Terms of Use
Effective April 12, 2024
Please read this “Terms of Use” agreement carefully. This contract sets out your rights and responsibilities when you use http://www.dobackflip.com, http://www.backflip.com, all subdomains on our websites (collectively, the “Website”), our mobile apps (collectively, the “Mobile App”), and the other services and resources available or enabled via the Website or the Mobile App. We’ll refer to all of these collectively as our “Services.” Our Services are controlled by RPE Home, Inc. (“Company”).
These Terms of Use along with all supplemental terms that may be presented for your review and acceptance (collectively, the “Agreement”), govern your access to and use of the Services. By completing the registration process, browsing the website, downloading or using the Mobile App, or otherwise accessing the Services, you represent that (1) you have read, understand, and agree to be bound by the Agreement, (2) you are of legal age to form a binding contract with Company, (3) you are a United States Citizen or Permanent Resident, and (4) you have the authority to enter into the Agreement personally or on behalf of the legal entity identified during the account registration process, and to bind that legal entity to the agreement. The term “you” refers to the individual or such legal entity, as applicable. If you do not agree to be bound by the Agreement, you may not access or use the Services.
Please be aware that Section 1.4 (Company Communications) contains your opt-in consent to receive communications from us, including, as applicable, via e-mail, text message, calls and push notification.
Please be aware that Section 10 (Dispute Resolution) contains provisions governing how disputes between us will be resolved. In particular, it contains an arbitration agreement which requires, with limited exceptions, disputes between us to be resolved by binding and final arbitration. Section 10 also contains a class action and jury trial waiver. Unless you opt out of the arbitration agreement within 30 days: (1) you will only be permitted to pursue claims and seek relief against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (2) you are waiving your right to pursue claims and seek relief in a court of law and to have a jury trial. Please read Section 10 carefully.
- USE OF THE SERVICES. The Services, and the information and content available on them, are protected by applicable intellectual property laws. Unless subject to a separate license between you and Company, your right to use any and all Services is subject to the Agreement.
1.1. Mobile App License. Subject to your compliance with the Agreement, Company grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Mobile App on a single mobile device that you own or control and to run such copy of the Mobile App solely for your own personal or internal business purposes.
1.2. Updates. You understand that the Services are evolving. As a result, Company may require you to accept updates to the Services that you have installed on your computer or mobile device. You acknowledge and agree that Company may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
1.3. Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services;(i) you shall not take any action or (b) make available any Content on or through the Services that: (i) infringes, misappropriates or otherwise violates any intellectual property right, right of publicity, right of privacy or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (j) you shall not take any action that constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (k) you shall not interfere with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement. Any future release, update or other addition to the Services shall be subject to the Agreement. Company, its suppliers and service providers reserve all rights not granted in the Agreement
1.4. Company Communications. By entering into the Agreement or using the Services, you agree to receive communications from us, including via 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 us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning the Company and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that 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. If you wish to opt out of promotional calls or texts, you may respond “STOP” from the mobile device receiving the messages. You acknowledge that you are not required to consent to receive promotional texts or calls as a condition of using the Services. If you wish to opt out of all texts or calls from us (including operational or transactional texts or calls), you can respond to the text with the word “STOPALL” from the mobile device receiving the messages. However, you acknowledge that opting out of receiving all texts may impact your use of the Services.
1.5 Data & Privacy. Backflip wants to access your Google Account to automatically gather properties from your Gmail inbox and pull them into our app for you to view and analyze.
Backflip’s use and transfer of information received from Google API will adhere to Google API Services User Data Policy, including the Limited Use requirements. Backflip cannot share, edit, download or delete your Gmail emails or contacts.
Our employees, agents, contractors, and successors comply with Google API Services User Data Policy. Backflip’s use of data obtained via Google API complies with Google’s limited-use requirements.
See our Privacy Policy to learn how Backflip safeguards data.
- REGISTRATION.
2.1. Registering Your Account. In order to access certain features of the Services you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account with Company through the Services (“Account”).
2.2. Registration Data. In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Company Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by any other persons, including minors, and you will accept full responsibility for any such unauthorized use. You may not share your Account login or password with anyone, and you agree to (y) notify Company immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform. Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Company, or if you have been previously banned from any of the Services.Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Mobile App. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
- RESPONSIBILITY FOR CONTENT.
