Payments Terms of Service
Current as of July 23, 2018
1. Scope and Use of the Payment Services
1.1 AirGym provides payments services to Platform Users (Members, Owners, and Trainers), including payment collection services, payments and payouts, in connection with and through the AirGym Platform (“Payment Services”).
1.2 AirGym may restrict the availability of the Payment Services, or certain services or features thereof, to carry out maintenance measures that ensure the proper or improved functioning of the Payment Services. AirGym may improve, enhance and modify the Payment Services and introduce new Payment Services from time to time.
1.3 The Payment Services may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services are subject to different terms and conditions and privacy practices and Platform Users should review them independently. AirGym is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by AirGym of such Third-Party Services.
1.4 You may not use the Payment Services except as authorized by United States law..
1.5 Your access to or use of certain Payment Services may be subject to, or require you to accept, additional terms and conditions. If there is a conflict between these Payments Terms and terms and conditions applicable for a specific Payment Service, the latter terms and conditions will take precedence with respect to your use of or access to that Payment Service, unless specified otherwise.
2. Key Definitions
“Payout” means a payment initiated by AirGym to a Platform User for services (such as Listing Fees or Co-Owner Services Fees) performed in connection with the AirGym Platform.“Payment Method” means a financial instrument that you have added to your AirGym Account, such as a credit card, debit card, or PayPal account.
“Payout Method” means a financial instrument that you have added to your AirGym Account, such as a PayPal account, direct deposit, a prepaid card, or a debit card (where available).
3. Modification of these Payments Terms
AirGym reserves the right to modify these Payments Terms at any time in accordance with this provision. If we make changes to these Payments Terms, we will post the revised Payments Terms on the AirGym Platform and update the “Last Updated” date at the top of these Payments Terms. We will also provide you with notice by email of the modification at least thirty (30) days before the date they become effective. If you disagree with the revised Payments Terms, you may terminate this Agreement with immediate effect. We will inform you about your right of refusal and your right to terminate this Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued use of the Payment Services will constitute acceptance of the revised Payments Terms.
4. Eligibility, Member Verification
4.1 You must be at least 18 years old and able to enter into legally binding contracts to use the Payment Services. By using the Payment Services, you represent and warrant that you are 18 or older.
4.2 If you are agreeing to these Payments Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Payments Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
4.3 AirGym may make access to and use of certain areas or features of the Payment Services subject to certain conditions or requirements, such as completing a verification process or meeting specific eligibility criteria.
4.4 We may make inquiries we consider necessary to help verify or check your identity or prevent fraud. Towards this end, you authorize AirGym to screen you against third party databases or other sources and request reports from service providers. In some jurisdictions, we have a legal obligation to collect identity information to comply with anti-money laundering regulations. This may include (i) asking you to provide a form of government identification (e.g., driver’s license or passport), your date of birth, your address, and other information; (ii) requiring you to take steps to confirm ownership of your email address, Payment Methods or Payout Methods; or (iii) attempting to screen your information against third-party databases. AirGym reserves the right to close, suspend, or limit access to the Payment Services in the event we are unable to obtain or verify any of this information.
5. Account Registration
5.1 In order to use the Payment Services, you must have an AirGym Account in good standing. If you or AirGym closes your AirGym Account for any reason, you will no longer be able to use the Payment Services.
6. Payment Methods and Payout Methods
6.1 When you add a Payment Method or Payout Method to your AirGym Account, you will be asked to provide customary billing information such as name, billing address, and financial instrument information either to AirGym or its third-party payment processor(s). You must provide accurate, current, and complete information when adding a Payment Method or Payout Method, and it is your obligation to keep your Payment Method and Payout Method up-to-date at all times. The information required for Payout Methods will depend on the particular Payout Method and may include:
- your residential address, name on the account, account type, routing number, account number,email address, payout currency, and account information associated with a particular payment processor.
6.2 When you add or use a new Payment Method, AirGym may verify the Payment Method by authorizing a nominal amount or by authenticating your account via a third-party payment service provider. For further verification, we may also (i) authorize your Payment Method for one or two additional nominal amounts, and ask you to confirm these amounts, or (ii) require you to upload a billing statement. We may, and retain the right to, initiate refunds of these amounts from your Payout Method. When you add a Payment Method during checkout, we will automatically save that Payment Method to your AirGym Account, so it can be used for a future transaction.
