FLY ANYWHERE TERMS OF SALE
This Fly Anywhere Terms of Sale (“TOS”) constitutes a legal contract between Flywheel Sports, Inc. (“Flywheel,” “we,” “us” or “our”) and you, an individual (“you”). This TOS governs your purchase of: (1) our proprietary stationary workout bicycle (each, a “Bike”); (2) any related tablet device (each, a “Device,” collectively with a Bike, the “Equipment”) and Bike assembly services (“Services”); and (3) any other merchandise (“Merchandise,” together with the Equipment, the “Products”), as reflected in any electronic notice issued to you that confirms your purchase of any Products or Services (each, a “Confirmation”). THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
1. PRODUCT AND SERVICE ORDERS.
a. Delivery. Flywheel will use commercially reasonable efforts to meet any delivery dates specified in any Confirmation, provided that any such delivery dates are estimates only and are subject to change. Flywheel will not be liable for its failure to meet estimated delivery dates.
b. Shipment. We will arrange for shipment of Products to you at the address set forth in any Confirmation. Please check the individual order pages for specific delivery options. We cannot currently ship Products to locations outside of the continental United States.
c. Title and Risk of Loss; Financed Products. Delivery of all Products will be Ex Works (Incoterms 2010) Flywheel’s point of shipment (“Delivery”). Title and risk of loss to Products will pass to you immediately upon Delivery, provided that in cases where you finance your Products, the following terms apply with respect to the transfer of title to the fullest extent permitted by law:
i. Financing Plan. The terms of your financing plan, including, without limitation, the applicable payment terms, will be presented to you during the ordering process.
ii. Security Interest. Prior to you making all required payments for your Products under your financing plan, we retain title to the Products and lease them to you subject to your compliance with your financing plan and the terms of this TOS. As security for this lease, you hereby grant to Flywheel, until you complete all required payments under your financing plan, a continuing first-priority security interest in and to the Products. You agree, from time-to-time until you make all required payments under your financing plan, to execute and deliver to Flywheel such security and other agreements and documents, and to take such further actions as Flywheel will reasonably request, to perfect, protect, evidence, renew or continue this security interest and/or to enable Flywheel to exercise its rights and remedies with respect thereto. If you fail to do so within a reasonable time after our request therefor, then you hereby appoint Flywheel as your attorney-in-fact for purposes of executing and delivering the same, in your name and on your behalf, which power is coupled with an interest and is therefore irrevocable. Once you have made all required payments under your financing plan, then title and ownership of the Products will automatically pass to you and the security interest set forth in this Section 1.c.ii will automatically expire.
d. Order Acceptance.
i. Our Rights. Orders are an offer to buy and must be accepted by us. We may accept or reject orders in our sole discretion. Shipment of Products is the sole evidence of our accepting orders. We may cancel any order, regardless of whether the order has been confirmed in any Confirmation, in our sole discretion and without liability. If your payment method has already been charged for an order that we later cancel, then we will issue you a refund. We also may request to verify information from you that we deem to be relevant before we ship any Products.
ii. Your Rights to Returns and Refunds.
(1) If you are not fully satisfied with your Equipment, then you can return the Equipment for a replacement, or a refund of the purchase price, within thirty (30) days from the date of Delivery, provided that the Equipment is returned in its original condition. To return Equipment, you must call (888) 589-8431 or email us at firstname.lastname@example.org to obtain a return merchandise authorization (“RMA”) number before shipping the Equipment. No returns will be accepted without an RMA number.
(2) If you return your Equipment, you are responsible for all shipping and handling charges for the Equipment. You bear the risk of loss during return shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection. All returns are subject to a re-stocking fee of $299.
(3) Refunds are processed within approximately thirty (30) business days of our receipt of your Equipment. Your refund will be credited back to the same payment method used to make the original purchase. You are solely responsible for ensuring that your payment method is still valid in order to receive a refund.
(4) Merchandise may be returned or exchanged within thirty (30) days of purchase provided that it is in pristine, original condition with tags and labels attached and with the original receipt or packing slip. Notwithstanding the foregoing, socks and undergarments cannot be returned or exchanged. For returned Merchandise, a $10 shipping fee shall apply. To return or exchange any Merchandise, please contact email@example.com. FOR CLARITY, UNLESS OTHERWISE STATED, WE DO NOT OFFER REFUNDS FOR MERCHANDISE PURCHASES OR A RIGHT TO REPLACE MERCHANDISE.
iii. Assembly. We will send one or more of our professionals to your home to perform the Services. The Services are provided for a flat fee of $299, to be charged upon assembly Confirmation. After you receive a Confirmation, we or an agent acting on our behalf will contact you to schedule the Services.
iv. Network Connections. The Equipment requires a strong WiFi signal and a fast internet connection to stream high definition video and access Flywheel content and features. We are not responsible for any failure of the Equipment arising from your network connection or other equipment not provided by Flywheel. Please refer to the Fly Anywhere FAQ for additional information about network connection requirements.
