FLIGHT CLUB TERMS OF USE

These Terms of Use are effective from February 28, 2020. You can view the prior Terms of Use here.

Flight Club New York LLC (“Flight Club”, “we”, or “us”) operates, hosts, or manages a number of websites, including, without limitation, https://www.flightclub.com (the “Site”). These Terms of Use (“Terms”), along with our Privacy Policy, apply to your use of the Site and the services, features and functions that are offered and made available on, through, or using the Site or any other property that links to these Terms (together with the Site, the “Service”).

Users of the Service must be at least 18 years old or have the permission and acceptance (to these Terms of Use) of a parent or guardian. Access of the Site or use the Service by anyone under the age of 13 is prohibited even with parental or guardian consent.

Please carefully read these Terms, including the binding arbitration provision contained below under “Arbitration Agreement”, which will require you to submit claims you have against us to binding and final arbitration, unless you opt out of the binding arbitration provision by following the opt-out procedures described below under “Arbitration Agreement” or unless a limited exception described in these Terms applies. If you do not opt out of the binding arbitration provision, you will only be permitted to pursue claims against us on an individual basis, and not as a plaintiff or class member in any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

These Terms constitute a legally binding agreement between you and us. BY ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTAND, AND ARE BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE OR ACCESS THE SERVICE.

MODIFICATION

We reserve the right, in our sole discretion, to modify, discontinue or terminate the Service and to modify these Terms at any time. If we modify these Terms, we will update the Terms on the Site and will provide notice of the modification either by email or through a general notice on the Site. We will also update the “Effective Date” at the top of these Terms Please review this page and these Terms from time to time so you are aware of any changes. By continuing to access or use the Service after we have modified the Terms, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, please cease using the Service.

PRIVACY

Our Privacy Policy is incorporated by reference into these Terms. Please read it carefully, since it describes, among other things, how we collect and use information from you when you use the Service.

CONSIGNMENT

One of the services we provide is allowing you to sell your sneakers through our consignment marketplace. Our consignment service is governed by the Flight Club Consignment Agreement (“Consignment Agreement”), which are incorporated into these Terms. By using our consignment service, you agree to be bound by the Consignment Agreement.

REGISTRATION

You may view some parts of the Service without registering, but in order to access and use other parts of the Service, you may be required to register an account with us. You are solely responsible for any activity that occurs on your account and for maintaining the confidentiality of your password. It is your sole responsibility to provide and maintain accurate account information. We reserve the right to suspend or cancel your account at any time for any reason without prior notice to you. If there has been an unauthorized use of your password or account, please notify us immediately.

INVENTORY AVAILABLE

We do our best to ensure that the product you're ordering is available at the time of purchase. That said, in some instances product will become unavailable during the order process, and we will not be able to fulfill your order. We make no guarantees on the availability of product as represented on the Site.

PRICES

The price of a product is the price in effect at the time we receive your order. We may change prices from time to time without notice. Occasionally the Site may have an incorrect price for an item. If that happens, we will notify you before the item has shipped.

Default prices are in U.S. dollars. Prices listed on the Site do not include sales tax or shipping charges.

SHIPPING AND DELIVERY

For information on our shipping and delivery policies, please see our Shipping and Return Policy and FAQs.

ALL SALES ARE FINAL

All sales are final. No refunds or exchanges will be permitted. If you are concerned about sizing for a particular style of shoe, please refer to the manufacturer’s size guidelines.

TYPOGRAPHICAL ERRORS

We are not responsible for typographical errors. Although every effort is made to warrant that the information detailed on the Site is accurate, from time to time a typographical error may appear as it applies to, but is not limited to, price, model name, style number, and description. Please accept our apologies for such errors, and we will make corrections as such errors are found. The decision of honoring incorrect pricing, for whatever reason it has occurred, is at our sole discretion and is reviewed on a case-by-case basis.

GIFT CARDS

Flight Club gift cards (“Gift Cards”) are not credit or debit cards and have no implied warranties. Gift Cards are not redeemable for cash unless required by law and cannot be used to make payments on any charge account. Gift Cards cannot be used to buy other Gift Cards. We reserve the right to deactivate or reject any Gift Card issued or procured, directly or indirectly, in connection with fraudulent actions, unless prohibited by law.

To check the balance of a Gift Card, contact support at https://support.flightclub.com/hc/en-us/requests/new and include your Gift Card code.