6.3 Please note that Payment Methods and Payout Methods may involve the use of third-party payment service providers. These service providers may charge you additional fees when processing payments and Payouts in connection with the Payment Services (including deducting charges from the Payout amount), and AirGym is not responsible for any such fees and disclaims all liability in this regard. Your Payment Method or Payout Method may also be subject to additional terms and conditions imposed by the applicable third-party payment service provider; please review these terms and conditions before using your Payment Method or Payout Method.
6.4 You authorize AirGym to store your Payment Method information and charge your Payment Method as outlined in these Payments Terms. If your Payment Method’s account information changes (e.g., account number, routing number, expiration date) as a result of re-issuance or otherwise, we may acquire that information from our financial services partner or your bank and update your Payment Method on file in your AirGym Account.
6.5 You are solely responsible for the accuracy and completeness of your Payment Method and Payout Method information. AirGym is not responsible for any loss suffered by you as a result of incorrect Payment Method or Payout Method information provided by you.
7. Financial Terms for Owners
AirGym will not collect any fees from a Member at the time the Member’s booking request is accepted by the Owner. Fees will be collected by a third-party processor.
7.2.1 In order to receive a Payout you must have a valid Payout Method linked to your AirGym Account. Payouts to your selected Payout Method: Payouts will be made monthly, bi-weekly or weekly depending on your choice when registering.
7.2.2 The time it takes to receive Payouts once released by the payout processor may depend upon the Payout Method you select and the Payout Method provider’s processing schedule. The payout processor may delay or cancel any Payout for purposes of preventing unlawful activity or fraud, risk assessment, security, or investigation.
7.2.3 Your Payout for a booking will be the listing fee as provided by you less the payment processor’s fees and Air Gym’s fees.
7.2.4 In the event of a Member’s cancellation of a confirmed booking, AirGym Payments will remit a Payout of any portion of the Total Fees due to you under the applicable cancellation policy.
7.2.5 AirGym Payments will remit your Payouts in your currency of choice, depending upon your selections via the AirGym Platform and as further set out in Section 12. Amounts may be rounded up or down as described in the AirGym Terms.
7.2.6 For compliance or operational reasons, AirGym Payments may limit the value of each individual Payout. If you are due an amount above that limit, AirGym Payments may initiate a series of Payouts (potentially over multiple days) in order to provide your full payout amount.
8. Financial Terms for Members
8.1 You authorize AirGym to charge your Payment Method the Total Fees for any booking requested in connection with your AirGym Account. AirGym will collect the Total Fees in the manner agreed between you and AirGym via the AirGym Platform. AirGym will generally collect the Total Fees after the Owner accepts your booking request. AirGym may offer alternative options for the timing and manner of payment. Any additional fees for using offered payment options will be displayed via the AirGym Platform and included in the Total Fees, and you agree to pay such fees by selecting the payment option. Additional terms and conditions may apply for the use of an alternative payment option. If AirGym is unable to collect the Total Fees as scheduled, AirGym will collect the Total Fees at a later point. Once the payment transaction for your requested booking is successfully completed, you will receive a confirmation email.
8.2 When you request to book a Listing, AirGym may also (i) obtain a pre-authorization via your Payment Method for the Total Fees,(ii) charge or authorize your Payment Method a nominal amount, to verify your Payment Method, or (iii) authenticate your account via a third-party payment service provider to verify your Payment Method.
8.3 If a requested booking is cancelled either because it is not accepted by the Owner or you cancel no later than 24-hours prior to the booking request, any amounts collected by AirGym will be refunded to you, and any pre-authorization of your Payment Method will be released (if applicable). The timing to receive the refund or for the pre-authorization to be released will vary based on the Payment Method and any applicable payment system (e.g., Visa, MasterCard, etc.) rules.
8.4 You authorize AirGym to perform the Payment Method verifications described in Sections 6 and 8, and to charge your Payment Method for any bookings made in connection with your AirGym Account. You hereby authorize AirGym to collect any amounts due, by charging the Payment Method provided at checkout, either directly by AirGym or indirectly, via a third-party online payment processor, and/or by one or more of the payment methods available on the AirGym Platform (such as gift cards).
9. Appointment of AirGym as Limited Payment Collection Agent
9.1 Each Member collecting payment for services provided via the AirGym Platform (such as Owner Services,Co-Owner Services) (“Providing Owner”) hereby appoints AirGym as the Providing Owner’s payment collection agent solely for the limited purpose of accepting funds from Members purchasing such services (“Purchasing Members”).
