Last Updated: August 6, 2021
By signing up for an account with Freebee or by using the App or the Services, you acknowledge that you have read and understand all the terms in this Agreement, and agree to be bound by it, effective as of the date you accept these terms (such date being the "Effective Date"). You may not proceed to use the App or Services if you do not accept these terms.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE APP. DO NOT CREATE A USER PROFILE OR USE THE APP IN ANY WAY IF YOU ARE NOT IN AGREEMENT WITH THESE TERMS. BY ACCESSING THE APP, DOWNLOADING THE APP, OR CONTINUING TO USE THE APP, YOU ACKNOWLEDGE THAT: (1) YOU ARE AT LEAST 18 YEARS OF AGE OR ANY OLDER LEGAL AGE REQUIRED TO FORM A CONTRACT IN YOUR JURISDICTION; (2) YOU HAVE THE RIGHT, AUTHORITY AND LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT; (3) YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS WITH RESPECT TO YOURSELF AND ANY MINOR CHILD AUTHORIZED BY YOU.
YOU MUST AGREE TO ABIDE BY ALL PROVISIONS OF THESE TERMS IN ORDER TO REMAIN AN AUTHORIZED USER OF THE APP, AND YOUR USE OF THE APP CONSTITUTES YOUR AGREEMENT TO ABIDE BY THESE TERMS. YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE APP AND FOR ENSURING THAT YOUR USE COMPLIES FULLY WITH THE PROVISIONS OF THESE TERMS. YOUR RIGHTS ARE PERSONAL AND NON-ASSIGNABLE. THIS MEANS THAT YOU WILL BE RESPONSIBLE FOR THE ACTS OF ANYONE ACCESSING THE APP THROUGH YOU OR USING YOUR NAME AND PASSWORD. IF YOU DO NOT AGREE TO THE PROVISIONS OF THESE TERMS OR ARE NOT SATISFIED WITH THE APP, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE YOUR USE OF THE APP.
a. The Services are comprised of the App and related services which enable users to arrange and vehicle transportation to and from certain destinations on Freebee Vehicles. Freebee Vehicles (each, a “Vehicle”, and collectively, the “Vehicles”) may be customized by Freebee with marketing content (“Content”) on behalf of one or more of Freebee’s advertising partners (each, an “Advertiser”). Each Vehicle may have one or more sponsor Advertisers, who may provide Content or other marketing materials to User during a ride. An Advertiser may request information from Users, such as contact information or survey responses for marketing purposes, but each User is free to decline to provide such information. Each Advertiser is an independent contractor of Freebee, and there is no employment, partnership, joint venture, or agency relationship between the Advertisers and Freebee. Content included in or on a Vehicle does not imply that Freebee agrees with such Content or an Advertiser's products and services, and Freebee will not be responsible or liable for any Content or any products or services provided by an Advertiser.
b. Users are not under any obligation to provide any compensation to the Vehicle’s driver. However, following a ride, a user may elect to tip the Vehicle’s Driver in cash. Any tips will be provided entirely to and retained entirely by the applicable Driver.
c. USER AGREES THAT FREEBEE WILL HAVE NO LIABILITY WITH RESPECT TO ANY TRANSPORTATION SERVICES PROVIDED TO USER USING A FREEBEE VEHICLE OR BY A FREEBEE DRIVER, OTHER THAN AND EXCEPT TO THE EXTENT SPECIFICALLY SET FORTH HEREIN.
2. Modification to the Agreement
a. Freebee may only be used by Users who have the right and authority to enter into this Agreement and are fully able and competent to satisfy the terms, conditions, and obligations herein. Freebee is not available to Users who have had their User account temporarily or permanently deactivated. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account. To use the Freebee Platform, each User shall create a User account. Each person may only create one User account, and Freebee reserves the right to deactivate any additional or duplicate accounts. By becoming a User, you represent and warrant that you are at least 18 years old.
b. If you are the parent or legal guardian of a minor, you may create a Freebee account for such minor to use Freebee. The following requirements and restrictions apply: (a) you ensure that the minor’s use of Freebee is limited solely to accessing Freebee services, (b) you determine that Freebee services are suitable for the minor, (c) you ensure that the minor’s use of Freebee and its services is done in compliance and acknowledgement of all applicable safety instructions and warnings in this Agreement, (d) you ensure that the minor does not request or accept any Freebee Services unless accompanied by you or an authorized guardian, (e) you explain the terms of this Agreement to the minor, and (f) you expressly guarantee the minor’s acceptance of the terms of this Agreement. By creating a Freebee account for such minor, you hereby give permission and consent to the Agreement on the minor’s behalf, and you shall assume any and all responsibility and liability for the minor's use of Freebee services as provided by the terms of this Agreement and any applicable Supplemental Agreements. You will be responsible for any breach of the above representations, warranties and/or this Agreement, and/or any attempt of the minor to disaffirm this Agreement. Furthermore, you hereby represent that you are fully authorized to execute this Agreement on behalf of yourself and all other parents or legal guardians of the minor User.