3.1. Types of Content. You acknowledge that all Content is the sole responsibility of the party from whom such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available through the Services (“Your Content”), and that you and other Registered Users of the Services, and not Company, are similarly responsible for all Content that you and they make available through the Services (“User Content”).
3.2. No Obligation to Pre-Screen Content. You acknowledge that Company has no obligation to pre-screen User Content, although Company reserves the right in its sole discretion to pre-screen, refuse or remove any User Content. By entering into the Agreement, you hereby provide your irrevocable consent to Company’s monitoring of Your Content. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Company pre-screens, refuses or removes any of Your Content, you acknowledge that Company will do so for Company’s benefit, not yours. Without limiting the foregoing, Company shall have the right to remove any of Your Content that violates the Agreement or is otherwise objectionable.
- OWNERSHIP.
4.1. Services. Except with respect to Your Content and other User Content, you agree that Company and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Company software). You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
4.2. Trademarks. Company’s name and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any Services are the trademarks of Company and may not be used without permission in connection with your, or any third-party, products or services. Third party trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
4.3. Your Content. Company does not claim ownership of Your Content. However, when you post or publish Your Content on or in any Services, you represent that you own or have all necessary rights to post or publish Your Content on or in the Services.
4.4. License to Your Content. Subject to any applicable Account settings that you select, you grant Company a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Registered Users. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services. You agree that you, not Company, are responsible for all of Your Content. You may not post a photograph of another person without that person’s permission.
4.5. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Company through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Company’s business.
- INDEMNIFICATION. You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Company Party” and collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a)Your Content; (b) your use of any Service in violation of the Agreement; (c) your violation of any rights of another party, including any Registered Users; or (d) your violation of any applicable laws, rules or regulations. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Company in asserting any available defenses. This provision does not require you to indemnify any of the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services
- DISCLAIMER OF WARRANTIES AND CONDITIONS.
6.1. As Is. You expressly understand and agree that to the extent permitted by applicable law, your use of the Services is at your sole risk, and the Services are provided on an “As Is” and “As Available” basis, with all faults. Company expressly disclaims all warranties, representations, and conditions of any kind, whether express or implied, including, but not limited to, the implied warranties or conditions of merchantability, fitness for a particular purpose and non-infringement arising from use of the Services.
Company makes no warranty, representation or condition that: (1) the Services will meet your requirements; (2) your use of the Services will be uninterrupted, timely, secure or error-free; or (3) the results that may be obtained from use of the Services will be accurate, reliable or consistent.
You acknowledge that information provided through or by the Services, including any projected investment returns and all related components (cash equity required, available financing, projected sales prices, etc.), is for informational purposes only and should not be relied upon to make investment, tax or other decisions. Real estate investing comes with material risk and you are responsible for your own decisions. Various factors, including, without limitation, regulatory changes, economic conditions and developments, financial and real estate market conditions, the availability and cost of financing, could cause actual results to differ materially from those indicated in the information delivered by the Services. The Services provide information based upon the input and confirmation of data by the user and the Services do not provide for verification of due diligence regarding the information submitted by the user. Accordingly, there can be no assurance that such user provided information is accurate or that the indicated results based upon user input will be realized. Company uses or has used public data and assumptions provided to Company by third parties, and Company has not independently verified the data and assumptions.
You may receive offers regarding the availability of loans or other investment financing offered by Company or third parties. The terms of such financing are estimates and are not binding on Company or any third party. The underwriting of any investment by Company or any third party will require additional verifications by the underwriter and the terms of any financing will be established during the underwriting process and confirmed in loan documents to be executed by both parties, not through the Services.
As part of our Services, we may provide you with analysis or estimates. Any such information is intended to be illustrative and for informational purposes only. We base our analysis and estimates on certain assumptions and data that might be available to us and use internally-developed algorithms which may or may not be accurate. Our analysis and estimates are uniquely ours and are not endorsed by any third-party partner. Furthermore, any analysis or estimate is determined by our own proprietary methodology. As such, we may change, alter, or modify any methodology at any time and elect to emphasize, ignore, or alter certain factors in our discretion.
No advice or information, whether oral or written, obtained from company or through the Services will create any warranty not expressly made herein.