9.2 Each Providing Owner agrees that payment made by a Purchasing Member through AirGym, shall be considered the same as a payment made directly to the Providing Owner, and the Providing Owner will provide the purchased services to the Purchasing Member in the agreed-upon manner as if the Providing Owner has received the payment directly from the Purchasing Member. Each Providing Owner agrees that AirGym may refund the Purchasing Member in accordance with the AirGym Terms. Each Providing Owner understands that AirGym’s obligation to pay the Providing Owner is subject to and conditional upon successful receipt of the associated payments from Purchasing Members. AirGym guarantees payments to Providing Owners only for such amounts that have been successfully received by AirGym Payments from Purchasing Members in accordance with these Payments Terms. In accepting appointment as the limited payment collection agent of the Providing Owner, AirGym assumes no liability for any acts or omissions of the Providing Owner.
9.3 Each Purchasing Member acknowledges and agrees that, notwithstanding the fact that AirGym is not a party to the agreement between you and the Providing Owner, AirGym acts as the Providing Owner’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Providing Owner. Upon your payment of the funds to AirGym, your payment obligation to the Providing Owner for the agreed upon amount is extinguished, and AirGym is responsible for remitting the funds to the Providing Owner in the manner described in these Payments Terms, which constitute AirGym’s agreement with the Purchasing Member. If AirGym does not remit any such amounts, the Providing Owner will have recourse only against AirGym and not the Purchasing Member directly.
10. General Financial Terms
AirGym will collect a 10% booking fee which will be paid by the third-party payment processing company at the time it remits the booking fee to the owner, less applicable payment processing fees and the AirGym booking fee.
10.2 Payment Authorizations
You authorize the third party payment processing company to collect from you amounts due pursuant to these Payment Terms or the AirGym Terms. Specifically, you authorize the payment processing company to collect from you:
- Any amount due to AirGym (e.g., as a result of your bookings, Booking Modifications, cancellations, or other actions as a Member, Owner or Co-Owner or user of the AirGym Platform), including reimbursement for costs prepaid by AirGym on your behalf, by charging any Payment Method on file in your AirGym Account (unless you have previously removed the authorization to charge such Payment Method(s)) or by withholding such amounts from your future Payouts. Any funds collected by the payment processor will offset the amount owed by you to AirGym and extinguish your obligation to AirGym.
- Any amount due to a Providing Owner from a Purchasing Member which the payment processor collects as the Providing Owner’s payment collection agent as further set out in Section 9 above.
- Overstays will be monitored by the Owner.
- Any Service Fees or cancellation fees imposed pursuant to the AirGym Terms (e.g., if, as an Owner, you cancel a confirmed booking). AirGym will be entitled to recover the amount of any such fees from you, including by subtracting such refund amount out from any future Payouts due to you.
- Fees improperly paid to you as an Owner or Co-Owner. If, as an Owner or Co-Owner, your Member cancels a confirmed booking or AirGym decides that it is necessary to cancel a confirmed booking, and AirGym authorizes a refund to be issued to the Member in accordance with the AirGym Terms,, or other applicable cancellation policy, you agree that in the event you have already been paid, AirGym will be entitled to recover the amount of any such refund from you, including by subtracting such refund amount out from any future Payouts due to you.
- Fees, costs and/or expenses associated with a Damage Claim as set out in the AirGym Terms. If AirGym is unable to collect from your Payment Method used to make the booking, you agree that any other Payment Method on file in your AirGym Account at the time of the Damage Claim (unless you have previously removed the authorization to charge such Payment Method(s)). AirGym also reserves the right to otherwise authorize the collection of payment from you and pursue any remedies available to AirGym in this regard in situations in which you are responsible for a Damage Claim.
In addition to any amount due as outlined above, if there are delinquent amounts or chargebacks associated with your Payment Method, you may be charged fees that are incidental to our collection of these delinquent amounts and chargebacks. Such fees or charges may include collection fees, convenience fees or other third-party charges.
10.3.1 Any refunds or credits due to a Member pursuant to the AirGym Terms will be initiated and remitted by AirGym.
10.3.2 All refunds may be subject to the AirGym Terms and this Payment Policy. If a Member or AirGym decides for any reason to cancel a confirmed booking pursuant to the AirGym Terms, or any other policy, you agree that AirGym will not have any liability for such cancellations or refunds aside from its obligations to remit refunds or Payouts pursuant to these Payments Terms.
10.4 Intentionally Left Blank
10.5 Payment Processing ErrorsWe will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same Payout Method or Payment Method used for the original Payout to or payment by you, so that you end up receiving or paying the correct amount. This may be performed by AirGym or a third party such as your financial institution.
