Effective as of November 10, 2017
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT THAT INCLUDES A RELEASE BY YOU OF, AND LIMITATIONS ON, CLAIMS FOR CERTAIN DAMAGES AGAINST US THAT MAY ARISE FROM YOUR USE OF THE PACE SERVICE. If you have any questions regarding this Agreement, please contact us via email at [email protected] or phone at 833-321-PACE.
Zagster, Inc. (“Zagster”, “we”, “us” and “our”) provides a bike sharing/rental service that allows you, the rider, to rent bikes through our Pace mobile app (the “Pace Service”).
Certain provisions of this Agreement, including the rules related to your use of the Pace Service may vary based upon the jurisdiction in which you rent or use a Pace bike. For example, you may be required by law to wear a helmet in certain cities or jurisdictions.
2. Changes to the Agreement
The Agreement may, at our sole discretion, be revised in writing by us. We will give you notice of any changes either by email using the email address associated with your account or through the mobile app. You agree that the amended terms and conditions of Agreement shall be effective and binding on you upon the later of (i) the effective date indicated in such notice and (ii) the date the updates were posted. By using the Pace Service after Zagster posts notice of any amendment to the Agreement, you accept and agree to such amendment.
If you would like a copy of the amended Agreement emailed to you, please submit your request to [email protected].
In order to use the Pace Service you must: (a) be 18 or older, (b) have the power to enter into a binding contract with us and are not barred from doing so under any applicable laws, and (c) have a valid credit or debit card that you are authorized to use, unless you have signed up through a Zagster-approved program that expressly does not require the use of a credit or debit card.
You represent and warrant that any registration information that you submit to us is true, accurate, and complete, and you agree to maintain its accuracy and immediately notify us if any information is inaccurate. Your use of the Pace Service is also subject to your standard phone and/or internet fees for data, messaging, and any other limits put in place by your carrier and you are responsible for any fees related thereto resulting from your use.
Please note that satisfying the foregoing criteria does not automatically give you the right to use the Pace Service. Acceptance of your ridership is subject to approval by Zagster and/or our partners in our sole discretion, and, without limiting the foregoing, ridership may be denied based upon additional criteria established from time to time by Zagster and/or its insurance providers.
4. Rider Guidelines and Rules
We have established some rules for you to follow when using the Pace Service. We’ve also provided answers to frequently asked question in the FAQ section of the Pace mobile app. You agree to abide by our rider rules and guidelines, including those in the FAQ, and not to use the Pace Service in any manner not expressly permitted by the Agreement. Failure to do so may result in suspension or termination of your account.
(a) Your use only. You may not lend, rent, or assign your bike or Pace account to anyone else or otherwise allow anyone else to use a bike that you have rented.
(b) Restrictions on use. You may not use a Pace bike (i) if you are under 18; (ii) for any speed race or competition or trick or stunt riding; (iii) if you are under the influence of alcohol or any drug, medication or substance under the effects of which the operation of a bike is prohibited, not recommended or impaired; (iv) to carry out a crime or for any other illegal activity or purpose; (v) in an imprudent, negligent, or abusive manner or in a manner abnormal for general bike usage; (vi) in any location that is prohibited or illegal; (vii) for any commercial purposes; (viii) outside of any posted designated hours of operations; (ix) if the bike is damaged or malfunctions; or (x) if you are otherwise in violation of the terms of this Agreement, including any eligibility requirements.
The foregoing examples are not intended to be exhaustive. Any unreasonable or inappropriate use of a Pace bike, as determined by Zagster in its sole discretion, may be deemed a violation of these rules. Without limiting the foregoing, you must always use our bikes in accordance with all applicable laws and regulations. Zagster may report to the authorities any use of our bikes or other activities that are in violation of law.
(c) Bike Safety Check. You are responsible, prior to using a bike, to perform a simple check of the principal visible functional components thereof that may render the bike unsafe to operate, including (without limitation) to ensure that: (i) the seat, pedals and basket are properly attached; (ii) the bell, brakes and lighting, if any, are functioning properly; and (iii) the frame and tires are generally in good working condition.
