Last Revised: April 4, 2019
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICES (DEFINED BELOW). BY ACCESSING AND/OR USING OUR SERVICES, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT AND THE CONDITIONS OF USE STATED HEREIN, INCLUDING THE ARBITRATION AND CLASS ACTION WAIVER PROVISIONS, DO NOT USE THE SERVICES.
THIS AGREEMENT REQUIRES THAT ALL DISPUTES BE RESOLVED INDIVIDUALLY BY BINDING ARBITRATION. IT ALSO INCLUDES A CLASS ACTION WAIVER. THEREFORE, IT AFFECTS YOUR LEGAL RIGHTS. READ IT CAREFULLY. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN THE "BINDING INDIVIDUAL ARBITRATION" SECTION.
This User Agreement (this “Agreement”) is a legally binding agreement between you (“you,” “your” or “User”) and Frog Scooters, Inc., (“Frog” “We” “Us” or “Our”). This Agreement states the material terms and conditions that govern your use of the Services.
The services provided by Frog include (1) the Frog mobile application and related website, (2) dockless electric scooters for short trip transportation (“Scooters”), and (3) all other related equipment, personnel, services, applications, websites, and information provided or made available by Frog (collectively, the “Services”). Frog owns all Services and you do not, by this Agreement or otherwise, acquire any ownership rights in the Scooters or any other Services.
PURPOSE OF AGREEMENT
This Agreement governs all aspects of the relationship between you and Frog and expressly includes any and all use of the Services. Before you can use any of the Services, you must agree to all of the terms and conditions set forth in this Agreement. If you do not agree to all of the terms and conditions set forth herein, you may not use any of the Services. By using the Services, you acknowledge that you have read, understand, and agree to be bound by this Agreement. If you have any questions regarding this Agreement or the Services, please contact us at by submitting a request at https://gofrog.zendesk.com/hc/en-us/requests/new.
RENTAL AND USE OF SCOOTERS
By accessing or using the Services, including the Scooters, you agree that:
You are the only authorized rider. You and Frog are the only parties to this Agreement and you are therefore are the only authorized rider of a Scooter that is rented through your account. Permitting another person to use any Scooter or the Services obtained through your account is prohibited and constitutes a material breach of this Agreement. You understand and acknowledge that you alone are responsible for complying with the terms of this Agreement and that you alone are responsible for any injury or damage resulting from the use of any Scooter that is rented through your account and/or the breach of any provision of this Agreement.
User is at least 18 Years Old. You must be at least 18 years old to use the Services or to ride a Scooter. By entering into this Agreement, you represent and certify that you are at least 18 years old.
User is a Competent Operator. You represent and certify that you are familiar with the operation of the Scooter, and are reasonably competent and physically fit to ride the Scooter. By choosing to ride a Scooter, User assumes all responsibilities and risks for any injuries or medical conditions. You are responsible for determining whether conditions, including, without limitation, rain, fog, snow, hail, ice, wind, heat or electrical storms, make it dangerous to operate a Scooter. User is advised to adjust its riding behavior and braking distance to suit the weather, visibility, surrounding environment, and traffic conditions.
User Must Follow Laws Regarding Use and/or Operation of Scooter. You represent and warrant that you are familiar with all laws applicable to operating a Scooter, including helmet, traffic laws and other laws, and that you will fully comply with those laws while you are operating, riding, parking and/or charging a Scooter. In certain jurisdictions, you must wear a helmet whether one is made available to you by Frog or not.
No Guarantee of Availability. You agree and acknowledge that the Scooters are not available 24 hours a day, 7 days/week, 365 days per year. Scooters must be rented within the maximum rental time limits set forth below. The number of Scooters are limited and availability is never guaranteed.
Scooters and Related Equipment are Provided “AsIs.” Scooters are provided on an “asis” basis. You are responsible for inspecting a Scooter and any related materials that Frog provides to you, such as helmets, locks, etc. to ensure that they are in good working condition prior to using them. If you find that any Scooter or related materials are not in good working condition, you must inform Frog promptly the Website or our App.