10.6 CollectionsIf AirGym’s payment processor is unable to collect any amounts you owe under these Payments Terms, AirGym may authorize the payment processor to engage in collection efforts to recover such amounts from you. AirGym will deem any owed amounts overdue when: (a) for authorized charges, ninety (90) days have elapsed after AirGym first attempts to charge the Member’s Payment Method or the associated services have been provided, whichever is later; and (b) for withholdings from a Owner’s future Payouts, one hundred and eighty (180) days have elapsed after the adjustment is made to the Owner’s account or the associated services have been provided, whichever is later. Any overdue amounts not collected within one hundred and eighty (180) days after they become overdue will be deemed to be in default. You hereby explicitly agree that all communication in relation to amounts owed will be made by electronic mail or by phone, as provided to AirGym by you. Such communication may be made by AirGym or by anyone on their behalf, including but not limited to a third-party collection agent.
11. Abandoned Property
If we cannot initiate a Payout, refund, or pay other funds due to you for the relevant period of time set forth by your state, country, or other governing body in its unclaimed property laws, we may process the funds due to you in accordance with our legal obligations, including by submitting such funds to the appropriate governing body as required by law.
12. Prohibited Activities
You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Payment Services. In connection with your use of the Payment Services, you may not, and you agree that you will not and will not assist or enable others to:
- breach or circumvent any applicable laws or regulations, agreements with third parties, third-party rights, or the AirGym Terms or Policies;
- use the Payment Services for any commercial or other purposes that are not expressly permitted by these Payments Terms;
- register or use any Payment Method or Payout Method with your AirGym Account that is not yours or you do not have authorization to use;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by AirGym or any of AirGym’s providers or any other third party to protect the Payment Services;
- take any action that damages or adversely affects, or could damage or adversely affect, the performance or proper functioning of the Payment Services;
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Payment Services; or
- violate or infringe anyone else’s rights or otherwise cause harm to anyone.
13. Intellectual Property Ownership, Rights Notices
13.1 The Payment Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Payment Services, including all associated intellectual property rights, are the exclusive property of AirGym and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Payment Services. All trademarks, service marks, logos, trade names, and any other proprietary designations of AirGym used on or in connection with the Payment Services are trademarks or registered trademarks of AirGym in the United States. Trademarks, service marks, logos, trade names, and any other proprietary designations of third parties used on or in connection with Payment Services are used for identification purposes only and may be the property of their respective owners.
13.2 You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Payment Services, except as expressly permitted in these Payments Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by AirGym or its licensors, except for the licenses and rights expressly granted in these Payments Terms.
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Payment Services (“Feedback”). You may submit Feedback by emailing us, through the “Contact” section of the AirGym Platform, or pursuant to Section 25 (“Contacting AirGym”). Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
15.1 If you choose to use the Payment Services, you do so voluntarily and at your sole risk. To the maximum extent permitted by law, the Payment Services are provided “as is”, without warranty of any kind, either express or implied.
15.2 Notwithstanding AirGym’s appointment as the limited payment collection agent of Providing Owners for the purposes of accepting payments from Purchasing Members through the AirGym Platform, AirGym explicitly disclaims all liability for any act or omission of any Member or other third party. AirGym does not have any duties or obligations as agent for each Providing Owner except to the extent expressly set forth in these Payments Terms, and any additional duties or obligations as may be implied by law are, to the maximum extent permitted by applicable law, expressly excluded.
15.3 If we choose to conduct identity verification on any Member, to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by a Member or guarantee that a Member will not engage in misconduct in the future.
15.4 The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights or warranties which cannot lawfully be excluded. However, the duration of any statutorily required warranties shall be limited to the maximum extent (if any) permitted by law.
16.1 Except as provided in Section 18.2, 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 Payment Services remains with you. If you permit or authorize another person to use your AirGym Account in any way, you are responsible for the actions taken by that person. Neither AirGym nor any other party involved in creating, producing, or delivering the Payment Services will be liable for any incidental, special, exemplary, or consequential 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 Payments Terms, (ii) from the use of or inability to use the Payment Services, or (iii) from any communications, interactions, or meetings with other Members or other persons with whom you communicate, interact, transact, or meet with as a result of your use of the Payment Services, whether based on warranty, contract, tort (including negligence), product liability, or any other legal theory, and whether or not AirGym 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. Except for our obligations to pay amounts to applicable Providing Owners pursuant to these Payments Terms, in no event will AirGym’s aggregate liability arising out of or in connection with these Payments Terms and your use of the Payment Services including, but not limited to, from your use of or inability to use the Payment Services, exceed the amounts you have paid or owe for bookings via the AirGym Platform as a Member in the twelve (12) month period prior to the event giving rise to the liability, or if you are a Owner or Co-Owner, the amounts paid by AirGym to you 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 payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between AirGym 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. If you reside outside of the U.S., this does not affect AirGym Payments’ liability for death or personal injury arising from its negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter, or any other liability which cannot be excluded or limited under applicable law.