The risk of loss and title for Gift Cards passes to the purchaser upon our electronic transmission of the Gift Card to the purchaser or designated recipient or our delivery to the carrier, whichever is applicable. Gift Cards must be obtained from https://www.flightclub.com, and you are responsible for safeguarding your Gift Card from unauthorized use. We are not responsible if a Gift Card is lost, stolen, or destroyed, or if your Gift Card is used without your permission. There are a variety of Gift Card scams that request payment by Gift Card. We are not responsible for and assume no liability to you for any unlawful conduct or fraud by any third party associated with any Gift Card.

OWNERSHIP

Unless otherwise stated herein, we and our licensors are the sole owners of the Service and all of its content, including, without limitation, all information, services, features, functions, copyrights, trademarks, service marks, and other intellectual property rights contained within the Service. These Terms permit you to use the Services for your personal, non-commercial use only. You agree that all right, title, and interest in the Service will remain ours or our licensors’ exclusive property. Nothing in these Terms gives you a right to reproduce, copy, distribute, sell, broadcast, license, or otherwise use the Flight Club name or any of our trademarks, logos, domain names, and other distinctive brand features, which are exclusively owned by Flight Club and our licensors. Any other trademarks, service marks, logos, trade names, and other proprietary designations displayed on the Service may be the trademarks or registered trademarks of their respective owners. You may not modify, rent, lease, sell, distribute, or create derivative works based on the Service unless we have given you prior written consent to do so. Any violation of the foregoing will constitute a breach of these Terms and may result in immediate termination of your right to use the Service.

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site or Service (“Feedback”). You may submit Feedback by emailing us at [email protected]. You acknowledge and agree that all Feedback will be the sole and exclusive property of Flight Club and you hereby irrevocably assign to Flight Club, and agree to irrevocably assign to Flight Club, all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us to acquire, perfect, and maintain Flight Club’s intellectual property rights and other legal protections for the Feedback.

USE RESTRICTIONS

While using the Service you agree to comply with all applicable laws, rules, and regulations. In addition, we expect users of the Service to respect the rights and dignity of others. Your use of the Service is conditioned on your full compliance with these Terms, including, without limitation, the rules of conduct set forth in this section; your failure to comply with such rules may result in termination of your access to the Service pursuant to these Terms. You agree that when using the Service you will not:

  • Post, upload, publish, submit or transmit any content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar, or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; (vii) promotes illegal or harmful activities or substances;

  • Transmit by any means any software, virus, malware, program, code, file, or other material intended to interrupt, disrupt, alter, destroy, or limit any part of the Service;

  • Access, tamper with, or use non-public areas of the Service, our computer systems, or the technical delivery systems of our providers;

  • Attempt to probe, scan, or test the vulnerability of any of our systems or networks or breach any security or authentication measures;

  • Use any robot, spider, script, or any manual or automated application or means to extract, download, retrieve, index, mine, scrape, reproduce, or circumvent the presentation, operation, protection of, or intended use of any feature, function, or part of the Service, other than the software and/or search agents provided by us or other generally available third-party web browsers;

  • Use the Service to send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation;

  • Use, display, frame or mirror the Service or any individual element of the Service (including the layout and design of any page or form contained on a page within the Service), Flight Club’s name, any Flight Club logo or trademark, or any other proprietary information of Flight Club, without Flight Club’s express prior written consent;

  • Force any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service to send altered, deceptive, or false source-identifying information;

  • Attempt to modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the software used to provide the Service;

  • Copy, download, distribute, transmit, upload, or transfer content from the Service without our prior written permission or authorization;

  • Take any action that imposes or may impose (as determined in our sole discretion) an unreasonable or disproportionately large load on our infrastructure or otherwise interferes with the functioning of the Service;

  • Use the Site to make unsolicited offers, requests, advertisements, or spam;

  • Use the Service for any commercial purpose for the benefit of any third party or in any manner not permitted by these Terms;

  • Impersonate or pretend to be anyone else but you or falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Service;

  • Express or imply that we endorse any statement you make;

  • Violate or infringe upon the privacy, publicity, intellectual property, or other proprietary rights of third parties;

  • Engage in any activity that is criminal or tortious in nature or otherwise violates the law or rights of another, including, without limitation, hacking, phishing, fraud, stalking, defaming, abusing, harassing, or threatening;

  • Collect or store any personally identifiable information from the Service about other users of the Service without their express permission;

  • Violate any applicable law or regulation;

  • Do anything else that we determine, in our sole discretion, misuses or otherwise negatively impacts the Service; or

  • Encourage or enable any individual to do any of the following.

