Last updated: May 1, 2014
By registering for an ACTIVE Advantage membership and clicking the ACCEPT, CONTINUE, I AGREE, or similar button during the registration process, you are indicating that you have read, understood and agree to be bound by these Terms as well as all applicable laws, rules, and regulations. Enrollment becomes effective and acceptance of these Terms begins when the member enrolls in the ACTIVE Advantage program. IF YOU OBJECT TO ANYTHING IN THESE TERMS, DO NOT SIGN UP FOR ACTIVE ADVANTAGE.
- Eligibility; Authority to Purchase and/or to Act as Agent. ACTIVE Advantage membership is only open to individuals who are at least eighteen (18) years of age. Commercial customers and others purchasing items for resale are not eligible for membership. You represent and warrant that you are eighteen (18) years of age or older. You represent and warrant to ACTIVE that you have full legal authority to complete this membership purchase, including full authority to make use of the credit card used to pay your membership fee.
- Membership Registration and Fees. By starting your ACTIVE Advantage membership, you are expressly agreeing that we are authorized to charge you an annual membership fee at the then-current rate to the credit card you provided during registration (or to a different credit card if you change your account information). Please note that prices, including membership fees and charges are subject to change at any time with notice. Only credit cards are eligible for payment of your ACTIVE Advantage membership. Your ACTIVE Advantage membership fee is charged annually. YOU UNDERSTAND THAT YOUR ACTIVE ADVANTAGE MEMBERSHIP WILL AUTOMATICALLY CONTINUE UNLESS YOU NOTIFY ACTIVE THAT YOU ARE TERMINATING YOUR MEMBERSHIP. YOU UNDERSTAND THAT THIS WILL SERVE AS YOUR ELECTRONIC SIGNATURE AND AUTHORIZATION FOR ACTIVE TO CHARGE YOUR CREDIT CARD PROVIDED DURING REGISTRATION (OR TO A DIFFERENT CREDIT CARD IF YOU CHANGE YOUR ACCOUNT INFORMATION) FOR THE ANNUAL MEMBERSHIP FEE, AND THE THEN-CURRENT MEMBERSHIP FEE EACH YEAR THEREAFTER FOR AS LONG AS YOU REMAIN A MEMBER. If you have signed up for a trial offer of membership, your credit card will be authorized for the then-current trial fee, if any, and if applicable, and unless you cancel prior to the end of any such trial period you understand and agree that ACTIVE will charge your credit card upon the expiration of any trial period for the applicable annual membership fee at the then-current rate. If all credit cards we have on file for you are declined for payment of your membership fee, you have 30 days to provide us a new credit card or your ACTIVE Advantage membership will be canceled. If you provide us with a new card and are successfully charged within 30 days, your new membership period will be based on the original renewal date and not the date of the successful charge. For certain credit cards, the issuer of your credit card may charge you a foreign transaction fee or related charges. Check with your bank and credit card issuers for details. You may cancel your ACTIVE Advantage membership at any time and you will be eligible for a prorated refund of any portion of the membership fee paid. However, we will not give any refund for termination related to conduct that we determine, in our discretion, violates these Terms or any applicable law, involves fraud or misuse of the ACTIVE Advantage membership, or is harmful to our interests or another user. By becoming a member of the ACTIVE Advantage program, members agree to receive advertising, marketing materials and other communications from ACTIVE except where expressly disallowed as a profile preference.
- Code of Conduct; Restrictions on Use. You are not permitted to purchase items for the purpose of resale, rental, or to ship to your own customers or potential customers using ACTIVE Advantage member benefits. You agree not to utilize your ACTIVE Advantage membership status to demand benefits, services or privileges not expressly permitted in association with ACTIVE Advantage. Abuse of the ACTIVE Advantage program, including failure to follow program policies and procedures, the sale or barter of product or promotional offers, using multiple ACTIVE Advantage accounts in an effort to abuse the ACTIVE Advantage program, and any misrepresentation of fact relating thereto or other improper conduct as determined by ACTIVE in its sole judgment, may result in cancellation of the member’s account and future disqualification from program participation, and termination of the business relationship with ACTIVE. Should you abuse your membership privileges or violate these Terms in any way, you understand that your membership privileges are subject to revocation, either permanently or temporarily, in the sole discretion of ACTIVE.
- Third Party Benefits. You understand that the benefits provided to you through ACTIVE Advantage are provided not only by ACTIVE, but in association with third parties. Third party benefits, services or privileges are extended to members of ACTIVE Advantage in good faith to provide value negotiated on your behalf. As such, the benefits provided are governed by agreements with expiration dates and may also be subject to terms and conditions set forth by third party providers and the terms of those agreements prevail over these Terms.
