Fledge Connect TERMS OF SERVICE
Last Updated: July 1, 2017
These terms of service constitute a legally binding agreement (the “Agreement”) between you and Fledge Connect, Inc. (“Fledge,” “we,” “us” or “our”) governing your use of the Fledge application, website, and technology platform (collectively, the “Fledge Platform”).
By entering into to this Agreement, you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions) and accept all of its terms. If you do not agree to be bound by the terms and conditions of this Agreement, yoLast Updated: July 1, 2017
u may not use or access the Fledge Platform. Please be advised: This Agreement contains provisions that govern how claims you and Fledge have against each other can be brought. These provisions will, with limited exception, require you to submit claims you have against Fledge to binding and final arbitration on an individual basis, not as a plaintiff or class member in any class, group or representative action or proceeding.
Users of the Fledge Platform are collectively referred to herein as “Users,” and each User shall create a User account that enables access to the Fledge Platform.
Modification to the Agreement
In the event Fledge modifies the terms and conditions of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Fledge reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the Fledge Platform or Services after any such changes shall constitute your consent to such changes.
The Fledge Platform is not available to children (persons under the age of 13) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 13 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account.
By becoming a User, you agree to receive communications from us, including via the Fledge Platform, e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Fledge, its affiliated companies and/or Drivers, may include but are not limited to: operational communications concerning your User account or use of the Fledge Platform, updates concerning new and existing features on the Fledge Platform, communications concerning promotions run by us or our third- party partners, and news concerning Fledge and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
If you wish to opt out of promotional emails, you can unsubscribe from our promotional email list by following the unsubscribe options in the promotional email itself. You acknowledge that you are not required to consent to receive promotional texts or calls as a condition of using the Fledge Platform or the Services, other than through the Fledge Platform.
With respect to your use of the Fledge Platform, you agree that you will not:
- impersonate any person or entity;
- stalk, threaten, or otherwise harass any person;
- violate any law, statute, rule, permit, ordinance or regulation;
- interfere with or disrupt the Services or the Fledge Platform or the servers or networks connected to the Fledge Platform;
- post Information or interact on the Fledge Platform in a manner which is false, inaccurate, misleading (directly or by omission or failure to update information), defamatory, libelous, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, or illegal;
- use the Fledge Platform in any way that infringes any third party’s rights, including but not limited to: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Fledge Platform;
- “frame” or “mirror” any part of the Fledge Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other web site for any purpose; or
- modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Fledge Platform or any software used on or for the Fledge Platform;
- rent, lease, lend, sell, redistribute, license or sublicense the Fledge Platform or access to any portion of the Fledge Platform;
- use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Fledge Platform or its contents;
- link directly or indirectly to any other web sites;
- transfer or sell your User account, password and/or identification to any other party
- discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or
- cause any third party to engage in the restricted activities above.
All intellectual property rights in the Fledge Platform shall be owned by Fledge absolutely and in their entirety. These rights include and are not limited to database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Fledge Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of Fledge. Fledge shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
FLEDGE and other Fledge logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of Fledge in the United States and/or other countries (collectively, the “Fledge Marks”).
The following disclaimers are made on behalf of Fledge, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
The Fledge Platform is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the Fledge Platform. We specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
We do not warrant that your use of the Fledge Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the Fledge Platform will be corrected, or that the Fledge Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the Fledge Platform.
Fledge expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.
It is possible for others to obtain information about you that you provide, publish or post to or through the Fledge Platform (including any profile information you provide), send to other Users, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the Fledge Platform. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
Opinions, advice, statements, offers, or other information or content concerning Fledge or made available through the Fledge Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the Fledge Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Fledge Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
Location data provided by the Fledge Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Fledge, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the Fledge Platform. Any of your Information, including geolocational data, you upload, provide, or post on the Fledge Platform may be accessible to Fledge and certain Users of the Fledge Platform.
Fledge advises you to use the Fledge Platform with a data plan with unlimited or very high data usage limits, and Fledge shall not responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the Fledge Platform.
You will defend, indemnify, and hold Fledge including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the Fledge Platform, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the Fledge Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
Limitation of Liability
In no event will Fledge, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders (collectively “Fledge” for purposes of this section), be liable to you for any incidental, special, exemplary, punitive, consequential, or indirect damages (including, but not limited to, damages for deletion, corruption, loss of data, loss of programs, failure to store any information or other content maintained or transmitted by the Fledge Platform, service interruptions, or for the cost of procurement of substitute services) arising out of or in connection with the Fledge Platform, the Services, or this Agreement, however arising including negligence, even if we or our agents or representatives know or have been advised of the possibility of such damages. Certain jurisdictions may not allow 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 may have additional rights.
Term and Termination
This Agreement is effective upon your creation of a User account. This Agreement may be terminated: a) by User, without cause, upon seven (7) days’ prior written notice to Fledge; or b) by either Party immediately, without notice, upon the other Party’s material breach of this Agreement. In addition, Fledge may terminate this Agreement or deactivate your User account immediately for any reason.
Dispute Resolution and Arbitration Agreement
- Agreement to Binding Arbitration Between You and Fledge.
You and Fledge mutually agree to waive our respective rights to resolution of disputes in a court of law by a judge or jury and agree to resolve any dispute by arbitration, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with Fledge ends. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and Fledge, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders.Except as expressly provided below, all disputes and claims between us (each a “Claim” and collectively, “Claims”) shall be exclusively resolved by binding arbitration solely between you and Fledge. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Fledge Platform, any other goods or services made available through the Fledge Platform, your relationship with Fledge, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, any promotions or offers made by Fledge. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
By agreeing to arbitration, you understand that you and Fledge are waiving the right to sue in court or have a jury trial for all Claims, except as expressly otherwise provided in this Arbitration Agreement. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
- Prohibition of Class Actions and Non-Individualized Relief.
You understand and agree that you and Fledge may each bring Claims in arbitration against the other only in an individual capacity and not on a class, collective action, or representative basis (“Class Action Waiver”). You understand and agree that you and Fledge both are waiving the right to pursue or have a dispute resolved as a plaintiff or class member in any purported class, collective or representative proceeding. Notwithstanding the foregoing, this subsection (b) shall not apply to representative private attorneys general act claims brought against Fledge, which are addressed separately in Section 17(c).
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
- Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Fledge will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
Unless you and Fledge agree otherwise, any arbitration hearings between Fledge and a User will take place in Washington D.C. If your Claim is for $10,000 or less, Fledge agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
- Severability.In addition to the severability provisions in subsections (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
Users may be able to use the Fledge Platform to order a delivery of goods, purchase a digital item, request a carpool ride from a commuter going in your direction, or when travelling outside of the United States, to connect with local transportation platforms and request rides from local drivers (collectively, the “Other Services”). You understand and that the Other Services are subject to the terms and pricing of the third-party provider. You agree that Fledge is not responsible and may not be held liable for the Other Services or the actions or omissions of the third- party provider. Such Other Services may not be investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Other Services accessed through the Fledge Platform.
This Agreement shall be governed by the laws of the State of Delaware without regard to choice of law principles. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non- binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by Fledge, in our sole discretion by providing notice to you. Any notices to you shall be provided to you through the Fledge Platform or given to you via the email address or physical address you provide to Fledge during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and Fledge with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.