You must be at least 16 years old to access or use the Service. If you are under the age of 18 (or the age of legal majority where you live), you may only use the Service under your parent or legal guardian’s supervision and you may not list items for sale through the Service. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for their use of the Service. By using the Service, you also represent, warrant and agree that you are able to form a legally binding contract with the Company, you are not a person who is barred from using the Services under the laws of the United States or any other applicable jurisdiction (including, for example, that you do not appear on the U.S. Treasury Department’s list of Specially Designated Nationals or face any other similar prohibition) and you will comply with these Terms and all applicable local, state, national, and international laws, rules and regulations.
Please carefully read these Terms, including the binding arbitration provision contained below under “Arbitration Agreement”, which will require you to submit claims you have against us to binding and final arbitration, unless you opt out of the binding arbitration provision by following the opt-out procedures described below under “Arbitration Agreement” or unless a limited exception described in these Terms applies. If you do not opt out of the binding arbitration provision, you will only be permitted to pursue claims against us on an individual basis, and not as a plaintiff or class member in any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
These Terms constitute a legally binding agreement between you and us. BY ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTAND, AND ARE BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE OR ACCESS THE SERVICE.
MODIFICATION
We reserve the right, in our sole discretion, to modify, discontinue or terminate the Service and to modify these Terms at any time. If we modify these Terms, we will update the Terms on the Site and will provide notice of the modification either by email or through a general notice on the Site. We will also update the date following “Last updated” at the top of these Terms. Please review this page and these Terms from time to time so you are aware of any changes. By continuing to access or use the Service after we have modified the Terms, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, please cease using the Service.
PRIVACY
Our Privacy Policy is incorporated by reference into these Terms. Please read it carefully, since it describes, among other things, how we collect and use information from you when you use the Service.
CONSIGNMENT
One of the services we provide is allowing you to submit your sneakers for sale through our consignment service. Flight Club is the seller of record for purchases made by buyers shopping from the United States. Our consignment service is governed by the Flight Club Seller Terms of Use (“Seller Terms of Use”), which are incorporated by reference into these Terms. By using our consignment service, you agree to be bound by the Seller Terms of Use.
REGISTRATION
You may view some parts of the Service without registering, but in order to access and use other parts of the Service, you may be required to register an account with us. You are solely responsible for any activity that occurs on your account and for maintaining the confidentiality of your password. It is your sole responsibility to provide and maintain accurate account information. We reserve the right to suspend or cancel your account at any time for any reason without prior notice to you. If there has been an unauthorized use of your password or account, please notify us immediately.
INVENTORY AVAILABLE
We do our best to ensure that the product you’re ordering is available at the time of purchase. That said, in some instances product will become unavailable during the order process, and we will not be able to fulfill your order. We make no guarantees on the availability of product as represented on the Site.
PRICES
The price of a product is the price in effect at the time we receive your order. We may change prices from time to time without notice. Occasionally, the Site may have an incorrect price for an item. If that happens, we will notify you before the item has shipped.
Default prices are in U.S. dollars unless otherwise indicated. Product prices listed on the Site do not include shipping charges.
SHIPPING AND DELIVERY
For information on our shipping and delivery policies, please see our Shipping and Return Policy and FAQs.
ALL SALES ARE FINAL
All sales are final. No refunds or exchanges will be permitted. If you are concerned about sizing for a particular style of shoe, please refer to the manufacturer’s size guidelines.
TYPOGRAPHICAL ERRORS
We are not responsible for typographical errors. Although every effort is made to warrant that the information detailed on the Site is accurate, from time to time a typographical error may appear as it applies to, but is not limited to, price, model name, style number, and description. Please accept our apologies for such errors, and we will make corrections as such errors are found. The decision of honoring incorrect pricing, for whatever reason it has occurred, is at our sole discretion and is reviewed on a case-by-case basis.
GIFT CARDS
Flight Club gift cards (“Gift Cards”) are not credit or debit cards and have no implied warranties. Gift Cards are not redeemable for cash unless required by law and cannot be used to make payments on any charge account. Gift Cards cannot be used to buy other Gift Cards. We reserve the right to deactivate or reject any Gift Card issued or procured, directly or indirectly, in connection with fraudulent actions, unless prohibited by law.