We have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that we have no obligation to monitor your access to or use of the Service, but that we have the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body.

COPYRIGHT

In accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA"), the text of which may be found on the U.S. Copyright Office website, Flight Club will respond expeditiously to claims of copyright infringement committed using the Service that are reported to Flight Club’s Designated Copyright Agent identified below.

If you are a copyright owner, or are authorized to act on behalf of one, or are authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Service by providing Flight Club’s Designated Copyright Agent (specified below) a DMCA Notice of Alleged Infringement (“Notice”) containing the following information:

Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work. Identification of the content that you believe to be infringing and its location. Please describe the content in as much detail as possible, and provide us with its URL or any other pertinent information that will allow us to locate the content. Your full legal name, mailing address, telephone number, and (if available) email address. A statement that you have a good faith belief that the use of the work you are reporting is not authorized by the copyright owner, its agent, or the law. A statement that the information you have supplied is accurate and that under penalty of perjury you are the copyright owner or authorized representative of the copyright owner. Your electronic or physical signature.

Deliver this Notice, with all items completed, to Flight Club’s Designated Copyright Agent – Copyright Agent, c/o Flight Club New York LLC, 812 Broadway, New York, NY 10003, [email protected]. We suggest that you consult your legal advisor before delivering a Notice. Upon receipt of the Notice, Flight Club will take whatever action, in our sole discretion, we deem appropriate, including removal of the challenged content from the Service.

Counter notification, as permitted by applicable law and, in particular, the Digital Millennium Copyright Act, may be sent to Flight Club's Designated Agent. All counter notifications must include:

  • Your physical or electronic signature.
  • An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
  • Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
  • A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
  • A statement that you will consent to the jurisdiction of the federal district court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Site may be found) and that you will accept service from the person (or an agent of that person) who provided the Site with the complaint at issue.

It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.

DISCLAIMER OR WARRANTIES

THE SERVICE AND ALL ITEMS SOLD OR PURCHASED THROUGH THE SERVICE ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU AGREE THAT YOU MUST EVALUATE AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH THE USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY MATERIALS AVAILABLE THROUGH THE SERVICE. WITHOUT LIMITING THE FOREGOING, TO THE EXTENT ALLOWED BY APPLICABLE LAW OR AS OTHERWISE STATED IN WRITING, FLIGHT CLUB EXPLICITLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FLIGHT CLUB MAKES NO WARRANTY THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE INFORMATION OBTAINED FROM THE SERVICE WILL BE ACCURATE, COMPLETE, CURRENT, OR RELIABLE, THAT THE QUALITY OF THE SERVICE WILL BE SATISFACTORY TO YOU, THAT ERRORS OR DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER DISABLING DEVICES OR HARMFUL COMPONENTS. FLIGHT CLUB MAKES NO GUARANTEE REGARDING THE RELIABILITY, ACCURACY, OR QUALITY OF ANY COMMUNICATION THAT IS POSTED ON THE SITE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF ITEMS SOLD OR PURCHASED OR OBTAINED THROUGH THE SERVICE IS WITH YOU. SHOULD ITEMS SOLD OR PURCHASED OR OBTAINED THROUGH THE SERVICE PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.