From time to time, Company may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes without any warranty of any kind, and may be modified or discontinued at Company’s sole discretion.
6.2. No Liability for Conduct of Third Parties. you acknowledge and agree that company parties are not liable, and you agree not to seek to hold company parties liable, for the conduct of third parties, including operators of external sites and other users of the services, and that the risk of injury from such third parties rests entirely with you.
6.3. Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Company to monitor such materials and that you access these materials at your own risk.
- LIMITATION OF LIABILITY.
7.1. Disclaimer of Certain Damages. You understand and agree that, to the fullest extent provided by law, in no event shall Company parties be liable for any loss of profits, revenue or data, indirect, incidental, special, or consequential damages, or damages or costs due to loss of production or use, business interruption, or procurement of substitute goods or services, in each case whether or not Company has been advised of the possibility of such damages, arising out of or in connection with the Agreement or any communications, interactions or meetings with other users of the Services, on any theory of liability. The foregoing limitation of liability shall not apply to liability of a Company party for (i) death or personal injury caused by a Company party’s negligence; or for (ii) any injury caused by a Company party’s fraud or fraudulent misrepresentation.
7.2. Cap on Liability. To the fullest extent provided by law, Company parties will not be liable to you for more than $100. The foregoing cap on liability shall not apply to liability of a company party for (i) death or personal injury caused by a company party’s negligence; or for (ii) any injury caused by a company party’s fraud or fraudulent misrepresentation.
7.3. User Content. Except for Company’s obligations to protect your personal data as set forth in the Company’s privacy policy, Company assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any content, user communications or personalization settings.
7.4. Exclusion of Damages. Certain jurisdictions do not allow the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above exclusions or limitations may not apply to you.
7.5. Basis of the Bargain. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Company and you.
- TERM AND TERMINATION.
8.1. Term. The Agreement commences on the date when you accept them (the “Service Commencement Date”) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
8.2. Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
8.3. Termination of Services by Company. If you have breached any provision of the Agreement, or if Company is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Company has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Company’s sole discretion and that Company shall not be liable to you or any third party for any termination of your Account.
8.4. Termination of Services by You. If you want to terminate the Services provided by Company, you may do so by (a) notifying Company at any time and (b) closing your Account for all of the Services that you use.
8.5. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
8.6. No Subsequent Registration. If your registration(s) with, or ability to access, the Services or any other Company community, is discontinued by Company due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Company community through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Company intends to announce such Services or Content in your country. The Services are controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
- DISPUTE RESOLUTION.Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires U.S. users to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
10.1. Applicability of Arbitration Agreement. You and Company agree that any disagreement, dispute, controversy, or claim arising out of or relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Company (each a “Dispute”), will be resolved by binding arbitration, rather than in court, except that (a) you and Company may assert claims or seek relief in small claims court if such claims qualify, and (b) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights. This Arbitration Agreement shall apply, without limitation, to all Disputes that arose or involve facts occurring before the effective date of this Agreement or any prior version of this Agreement, as well as any Disputes that may arise after the termination of this Agreement. This Arbitration Agreement does not stop you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).
10.2 Informal Dispute Resolution. There might be instances when a Dispute arises between us. If that occurs, we are committed to working with you to reach a prompt, low‐cost and mutually beneficial resolution. You and Company agree to participate in good faith informal efforts to resolve Disputes before starting an arbitration or initiating an action in small claims court (“Informal Dispute Resolution”). To initiate Informal Dispute Resolution, a party must give notice in writing to the other party (“Notice”). Notice to Company should be sent by email to informaldisputeresolution@dobackflip.com. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of the Dispute. If Company is initiating Informal Dispute Resolution, it will send a Notice and a description of the Dispute to your email address or regular address on file.
The Informal Dispute Resolution process lasts 45 days and is a mandatory precondition to commencing arbitration. During this period, either party has the option to ask the other to meet and confer telephonically as part of a good faith effort to resolve the Dispute (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you must also personally participate. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.
The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in Informal Dispute Resolution.