To check the balance of a Gift Card, contact support at https://support.flightclub.com/hc/en-us/requests/new and include your Gift Card code.
The risk of loss and title for Gift Cards passes to the purchaser upon our electronic transmission of the Gift Card to the purchaser or designated recipient or our delivery to the carrier, whichever is applicable. Gift Cards must be obtained from https://www.flightclub.com, and you are responsible for safeguarding your Gift Card from unauthorized use. We are not responsible if a Gift Card is lost, stolen, or destroyed, or if your Gift Card is used without your permission. There are a variety of Gift Card scams that request payment by Gift Card. We are not responsible for and assume no liability to you for any unlawful conduct or fraud by any third party associated with any Gift Card.
OWNERSHIP
Unless otherwise stated herein, we and our licensors are the sole owners of the Service and all of its content, including, without limitation, all information, services, features, functions, copyrights, trademarks, service marks, and other intellectual property rights contained within the Service. These Terms permit you to use the Services for your personal, non-commercial use only. You agree that all right, title, and interest in the Service will remain ours or our licensors’ exclusive property. Nothing in these Terms gives you a right to reproduce, copy, distribute, sell, broadcast, license, or otherwise use the Flight Club name or any of our trademarks, logos, domain names, and other distinctive brand features, which are exclusively owned by Flight Club and our licensors. Any other trademarks, service marks, logos, trade names, and other proprietary designations displayed on the Service may be the trademarks or registered trademarks of their respective owners. You may not modify, rent, lease, sell, distribute, or create derivative works based on the Service unless we have given you prior written consent to do so. Any violation of the foregoing will constitute a breach of these Terms and may result in immediate termination of your right to use the Service.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site or Service (“Feedback”). You may submit Feedback by emailing us at support@flightclub.com. You acknowledge and agree that all Feedback will be the sole and exclusive property of Flight Club and you hereby irrevocably assign to Flight Club, and agree to irrevocably assign to Flight Club, all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us to acquire, perfect, and maintain Flight Club’s intellectual property rights and other legal protections for the Feedback.
USE RESTRICTIONS
While using the Service you agree to comply with all applicable laws, rules, and regulations. In addition, we expect users of the Service to respect the rights and dignity of others. Your use of the Service is conditioned on your full compliance with these Terms, including, without limitation, the rules of conduct set forth in this section; your failure to comply with such rules may result in termination of your access to the Service pursuant to these Terms. You agree that when using the Service you will not:
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Access or use the Service if you are not able to form legally binding contracts (for example, if you are between 13 and 18 years old and have not received permission from a parent or guardian to access or use the Service) or are temporarily or indefinitely banned or suspended from using our Services.
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Post, upload, publish, submit or transmit any content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar, or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; (vii) promotes illegal or harmful activities or substances;
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Transmit by any means any software, virus, malware, program, code, file, or other material intended to interrupt, disrupt, alter, destroy, or limit any part of the Service;
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Access, tamper with, or use non-public areas of the Service, our computer systems, or the technical delivery systems of our providers;
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Attempt to probe, scan, or test the vulnerability of any of our systems or networks or breach any security or authentication measures;
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Use any robot, spider, script, or any manual or automated application or means to extract, download, retrieve, index, mine, scrape, reproduce, or circumvent the presentation, operation, protection of, or intended use of any feature, function, or part of the Service, other than the software and/or search agents provided by us or other generally available third-party web browsers;
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Use the Service to send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation;
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Use, display, frame or mirror the Service or any individual element of the Service (including the layout and design of any page or form contained on a page within the Service), Flight Club’s name, any Flight Club logo or trademark, or any other proprietary information of Flight Club, without Flight Club’s express prior written consent;
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Force any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service to send altered, deceptive, or false source-identifying information;
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Attempt to modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the software used to provide the Service;
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Copy, download, distribute, transmit, upload, or transfer content from the Service without our prior written permission or authorization;
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Take any action that imposes or may impose (as determined in our sole discretion) an unreasonable or disproportionately large load on our infrastructure or otherwise interferes with the functioning of the Service;
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Use the Site to make unsolicited offers, requests, advertisements, or spam;
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Use the Service for any commercial purpose for the benefit of any third party or in any manner not permitted by these Terms;
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Impersonate or pretend to be anyone else but you or falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Service;
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Express or imply that we endorse any statement you make;
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Violate or infringe upon the privacy, publicity, intellectual property, or other proprietary rights of third parties;
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Engage in any activity that is criminal or tortious in nature or otherwise violates the law or rights of another, including, without limitation, hacking, phishing, fraud, stalking, defaming, abusing, harassing, or threatening;
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Collect or store any personally identifiable information from the Service about other users of the Service without their express prior written consent;
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Violate any applicable law or regulation;
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Do anything else that we determine, in our sole discretion, misuses or otherwise negatively impacts the Service; or
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Encourage or enable any individual to do any of the following.