Please notify Zagster immediately of any problems with a bike. If Zagster is not notified of a problem at the start of a rental, you will be deemed to be responsible for any problem with the bike discovered or reported after your rental. Failure to report damage may also result in the suspension or termination of your account.
Additionally, we advise you to (i) adjust braking distance in bad weather; (ii) adjust the height of the seat to fit you; (iii) wear a suitable helmet and clothing; and (iv) respect the Highway Safety Code in force at the time you are making use of the Pace Service (e.g., observing traffic lights and signs, using hand signals, and refraining from riding on the sidewalk, etc.).
(d) Familiarity with Bike Operation. You represent and warrant that you are familiar with how to operate a bike, and are reasonably competent and physically fit to ride a bike. You assume all responsibilities and risks for any injuries or medical conditions that may result from your use of our bikes.
(e) Locking. You must lock the Pace bike at all times when not in use during your rental and at the conclusion of the rental. Detailed instructions for how to lock and pause or continue your ride can be found in the mobile app. You will be charged the applicable rate for the bike until you have ended your ride within the mobile app and you will remain responsible for the bike until such time. You must advise Zagster immediately if you fail to lock the bike. You may also be charged a fee to replace any of the items missing from the bike or to replace the bike itself.
(f) Returning a Bike. When you are finished with your ride, you may return your bike to a physical Pace docking station. Physical Pace docking stations are shown in the mobile app. If there are no spaces available, you may lock your bike to a public bike rack, bike corral or other legally permissible public bike parking (i.e., “off-station parking”). There may be an added convenience charge to park off station and any such fees are detailed in the fees section of mobile app. When you are finished with your ride, you may not leave a bike somewhere out of sight, on private property, in a locked area, or any other non-public space. More details on where to return your bike rental can be found in the FAQ section of the mobile app. Whether you return your rental to a physical Pace docking station or use off-station parking, you must lock the bike as detailed in Section (e) and end your ride in the mobile app.
(g) Damages. You agree to return the bike, including all accessories related thereto, to us in the same condition in which it was rented, minus normal wear and tear. You are responsible for the full value of any damages, including the costs of any repairs, caused to Zagster’s property or the property of any third parties during the entire time while you are responsible for a Pace bike (the entire time the bike is reserved under your account), even if damage is weather-related or arises from similar causes.
(h) Accidents and Other Incidents. In case of an injury or incident involving property damage or any third party, you must contact Zagster and complete a Zagster incident report form, as well as provide us with any police reports that have been filed. Be prepared to provide us with the following information:
1. Date, time, and place of incident;
2. The name, addresses, and phone number of witnesses, passengers, and any other involved persons;
3. Circumstances of the incident;
4. The license plate numbers of any vehicles involved, their make and year, their identification number (serial number), and the insurance certificate’s number (with name, address and phone number of the insurance agent);
5. The names, addresses, and driver’s license numbers of any persons involved in the incident; and
6. The name, address, and driver’s license number of the owner of the car (if the person involved in the incident is not the owner).
You must provide to Zagster and any other claims adjustment service the findings of any report or any notice relating to a claim or a lawsuit against Zagster regarding any incident involving a Pace bike. You agree to cooperate fully with Zagster in the investigation and defense of any such claim or lawsuit. Your account may be suspended until the investigation has been concluded.
(i) Lost or Stolen Bikes. Stolen or lost bikes must be immediately reported to Zagster. If a bike is not returned within 24 hours, we may charge you an out of service fee ($50) and if a bike remains unreturned for more than 72 hours, we may deem the bike lost or stolen and charge you the full cost of the bike ($1,500).
5. Fees; Refunds; Credit Cards
You agree to pay Zagster all applicable fees associated with your use of the Pace Service. Usage fees are incurred as set forth in the mobile app, and usage is rounded up to the nearest applicable increment. Usage fees may vary in different locations and may be updated within the fees section of the mobile app from time-to-time. You are responsible for providing and maintaining current credit card or debit card information on file with us. All fees are nonrefundable unless charged in error.