FLIGHT CLUB PERIODICALLY AMENDS, CHANGES, UPDATES, AND ALTERS THE SERVICE WITHOUT NOTICE. FLIGHT CLUB SPECIFICALLY DISCLAIMS ANY DUTY TO UPDATE THE CONTENT OF, OR ANY OTHER INFORMATION ON, THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FLIGHT CLUB OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICE REMAINS WITH YOU. NEITHER FLIGHT CLUB NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE SHALL BE LIABLE TO YOU FOR ANY COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, ARISING OUT OF OR IN CONNECTION WITH: (I) THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE; (II) THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE; (III) ANY COMMUNICATIONS, INTERACTIONS, OR MEETINGS WITH OTHER USERS OF THE SERVICE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE; (IV) YOUR VISIT TO A VENUE RESULTING FROM YOUR USE OF THE SERVICE; (V) PRICING, SHIPPING, FORMAT, OR OTHER GUIDANCE PROVIDED BY FLIGHT CLUB; (VI) DELAYS OR DISRUPTIONS IN THE SERVICE; (VII) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING THE SERVICE OR THOSE OF ANY SITE, SERVICES, OR TOOLS LINKED TO THE SERVICE; (VIII) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN THE SERVICE; (IX) DAMAGE TO YOUR HARDWARE DEVICE FROM THE USE OF THE SERVICE; (X) THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES, INCLUDING ITEMS LISTED USING THE SERVICE OR THE DESTRUCTION OF ALLEGEDLY FAKE ITEMS; (XI) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT; (XII) THE DURATION OR MANNER IN WHICH ITEMS YOU CONSIGN APPEAR ON THE SERVICE; OR (XIII) YOUR NEED TO MODIFY PRACTICES, CONTENT OR BEHAVIOR, OR YOUR LOSS OF ABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THESE TERMS OR OUR POLICIES, IN EACH CASE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FLIGHT CLUB HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT FLIGHT CLUB SHALL NOT BE LIABLE TO YOU FOR YOUR ACTIONS OR COMMUNICATIONS USING THE SERVICE OR IN CONNECTION WITH THE SERVICE. FLIGHT CLUB SHALL NOT BE LIABLE FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE SERVICE OR ANY LINKED SITES OR FOR ANY INFORMATION OR PRODUCTS OBTAINED THROUGH USE OF THE SERVICE OR OTHERWISE ARISING OUT OF THE USE OF THE SAME, REGARDLESS OF THE FORM OF ACTION OR BASIS OF ANY CLAIM. SOME JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSIONS OF WARRANTIES OR LIMITATIONS ON DAMAGES, SO SOME OF THESE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU; IN SUCH JURISDICTIONS, THE AGGREGATE LIABILITY OF FLIGHT CLUB SHALL BE LIMITED IN ACCORDANCE WITH THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW.

WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT WILL FLIGHT CLUB’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO FLIGHT CLUB FOR USE OF THE SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY OR ONE HUNDRED DOLLARS (\$100.00), WHICHEVER IS GREATER. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND FLIGHT CLUB.

IF YOU HAVE A DISPUTE WITH FLIGHT CLUB OR ARE DISSATISFIED WITH THE SERVICE, TERMINATION OF YOUR USE OF THE SERVICE IS YOUR SOLE REMEDY. FLIGHT CLUB HAS NO OTHER OBLIGATION, LIABILITY, OR RESPONSIBILITY TO YOU.

INDEMNITY

You agree to defend, indemnify, and hold harmless Flight Club and its employees, officers, directors, agents, representatives, licensors, suppliers, and service providers from and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or in any way connected with (i) your use of, or activities taken, in connection with the Service; or (ii) any violation of these Terms by you. We reserve the right to assume all or any part of the defense of any such claims and negotiations for settlement, and you agree to fully cooperate with us in doing so.

ARBITRATION AGREEMENT

You and Flight Club agree that any dispute, claim or controversy that has arisen, or may arise, between you and Flight Club out of or relating to these Terms (including previous versions of these Terms) or the breach, termination, enforcement, interpretation, or validity thereof, your use of or access to the Service, the actions of Flight Club or its agents, or any products or services sold, offered, or purchased through the Service (collectively, “Disputes”) shall be settled by final and binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.

Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND FLIGHT CLUB AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR ONE PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS, CONSOLIDATED, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER THIRD PARTIES. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Flight Club’s right to appeal the court’s decision. All other claims will be arbitrated.

Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) and will be governed by the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified herein. (The AAA Rules are available at www.adr.org/rules or by calling the AAA at 1-800-778-7879.) If the AAA is unavailable for the arbitration, the parties will select an alternative private neutral arbitrator to conduct the arbitration in accordance with the AAA Rules. The use of the word “arbitrator” in this “Arbitration Agreement” section shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA Rules will govern the number of arbitrators that may preside over an arbitration conducted under this “Arbitration Agreement” section. The Federal Arbitration Act will govern the interpretation and enforcement of this “Arbitration Agreement” section.

Arbitration Process and Selection of Arbitrator. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules by mail. The AAA provides a form Demand for Arbitration here. Unless you and Flight Club otherwise agree, the arbitration will be conducted in the county where you reside within a reasonable time, without undue delay. All parties participating in arbitration shall have the right, at their own expense, to be represented by a spokesperson of their own choosing. If your claim does not exceed $10,000, then you or Flight Club may elect to have the arbitration be conducted by telephone or solely on the basis of documents you and Flight Club submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

If the AAA is unavailable for the arbitration and the parties must select an alternative private neutral arbitrator to conduct the arbitration, the parties will select such alternative arbitrator as follows: both Flight Club and you will exchange a list of three preferred private arbitrators. If there is a common name on the two lists, that person will be appointed as the arbitrator. If multiple common names appear on the two lists, the parties will act in good faith and select one of the multiple common names. If there are no common names on the lists, the two arbitrators listed as the first name on each list will confer and appoint a third arbitrator who will conduct the proceeding (“Presiding Arbitrator”). If the parties agree to have more than one arbitrator preside over the arbitration, the Presiding Arbitrator will select the additional arbitrators taking into account any additional common names on submitted lists.