10.3. Arbitration Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding Section 10.9 with respect to the applicable substantive law, the Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. [If Informal Dispute Resolution does not resolve the Dispute within 45 days after receipt of the Notice, you and Company agree that either party shall have the right to resolve the Dispute through binding arbitration. The arbitration will be administered by the National Arbitration & Mediation (“NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedure (the “NAM Rules”) in effect at the time of arbitration, except as supplemented, where applicable, by the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures, and as modified by this Arbitration Agreement. The NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms/.
The party initiating arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless the Batch Arbitration process discussed in Section 10.7 is triggered, you may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
If NAM is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any NAM fees and costs will be solely as set forth in the applicable NAM Rules. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
You and Company agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
You and Company agree that at least 14 days before the date set for an arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms. If the offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover any post-offer costs to which they otherwise would be entitled and shall pay the offering party’s costs from the time of the offer.
You and Company agree that all applicable statutes of limitations will apply to any arbitration in the same manner as those statutes of limitations would apply in the applicable court of competent jurisdiction, and that arbitration must be initiated within the applicable statute of limitation for any claims or requests for relief (subject to tolling for Informal Dispute Resolution), or it will be forever time barred.
10.4. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and applicability of this Arbitration Agreement and (b) resolve any dispute regarding the interpretation, enforceability, validity or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of arbitration. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us.
10.5. Waiver of Jury Trial. YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all Disputes claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 10.1 (Applicability of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
10.6. Waiver of Class and Other Non-Individualized Relief. YOU AND COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. Subject to this Arbitration Agreement, 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 the party’s individual claim. Notwithstanding anything to the contrary in this Arbitration Agreement, if a final decision, not subject to any further appeal or recourse, determines that the limitations of this Section, “Waiver of Class and Other Non-Individualized Relief,” are invalid and enforceable as to a particular claim or request for relief (such as a request for public injunctive relief), then you and Company agree that that particular claim or request for shall relief will be severed from the arbitration and shall be litigated in the state or federal courts located in the Dallas, Texas, and decided only after all other Disputes, claims and requests for relief are arbitrated or litigated in small claims court (if appliable). Nothing in this Section is intended to, nor shall it, affect the Batch Arbitration provisions set out in Section 10.7. This Section does not prevent you or Company from participating in a class-wide settlement of claims.
10.7. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Company agree that in the event that there are 25 or more individual Requests of a substantially similar nature filed against Company by or with the assistance of the same law firm, group of law firms, or organizations, within a 90 day period (or as soon as possible thereafter), NAM shall (1) administer the arbitration demands in batches of 100 Requests per batch (or, if between twenty-five (25) and ninety-nine (99) individual Requests are filed, a single batch of all those Requests, and, to the extent there are less than 100 Requests remaining after the batching described above, a final batch consisting of the remaining Requests); (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”).
All parties agree that Requests 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. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Company.
You and Company agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, except as expressly set forth in this provision.
10.8. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: notices@dobackflip.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
10.9. Governing Law. Any dispute, claim or request for relief relating in any way to your use of the Services will be governed and interpreted by and under the laws of the state of Texas, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction. The United Nations Convention on contracts for the international sale of goods is expressly excluded from this Agreement.
10.10. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located Dallas, Texas, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.
10.11. Severability. Except as provided in Section 10.6 (Waiver of Class and Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
10.12. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
10.13. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change by writing to the Company at notices@dobackflip.com of your decision to opt out of the change within 30 days of the change become effective. Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company account (if you have one), and an unequivocal statement that you wish to reject the changes to this Arbitration Agreement. Opting out of a change to the Arbitration Agreement is not an opt-out of arbitration altogether and unless you previously opted out of the Arbitration Agreement, any Dispute will be finally resolved through binding individual arbitration in accordance with the Arbitration Agreement in effect immediately before any such opt-out.
- THIRD-PARTY SERVICES.
11.1. Third-Party Websites, Applications and Ads. The Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Company. Company is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Company provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, the Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
- GENERAL PROVISIONS.
12.1. Electronic Communications. The communications between you and Company may take place via electronic means, whether you visit the Services or send Company e-mails, or whether Company posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
12.2. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
12.3. Force Majeure. Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
12.4. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: help@dobackflip.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
12.5. Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
12.6. Notice. Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required / permitted by the Agreement, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following address: notices@dobackflip.com.
12.7. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.8. Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
12.9. Export Control. You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
12.10.Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
12.11. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.