We have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that we have no obligation to monitor your access to or use of the Service, but that we have the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body.
COPYRIGHT
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), the text of which may be found on the U.S. Copyright Office website, Flight Club will respond expeditiously to claims of copyright infringement committed using the Service that are reported to Flight Club’s Designated Copyright Agent identified below.
If you are a copyright owner, or are authorized to act on behalf of one, or are authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Service by providing Flight Club’s Designated Copyright Agent (specified below) a DMCA Notice of Alleged Infringement (“Notice”) containing the following information:
Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work. Identification of the content that you believe to be infringing and its location. Please describe the content in as much detail as possible, and provide us with its URL or any other pertinent information that will allow us to locate the content. Your full legal name, mailing address, telephone number, and (if available) email address. A statement that you have a good faith belief that the use of the work you are reporting is not authorized by the copyright owner, its agent, or the law. A statement that the information you have supplied is accurate and that under penalty of perjury you are the copyright owner or authorized representative of the copyright owner. Your electronic or physical signature.
Deliver this Notice, with all items completed, to Flight Club’s Designated Copyright Agent – Copyright Agent, c/o Flight Club New York LLC, 812 Broadway, New York, NY 10003, termsofuse@flightclub.com. We suggest that you consult your legal advisor before delivering a Notice. Upon receipt of the Notice, Flight Club will take whatever action, in our sole discretion, we deem appropriate, including removal of the challenged content from the Service.
Counter notification, as permitted by applicable law and, in particular, the Digital Millennium Copyright Act, may be sent to Flight Club’s Designated Agent. All counter notifications must include:
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Your physical or electronic signature.
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An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
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Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
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A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
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A statement that you will consent to the jurisdiction of the federal district court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Site may be found) and that you will accept service from the person (or an agent of that person) who provided the Site with the complaint at issue.
It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.
DISCLAIMER OR WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE AND RELIANCE ON THE CONTENT IS AT YOUR OWN RISK. THE SERVICE AND ALL ITEMS SOLD OR PURCHASED THROUGH THE SERVICE ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU AGREE THAT YOU MUST EVALUATE AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH THE USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY MATERIALS AVAILABLE THROUGH THE SERVICE. WITHOUT LIMITING THE FOREGOING, TO THE EXTENT ALLOWED BY APPLICABLE LAW OR AS OTHERWISE STATED IN WRITING, FLIGHT CLUB EXPLICITLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FLIGHT CLUB MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE INFORMATION OBTAINED FROM THE SERVICE WILL BE ACCURATE, COMPLETE, CURRENT, OR RELIABLE, THAT THE QUALITY OF THE SERVICE WILL BE SATISFACTORY TO YOU, THAT ERRORS OR DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER DISABLING DEVICES OR HARMFUL COMPONENTS. FLIGHT CLUB MAKES NO GUARANTEE, TO THE FULLEST EXTENT PERMITTED BY LAW, REGARDING THE RELIABILITY, ACCURACY, OR QUALITY OF ANY COMMUNICATION THAT IS POSTED ON THE SITE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF ITEMS SOLD OR PURCHASED OR OBTAINED THROUGH THE SERVICE IS WITH YOU. SHOULD ITEMS SOLD OR PURCHASED OR OBTAINED THROUGH THE SERVICE PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