- Indemnification. You agree to indemnify and hold each of ACTIVE, its shareholders, licensors, suppliers, advertisers and sponsors, and their respective directors, officers, employees, consultants, agents and other representatives from any and all claims or demands, including reasonable attorneys’ fees, due to or arising out of your use in any way of or participation in ACTIVE Advantage or the violation of any term of these Terms by you.
- Applicable Law. By completing membership purchase, both you and ACTIVE irrevocably consent and agree that the statutes and laws of the State of Delaware, without regard to the conflict of laws principles thereof, will apply to all matters relating to these Terms or your ACTIVE Advantage membership, or other use of the ACTIVE sites.
- Notice. All notices required to be given in connection with these Terms and the ACTIVE Advantage program shall be in writing and sent to the email address you provided during registration (or to a different email address if you change your account information) or in the case of ACTIVE, to Attn: ACTIVE Advantage, Active Network, LLC, 10182 Telesis Court, Suite 100, San Diego, CA 92121 or ActiveAdvantage@active.com. Notices will be deemed received the next day if sent via email, overnight mail or courier or three (3) days after deposited in the mail sent certified or registered.
Arbitration Agreement.(i) If the parties fail to resolve a Dispute in accordance with Section 9 and except as prohibited by law, each party to these Terms agrees that such Dispute will be resolved through binding arbitration administered by JAMS. If JAMS is not available in the state in which you reside, then a Dispute will be resolved through binding arbitration administered by the American Arbitration Association (the “AAA”). This arbitration agreement is intended to be broadly interpreted and includes claims, controversies or disputes arising out of or relating to any aspect of the relationship between you and us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, all of which shall be considered within the definition of “Dispute.” THE PARTIES UNDERSTAND THAT, EXCEPT AS EXPLICITLY SET FORTH TO THE CONTRARY HEREIN, THEY ARE WAIVING ANY RIGHT TO A JURY TRIAL WITH RESPECT TO DISPUTES. (ii) A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). Any Notice to us should be sent to the address set forth in Section 8 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If we and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, either party may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or us shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled. After we receive notice at the Notice Address that you have commenced arbitration, we will promptly reimburse you for your payment of the filing fee up to $350, unless your claim is for greater than $50,000 (as described further below). (iii) The arbitration will be conducted under and governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the AAA (collectively, the “AAA Rules”), except as specified in or modified by these Terms. The AAA Rules are available online at adr.org, by calling the American Arbitration Association at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Section 10. All issues are for the arbitrator to decide, except that issues relating to the scope of the arbitration provision are for the court to decide (as described further in subsection (iv) below). The rules promulgated by the AAA concerning class arbitration shall not apply. For any non-frivolous claim that does not exceed $50,000, we will pay all costs of the arbitration (i.e., the JAMS filing and administration fee and the arbitrator’s fee) up to $350 for an arbitration initiated in accordance with this arbitration agreement. If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse us for all monies we previously disbursed that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $50,000 in damages, the payment of these fees will be governed by the AAA rules. (iv) Notwithstanding the AAA Rules, the foregoing or any other provision of these Terms (including the arbitration agreement), any disagreement or dispute concerning arbitrability (whether a particular Dispute is arbitrable) or the scope of this arbitration agreement shall be resolved by the United States District Court for the federal district in which you reside. If that United States District Court lacks subject matter jurisdiction, then any such disagreement or dispute shall be resolved by the state court of general jurisdiction embracing the area in which you reside. By way of example only (and not by limitation), if the parties do not agree on whether a particular Dispute is subject to arbitration under this arbitration agreement, the proper tribunal to decide such Dispute is the United States District Court (for the appropriate district, as provided above) or, absent subject matter jurisdiction in that United States District Court, in the appropriate state court (as described above). The arbitrator shall stay all arbitration proceedings pending a decision from the appropriate court on disputes under this subsection (iv). The arbitrator shall follow, adhere to and defer to the decision, order, decree or judgment of the court following the court’s decision of any such dispute under this subsection (iv). Any action, award or partial award of the arbitrator in contravention of this limitation may be the subject of court appeal by the aggrieved party. No other aspect of any ruling by the arbitrator shall be appealable, and all other aspects of the arbitrator’s ruling shall be final and non-appealable, except as set forth herein. (v) WAIVER OF CLASS-WIDE PROCEEDINGS: You agree that, by entering into these Terms, you and we are each waiving the right to participate in a class action or class arbitration. Each party to the Terms agrees and covenants that it will not initiate any class-wide proceedings, including class actions or class arbitrations, against another party, and will not act as a class representative or class member. This provision constitutes an agreement that any Dispute will be resolved exclusively on a bilateral basis between the parties, with each party acting in his/her/its individual capacity. Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award 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 claim. If for any reason the prohibition on class arbitration in this subsection (v) is not or cannot be enforced, then the agreement to arbitrate will not apply. (vi) These Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision. Delaware state law and procedures concerning arbitration shall apply to these Terms only to the extent that they do not conflict with and are not inconsistent with the FAA. This arbitration agreement shall survive termination of these Terms. (vii) Unless both parties agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. Subject to the terms of this arbitration agreement, all Disputes shall be decided by a single arbitrator, who shall be either: (1) a retired federal judge; (2) a retired state court judge who sat on a trial court or appellate court for at least five (5) years; or (3) an attorney admitted to practice in the state in which the Dispute will be resolved for at least twenty-five (25) years with no disciplinary history. The arbitrator shall be selected by mutual agreement of the parties within thirty (30) days of the effective date of the notice initiating the arbitration. If the parties cannot agree on an arbitrator, then the complaining party shall notify JAMS (or the AAA, as applicable) and request selection of an arbitrator in accordance with the applicable AAA Rules. The arbitrator shall have only such authority to award equitable relief, damages, costs, and fees as a court would have for the particular claim(s) asserted. (viii) This arbitration agreement is not intended to modify or limit the remedies available to either party, including the right to seek interim relief, such as injunction or attachment, through judicial process, which will not be deemed a waiver of the right to demand and obtain arbitration. Any Dispute that is not arbitrated, including any judicial action to enforce this arbitration provision will be litigated exclusively in the United States District Court for the federal district in which you reside and the parties hereby consent and submit to the jurisdiction and venue of such court. If that United States District Court lacks subject matter jurisdiction, then any such disagreement or dispute shall be resolved by the state court of general jurisdiction embracing the area in which you reside. (ix) The arbitrator shall have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; provided, however, that in no event shall the right to discovery granted to the parties to these Terms exceed ten (10) interrogatories, twelve (12) documents requests, two third-party subpoenas, and one deposition (of not more than four hours), per side. The parties may submit such pre-arbitration and post-arbitration briefs (including briefs during arbitration) as they choose, provided that no party shall submit briefing exceeding a reasonable page limitation to be set by the arbitrator. In the event any party submits a motion, the arbitrator shall consider the motion and either deny it or request opposition briefing by the non-moving party, which shall not be required until requested by the arbitrator. The arbitrator may not grant a motion without allowing the opposing party an opportunity to oppose. The total length of the arbitration hearings on the merits shall not exceed 10 hours of hearing time, to be divided equally between the opposing sides. All discovery shall be completed no later than sixty (60) days after appointment of the arbitrator. The hearing shall be concluded no later than one hundred eighty (180) days after appointment of the arbitrator, unless the arbitrator’s schedule requires a later hearing. The arbitrator may only extend these limits at the request of a party when the arbitrator finds exceptional cause for the extension. The parties may extend these limits by mutual agreement. (x) The arbitrator shall be required to issue a written arbitration decision including the arbitrator’s essential findings, conclusions and a statement of award. Except as set forth herein, the arbitrator shall have exclusive authority to resolve all Disputes.
Miscellaneous.If any provision of these Terms is held to be unenforceable by a court of competent jurisdiction for any reason whatsoever, (i) the validity, legality, and enforceability of the remaining provisions of these Terms (including without limitation, all portions of any provisions containing any such unenforceable provision that are not themselves unenforceable) shall not in any way be affected or impaired thereby, and (ii) to the fullest extent possible, the unenforceable provision shall be deemed modified and replaced by a provision that approximates the intent and economic effect of the unenforceable provision and these Terms shall be deemed amended accordingly. The failure of either party to insist upon or enforce strict performance by the other party of any provision of these Terms or to exercise any right under these Terms will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, rather, the same will be and remain in full force and effect. ACTIVE may assign its rights and obligations under these Terms and upon such assignment ACTIVE may be relieved of any further obligation hereunder. You may not transfer your membership. The ACTIVE logo, ACTIVE Advantage logo and other logos and taglines are the intellectual property of ACTIVE. Membership rules are void to the extent prohibited by law. Taxes may apply where required by law.