We may use a third party credit card processing company to process and charge your credit card and by providing us your credit card information, you acknowledge that we may share such information with the third party credit card processing company for billing purposes. You are solely responsible for any and all fees charged to your credit card by the card issuer, bank or financial institution, including, without limitation any credit card membership, overdraft, or over-the-credit-limit fees.
We reserve the right to suspend your account if the credit card provided for billing is declined. Ongoing issues with credit card billings may result in termination of your account. In addition, Zagster may utilize third parties to collect amounts owed to Zagster by you.
6. Term; Termination; Suspension
(a) Term. This Agreement commences upon the acceptance by Zagster of your account and the payment of any applicable fees and shall continue until the earlier of (i) such time as you cancel your account by contacting [email protected] or (ii) Zagster terminates this Agreement upon notice to you (the “Term”).
(b) Termination; Suspension. In our sole discretion, in addition to any other rights or remedies available to us and without any liability whatsoever, we may, at any time and without notice, terminate, suspend, or restrict your access to the Pace Service for any reason or no reason, including, without limitation, for (i) actual or suspected violations of this Agreement, (ii) failure to pay any fees due, or (iii) engaging in any activities or conduct that Zagster, in its reasonable discretion, determines to be inappropriate, abusive, or otherwise unacceptable. We also may require the return of our bikes at any time.
If you have been notified by us that you are prohibited from using the Pace Service, then notwithstanding anything to the contrary, you have no license to use the Pace Service and any access by you or on your behalf shall be unauthorized and unlawful. You agree to return immediately to Zagster any bike or any other property of Zagster’s that you have in your possession.
With respect to any termination or cancellation of this Agreement, you remain responsible for any fees, costs, or expenses incurred prior to termination of this Agreement. In addition, you will be responsible for any and all costs, charges, fees, including legal fees, and expenses incurred by Zagster as a result of a breach of any of this Agreement, including any such costs associated with enforcing the terms of this Agreement.
We may, in our sole discretion, create promotional codes that may be redeemed for ride credits, subject to terms that we may establish on a per-promotional-code basis (“Promo Codes”). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, unless expressly permitted by us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. We reserve the right to withhold or deduct credits or other benefits obtained through the use of Promo Codes by you or any other user in the event that Zagster determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or this Agreement. Promo Codes are governed by this Agreement and any other terms and conditions set forth at the time the Promo Codes are issued.
Additionally, we may, in our sole discretion, offer you the chance to participate in sweepstakes, contests, surveys, or other promotions (“Additional Promotions”). Additional Promotions may be governed by terms and conditions that are separate from these Terms. If the provisions of an Additional Promotion’s terms and conditions conflict with these Terms, those separate terms and conditions shall prevail.
8. License and Ownership
(a) License to Pace Service. We own all right, title, and license in and to the Pace Service (which, for the avoidance of doubt, includes all Zagster-provided bikes, bike racks and locking mechanisms (“Pace Equipment”)) and hereby grant you a limited, revocable, non-exclusive, non-transferable license to download the Pace mobile app and otherwise use the Pace Service for your personal use in accordance with this Agreement. Except as expressly permitted by us, you agree that you will not sublicense, resell, rent, reverse engineer, modify or otherwise make derivative works of, assign, distribute, or otherwise commercially exploit the Pace Service or any part thereof. All rights not expressly granted to you are reserved by us. This license shall automatically expire upon termination of this Agreement.
(b) License to Feedback. You grant us an unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free worldwide license to use and/or incorporate into the Pace Service any feedback, suggestions and/or recommendations you provide to us.
9. Recordings of Contact with Zagster
Telephone calls, email correspondence, and social media communications with Zagster and its agents may be recorded or monitored. By using these communication methods, you are consenting to the recording or monitoring of your calls, emails, and social media communications with us and our agents.