User Responsibility for Use and Damage. User must report any accident, crash, damage, personal injury, or stolen or lost Scooter to Frog as soon as possible. If a crash involves personal injury, property damage, or a stolen Scooter, User shall file a report with the local police department within 24 hours. User agrees that he/she is responsible and liable for any misuse, consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, costs and expenses, penalties, attorney’s fees, judgments, suits or disbursements of any kind or nature whatsoever related to a stolen or lost Scooter. User agrees to return the Scooter to Frog in the same condition in which it was rented. User will not be responsible for normal wear and tear.
You Must Inspect the Scooter Prior to Using It. Prior to taking possession of a Scooter, you must inspect the Scooter for evidence of damage and disrepair. If you discover any damage or disrepair, then you must notify Frog immediately to avoid being held responsible for such damage or disrepair. If you fail to report any evidence of damage or disrepair prior to using the Scooter, then you may be liable for the cost of repairing the Scooter. For your own safety, you are prohibited from operating a Scooter if any of the following equipment is not in good working order: throttle, brakes, tires, and lights.
Responsibility for Charges and Costs. You are responsible for all charges and costs incurred, as well as any damage to the Scooter from the time you activate a Scooter until you the time you return and secure it.
Traffic Violations. You are responsible for all traffic, moving and parking violations. You must notify Frog of any traffic violations, tickets or fines as soon as reasonably possible, but in any event before a response or payment is required. If you fail to pay a fine and Frog pays it instead, you agree that Frog may obtain reimbursement by charging the payment method that you have on file.
PROHIBITED USES OF THE SCOOTERS
You agree that the following conduct relating to Scooters is prohibited:
- Using a Scooter in connection with a criminal act;
- Using a Scooter with the intent to destroy public or private property or to cause injury or damage to persons or private property;
- Using a Scooter with passengers or more than one person;
- Operating a Scooter while carrying any briefcase, backpack, bag, or other item if it impedes your ability to operate safely the Scooter;
- Failing to yield to pedestrians on the public right of way;
- Parking a Scooter in any area that is prohibited by law or which interferes with the public use of public right of way;
- Parking a Scooter in private areas without the permission of the owner or authorized representative of the private property;
- Taking a Scooter out of a public areas, for example, taking a Scooter into a building or other structure without our express permission;
- Interfering or attempting to interfere, either directly or indirectly, with a Scooter’s GPS, wireless or other technology;
- Removing or attempting to remove any Frog system designed to track Scooter location or ride duration;
- Attempting to or riding a Scooter without payment through any device, scheme or artifice;
- Using a Scooter to propel or tow any vehicle, trailer, or other object;
- Using a Scooter to transport animals of any kind or nature or any other persons;
- Using a Scooter in any type of race, competition or to perform tricks;
- Using a Scooter while under the influence of drugs, alcohol, medication or any other substance capable of interfering with your judgment, reflexes or safe use of the Scooter;
- Using a Scooter in a negligent or abusive manner or in a manner that is outside the scope of a Scooter’s ordinary and intended functionality and purpose (violating a traffic law, or receiving a ticket in an accident is not automatically a violation of this provision, but may be an indication that a violation of this provision has occurred);
- Using a Scooter in inclement weather, including heavy rain, snow, electrical storms or strong wind, which make it more dangerous to operate a Scooter;
- Using a Scooter to while texting, emailing, using a cell phone, or otherwise using a mobile device other than to operate the Scooter that may distract from driving safely;
- Using any lock on a Scooter other than the lock that Frog provides to you;
- Using a Scooter in violation of any law;
- The foregoing list is not intended to be exhaustive and Frog expressly retains discretion to prohibit any unreasonable, unlawful or inappropriate use of a Scooter.
VEHICLE IS THE EXCLUSIVE PROPERTY OF FROG
User agrees that the Scooter and any equipment attached thereto, at all times, remain the exclusive property of Frog. You must not dismantle, write on, or otherwise modify, repair or deface a Scooter, any part of a Scooter, or other equipment in any way. You must not write on, peel, or otherwise modify or deface any sticker on a Scooter in any way. You must not use a Scooter, or other Frog equipment, for any advertising or other commercial purpose without our express written permission.