FLIGHT CLUB PERIODICALLY AMENDS, CHANGES, UPDATES, AND ALTERS THE SERVICE WITHOUT NOTICE. FLIGHT CLUB SPECIFICALLY DISCLAIMS ANY DUTY TO UPDATE THE CONTENT OF, OR ANY OTHER INFORMATION ON, THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FLIGHT CLUB OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES, SO SOME OR ALL OF THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICE REMAINS WITH YOU. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER FLIGHT CLUB NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE SHALL BE LIABLE TO YOU FOR ANY COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, ARISING OUT OF OR IN CONNECTION WITH: (I) THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE; (II) THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE; (III) ANY COMMUNICATIONS, INTERACTIONS, OR MEETINGS WITH OTHER USERS OF THE SERVICE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE; (IV) YOUR VISIT TO A VENUE RESULTING FROM YOUR USE OF THE SERVICE; (V) PRICING, SHIPPING, FORMAT, OR OTHER GUIDANCE PROVIDED BY FLIGHT CLUB; (VI) DELAYS OR DISRUPTIONS IN THE SERVICE; (VII) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING THE SERVICE OR THOSE OF ANY SITE, SERVICES, OR TOOLS LINKED TO THE SERVICE; (VIII) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN THE SERVICE; (IX) DAMAGE TO YOUR HARDWARE DEVICE FROM THE USE OF THE SERVICE; (X) THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES, INCLUDING ITEMS LISTED USING THE SERVICE OR THE DESTRUCTION OF ALLEGEDLY FAKE ITEMS; (XI) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT; (XII) THE DURATION OR MANNER IN WHICH ITEMS YOU CONSIGN APPEAR ON THE SERVICE; OR (XIII) YOUR NEED TO MODIFY PRACTICES, CONTENT OR BEHAVIOR, OR YOUR LOSS OF ABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THESE TERMS OR OUR POLICIES, IN EACH CASE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FLIGHT CLUB HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT FLIGHT CLUB SHALL NOT BE LIABLE TO YOU FOR YOUR ACTIONS OR COMMUNICATIONS USING THE SERVICE OR IN CONNECTION WITH THE SERVICE. FLIGHT CLUB SHALL NOT BE LIABLE FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE SERVICE OR ANY LINKED SITES OR FOR ANY INFORMATION OR PRODUCTS OBTAINED THROUGH USE OF THE SERVICE OR OTHERWISE ARISING OUT OF THE USE OF THE SAME, REGARDLESS OF THE FORM OF ACTION OR BASIS OF ANY CLAIM.
WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT WILL FLIGHT CLUB’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO FLIGHT CLUB FOR USE OF THE SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY OR ONE HUNDRED DOLLARS ($100.00 USD), WHICHEVER IS GREATER. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND FLIGHT CLUB.
IF YOU HAVE A DISPUTE WITH FLIGHT CLUB OR ARE DISSATISFIED WITH THE SERVICE, TERMINATION OF YOUR USE OF THE SERVICE IS YOUR SOLE REMEDY. FLIGHT CLUB HAS NO OTHER OBLIGATION, LIABILITY, OR RESPONSIBILITY TO YOU.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSIONS OF WARRANTIES OR LIMITATIONS ON DAMAGES, SO SOME OF THESE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU; IN SUCH JURISDICTIONS, THE AGGREGATE LIABILITY OF FLIGHT CLUB SHALL BE LIMITED IN ACCORDANCE WITH THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW.
INDEMNITY
You agree to defend, indemnify, and hold harmless Flight Club and its employees, officers, directors, agents, representatives, licensors, suppliers, and service providers from and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or in any way connected with (i) your use of, or activities taken, in connection with the Service; or (ii) any violation of these Terms by you. We reserve the right to assume all or any part of the defense of any such claims and negotiations for settlement, and you agree to fully cooperate with us in doing so.