10. Service and Technology Limitations and Modifications
We will make reasonable efforts to keep the Pace Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. We reserve the right, at any time, to modify or discontinue, temporarily or permanently, functions and features of the Pace Service, with or without notice, all without liability to you for any interruption, modification, or discontinuation of the Pace Service or any function or feature thereof. The rights described herein include our right to relocate stations, reduce the number of bikes available for rent, suspend the Pace Service for adverse weather conditions, and otherwise operate the Pace Service in our sole discretion.
11. Disclaimers; Waiver; Release; Limitation of Liability
(a) Hazards of the Pace Service. YOU ACKNOWLEDGE AND AGREE THAT THE PACE SERVICE INVOLVES HAZARDS AND DANGERS TO YOU AS THE RIDER AND TO OTHERS, AND THAT YOUR USE OF THE PACE SERVICE IS ENTIRELY VOLUNTARY. BY USING THE PACE SERVICE, YOU ASSUME ALL RISKS OF INJURY, LOSS OF LIFE, AND DAMAGE TO PERSON AND PROPERTY THAT MAY OCCUR IN CONNECTION WITH THE PACE SERVICE. YOU HAVE FULL KNOWLEDGE OF THE RISKS AND DANGERS INVOLVED IN BICYCLING TO YOU AND OTHERS, INCLUDING RISKS, DAMAGES, AND INJURIES THAT MAY ARISE FROM THE NEGLIGENCE OF OTHERS OR AS A RESULT OF ROADWAY CONDITIONS.
(b) AS IS. THE PACE SERVICE IS PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, ZAGSTER AND ANY SPONSOR, MUNICIPALITY, COLLEGE, UNIVERSITY, PARTNER, LICENSOR, PROPERTY OWNER, OR OTHER ENTITY WHICH ZAGSTER HAS CONTRACTED WITH AS PART OF ITS PROVISION OF THE PACE SERVICE (COLLECTIVELY, THE “ZAGSTER AFFILIATES”) DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(c) Disclaimer of Third Party Advertising. THE PACE SERVICE, INCLUDING THE PACE MOBILE APP, MAY CONTAIN THIRD PARTY ADVERTISING AND SPONSORSHIPS. SUCH THIRD PARTY ADVERTISERS AND SPONSORS ARE RESPONSIBLE FOR ENSURING THAT SUCH MATERIAL IS ACCURATE AND COMPLIES WITH APPLICABLE LAWS. WE ARE NOT RESPONSIBLE FOR THE ILLEGALITY OF OR ANY ERROR, INACCURACY OR PROBLEM IN THE ADVERTISER’S OR SPONSOR’S MATERIALS. FURTHER, THE INCLUSION OF ANY THIRD PARTY ADVERTISEMENTS AND SPONSORSHIPS DOES NOT CONSTITUTE AN ENDORSEMENT, GUARANTEE, WARRANTY, OR RECOMMENDATION BY ZAGSTER AND WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT ANY SUCH THIRD PARTY PRODUCTS OR SERVICES CONTAINED THEREIN.
(d) Release. IN CONSIDERATION OF THE USE OF THE PACE SERVICE, YOU, ON BEHALF OF YOURSELF AND ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, ASSIGNS, AND LEGAL REPRESENTATIVES FOREVER RELEASE, RELINQUISH, AND DISCHARGE (I) ZAGSTER, ITS OFFICERS, DIRECTORS, RIDERS, MANAGERS, EMPLOYEES, SUPPLIERS, AGENTS, REPRESENTATIVES, STOCKHOLDERS; AND (II) ALL ZAGSTER AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS, DISPUTES, LOSSES, LIABILITIES, DEBTS, LIENS, CHARGES, PENALTIES, PROCEEDINGS, CAUSES OF ACTION, AND DAMAGES, INCLUDING FOR PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, INJURY TO YOU OR TO THIRD PARTIES, INCLUDING UNKNOWN OR UNANTICIPATED CLAIMS, (COLLECTIVELY, “CLAIMS”) WHICH ARISE FROM OR ARE RELATED DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE RENTAL, MAINTENANCE, DESIGN, USE AND/OR OPERATION OF THE PACE SERVICE (INCLUDING PACE EQUIPMENT), INCLUDING ANY AND ALL CLAIMS RELATED TO THE SOLE OR PARTIAL NEGLIGENCE, (EXCEPT, TO THE EXTENT REQUIRED BY LAW, GROSS NEGLIGENCE AND WILLFUL MISCONDUCT) OF ZAGSTER OR THE ZAGSTER AFFILIATES.