LICENSE TO IMAGE AND LIKENESS
For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, you do hereby knowingly, voluntarily, and irrevocably: (1) give your full and unconditional consent to Frog and its affiliates, successors, and assigns to use at any time and from time to time, without any restriction, your appearance and voice in photographs, videos, and other recordings related to your use of the Services, on all websites and for all press, promotional, advertising, publicity, and other commercial purposes, including all formats and media, whether now known or hereafter devised, throughout the world and in perpetuity; (2) grant to Frog and its affiliates, successors, and assigns (a) the right to photograph, videotape, and otherwise record your appearance and voice related to your use of the Services, at any time and from time to time, (b) all rights, copyrights, title, and interests in the results of such photographs, videos, and other recordings, as a work for hire for copyright purposes, and (c) the right to use, reproduce, exhibit, distribute, transmit, alter, and exploit, at any time and from time to time and as Frog may decide in its sole discretion, such photographs, videos, and other recordings, or any component thereof, and all related merchandising, promotions, advertising, and publicity; and (3) waive, release, and discharge Frog and its owners, managers, affiliates, employees, contractors,
officers, directors, shareholders, agents, representatives, successors, and assigns from all claims that you have or may have for any libel, defamation, invasion of privacy, right of publicity, infringement of copyright, or violation of any right granted by you in this paragraph.
PAYMENT AND FEES
Fees. User may use the Scooter on a pay per ride basis or as otherwise in accordance with the pricing described in the Frog App. In each case, fees and other charges may be subject to applicable taxes and other local government charges, which may be charged and collected by Frog. Frog will charge the User (through credit, or debit card or through another agreed payment method) the amount of the fees as described in this Agreement. Frog may alter, amend or make changes to the pricing at any time and will provide notice of such changes on the Frog website and App.
Payment Processing Services. Payment processing services, which are a key feature of the Services, are currently provided by Stripe, and where applicable, may include money transmission services pursuant to licenses or other regulatory approvals held by Stripe. Payment processing services provided by Stripe are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these terms in this Agreement or by accessing, searching or using the Services or your Account, you agree to be bound by the Stripe Connected Account Agreement and the Stripe Services Agreement, as they may be amended or modified from time-to-time by Stripe. Frog’s provision of any payment processing services through Stripe is subject to, and conditioned upon, your agreement to provide Frog up-to-date, accurate, and complete information relating to you and your payment instrument(s) and you expressly authorize Frog to share this information and transaction related information relating to your use of payment related services with Stripe. Frog reserves the right to provide payment processing services through other third party vendors, and if it choose to do so, will provide notice to you via the Frog website, APP, SMS Text Message and/or through another method.
Payment Methods. Acceptable forms of payment are also published on Frog’s Website and in the Frog App. You are required to authorize a form of payment that is acceptable to Frog when you create your account and may be asked to provide Frog with a credit card number from a card issuer that Frog accepts, Apple Pay, an eCard or other non credit card option, in order to activate and/or pay for any fees related to the Services. You agree that Frog is authorized to charge your selected payment method for any payments and any other sum that you owe to Frog as a result of your use of a Scooter which includes but is not limited to unreported damage or repairs that are necessary as a result of your use of a Scooter. You further agree that Frog is authorized to seek pre authorization of any charge to any credit card that you provide as a payment method for using the Services.
No Refunds. Frog adheres to a strict no refund policy. All published fees and charges are final and nonrefundable.
Disputed Charges. You agree to notify Frog in writing of any billing dispute within 30 days of the date upon which your credit card is charged. Failure to do so will result in the charge being final, binding and collectable.
Delinquent Accounts. Any User Account which is delinquent will be suspended or terminated solely at Frog’s discretion. Any credit card or other payment method which is rejected may result in suspension or termination of your account in Frog’s sole discretion. The User must notify Frog in the event of the credit card or payment method on record being changed, expiring, or being no longer valid and replace it with a valid payment method. Frog may seek third party assistance with unpaid or delinquent accounts if you do not pay outstanding charges.
Compliance with Law. You may not use Frog’s payment related services except as authorized by the laws of the United States of America, the laws of the jurisdiction where you use the Services, and any other applicable laws. Specifically, but not by way of limitation, Frog’s payment related services may not be used to send or receive funds or currency into (i) any United States embargoed countries; (ii) to anyone on the United States Treasure Department's list of Specially Designated Nationals or the United States Commerce Department's list of Denied Persons List or Entry List. By agreeing to these Terms, by accessing and/or using the Services, you further represent and warrant that (i) neither you nor the subject of your transaction (e.g., items, goods, products, services, tangible or intangible things) are located in a country that is subject to a United States Government embargo, or that has been designated by the United States Government as a "terrorist supporting" country; and (ii) that you are not listed on any United States Government list of prohibited or restricted parties.