16.2 If you reside in the EU, Section 18.1 does not apply, and AirGym is liable under statutory provisions for intent and gross negligence by us, our legal representatives, directors, or other vicarious agents. The same applies to the assumption of guarantees or any other strict liability, or in case of a culpable injury to life, limb, or health. AirGym is liable for any negligent breaches of essential contractual obligations by us, our legal representatives, directors, or other vicarious agents. Essential contractual obligations are such duties of AirGym in whose proper fulfillment you regularly trust and must trust for the proper execution of the contract, but the amount shall be limited to the typically occurring foreseeable damage. Any additional liability of AirGym is excluded to the maximum extent allowed by applicable law.
You agree to release, defend (at AirGym’s option), indemnify, and hold AirGym and its affiliates and subsidiaries, and their officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Payments Terms; (ii) your improper use of the Payment Services; or (iii) your breach of any laws, regulations, or third-party rights.
18. Termination, Suspension, and other Measures
18.1 You may terminate this Agreement at any time by sending us an email, or by following the termination procedures specified in the AirGym Terms. Terminating this Agreement will also serve as notice to cancel your AirGym Account pursuant to the AirGym Terms. If you cancel your AirGym Account as an Owner, AirGym will provide a full refund to any Members with confirmed booking(s). If you cancel your AirGym Account as a Member, AirGym will initiate a refund for any confirmed booking(s) based on the Listing’s cancellation policy.
18.2 Without limiting our rights specified below, AirGym may terminate this Agreement for convenience at any time by giving you thirty (30) days’ notice via email to your registered email address.
18.3 AirGym may immediately, without notice terminate this Agreement if (i) you have materially breached your obligations under this Agreement; (ii) you have provided inaccurate, fraudulent, outdated, or incomplete information; (iii) you have violated applicable laws, regulations, or third-party rights; or (iv) AirGym believes in good faith that such action is reasonably necessary to protect other Members, AirGym, or third parties (for example in the case of fraudulent behavior of a Member).
18.4 In addition, AirGym may limit or temporarily or permanently suspend your use of or access to the Payment Services (i) to comply with applicable law, or the order or request of a court, law enforcement, or other administrative agency or governmental body, or if (ii) you have breached these Payments Terms, the AirGym Terms, applicable laws, regulations or third-party rights, (iii) you have provided inaccurate, fraudulent, outdated, or incomplete information regarding a Payment Method or Payout Method, or (iv) AirGym believes in good faith that such action is reasonably necessary to protect the personal safety or property of AirGym, its Members, or third parties, or to prevent fraud or other illegal activity.
18.5 In case of non-material breaches and where appropriate, you will be given notice of any measure by AirGym and an opportunity to resolve the issue to AirGym’s reasonable satisfaction.
18.6 If you are a Owner and we take any of the measures described in this Section we may refund your Members in full for any and all confirmed bookings, irrespective of preexisting cancellation policies, and you will not be entitled to any compensation for pending or confirmed bookings that were cancelled.
18.7 If your access to or use of the Payment Services has been limited or this Agreement has been terminated by us, you may not register a new AirGym Account or attempt to access and use the Payment Services through other an AirGym Account of another Member.
18.8 If you or we terminate this Agreement, the clauses of these Payments Terms that reasonably should survive termination of these Payments Terms will remain in effect.
19. Applicable Law and Jurisdiction
19.1 These Payments Terms will be interpreted in accordance with the laws of the State of Tennessee and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 23 must be brought in state or federal court in Nashville, Tennessee, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Nashville, Tennessee.
20. Dispute Resolution and Arbitration Agreement
20.1 This Dispute Resolution and Arbitration Agreement shall apply if you (i) are contracting with AirGym; or (ii) bring any claim against AirGym in the United States.