(e) Waiver. YOU ACKNOWLEDGE AND AGREE THAT ZAGSTER AND THE ZAGSTER AFFILIATES ARE NOT RESPONSIBLE OR LIABLE FOR ANY CLAIMS, INCLUDING THOSE THAT ARISE OUT OF OR RELATE TO (I) ANY RISK OR HAZARD DESCRIBED IN THIS AGREEMENT; (II) YOUR USE OF OR INABILITY TO USE THE PACE SERVICE, INCLUDING ANY PACE EQUIPMENT; (III) YOUR BREACH OF THIS AGREEMENT OR YOUR VIOLATION OF ANY LAW; (IV) YOUR NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION; (V) YOUR FAILURE TO USE A BICYCLE HELMET WHILE USING THE PACE SERVICE; OR (VI) ANY NEGLIGENCE, MISCONDUCT, OR OTHER ACTION OR INACTION OF ANY THIRD PARTY. YOU WAIVE ALL CLAIMS WITH RESPECT TO ANY OF THE FOREGOING, INCLUDING THOSE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER GROUNDS.
(f) Limitation of Liability. UNDER NO CIRCUMSTANCES WILL ZAGSTER OR THE ZAGSTER AFFILIATES BE LIABLE TO YOU, ANY RIDER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR USE OF THE PACE SERVICE. WITHOUT LIMITING THE FOREGOING, ZAGSTER AND THE ZAGSTER AFFILIATES SHALL HAVE NO LIABILITY FOR ANY LOSS OF, OR DAMAGE TO, ANY GOODS ON THE BIKE, ANY LOSS, DAMAGE OR INJURY RESULTING TO THIRD PARTIES FROM THE USE OF PACE EQUIPMENT OR BIKE ACCESSORIES SUPPLIED BY YOU. IF ZAGSTER OR THE ZAGSTER AFFILIATES ARE DEEMED TO HAVE ANY LIABILITY UNDER THIS CONTRACT OR ARISING OUT OF YOUR USE OF THE PACE SERVICE (INCLUDING THE PACE EQUIPMENT), SUCH LIABILITY FOR ALL CLAIMS, INCLUDING THOSE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER GROUNDS IS LIMITED TO THE AMOUNT OF THE RENTAL PAID BY YOU TO ZAGSTER.
(g) Acknowledgement. YOU REPRESENT AND WARRANT THAT YOU HAVE READ THIS CONTRACT AND FULLY UNDERSTAND THAT BY ACCEPTING THIS AGREEMENT, OR USING THE PACE SERVICE, YOU ARE GIVING UP LEGAL RIGHTS AND/OR REMEDIES THAT MAY OTHERWISE BE AVAILABLE TO YOU.
YOU ACKNOWLEDGE AND UNDERSTAND THAT THIS SECTION 11 REMOVES OR LIMITS OUR LIABILITY FOR NEGLIGENCE WHERE PERMITTED BY LAW. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY FOR CERTAIN TYPES OF DAMAGES OR EXCLUSION OF IMPLIED WARRANTIES. THIS AGREEMENT DOES NOT WAIVE OR LIMIT ANY RIGHTS OR OBLIGATIONS NOT ALLOWED BY LAW AND WE DO NOT REQUEST THAT YOU WAIVE OR LIMIT ANY SUCH RIGHTS. IF ANY OF THE FOREGOING RESTRICTIONS APPLY, THEN THE ABOVE WAIVERS, DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN SUCH STATES OR JURISDICTIONS.
You agree to indemnify, hold harmless and defend us and our affiliates, subsidiaries, officers, directors, stockholders, employees, agents, representatives, suppliers and licensors and the Zagster Affiliates at your expense, against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by us arising out of or relating to your (a) violation or breach of any term of this Agreement; (b) use or misuse of the Pace Service, even where caused in whole or in part by Zagster’s negligence and/or the negligence of others; or (c) your violation of any law, rule or regulation or the rights of any third party.