Freebee has made the App available for User to download from various mobile app stores for use in connection with the Services, specifically, to connect Drivers and Users. Freebee hereby grants User a limited, personal, revocable, non-exclusive, non-transferable right to install, access, and use the App solely in connection with the Services provided to User by Freebee under and subject to the terms of this Agreement. By signing up for an account, Freebee will provide User with credentials or keys to access the App. User agrees not to give these credentials or keys to anyone else or allow anyone else to use or access the App or the Services.
Passwords and Account Access
Every user account created for purposes of accessing the App and all related services must have one designated adult user who must be at least 18 years old. For so long as you use your account, you agree to provide true, accurate, and current information about yourself as well as to make relevant changes. You are solely responsible for all activities that occur under your account as well as for maintaining the confidentiality of your password(s). Should you believe your password or security for your account has been breached in any way, you must immediately notify us. We are in no way responsible for any loss that you may incur because of any unauthorized use of your account and password. You agree that you will not sell, transfer, or assign your account or any account rights. If we learn that an ineligible user has created an account, we may seek confirmation of the user’s status or deactivate the account.
User Activities and Information on the App
By using the App, you represent and warrant that you will use the App, its related services, and any tools, features, content, material, or information found on the App solely for lawful, non-commercial purposes. You will not allow any third party to access the App through your account, upload to, distribute to, or otherwise disseminate through the App any material or information of any kind that is libelous, defamatory, obscene, pornographic, abusive, or otherwise violates any law or infringes or violates any rights of any other person or entity, or contains a solicitation of funds, advertising, or a solicitation for goods or services.
We do not knowingly collect information from anyone under the age of 13.
When you use the App or send messages to us, you are communicating with us electronically. By using the App or any of its related services, you expressly consent to receiving electronic communications from us. We may choose to communicate with you by e-mail, text messaging, telephone, or by posting notices on the App. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
You agree that you shall not use the App: (a) to delete, modify, hack or attempt to change or alter any of the Materials on the App; (b) for any unlawful purpose; (c) to solicit others to perform or participate in any unlawful acts; (d) to violate any international, federal, or state regulations, rules, laws, or local ordinances; (e) to infringe or violate our intellectual property rights or the intellectual property rights of others; (f) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (g) to submit false or misleading information; (h) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the App, other websites, or the Internet; (i) to collect or track the personal information of others; (j) to spam, phish (email fraud), pharm (web traffic redirection fraud), pretext, spider, crawl, or scrape; (k) for any obscene or immoral purpose; or (l) to interfere with or circumvent the security features of the App, other websites, or the Internet. We reserve the right to terminate your use of the App for violating any of the prohibited uses. We may fully cooperate with any law enforcement agency or authorities, or court order requesting or directing disclosure of the identity of anyone suspected of use of the App for illegal purposes.
If you are under the age of majority, you may use the App only with permission and involvement of a parent or guardian. Freebee and its affiliates reserve the right to refuse service, terminate accounts, or remove or edit content in their sole discretion.
Use Of "Cookies" and Tracking Technology
FREEBEE AND ITS SERVICE PROVIDERS MAY USE INDUSTRY PRACTICES AND METHODS, INCLUDING COOKIES, CLEAR GIFS, WEB BEACONS, IP ADDRESSES, AND LOG FILES, AND OTHER TRACKING TECHNOLOGY (“WEB TRACKING TECHNOLOGY”), TO ENABLE FREEBEE TO PROVIDE THE SERVICES. FREEBEE MAY LINK INFORMATION GATHERED USING WEB TRACKING TECHNOLOGY TO PERSONAL INFORMATION. YOU CONSENT TO THE USE OF SUCH WEB TRACKING TECHNOLOGY AND CONSENT TO ALL LEGAL USES OF PERSONAL AND NON–PERSONAL INFORMATION GATHERED THROUGH TRACKING TECHNOLOGY USED ON THE SITES OR BY FREEBEE’S THIRD-PARTY SERVICE PROVIDERS.
5. App Stores; Compliance With Terms
If you are accessing the App via Apple Inc.’s (“Apple”) App Store, you acknowledge that Apple is not a party to and has not agreed to these Terms; that Apple is not a sponsor of, affiliated with and does not otherwise endorse any Application; and that your use of that App is also subject to Apple’s Usage Rules as set forth in the App Store Terms of Service.