ARBITRATION AGREEMENT
PLEASE READ THIS SECTION CAREFULLY. EXCEPT AS THE TERMS OF USE OTHERWISE PROVIDE, YOU WAIVE YOUR RIGHT TO TRY ANY CLAIM IN COURT BEFORE A JUDGE OR JURY AND TO BRING OR PARTICIPATE IN ANY CLASS, COLLECTIVE, OR OTHER REPRESENTATIVE ACTION. Other rights that you would have if you brought a claim to court, such as access to discovery or appeals, also might be unavailable or limited in arbitration.
Agreement to Binding Arbitration; Class Action Waiver. Except as these Terms otherwise provide and to the fullest extent permitted by law, you and Flight Club acknowledge and agree that you are each waiving the right to a trial by jury and to the litigation of disputes in state or federal courts of general jurisdiction. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action/class arbitration or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. You and Flight Club may not be plaintiffs or class members in any purported class, collective, private attorney general, or representative proceeding, or otherwise make or proceed with any claim on a collective or consolidated basis, and may each bring claims against the other only in your or its individual capacity. As referenced above, the arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the individual claim. Any dispute, claim or controversy between you and Flight Club, its subsidiaries or affiliates and their respective agents, employees, officers, directors, principals, successors, assigns (collectively for purposes of this “Arbitration Agreement” section, “Flight Club”) arising from or relating in any way to: (i) these Terms (including previous versions of these Terms) and their interpretation or the breach, termination, enforcement, or validity thereof, and the relationships which result from these Terms; (ii) your use of or access to the Service; or (iii) the action of Flight Club or its agents, or any items or services listed, offered, sold, purchased, or distributed by Flight Club through the Service or through any website or mobile application owned or operated by Flight Club (collectively, “Covered Disputes”) will be resolved by binding arbitration, rather than in court. Covered Disputes shall be interpreted broadly.
Initiating Arbitration. You and Flight Club agree that any Covered Dispute between you and Flight Club shall be settled by final and binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
Arbitration Rules and Governing Law. Except for certain complaints regarding the handling of personal data of EU, UK and Swiss individuals (which is addressed in the section below titled “Arbitration Regarding Personal Data of EU, UK and Swiss Individuals”), any arbitration between you and Flight Club will be administered by National Arbitration and Mediation (“NAM”) in accordance with NAM’s operative Comprehensive Dispute Resolution Rules and Procedures(the “NAM Rules”) in effect at the time any demand for arbitration is filed with NAM, as modified by this “Arbitration Agreement” section. For a copy of the NAM Rules please visit this link or contact NAM at NAM’s National Processing Center at 990 Stewart Avenue, 1st Floor, Garden City, NY 11530. If you have a question about the NAM Rules, please contact NAM via email at commercial@namadr.com. If NAM is unavailable or unwilling to administer the arbitration, the parties will select an alternative private neutral arbitrator to conduct the arbitration in accordance with the NAM Rules. If the parties are unable to agree, they will petition a court of competent jurisdiction to appoint an arbitration administrator that will do so. Any arbitration will be held before a single neutral arbitrator. The Federal Arbitration Act will govern the interpretation and enforcement of this “Arbitration Agreement” section.
