These 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, or products and/or services made available through Freeplay (collectively, the “Site”). Please read these Terms carefully before accessing and using the Site.
1. TERMS OF USE.
a) Acceptance of Terms. By accessing and/or using the Site, you accept and agree to be bound by these Terms, just as if you had agreed to these Terms in writing. If you do not agree to these Terms, do not use the Site.
b) Amendment of Terms. Freeplay may amend the Terms from time to time. Unless we provide a delayed effective date, all amendments will be effective upon posting of such updated Terms. Your continued access to or use of the Site after such posting constitutes your consent to be bound by the Terms, as amended.
c) 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. 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 can access third party products and 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.
b) Membership Cycles. Your Freeplay membership starts immediately on the date that you sign up for a subscription and submit payment via a valid Payment Method. Unless we otherwise communicate a different time period to you at the time of sign up (such as a multi-month commitment plan), each Freeplay cycle is one month in length (a “Membership Cycle”), and will automatically renew each month until your membership is cancelled or terminated. For example, if you start your membership on August 1, automatically renew on September 1 (as further explained in “Billing Cycles,” below). You must provide us with a current, valid, accepted method of payment (which we may update from time to time, “Payment Method”) to use Freeplay. We will automatically bill the monthly membership fee to your Payment Method each month until your subscription is cancelled or terminated.
c) Eligible Classes. Each member receives classes, gym time or other service time per Membership Cycle (“Eligible Classes”) to be used to visit any Partner of their choice available to such member on our platform. Freeplay reserves the right to change from time to time the number of Eligible Classes a member can take per cycle, membership plan, geography, Partner or otherwise.
d) Membership Plans. We may offer a number of membership plans, including special promotional plans or memberships, with differing conditions and limitations. We reserve the right to modify, terminate or otherwise amend our offered membership plans.
e) Partner and Class Availability and Allocation. Freeplay makes no guarantee on the availability of particular Partners, Partner locations, classes or other inventory, and availability may change over time, including during the course of any given Membership Cycle.
f) Use of Freeplay. Your Freeplay membership is personal to you and you agree not to create more than one account. Members cannot transfer or gift classes to third parties, including other Freeplay members. Freeplay may not be used for commercial purposes. To use your Freeplay membership 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 our service you agree that we may, include you in or exclude you from these test without notice.
3. BILLING
a) Recurring Billing. By starting your Freeplay membership, you authorize us to charge you for your initial membership period and a recurring monthly membership fee at the then current rate, which may change from time to time. You acknowledge that the amount billed each month may vary for reasons that may include differing amounts due to promotional offers and/or changing or adding a plan, and you authorize us to charge your Payment Method for such varying amounts, which may be billed monthly in one or more charges. You also authorize us to charge you any other fees you may incur in connection with your use of the Site, such as any applicable sign-up fee, taxes or cancellation or late fees, as further explained below.
b) Billing Cycle. When you sign up and purchase your Freeplay subscription, your first subscription cycle will be billed immediately upon sign up. Your subscription will automatically renew each month and you will be billed on the same day of each month. We reserve the right to change the timing of our billing (and if we do, we’ll make adjustments to the amounts we charge, as appropriate). In the event your paying membership began on a day not contained in a given month, we may bill your Payment Method on a day in the applicable month or such other day as we deem appropriate. For example, if you started your Freeplay membership or became a paying member on January 31st, your next payment date is likely to be February 28th, and your Payment Method would be billed on that date. Your renewal date may change due to changes in your membership.
c) Refunds. Generally, our fees (including the monthly fee for your membership and any other fees) are nonrefundable, except that we will provide a refund to members for their current prepaid period in the following circumstance: if your subscription is cancelled prior to the end of a period for which you have incurred a charge, due to your relocation, disability or death; provided, however, in each case we reserve the right to charge a fee to cover the cost of any class or other services you may have used prior to your cancellation, to the extent permitted by law (such class fee charges not to exceed the cost of the subscription itself). Any additional discounts or refunds that we may choose to provide are in our sole discretion and do not entitle you to any future discounts or refunds in the future for similar instances.
d) Price Changes. We reserve the right to adjust pricing at any time. Unless we expressly communicate otherwise, any price changes to your membership will take effect on your next billing cycle upon notice communicated through a posting on the Freeplay website or mobile application or such other means as we may deem appropriate from time to time, such as email.