If you are accessing the App via the Google Play Store, you acknowledge that Google is not a party to and has not agreed to these Terms; that Google is not a sponsor of, affiliated with and does not otherwise endorse any Application; and that your use of the App is also subject to Google Play Store’s Terms of Service.
6. Restricted Activities
a. With respect to your use of Freebee and your participation in the use of the App and its Services, you agree that you will not:
b. While on Freebee vehicles, all users must follow seatbelt regulations. Seatbelts are provided for the User’s safety. Users must wear safety belts while inside the vehicle, but it is the User’s responsibility to ensure the seatbelt is securely fastened, as required by law. Drivers reserve the right to refuse service to Users and all passengers not in compliance with applicable laws.
c. All children 3 and under, or who otherwise require such restraints under federal and state guidelines, must be restrained in a federally approved car seat which must be provided by and secured by User. Children aged 4 and 5 must at minimum be in a booster seat. All such children must always accompanied and monitored by an adult. Drivers reserve the right to refuse service to Users and all passengers not in compliance with these requirements, or for any other reason where they feel there is any cause for concern as to passenger safety, at their sole and absolute discretion.
c. Smoking is prohibited in Freebee Vehicles.
d. Freebee reserves the right to refuse its services to Users who perform any activities included in the “restricted activities” Section 5(a) of this Agreement, or who otherwise violate these Terms. Making verbal threats, making comments or gestures, and/or displaying conduct that is aggressive, sexual, discriminatory, or disrespectful may result in a temporary hold on your account or refusal of Freebee’s services. All riders members of their party shall maintain reasonable hygiene and safety practices at all times while riding in the Vehicles, the reasonableness of which shall be determined at the driver’s sole discretion. If the issues raised are serious or constitute a repeat offense, or you refuse to cooperate, you may lose permanent access to the Freebee App and its services.
7. Intellectual Property and Confidentiality
Ownership. The App and all related Content (including past, present and future versions) are owned, operated and controlled by Freebee and such Content, which can be modified and removed by Freebee at any time without any notice to you, is protected by U.S. and international copyright, trademark, trade dress, patent, and other intellectual property rights and laws to the fullest extent possible.
“Content” means all text, visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), user interfaces, photographs, logos, sounds, music, artwork, educational games and all other elements of the App are owned by or licensed to Freebee, and Freebee reserves all rights therein and thereto not expressly granted by these Terms.
Trademarks. The trademarks, trade dress, logos, and service marks (collectively the “Trademarks”) displayed on the App are registered and unregistered Trademarks of Freebee, its affiliates, its third-party licensors and/or others. You are not permitted to use any of the Trademarks displayed on the App, without the prior, express written consent of Freebee, its affiliates, or the third-party licensors that may own the Trademark. You may not use any hyper or HTML links, meta tags or any other “hidden text” utilizing Freebee’s or its affiliates’ name or Trademarks without the express written consent of Freebee, its affiliates, or third-party licensors. All rights reserved.
App Materials. The App and all related services are the copyrighted works of Freebee and contain trademarks, service marks, trade names, and other intellectual property of Freebee. All Trademarks, and materials displayed on, or contained within the App, including, but not limited to, layout, color schemes, design, text, editorial materials, informational text, photographs, illustrations, educational games, content, data, code, artwork and other graphic or digital materials, names and all derivative works of the foregoing (collectively, the “Materials”), are the property of Freebee its affiliates or its licensors and are protected by copyright, trademark, patent and all other applicable intellectual property laws. You acknowledge and agree that the App and the Materials are the property of Freebee, its affiliates and licensors, and that you will not acquire any rights or licenses in any trademarks, patents, copyrights, or other intellectual property on the App or in the Materials. You may not frame or utilize framing techniques to enclose any Materials or Trademark or other proprietary information (including images, text, page layout, or form) of Freebee or its affiliates without the express written consent of Freebee.
The App or Service may contain, reference, or link to content created, owned, or controlled by third parties, including but not limited to the Content provided by an Advertiser. User understands and agrees that Freebee is not responsible for any such third-party content. User understands that such third-party content may be subject to different or additional terms and conditions, and User agrees to abide by such terms and conditions as provided by the third party. Without limiting the generality of the foregoing, if User has downloaded the App from an app store or similar online or mobile portal ("App Store"), User agrees that the App Store and its owners or licensors have no responsibility whatsoever for the App, and will not be obligated to provide any support or maintenance for the App. User agrees to comply with the relevant terms and conditions of any license agreement applicable to the App Store.