ASSUMPTION OF RISK, RELEASES, DISCLAIMERS OF WARRANTY
THIS SECTION CONTAINS PROVISIONS THAT AFFECT YOUR LEGAL RIGHTS. PLEASE READ IT CAREFULLY.
ASSUMPTION OF RISK
You acknowledge and agree that riding a Scooter and use of the Services is an inherently dangerous activity that involves both obvious and non-obvious risks of physical harm, including the risk of death to you and others, as well as damage to property, and that these types of risks can be unforeseeable and sometimes cannot be avoided. You are solely responsible for any and all injury or damage caused by your use of a Scooter, the Services and/or any related equipment or services that are a part of, relate to or concern your use of a Scooter, regardless of whether the injury or damage is caused to yourself or to others. You therefore assume full and complete responsibility for your use of a Scooter or the Services and agree that Frog is not responsible for any injury, damage, harm or cost that you cause that is related to or arises out of your use of a Scooter, the Services and/or any equipment or services that are a part of, relate to or concern your use of a Scooter or the Services including damage to the Scooter itself.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES OR ANYTHING THAT RELATES TO OR CONCERNS YOUR USE OF A SCOOTER OR THE SERVICES, REMAINS WITH YOU. NEITHER FROG NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES, INCLUDING THE SCOOTERS, WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, 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) THIS AGREEMENT; (II) THE USE OF OR INABILITY TO USE THE SERVICES AND/OR ANYTHING THAT RELATES TO OR CONCERNS YOUR USE OF A SCOOTER; (III) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OR OTHER PERSONS WITH WHOM YOU COMMUNICATE, INTERACT OR MEET WITH AS A RESULT OF YOUR USE OF THE SERVICES; (IV) ANY AND ALL USES OF THE SERVICES INCLUDING THE WEBSITE, FROG APP, PRODUCTS AND SERVICES (INCLUDING THE SCOOTERS) AND/OR (V) YOUR MISCONDUCT OR NEGLIGENT USE OF THE SERVICES INCLUDING THE SCOOTERS, OR THE NEGLIGENCE OR MISCONDUCT OF A THIRD PARTY WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FROG 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.
IN NO EVENT WILL FROG’S AGGREGATE LIABILITY ARISING OUT OF, RELATING TO YOUR RELATIONSHIP WITH FROG, THIS AGREEMENT, YOUR USE OF THE SERVICES OR ANYTHING RELATING TO OR CONCERNING YOUR USE OF A SCOOTER, EXCEED THE AMOUNTS YOU HAVE PAID TO FROG IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENT HAS BEEN MADE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FROG AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
DISCLAIMER OF EXPRESS AND IMPLIED WARRANTIES
FROG’S WEBSITE AND FROG APP, ALL OF THE SERVICES, SCOOTERS AND ANYTHING RELATING TO YOUR USE OF A SCOOTER ARE PROVIDED ON “ASIS” AND “AS AVAILABLE” AND YOU USE THEM SOLELY AT YOUR OWN RISK. FROG DOES NOT REPRESENT OR WARRANT THE FUNCTIONALITY OF ANY SCOOTER, ANY SERVICE OR THAT ANY SCOOTER OR ANYTHING RELATING TO YOUR USE OF A SCOOTER WILL BE IN GOOD REPAIR OR ERRORFREE OR FREE FROM DELAYS, DEFECTS, OMISSIONS, INTERRUPTIONS OR INACCURACIES.
TO THE FULLEST EXTENT PERMITTED BY LAW, FROG DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF IMPLIED WARRANTIES. IF ANY OF THOSE LAWS APPLY TO YOU, THEN SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MIGHT NOT APPLY TO YOU AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
RELEASE OF LIABILITY.