20.2 Overview of Dispute Resolution Process.AirGym is committed to participating in a consumer-friendly dispute resolution process. To that end, these Payments Terms provide for a two-part process for individuals to whom Section 23.1 applies: (1) an informal negotiation directly with AirGym’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”)using its specially designed Consumer Arbitration Rules (as modified by this Section 22 and except as provided in Section 22.6). Specifically, the Consumer Arbitration Rules provide:
- Claims can be filed with AAA online ( www.adr.org);
- Arbitrators must be neutral, and no party may unilaterally select an arbitrator;
- Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
- Parties retain the right to seek relief in small claims court for certain claims, at their option;
- The initial filing fee for the consumer is capped at $200;
- The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
- The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
20.3 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and AirGym each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact AirGym’s customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
20.4 Agreement to Arbitrate. You and AirGym mutually agree that any dispute, claim or controversy arising out of or relating to these Payments Terms or the breach, termination, enforcement or interpretation thereof, or to the use of the Payment Services (collectively, “Disputes”) will be settled by binding arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and AirGym agree that the arbitrator will decide that issue.
20.5 Exceptions to Arbitration Agreement. You and AirGym each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
20.6 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 provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879..
20.7 Modification to AAA Rules – Arbitration Hearing/Location. In order to make the arbitration most convenient to you, AirGym agrees that any required arbitration hearing may be conducted, at your option, (a) in the county where you reside; (b) in San Francisco County; (c) in any other location to which you and AirGym both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
20.8 Modification of AAA Rules – Attorney’s Fees and Costs. You and AirGym agree that AirGym will be responsible for payment of the balance of any initial filing fee under the AAA Rules in excess of $200 for claims of $75,000 or less. 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 AAA rules. Unless the arbitrator determines that your claim was frivolous or filed for the purpose of harassment, AirGym agrees it will not seek, and hereby waives all rights it may have under applicable law or the AAA rules, to recover attorneys’ fees and expenses if it prevails in arbitration.
20.9 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. 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 claimant’s individual claim.
20.10 Jury Trial Waiver. You and AirGym acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
20.11 No Class Actions or Representative Proceedings. You and AirGym 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 proceeding as to all Disputes. Further, unless you and AirGym both otherwise agree 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. If this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.
20.12 Severability. Except as provided in Section 22.11, 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.
20.13 Changes. Notwithstanding the provisions of Section 3 (“Modification of these Payments Terms”), if AirGym changes this Section 22 (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted these Payments Terms (or accepted any subsequent changes to these Payments 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 AirGym’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 AirGym in accordance with the provisions of the “Dispute Resolution” section as of the date you last accepted these Payments Terms (or accepted any subsequent changes to these Payments Terms).
20.14 Survival. Except as provided in Section 22.12 and subject to Section 20.8, this Section 22 will survive any termination of these Payments Terms and will continue to apply even if you stop using the Payment Services or terminate your AirGym Account.
21. General Provisions
21.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines, or standards, these Payments Terms constitute the entire Agreement between AirGym and you regarding the subject matter hereof and supersede any and all prior oral or written understandings or agreements between AirGym and you regarding the Payment Services.
21.2 No joint venture, partnership, employment, or agency relationship exists between you or AirGym as a result of this Agreement or your use of the Payment Services.
21.3 If any provision of these Payments Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
21.4 AirGym’s failure to enforce any right or provision in these Payments Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Payments Terms, the exercise by either party of any of its remedies under these Payments Terms will be without prejudice to its other remedies under these Payments Terms or otherwise permitted under law.
21.5 You may not assign, transfer, or delegate this Agreement and your rights and obligations hereunder without AirGym’s prior written consent. AirGym may without restriction assign, transfer, or delegate this Agreement and any rights and obligations, at its sole discretion, with thirty (30) days’ prior notice.
21.6 This Agreement does not and is not intended to confer any rights or remedies upon any person other than the parties. Notwithstanding the foregoing, the parties agree that the payment card networks are third-party beneficiaries of this Agreement for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes or modifications to this Agreement.
21.7 Unless specified otherwise, any notices or other communications permitted or required under this Agreement, will be in writing and given by AirGym via email, AirGym Platform notification, or messaging service (including SMS and WeChat). The date of receipt will be deemed the date on which AirGym transmits the notice.
Contacting AirGym Payments
You may contact AirGym regarding the Payment Services using the information below:
These Payments Terms are available at http://www.AirGym.com/terms/payments_terms. AirGym Payments will provide a copy of these Payments Terms on request. If you have any questions about these Payments Terms, please email us at [email protected]