13. Intellectual Property/DMCA
Graphics, photographs, images, screen shots, text, digitally downloadable files, trademarks, logos, product and program names, slogans, and the compilation of the foregoing available through the Pace Service (“Pace Content”) is the property of Zagster and our licensors, and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws. You agree not to misuse any Pace Content.
We respect the intellectual property rights of others. If you think material hosted by us infringes your copyright, please provide us the following information:
(a) an electronic or physical signature of a person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of where the material that you claim is infringing is located or found in the Pace Service; (d) your address, telephone number and, if available, an email address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you that the above information provided by you in your notice is accurate and, under penalty of perjury, that you are the copyright or intellectual property owner or authorized to act on behalf of the copyright or intellectual property owner.
Your claim should be sent by mail or email to Zagster at the address listed in Section 14(h), ATTN: Copyright Agent or by email at [email protected].
(a) Force Majeure. We will not be liable for any delay or failure to perform resulting from causes outside of our reasonable control, including acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.
(b) Independent Contractor. You agree that no joint venture, partnership, employment or agency relationship exists between you and us as a result of this Agreement or your use of the Pace Service.
(c) Assignment. We may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign this Agreement without our prior written consent, and any unauthorized assignment by you shall be null and void.
(d) No Waiver. Our failure to enforce or our delay in enforcement of any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce each and every such provision thereafter. The express waiver by us of any provision, condition, or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition, or requirement.
(e) Equitable Remedies. You hereby agree that we would be irreparably damaged if this Agreement was not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws. Further, unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise
(f) Severability. Should any provision of the Agreement be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Agreement, and the application of that provision shall be enforced to the full extent permitted by law.
(g) Governing Law; Venue; Mandatory Mediation; Jury Waiver. This Agreement shall be governed by and construed in accordance with the laws of Massachusetts without regard to its conflicts of law provisions. Exclusive jurisdiction and venue for any action arising under this Agreement is in the federal and state courts located in Boston, Massachusetts, and both parties hereby consent to such jurisdiction and venue for this purpose, waive any jurisdictional or venue defenses otherwise available and agree to accept service of process by mail. Notwithstanding the foregoing, the parties must submit any dispute to mandatory mediation held in Boston, Massachusetts. Any mediation must be completed within 6 months of the date on which the initial notice demanding mediation was provided to any party. If, for any reason, the dispute is not resolved through mediation within such 6-month period, then the parties may resolve the dispute by litigation. THE PARTIES IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY A JURY IN ANY COURT IN ANY ACTION INVOLVING THE ADJUDICATION OF ANY CLAIM OR DISPUTE.
(h) Notices. Any notices or communication required or permitted to be given to you will be in writing and will be sufficiently given if delivered by email at the email address provided to Zagster in your completed account registration or as updated by you and on file with Zagster. Any notices or communication required or permitted to be given to Zagster shall be in writing and shall be sufficiently given if delivered via email or mailed as follows:
25 First St. Suite 104
Cambridge, MA 02141
Attn: General Counsel
Email: [email protected]
Any notice delivered via email shall be deemed to have been received on the first business day after which it was sent, unless the sending party is notified that the email address is invalid. Any notice sent by letter shall be deemed to have been received on the fourth business day after it was posted.
(i) Survival. All provisions of this Agreement related to limitation and exclusion of liability, waivers, assumption of risk, warranties, and indemnification obligations survive termination of this Agreement, and any other terms of this Agreement which by their nature extend beyond the termination of this Agreement, remain in effect until fulfilled and apply to respective successors and assigns.
(j) Entire Agreement. This Agreement, including any materials incorporated by reference hereunder, constitutes all the terms and conditions agreed upon between you and us and supersede any prior agreements in relation to the subject matter of this Agreement, whether written or oral. Any additional or different terms or conditions in relation to the subject matter of the Agreement in any written or oral communication from you to us are void.