Arbitration Process and Selection of Arbitrator. A party who desires to initiate arbitration must provide NAM with a written demand for arbitration or arbitration notice form made available from the arbitration administrator and supplement that form with a detailed description of your claim. You must personally sign your demand for arbitration. You agree to also send Flight Club a copy of your demand for arbitration by email to termsofuse@flightclub.com. If Flight Club initiates arbitration, Flight Club will send a copy of its demand for arbitration to your email address on file. Unless you and Flight Club otherwise agree, the arbitration will be conducted in the county you reside in within a reasonable time, without undue delay. All parties participating in arbitration shall have the right, at their own expense, to be represented by a spokesperson of their own choosing. If your claim does not exceed $10,000, then you or Flight Club may elect to have the arbitration be conducted by telephone or solely on the basis of documents you and Flight Club submit to the arbitrator, unless either you or Flight Club requests a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, or seeks declaratory or injunctive relief, either party may request to hold an in-person or virtual hearing from the arbitrator. In-person hearings will take place in the county where you reside or at another location reasonably convenient for you, or at a mutually agreed upon location. The right to a hearing will be determined by the NAM Rules. Subject to the NAM Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Flight Club, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
Arbitrator’s Decision. The arbitrator has the sole authority to address all claims or arguments by both parties concerning the formation, legality, and enforceability of this arbitration clause, the scope of this clause, and the arbitrability of any claim or issue arising between you and Flight Club. Provided the parties have not agreed otherwise, the arbitrator will have the same powers as a court of competent jurisdiction would to administer the arbitration and will administer the arbitration according to these Terms. The arbitrator will render an award within the timeframe specified in the NAM Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. The arbitrator’s award shall be final and binding only between you and Flight Club and shall have no preclusive effect in any other arbitration or proceeding involving a different party, provided that the arbitrator may consider rulings in other arbitrations involving different arbitrations. The arbitrator’s award may be subject to review in accordance with applicable statutes governing arbitration awards. Judgment on the arbitration award may be entered in any court having competent jurisdiction thereof. The arbitrator may award fees and costs as provided by the NAM Rules or to the extent such fees and costs could be awarded in court of competent jurisdiction or if the arbitrator determines that a claim, proceeding, or defense was frivolous, brought for harassment, for improper purpose, or in bad faith. The arbitrator shall apply the provisions of Federal Rule of Civil Procedure 68 after entry of the award. The prevailing party in arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Costs of Arbitration. Payment of all filing, administration and arbitrator fees will be governed by the NAM Rules. You will be responsible for payment of the then-current filing fee as required by NAM Rules at the time the demand is filed. Flight Club will be responsible for payment of the balance of such filing fee and other administrative and arbitrator fees associated with the arbitration in accordance with the NAM Rules. If you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Flight Club will pay as much of your share of the filing fee as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.
Special Additional Procedures for Mass Arbitration. If 25 or more individuals seek to initiate arbitrations with Flight Club raising similar claims, and counsel for the individuals bringing the claims are the same or coordinated or the claims are otherwise coordinated (“Mass Claims”), you and Flight Club agree that these additional procedures shall apply, along with the applicable NAM Rules. You understand and agree that if you choose to initiate your claim as part of Mass Claims, the adjudication of your claim might be delayed. To increase the efficiency of administration and resolution of any such Mass Claims, you and Flight Club also agree that in the event that there are one hundred (100) or more individual arbitrations of a substantially similar nature filed against Flight Club by or with the assistance of the same law firm, group of law firms, or organizations, within a ninety (90) day period, NAM shall (1) administer the arbitration demands in batches of 100 claims per batch (plus, to the extent there are less than 100 claims left over after the batching described above, a final batch consisting of the remaining claims); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). To the extent the parties disagree on any issue arising out of or relating to the Batch Arbitration, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Procedural Arbitrator”). The Procedural Arbitrator’s fees shall be paid by Flight Club. This provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision. All parties agree that arbitrations are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. A court of competent jurisdiction shall have the authority to enforce these mass arbitration procedures and, if necessary, to enjoin the filing or prosecution of arbitrations that are not consistent with the terms of these mass arbitration procedures.
OPT-OUT RIGHT. YOU MAY OPT OUT OF THIS AGREEMENT TO ARBITRATE. IF YOU DO SO, NEITHER YOU NOR FLIGHT CLUB CAN REQUIRE THE OTHER TO PARTICIPATE IN AN ARBITRATION PROCEEDING. TO OPT OUT, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU FIRST BECAME SUBJECT TO THIS ARBITRATION PROVISION BY EMAILING termsofuse@flightclub.com. You must include your name and residence address, the email address for your account, and a clear statement that you want to opt out of this arbitration agreement.