User agrees not to use or disclose to anyone any technical, business, or other proprietary or confidential information about Freebee or the App or Services disclosed to User under this Agreement, except for the purposes contemplated herein. Information that User elects to provide to Freebee, including suggestions, ideas, or feedback, will not be subject to any confidentiality obligations, and Freebee will be free to use such suggestions, ideas, or feedback in any manner and without restriction or obligation of any kind. User agrees that information User provides in connection with an Advertiser's content (for example, responding to an Advertiser's request for information during a ride) may be used for marketing purposes, unless otherwise indicated.
8. Consent to Recording & Right of Publicity
Freebee Vehicles may be equipped with in-car cameras for purposes of monitoring security, driver safety, and passenger experiences. By using the Services, User expressly acknowledges and consents to the use of in-car cameras and agrees that Freebee shall have the right to use photographs and videos of the User and any persons accompanying user while inside Freebee Vehicles in connection with monitoring security, driver safety, passenger experiences, and publication and use of content promoting Freebee and its advertising and service partners, including in advertising, publicity and promotion. By using the Services, User expressly grants Freebee a right of publicity to utilize such content in perpetuity and for any purpose unless expressly revoked by User in writing to Freebee.
9. Disclaimer of Warranty
THE APP, SERVICES AND ALL CONTENT THEREIN ARE PROVIDED ON AN "AS-IS" AND "AS- AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND. FREEBEE AND ITS SUPPLIERS EXPRESSLY DISCLAIM AND EXCLUDE TO THE FULLEST EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. FREEBEE AND ITS LICENSORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS OF CORRECTNESS, COMPLETENESS, ACCURACY, QUALITY, RELIABILITY, AVAILABILITY, SUPPORT, TIMELINESS, SAFETY, OR PERFORMANCE WITH RESPECT TO THE USE OF THE SITE, ITS CONTENT, OR THE
SERVICES. FREEBEE MAKES NO WARRANTY THAT THE APP, SERVICES, OR ANY CONTENT WILL MEET USER'S NEEDS, BE ERROR FREE OR ACCURATE, WILL OPERATE WITHOUT INTERRUPTION, OR THAT ALL ERRORS WILL BE CORRECTED. ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THIS AGREEMENT WILL NOT BE ENFORCEABLE.
User agrees to defend and hold harmless Freebee and its affiliates, and their employees, contractors, directors, managers, and representatives (collectively, the “Indemnified Parties”) from and against any damages, losses, or costs (including reasonable attorneys' fees), arising from or in connection with any claim, suit, or action arising out of or relating to (i) User's use of the App or Services; (ii) User's violation or infringement of any right of a third party or any applicable law in connection with the App or Services; or (iv) User's breach of any of the terms of this Agreement. All users of our App acknowledge and agree that each Indemnified Party is released, discharged, and held harmless from any and all liability from third-party claims made in connection with the App, including, without limitation, wrongful death and personal injury, money damages, out-of-pocket and court costs, attorney’s fees, damage to tangible property or reputation, including, without limitation, libel, defamation, right of publicity and invasion of privacy. Freebee reserves its right to all forms of equitable and legal relief related to fraud or illegal activity connected to the use of our App.
11. Limitations and Exclusions of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, FREEBEE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, IN TORT, OR OTHERWISE, INCLUDING FOR LOSS, CORRUPTION, OR INACCURACY OF DATA, LOST PROFITS, LOST BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR LIABILITY OR INJURY TO THIRD PERSONS, WHETHER FORESEEABLE OR NOT AND REGARDLESS WHETHER FREEBEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL FREEBEE'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND REGARDLESS OF WHETHER FREEBEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. USER UNDERSTANDS THAT THE APP AND SERVICES ARE BEING PROVIDED WITHOUT CHARGE AND IN THE ABSENCE OF THIS LIMITATION OF LIABILITY, THE TERMS UNDER WHICH THE APP AND SERVICES WOULD BE PROVIDED WOULD BE SUBSTANTIALLY DIFFERENT.
12. SMS Messaging and Internet Delays
While using the Freebee App and Services, you may be sent text messages that provide you with information regarding our Services. You may be charged your 15 mobile telephone network provider’s standard rate for receiving these SMS. Freebee will not charge you for SMS. Your mobile telephone network provider may impose message or charge limitations which are beyond our control and for which you will be solely responsible. By using the Freebee App and Services, including registering, you agree to receive text messages relating to our Services. You agree and confirm that you are the owner of the mobile telephone to which you have requested the SMS be sent, that you have full authority to authorize any charges and will be solely responsible for charges, if any, to be incurred by the relevant mobile telephone network provider. Freebee is not liable for any delays or failures in your receipt of any SMS message(s). Without notice to you, Freebee reserves the right to suspend or terminate any SMS text message that Freebee may send.