You acknowledge that use of Frog’s Scooters and any related equipment or materials, is an inherently dangerous recreational activity. You, on behalf of yourself, your family, your heirs, your agents, your affiliates, your representatives, your successors, your guardians and your assigns (collectively the “Releasing Parties”), agree to release Frog and the Released Parties (as defined below) from any and all injuries, demands, losses, damages, costs, loss of service, expenses, compensation, claims, suits, causes of action, obligations, rights, and liabilities of any nature, type, or description, whether known or unknown, contingent or vested, in law or in equity, including but not limited to, property loss or damage, personal injury or loss of life, based on direct or vicarious liability, and regardless of legal theory, that: (a) relate to, are based on, concern, or arise out of your use of a scooter, any Frog Service, the Frog website and/or Frog Materials; (b) relate to, are based on, concern, or arise out of any of the equipment that Frog provides to You (collectively the “Released Claims”). “Released Persons” as used herein means Frog Scooters, Inc., and each of its current and former parents, subsidiaries, divisions, and current and former affiliated individuals and entities, legal successors, predecessors (including companies they have acquired, purchased, or absorbed), assigns, joint ventures, and each and all of their respective officers, investors, partners, directors, servants, agents, shareholders, members, managers, principals, investment advisers, consultants, employees, representatives, attorneys, accountants, lenders, underwriters, and insurers. This Release is intended to be a general and complete release of all Claims and all Released Parties may plead the existence of this Release as a full and complete defense to any Claim.
YOU ACKNOWLEDGE THAT YOU ENTER INTO THIS RELEASE FREELY, KNOWINGLY, AND VOLUNTARILY, AND THAT YOU INTEND IT TO BE A COMPLETE AND UNCONDITIONAL RELEASE AND WAIVER OF ALL CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF THE SERVICES.
You hereby acknowledge that you have been advised of and fully understand the provisions of California Civil Code Section 1542 which provides as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” Having been so advised, Releasing Party nevertheless elects to and does assume all risks for Claims known or unknown, suspected or unsuspected, heretofore arising from the use of Frog Scooters, equipment and anything relating to such use, and specifically waives any rights it may have under Section 1542, as well as under any other statute or common-law principle in any jurisdiction with a similar effect.
Indemnification. You agree to indemnify and hold Frog, its predecessors, successors, subsidiaries, affiliates, and each of its and their respective directors, shareholders, investors, employees and authorized agents harmless from and against all third-party claims arising out of or in any way relating to any injury, illness, death or loss of or damage to property allegedly suffered as a result of your use of the Services including the Scooters or anything that relates to or concerns your use of Services, including the Scooters.
TERM AND TERMINATION
Term. This Agreement shall be in force until terminated as described below or as otherwise provided in this Agreement.
Termination by you. You may terminate this Agreement at any time without cause upon one week written notice to Frog. In order to be effective, your notice of termination must be in writing and sent to Frog at the following address: Frog Scooters, Inc. 508 Powell St., Unit A, Austin, Texas 78703.
Termination by Frog.
Without Cause. Frog may terminate this Agreement at any time, without cause, upon one week written notice to you. Upon termination, your account will be permanently deleted.
With Cause. Frog may immediately terminate this Agreement and, consequently, your account, if you have breached any term of this Agreement. This Agreement shall be automatically and
immediately terminated, upon written notice by Frog to the User if the User: is not paying its debts as such debts generally become due; becomes insolvent; files, or has filed against it, a petition (or other document) under any bankruptcy law or similar law that is unresolved within sixty (60) days after the filing of such petition (or document); proposes any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors; makes a general assignment for the benefit of creditors; if a receiver, trustee, custodian or similar agent is appointed or takes possession of any of its property or business; or is convicted of a driving-related criminal offense (e.g., such as driving under the influence of alcohol or controlled substances, hit-and-run, reckless driving).
Return of Property Upon Account Termination. If your account is terminated, you will immediately return any Scooter, or other property of Frog that you have in your possession. You will be charged for the value of any property of Frog that you fail to return as well as all costs (including attorneys’ fees and costs) that Frog incurs in attempting to recover its property from you.
Account Suspension or Termination. Frog may, in its sole discretion, with or without cause, with or without prior notice to you and at any time, decide to limit, block, suspend, deactivate or cancel your Frog Account or your access to the Services in whole or in part. If we exercise our discretion under this Agreement to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Services or receive assistance from Frog support teams; and (b) if appropriate in our sole discretion, we may communicate to other Users or third parties that your Account has been terminated, blocked, suspended, deactivated, or cancelled, and why this action has been taken.
DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
Definition of “Disputes” That Are Subject to Binding Arbitration. The provisions set forth in this Section govern the process for resolving all “Disputes” between you and Frog and Frog’s affiliates. For purposes of this Section, the term “Dispute” means any dispute, claim, or controversy between you and Frog, regardless of when it accrued, that refers to, relates to or in any way involves your use of a Scooter and/or the Services regardless of whether the Dispute is based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or on any other legal or equitable theory. “Dispute” also includes a dispute between you and Frog regarding the validity, enforceability or scope of this “DISPUTE RESOLUTION AND ARBITRATION AGREEMENT ” section and you expressly agree that any Dispute regarding the enforceability, validity or scope of this “DISPUTE RESOLUTION AND ARBITRATION AGREEMENT ” will be resolved exclusively by the arbitrator and not a court (with the exception of the enforceability of the Class Action Waiver clause below). The term “Dispute” is to be given the broadest possible meaning that will be enforced, encompasses all Disputes regardless of when they accrued and is therefore expressly intended to be retroactive. If you have a Dispute with Frog or any of its affiliates, officers, directors, employees and/or agents that cannot be resolved through negotiation within the time frame set forth in the “Pre-Arbitration Dispute Resolution” process described below, then you and Frog agree to seek resolution of the Dispute only through final and binding arbitration of that Dispute in accordance with the terms of this Section. Accordingly, by entering into this Agreement, you are expressly agreeing to arbitrate all Disputes and are affirmatively waiving your right to litigate any Dispute in court, except for those matters listed below in the “Exclusions from Arbitration” clause. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
Agreement to Arbitrate. You and Frog agree that with the exception of the Class Waiver in the Subsection titled “No Class Actions or Representative Proceedings” below, any Dispute as defined above shall be settled by final and binding arbitration (the “Arbitration Agreement”) by JAMS pursuant to its Streamlined Arbitration rules and Procedures and the JAMS Consumer Minimum Standards which are available on JAMS’ website: www.jamsadr.com or by calling JAMS at 1-800-352-5267 and requesting a copy. Note that with the exception of the Class Waiver as set forth below, any issue raised regarding the enforceability, applicability or scope of this Arbitration Agreement is a “Dispute” as defined above and therefore must be resolved by the arbitrator and not a court. Either party may initiate arbitration under JAMS by filling out a form entitled Demand for Arbitration and filing that form with JAMS pursuant to the instructions on their website. The Demand for Arbitration form is available online at www.jamsadr.com. click “ADR Services,” then “ADR Forms” to obtain a copy.
Exceptions to Arbitration Agreement. You and Frog agree that the only claims that are exempt from the final and binding arbitration are: (i) claims related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (ii) claims seeking emergency injunctive relief based on exigent circumstances.
Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this Section, including its procedural rules. To the extent that any provision of the Federal Arbitration Act conflicts in any way with any Texas substantive or procedural law, the provisions of the Federal Arbitration Act will control. The arbitration will be administered by JAMS in accordance with its Streamlined Arbitration Rules and Procedures and the JAMS Consumer Minimum Standards and/or other JAMS arbitration rules determined to be applicable by JAMS (the “JAMS Rules “) then in effect, except as modified below. The JAMS Rules are available at www.jamsadr.com or by calling JAMS at 1–800–352–5267.
Modification to JAMS Rules. You and Frog agree that the JAMS Rules shall be modified as follows:
Arbitration Hearing/Location. In order to make the arbitration most convenient to you, Frog agrees that any required arbitration hearing may be conducted, at your option, (a) in the county where you used the Services; (b) in Travis County, Texas, USA; (c) in any other location to which you and Frog both agree; (d) via phone or video conference; or (e) solely on the submission of documents. Any Demand for Arbitration in which the Claimant demands $75,000 or less shall be a desk arbitration and conducted solely based on the submission of documents to the arbitrator.
Attorney’s Fees and Costs. If you are the claimant and you are able to demonstrate that paying the JAMS filing fee creates a hardship for you, then Frog agrees to reimburse you for the cost of filing. Frog further agrees to reimburse you for the balance of any initial filing fee required by JAMS in excess of $200 for claims of $75,000 or less, regardless of hardship. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the JAMS Rules.
Arbitrator’s Decision. The arbitrator is required to follow applicable law in rendering his or her decision. The arbitrator is authorized to award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim when such relief is allowed by law. The arbitrator is not empowered to award any damages prohibited by the parties in this Agreement.