e) Payment Methods. You may edit your Payment Method information by logging into the mobile application and editing it under "My Account" and then "Settings". If a payment is not successfully settled, due to expiration, insufficient funds or otherwise, and you do not edit your Payment Method information or cancel your account (see, “Cancellation” below), you nonetheless will remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated, including in the event you attempt to create a new account. This may result in a change to your payment billing dates. If we cannot charge your account, we reserve the right, but are not obligated, to terminate your access to our Site or any portion thereof.
f) Cancellation of Membership. You may terminate your monthly subscription at any time by going into your accounts settings on the Freeplay mobile application and canceling. Following any cancellation you will continue to have access to your subscription through the end of your current prepaid billing period, unless you cancel and receive a refund, in which case your access will be terminated immediately.
g) Trials. From time to time we may offer a trial membership that includes standard access to the Freeplay platform during the trial period. Unless otherwise communicated, a trial begins at the moment of sign up and ends at 11:59pm ET on the last day of the trial (for a one-week trial, this would be the same weekday of following week). Each trial membership automatically will convert to a regular monthly membership and price unless canceled by 12pm ET on the day before the last day of trial. Customers that cancel and do not convert to a regular membership may not attend classes taking place after the end of the trial membership period (even if booking occurred before the end of the applicable trial period). Unless we expressly communicate otherwise, trial memberships are only available to new customers that have never had a Freeplay account before, are not transferable, may not be combined with other offers or redeemed for cash and are void where prohibited.
h) Gifts and Promotions. From time to time we may make available gift cards for Freeplay membership, other types of promotions or promotional plans (including through the use of promotional codes or those provided as part of a third party promotion). Gift cards, promotions and promotional plans may be redeemed as described in the specifics of the promotion and may be subject to additional or different terms. Unless otherwise expressly communicated to you in connection with your redemption, gift cards, promotions and promotional plans are only available to new customers that have never had a Freeplay account before, are not transferable, can only be used once, cannot be redeemed for cash, and may not be combined with other offers and are void where prohibited.
4. OTHER FEES
a) Fees We Charge. Your Freeplay membership fee covers your access to Eligible Classes as explained above. We reserve the right to change the policy regarding when we charge fees, to introduce additional fees (such as a sign up fee) and to change the amount of any such fees at any time. Additionally, from time to time we may allow you to purchase additional classes, products or services through the Freeplay Site. If you choose to purchase any of these offerings, you will be responsible to pay the applicable fees in addition to your membership fee.
b) Fees Charged by Partners. In addition to fees we charge, some of the Partners may also charge equipment or other amenity fees that you will be responsible for directly. For example, some Partners might charge extra to rent a yoga mat or cycling shoes. Further, Freeplay only gives you access to the class for which you signed up. The Partner may have additional fees for use of additional classes or spaces.
c) Third Party Fees for Using Freeplay. You are also responsible for all third party charges and fees associated with connecting and using the Site, including fees such as internet service provider fees, telephone and computer equipment charges, sales tax and any other fees necessary to access the Site.
5. TERMINATION OR MODIFICATION BY FREEPLAY.
a) Termination or Modification. You understand and agree that, at any time and without prior notice Freeplay may (1) terminate, cancel, deactivate and/or suspend your subscription, your account, 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 subscription. This includes the right to terminate or modify any subscription prior to the end of any pre-paid or committed period. 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. Upon any such termination by us without cause, as your sole recourse, we will issue you a pro rata refund of the prepaid portion of your subscription applicable to future unused services (less any fees or costs for classes or services already used). If we determine that you have violated these Terms or otherwise engaged in illegal or improper use of the Site, you will not be entitled to any refund and you agree that we will not be responsible to pay any such refund. You agree that Freeplay will not be liable to you or any third party for any termination or modification to the service 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 service made by us is to cancel or terminate your subscription.
b) Infringing or Fraudulent Activity. Freeplay does not permit copyright infringing 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. 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. ELIGIBILITY; REGISTRATION INFORMATION AND PASSWORD; SITE ACCESS.
a) Eligibility Criteria. The availability of all or part of our Site may be limited based on demographic, geographic, health or other criteria as we may establish from time to time. You understand and agree we may disallow you from subscribing to Freeplay or may terminate your subscription at any time based on these criteria. For example, you must be 18 years of age or older to use this Site or to purchase a Freeplay membership. THESE TERMS ARE ONLY APPLICABLE TO USERS IN THE U.S. AND SEPARATE TERMS APPLY TO USERS IN OTHER JURISDICTIONS. THE SITE IS NOT AVAILABLE TO ANY USERS SUSPENDED OR REMOVED FROM THE SITE BY FREEPLAY. BY USING THE SITE, YOU REPRESENT THAT YOU ARE A RESIDENT OF THE UNITED STATES WHO HAS NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE. THOSE WHO CHOOSE TO ACCESS THES ITE DO SO AT THEIR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL LOCAL RULES INCLUDING, WITHOUT LIMITATION, RULES ABOUT THE INTERNET, DATA, EMAIL OR OTHER ELECTRONIC MESSAGES, OR PRIVACY.
b) Subscribing Organizations. If you are using or opening an account on behalf of a company, entity, or organization (a “Subscribing Organization”), then you represent and warrant that you are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms; and agree to be bound by these Terms on behalf of such Subscribing Organization.