Severability of Arbitration Provisions. If a court of competent jurisdiction decides that applicable law precludes enforcement of any portion of this “Arbitration Agreement” section as to a particular claim for relief, then such claim (and only such claim) must be severed from the arbitration and may be litigated in a civil court of competent jurisdiction, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. All other claims will be arbitrated, and the arbitrator (and not any federal, state, or local court or agency) shall have exclusive authority to resolve any dispute arising out of or relating to the breach, termination, enforcement, interpretation, validity, scope, applicability or formation of this agreement to arbitrate (including previous versions of this agreement to arbitrate), any part thereof, or of these Terms (including previous versions of these Terms), including, but not limited to, any claim that all or any part of this agreement to arbitrate or these Terms are void or voidable. Further, if any part of this “Arbitration Agreement” section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this “Arbitration Agreement” section will be enforceable.
Arbitration Regarding Personal Data of EU, UK and Swiss Individuals. In compliance with the EU-U.S. Data Privacy Framework (DPF), the UK Extension to the EU-U.S. DPF and the Swiss-U.S. DPF, we commit to refer any unresolved complaints about our collection and handling of personal data received in reliance on the EU-U.S. DPF, the UK Extension to the EU-U.S. DPF and the Swiss-U.S. DPF to Judicial Arbitration and Mediation Services, Inc., an alternative dispute resolution provider based in the United States. Please see Annex 3 of the Privacy Policy for more information.
Changes. Notwithstanding the provisions of the “Modification” section above, if we materially change this “Arbitration Agreement” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice by emailing us at termsofuse@flightclub.com within 30 days of the date such change becomes effective (as indicated above) or by canceling your account. By rejecting any change or canceling your account, you are agreeing that you will arbitrate any Covered Dispute between you and Flight Club in accordance with the provisions of this “Arbitration Agreement” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms). If you reopen your canceled account or create a new seller account, you agree to be bound by the then current version of the Terms.
THIRD-PARTY SITES
The Service may contain links to third-party websites. We have no control over such websites and are not responsible for the availability of such external websites. We do not endorse and are not responsible or liable for any content, advertising, products, services, or other materials on or available from such third-party websites linked from the Site. We make no representations regarding the content or accuracy of materials on such third-party websites, and your use of third-party websites is at your own risk and subject to the terms, conditions, policies, and procedures of such websites. In addition, other third-party websites may provide links to the Service with or without our authorization. You acknowledge and agree that we do not endorse such third-party websites and are not and will not be responsible or liable for any links from those sites to the Service, any content, advertising, products, or other materials available on or through such other sites, or any loss or damages incurred in connection therewith.
TERMINATION
We may immediately, without prior notice, suspend or terminate your use of and access to the Service or terminate these Terms as they apply to you, at our sole discretion, for any reason, whether with or without cause or warning, and without liability.
APPLICABLE LAW
These Terms will be construed and enforced under the laws of the State of New York without regard to the choice of law principles, except for the agreement to arbitrate set forth above under the heading “Arbitration Agreement”, the interpretation and enforcement of which shall be governed by the Federal Arbitration Act. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Central District of California, and each of you and Flight Club waives any objection to jurisdiction and venue in such courts. If the agreement to arbitrate set forth above under the heading “Arbitration Agreement” is found not to apply to you or to a particular dispute, claim or controversy, either as a result of your decision to opt out of the agreement to arbitrate or as a result of a decision by the arbitrator or a court order, the exclusive jurisdiction and venue for the resolution of such dispute, claim or controversy will be the state and federal courts located in the Central District of California, and each of you and Flight Club waives any objection to jurisdiction and venue in such courts.
NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, California users of the Service are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 1-916-445-1254.
WAIVER; SEVERABILITY
Our failure to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Flight Club. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If the application of any provision of these Terms to any particular facts or circumstances shall for any reason be held to be invalid, illegal, or unenforceable by a court, arbitrator, or other tribunal of competent jurisdiction, then (a) the validity, legality, and enforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of these Terms, shall not in any way be affected or impaired thereby and (b) such provision shall be enforced to the fullest extent possible so as to effect the intent of the parties.
SURVIVAL
NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, ANY PROVISION OF THESE TERMS THAT IMPOSES OR CONTEMPLATES CONTINUING OBLIGATIONS ON YOU OR FLIGHT CLUB WILL SURVIVE THE TERMINATION OF THESE TERMS.
QUESTIONS OR COMMENTS
If you have any questions or comments about these Terms or the Service, please contact us at support@flightclub.com.