THE FREEBEE APP MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FREEBEE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
13. No Assignment
This Agreement may not be assigned by the User without the prior written approval from Freebee but may be assigned without your consent by Freebee.
14. App Governance and Severability
15. Term and Termination
This Agreement is effective as of the earlier of the Effective Date or upon use of the App or Services. Either party may terminate this Agreement at any time upon notice to the other party. The App, Services, or any of their features or content are subject to change without notice or obligation to User. This Agreement and any policies or guidelines for the App or Services may be revised at any time in Freebee's sole discretion, and upon continued use of the App or Services, User agrees to be bound to any updated terms, policies, or guidelines. Sections 7, 8, 10, 11, and 17 will survive the termination or expiration of this Agreement for any reason.
16. Final provision
17. Governing Law; Arbitration
a. Both parties agree that all claims or disputes arising out of the App, Services, or this Agreement shall be submitted to binding arbitration, provided that the parties shall first attempt to resolve such claim or dispute informally. The arbitration shall be conducted by the American Arbitration Association under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes in Miami-Dade County, Florida, or as otherwise mutually agreed to by the parties. Any judgment on the award rendered by the arbitrator shall be able to be entered in any court having competent jurisdiction. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses. Both parties agree that any claim or dispute shall be brought only in a party's individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. The arbitrator may not consolidate more than one person's claims. USER AGREES THAT BY ENTERING INTO THIS AGREEMENT, USER AND FREEBEE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION. Notwithstanding the foregoing, each party retains the right to seek injunctive or other equitable relief from any court of competent jurisdiction to prevent actual or threatened infringement, misappropriation, or violation of that party's data security, intellectual property rights, or other proprietary rights. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to rules or principles regarding conflicts of laws. Each party hereby consents to the exclusive jurisdiction of the courts in Miami-Dade County Florida for any action (i) to compel arbitration, (ii) to enforce any award of the arbitrators, or (iii) at any time prior to the qualification and appointment of the arbitrators, for temporary, interim or provisional equitable remedies, or (iv) in any legal action otherwise arising out of the Services.
b. USER UNDERSTANDS AND AGREES THAT USER AND FREEBEE MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). USER UNDERSTANDS AND AGREES THAT USER AND FREEBEE BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. 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 that party's individual claims. Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the interpretation, applicability, or enforceability of the Class Action Waiver may be resolved only by a court and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable with respect to any Claim or any particular remedy for a Claim (such as a request for public injunctive relief), then that Claim or particular remedy (and only that Claim or particular remedy) shall be severed from any remaining claims and/or remedies and may be brought in a court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims or remedies to the fullest extent possible.
c. As part of the arbitration, both User and Freebee will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. 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 that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based. The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users, but is bound by rulings in prior arbitrations involving the same User to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
d. The payment of filing and arbitration fees will be governed by the relevant AAA Rules. Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.). At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to User if User prevails, to the extent authorized by applicable law.
e. Unless User and Freebee agree otherwise, any arbitration hearings between Freebee and User will take place in the county of User’s billing address. If AAA arbitration is unavailable in User’s county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. User’s right to a hearing will be determined by the AAA Rules.
f. Before initiating any arbitration or proceeding, User and Freebee may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by User and Freebee. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
18. Limitations on Actions
Each party must deliver all notices, consents, and approvals required or permitted under this Agreement in writing to the other party at the address such party has on file and/or has noticed the other party, by certified mail (postage prepaid and return receipt requested), by a nationally recognized overnight carrier, or by fax or e-mail (where receipt is confirmed). Notice will be effective upon receipt or refusal of delivery. Each party may change its address for receipt of notice by giving written notice of such change to the other party.
This 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 them. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, which is not embodied herein, have been made by any party or anyone acting on behalf of any party, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. No waiver of any right will be effective unless in writing and signed by the party to be charged. The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. The parties are independent contractors; nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the parties, and neither party by virtue of this Agreement will have any right, power, or authority to act or create any obligation, expressed or implied, on behalf of the other party. This Agreement may not be assigned or delegated by the User without Freebee's prior written consent, and any such attempted assignment or delegation will be void and of no effect, and will constitute a breach of this Agreement. Freebee may assign this agreement or any rights or obligations hereunder without requiring the User's consent. This Agreement shall inure to the benefit of each party's permitted successors and assigns. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Headings herein are for convenience of reference only and shall not affect interpretation of the Agreement.