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, and 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. When you visit a Partner, the applicable Partner will have access to certain information about you, such as your name and email address, so it can provide services to you, communicate with you regarding the class you reserved and send you other communication that may be of interest to you such as marketing offers. Please see the Privacy Policy for more 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 user’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 own membership, including other members;Misrepresent the source, identity, or content of information transmitted via the Site, including deleting the 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; orUpload 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, or any part of the Site, other accounts, computer systems or networks connected to the Site, or any part of them, through hacking, password mining, or any other means or 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, or any features that enforce limitations on the use of the Site or the content therein. You may not obtain or attempt to obtain 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. USER SUBMISSIONS.
a) General. 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, 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. In such case, notice will be deemed given three days after the date of mailing.
14. DISCLAIMERS; NO WARRANTIES.
CLASSES, ACTIVITIES, AND OTHER NON-FREEPLAY PRODUCTS AND SERVICES OFFERED VIA THE SITE ARE OFFERED AND PROVIDED BY THIRD PARTIES, NOT FREEPLAY. YOUR ATTENDANCE AT AND PARTICIPATION IN THESE CLASSES, ACTIVITIES, AND YOUR USE OF THESE NON-FREEPLAY PRODUCTS AND SERVICES IS SOLELY AT YOUR OWN RISK. IN NO EVENT SHALL FREEPLAY BE LIABLE FOR ANY ACT, ERROR OR OMISSION BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH A USER’S ATTENDANCE, USE OF OR PARTICIPATION IN A CLASS, SERVICE, PRODUCT OR APPOINTMENT MADE THROUGH THE SITE, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY PROVIDER IN CONNECTION WITH THE SERVICES. FREEPLAY IS NOT AN AGENT OF ANY THIRD PARTY PROVIDER.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. WAIVER AND RELEASE.
You understand that Freeplay is not a gym or fitness studio or other service provider and the classes you take or services you use are operated and delivered by the applicable Partner and not by Freeplay. Although Freeplay endeavors to offer inventory that is of high quality, Freeplay is not responsible for the quality of any class or service. You understand that there are certain inherent risks and dangers in exercising and that the classes you may attend offer a range of activity and intensity level. By signing up for a Freeplay membership, you acknowledge and agree, on behalf of yourself, your heirs, personal representatives and/or assigns that you are aware of these risks which include, but are not limited to, property damage, illness and bodily injury or death. You acknowledge that some of these risks cannot be eliminated and you specifically assume the risk of injury or harm. You acknowledge and agree that it is your responsibility to consult with your primary care physician prior to participating and to determine if and how participating in any class or service is appropriate for you. You also understand and agree that the Site offers health and fitness information that is designed for educational and entertainment purposes only and the use of any of the information provided on the Site is solely at your own risk. Therefore, to the fullest extent permitted by law, you release, indemnify, and hold harmless Freeplay, its parent, subsidiaries or 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 participation in or use of your Freeplay membership, including with respect to bodily injury, physical harm, illness, death or property damage.
16. INDEMNIFICATION; HOLD HARMLESS.
You agree to indemnify and hold Freeplay, its affiliated companies, and its suppliers and partners harmless 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 WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. FREEPLAY’S LIABILITY TO YOU IS LIMITED TO $50 OR THE AMOUNTS, IF ANY, PAID BY YOU TO 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. VENUE WAIVERS AND TERMS.
Members taking classes or attending a gym are deemed to agree to the liability waivers of individual Partners. Your participation in any class or service may be subject to additional policies, rules or conditions of the applicable Partner and you understand and agree that you may not be permitted to reserve or attend classes at a particular Partner if you do not comply with these Terms or the policies of such Partner. If you have questions about a Partner’s waiver or other terms, please see the applicable Partner’s website or contact the Partner directly.
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. 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 www.adr.org 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 www.jamsadr.com 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. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
g) Disclosures. The services hereunder are offered by Freeplay App, Inc., located at: 2701 N Thanksgiving Way, Lehi, UT, 84043 and email: hello@freeplayapp.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.