Confidentiality. You and Frog agree that all proceedings before the arbitrator are to be confidential. This confidentiality provision governs all aspects of the arbitration including documents exchanged and submitted, all testimony, all briefing and all communications made between us or between either of us and the arbitrator. The only exception to this paragraph is court filings necessary to confirm or enforce an arbitration order.
Jury Trial Waiver. You and Frog acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
No Class Actions or Representative Proceedings. You and Frog acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative or collective proceeding as to all Disputes. Further, unless you and Frog both agree otherwise in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. Notwithstanding any other provision of this Agreement or the JAMS Rules, disputes regarding the revocability, validity or enforceability 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 all or part of the Class Action Waiver is unenforceable, the class, collective or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: Frog Scooters, Inc. 508 Powell St., Unit A, Austin, Texas 78703. The notice must be sent within 30 days of the effective date or your first use of the Service, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Frog also will not be bound by them.
Severability. Except for the class action waiver, 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. If the class action waiver is found to be illegal or unenforceable, then the entirety of this Section shall be severed from the Agreement.
Modifications to this Arbitration Agreement. If Frog changes this Section after the date you last accepted this Agreement (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Frog’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Frog in accordance with the provisions of the “Dispute Resolution and Arbitration Charger Agreement” section that was in effect of the as of the date you last accepted these Terms.
Survival. The arbitration agreement contained in this Section will survive the termination of this Agreement and will continue to apply even if you subsequently stop using the Services and/or your Frog Account is terminated.
Choice of Law; Venue
Any dispute that arises out of or relates to this Agreement or the breach thereof that is not governed by the mandatory arbitration agreement set forth, above, shall be governed by the law of the State of Texas without regard to or application of choice of law principles. The parties hereby consent to the exclusive jurisdiction of the state and federal courts in Texas for all claims and both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue. For any action not subject to mandatory arbitration set forth above, the prevailing party to such dispute shall be entitled to recover its reasonable costs incurred in prosecuting or defending against such dispute, including its reasonable attorneys’ fees and experts’ fees.
You must provide any notice required in accordance with this Agreement via your Account or the following email address: email@example.com, except in cases where this Agreement directs communications to a more specific email address. Frog’s routine communications regarding the Services and any legal notices will be sent to you either electronically (via your Account, your email address on record or by text message to your mobile device using the number you provided), by United States mail or by courier, except that Frog may give notice of an amendment to the Agreement by posting the notice on the Frog website, your Account, or by email to the email address on record.
Data Breach Notification
Notwithstanding your determination to opt-out of receiving electronic messages or cease use of the Frog Services, you agree that in the event an incident occurs in which a third party obtains unauthorized access to your personal data provided to Frog, you agree that should Frog become legally obligated to provide notice of such unauthorized access, then Frog may provide such notice to you electronically by using the email address or mobile telephone number provided by you.
This Agreement, and any rights and licenses granted here under, may not be transferred or assigned by you, but may be assigned by Frog without restriction. Any assignment attempted to be made by you in violation of this Section shall be void. This Agreement will be binding upon and inure to the benefit of the parties hereto, and permitted successors and assigns. No delay or omission by Frog to exercise any right or power occurring upon any noncompliance or default by you with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by Frog of any of the covenants, conditions, or agreements to be performed by you shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise. Frog may freely assign this Agreement and all of the policies and other documents incorporated or referenced in it (including all rights, licenses, and obligations under it or them), in whole or in part and without notice.
If any part of this Agreement other than the arbitration provision and class action waiver set forth above, is found invalid or unenforceable by a court of competent jurisdiction, then if practicable, the parties will substitute a valid provision that most closely approximates the intent and economic effect of the invalid provision(s). If a practicable substitution cannot be made, then the parties agree to sever the invalid provision(s), leaving the remainder of the Agreement in full force and effect.
Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including, a significant failure of the Internet, fire, flood, acts of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, or civil or military authority.
This Agreement constitutes the entire agreement between the parties hereto regarding the subject matter contained herein and the parties acknowledge that they have not relied on any promise, representation, or warranty, express or implied, that is not contained in this Agreement. Frog is not obligated under any other agreements unless they are in writing and signed by an authorized representative of Frog.
No Third-Party Beneficiaries
You agree that, except as otherwise expressly provided in this Agreement, there shall be no third- party beneficiaries to these terms and conditions contained herein.
The section titles in the Terms are for convenience only and have no legal or contractual effect.