPLAY’S LIABILITY TO YOU IS LIMITED TO $50 OR THE TOTAL OUTSTANDING AMOUNTS, IF ANY, TO BE PAID TO YOU BY FREEPLAY UNDER THIS AGREEMENT IN THE THREE MONTHS IMMEDIATELY PRIOR TO THE EVENT FIRST GIVING RISE TO THE CLAIM, WHICHEVER IS MORE. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER FREEPLAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

 

18. INDEPENDENT CONTRACTOR.

 

You are not an employee of Freeplay. You are an independent contractor operating an independent business, and Freeplay is just one of many tools at your disposal. You are free to cease your relationship with Freeplay at any time without penalty, you are free to perform similar work without the use of Freeplay while you maintain your Freeplay account, and you are not expected or required to meet any specific measure or quantity of Services to maintain your Freeplay account so long as your Services meet the standards of the Site. Because you have total control over the timing and amount of your Services, you determine if and when you want to work, and you agree that Freeplay has no way to oversee, supervise, or direct your Services in any meaningful or material fashion. You agree that you will not participate in the employee benefits plans of Freeplay, and Freeplay will not withhold or remit any forms of income tax from payments we make to you. You have sole and complete responsibility for any employee or sub-contractor you engage to assist you in performing the Services, and YOU HEREBY OFFER IDENTICAL INDEMNITIES TO FREEPLAY AND ITS RELATED PARTIES AS THOSE INDEMNITIES FOUND ELSEWHERE IN THIS AGREEMENT AS IF THE ACTIONS AND OMISSIONS OF ANY SUCH EMPLOYEE OR SUB-CONTRACTOR WERE YOUR OWN ACTIONS AND OMISSIONS.

 

19. ARBITRATION AGREEMENT

 

PLEASE READ THE FOLLOWING CAREFULLY:

 

a) Purpose. This Arbitration Agreement facilitates the prompt and efficient resolution of any disputes that may arise between you and Freeplay. Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial. You have the right to opt-out of this Arbitration Agreement (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.

Please read this Arbitration Agreement carefully. It provides that all disputes between you and Freeplay shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees).

 

For the purpose of this Arbitration Agreement, “Freeplay” means Freeplay and its parents, subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Freeplay regarding any aspect of your relationship with Freeplay, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.

 

YOU AND WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.

 

b) Pre-Arbitration Dispute Resolution. For all Disputes, whether pursued in court or arbitration, you must first give Freeplay an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Freeplay, Legal Department, 423 W Marie Way, Saratoga Springs, UT 84045. That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If Freeplay does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.

 

c) Exclusions From Arbitration And Your Right To Opt Out. Notwithstanding the above, you may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court in your state of residence; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Arbitration Agreement by mailing written notification to Freeplay, Legal Department, 423 W Marie Way, Saratoga Springs, UT 84045. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Freeplay through arbitration. Your decision to opt-out of this Arbitration Agreement will have no adverse effect on your relationship with Freeplay. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.

 

d) Arbitration Procedures. If this Arbitration Agreement applies and the Dispute is not resolved as provided above (“PreArbitration Claim Resolution”) either you or Freeplay may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Arbitration Agreement. For arbitration before the AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at  or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at  or by calling 1-800-352-5267. This Arbitration Agreement governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration. Because your contract with Freeplay, the Terms of Use, and this this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

 

e) Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party. Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

 

f) Location of Arbitration. You may initiate arbitration in either Utah County, Utah, or in the federal judicial district that includes your address that you provide in your written notification of Pre-Arbitration Dispute Resolution. In the event that Freeplay initiates an arbitration, it may only do so in the federal judicial district that includes your address that you provide in your written notification of Pre-Arbitration Dispute Resolution.

 

g) Payment of Arbitration Fees and Costs. Freeplay will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Freeplay as provided in the section above titled “Pre-Arbitration Dispute Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover from Freeplay your actual and reasonable attorney’s fees and costs as determined by the arbitrator.

 

h) Class Action Waiver. Except as otherwise provided in this Arbitration Agreement, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action) unless both you and Freeplay specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of this Arbitration Agreement as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other Member of Freeplay and/or user of Freeplay services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding without having complied with the opt-out requirements above.

 

i) Limitation of Procedural Rights. You understand and agree that, by entering into this Arbitration Agreement, you and Freeplay are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Arbitration Agreement, you and Freeplay might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, you give up those rights. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.

 

j) Severability. If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable and the Dispute will be decided by a court.

 

k) Continuation. This Arbitration Agreement shall survive the termination of your contract with Freeplay and your use of the Freeplay Site and services.

 

20. MISCELLANEOUS.

 

a) Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of Utah, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Freeplay must be resolved by a court located in Utah County, Utah, except as otherwise agreed by the parties or as described in the Arbitration Agreement paragraph above. You agree to submit to the personal jurisdiction of the courts located within Utah County, Utah for the purpose of litigating all such claims or disputes.

 

b) Assignment. We may assign our rights and obligations under these Terms. The Terms will inure to the benefit of our successors, assigns and licensees.

 

c) Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.

 

d) Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.

 

e) Entire Agreement. These Terms and any applicable Additional Terms, as each may be amended as set forth herein, are the entire agreement between you and Freeplay relating to the subject matter herein.

 

f) Claims; Statute of Limitations. YOU AND FREEPLAY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR IS FIRST DISCOVERED BY THE CLAIMING PARTY. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

 

g) Disclosures. The services hereunder are offered by Freeplay App, Inc., located at: 423 W Marie Way, Saratoga Springs, UT 84045 and email: hello@freeplay-app.com. If you are a Utah resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.

 

h) Waiver. No waiver of any of these Terms by Freeplay is binding unless authorized in writing by an executive officer of Freeplay. In the event that Freeplay waives a breach of any provision of these Terms, such waiver will not be construed as a continuing waiver of other breaches of the same nature or other provisions of these Terms and will in no manner affect the right of Freeplay to enforce the same at a later time.

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Freeplay App Inc.

1633 W Innovation Way

4th Floor

Lehi, UT 84043

(801) 653-3037

Hello@freeplayapp.com

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