Arbitrator’s Decision. The arbitrator will render an award within the timeframe specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. The arbitrator’s award shall be final and binding, but subject to review in accordance with applicable statutes governing arbitration awards. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.

Fees. You and Flight Club agree that, in accordance with the AAA Rules, the amount of the filing fee associated with the arbitration that is payable by you is capped at $200, and Flight Club will be responsible for payment of the balance of such filing fee in excess of $200 and other administrative and arbitrator fees associated with the arbitration. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Flight Club will pay as much of your share of the filing fee as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.

Changes. Notwithstanding the provisions of the “Modification” section above, if we change this “Arbitration Agreement” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by emailing us at [email protected]) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Flight Club in accordance with the provisions of this “Arbitration Agreement” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

Severability. With the exception of any of the provisions under the Prohibition of Class and Representative Actions and Non-Individualized Relief subsection of this “Arbitration Agreement” section, if an arbitrator or court decides that any part of this “Arbitration Agreement” section is invalid or unenforceable, the other parts of this “Arbitration Agreement” section will still apply.

Opt-Out. You may opt out of this agreement to arbitrate. If you do so, neither you nor Flight Club can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out:

Flight Club Attn: Legal Dept. - Arbitration Opt-out 812 Broadway New York, NY 10003

You must include your name and residence address, the email address you use for your Flight Club account, and a clear statement that you want to opt out of this arbitration agreement.

THIRD-PARTY SITES

The Service may contain links to third-party websites. We have no control over such websites and are not responsible for the availability of such external websites. We do not endorse and are not responsible or liable for any content, advertising, products, services, or other materials on or available from such third-party websites linked from the Site. We make no representations regarding the content or accuracy of materials on such third-party websites, and your use of third-party websites is at your own risk and subject to the terms, conditions, policies, and procedures of such websites. In addition, other third-party websites may provide links to the Service with or without our authorization. You acknowledge and agree that we do not endorse such third-party websites and are not and will not be responsible or liable for any links from those sites to the Service, any content, advertising, products, or other materials available on or through such other sites, or any loss or damages incurred in connection therewith.

TERMINATION

We may immediately, without prior notice, suspend or terminate your use of and access to the Service or terminate these Terms as they apply to you, at our sole discretion, for any reason, whether with or without cause or warning, and without liability.

APPLICABLE LAW

These Terms will be construed and enforced under the laws of the State of New York without regard to the choice of law principles, except for the agreement to arbitrate set forth above under the heading “Arbitration Agreement”, the interpretation and enforcement of which shall be governed by the Federal Arbitration Act. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Central District of California, and each of you and Flight Club waives any objection to jurisdiction and venue in such courts. If the agreement to arbitrate set forth above under the heading “Arbitration Agreement” is found not to apply to you or to a particular dispute, claim or controversy, either as a result of your decision to opt out of the agreement to arbitrate or as a result of a decision by the arbitrator or a court order, the exclusive jurisdiction and venue for the resolution of such dispute, claim or controversy will be the state and federal courts located in the Central District of California, and each of you and Flight Club waives any objection to jurisdiction and venue in such courts.

NOTICE FOR CALIFORNIA USERS

Under California Civil Code Section 1789.3, California users of the Service are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 1-916-445-1254.

WAIVER; SEVERABILITY

Our failure to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Flight Club. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If the application of any provision of these Terms to any particular facts or circumstances shall for any reason be held to be invalid, illegal, or unenforceable by a court, arbitrator, or other tribunal of competent jurisdiction, then (a) the validity, legality, and enforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of these Terms, shall not in any way be affected or impaired thereby and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties.

SURVIVAL

NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, ANY PROVISION OF THESE TERMS THAT IMPOSES OR CONTEMPLATES CONTINUING OBLIGATIONS ON YOU OR FLIGHT CLUB WILL SURVIVE THE TERMINATION OF THESE TERMS.

QUESTIONS OR COMMENTS

If you have any questions or comments about these Terms or the Service, please contact us at [email protected].