2. PRICES AND PAYMENTS.
a. Prices. All prices will be presented to you during the order process and are subject to change without notice. The prices charged for Products and Services will be the prices in effect at the time orders are placed and will be reflected in each Confirmation. Price increases will only apply to orders placed after such changes. Prices presented to you during the order process do not include taxes or charges for shipping and handling. All such amounts will be added to your total and will be reflected in each Confirmation.
b. Payments. The approved payment methods that we accept for orders will be presented to you during the order process. You represent and warrant that: (i) the payment information you provide to us is true, correct and complete; (ii) you are duly authorized to use such payment information for your orders; (iii) charges incurred by you will be honored by the issuer of any payment method; and (iv) you will pay charges incurred by you at the posted prices, including all applicable charges for taxes or shipping and handling.
c. Payment Processors. We use one or more third parties to process payments for orders. Those third parties may require you to agree to their own terms and conditions. We are not liable for any problems or disputes that you may have with such payment processors.
3. WARRANTY, LIMITED AND EXTENDED.
a. General. Sections 3(a), (b) and (c) set out a limited warranty (“Limited Warranty”). The Limited Warranty covers each of the following if reflected in a Confirmation: (i) the screen for a Device; (ii) Bike components; (iii) the Bike frame (each of (i), (ii) and (ii), the “Warranted Equipment”); and (iv) the Services (“Warranted Services”). Through your purchase of the Equipment, you agree that Flywheel may provide your information (including your name, address, contact information, and information about your Equipment) to our warranty provider, Life Fitness.
b. Who The Limited Warranty Covers. The Limited Warranty covers the original purchaser of Warranted Equipment. The Limited Warranty is non-transferable so it does not cover any subsequent or other owner, transferee or beneficiary.
c. Limited Warranty Coverage. Flywheel warrants that the Warranted Equipment and Warranted Services will be free from material defects for the following periods:
i. One (1) year from the date of Delivery for each Device screen and the Bike components;
ii. Five (5) years from the date of Delivery for the Bike frame; and
iii. Thirty (30) days from completion of the Services for the Warranted Services.
Each period stated in Section 3.c (i), (ii) and (iii) is referred to as the “Warranty Period.” No Warranty Period is extended if we repair or replace Warranted Equipment or re-perform the Warranted Services.
a. Extended Warranty. At the time of purchase, you may also purchase an extended warranty (“Extended Warranty”) that will extend the Warranty Period of the Limited Warranty by either an additional one year or an additional two years, to be chosen at time of purchase. This Extended Warranty is only available at the time of Equipment purchase. For more information about the Extended Warranty, please click here.
d. Limitations. THE LIMITED WARRANTY AND/OR THE EXTENDED WARRANTY, WHERE APPLICABLE, GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. WE LIMIT THE DURATION AND REMEDIES OF ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE DURATION OF THE LIMITED WARRANTY OR THE EXTENDED WARRANTY, WHERE APPLICABLE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
e. Your Remedies. If, during the Warranty Period, the Warranted Equipment does not conform to the Limited Warranty or the Extended Warranty as determined by Flywheel in its reasonable discretion (“Nonconforming Equipment”), then, Flywheel will, at its sole option and expense, and subject to the exclusions set forth in Section 3.g, within sixty (60) calendar days from the date it receives your Warranty Notice (defined in Section 3.f): (i) repair the Nonconforming Equipment; or (ii) replace the Nonconforming Equipment with new or refurbished hardware (clauses (i) and (ii) are the “Warranty Remedy”). You acknowledge that replacement hardware may contain, in whole or in part, components that have been refurbished by or on behalf of Flywheel. THE REMEDIES DESCRIBED IN THIS SECTION 3.e ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY OR EXTENDED WARRANTY. NEITHER ANY PERFORMANCE NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY US OR ANY OF OUR SUPPLIERS, AGENTS OR EMPLOYEES, WILL CREATE ANY OTHER WARRANTY OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THE LIMITED WARRANTY OR THE EXTENDED WARRANTY.
f. Seeking Remedies. If you believe that you are entitled to the Warranty Remedy, then you must contact Flywheel by mail at 53 West 23rd Street, 9th Floor, New York, NY 10010, Attn: Customer Service, or by email at firstname.lastname@example.org (“Warranty Notice”). This Warranty Notice must include, at a minimum: (i) your first and last name; (ii) proof of the original date of purchase; and (iii) a reasonably detailed explanation of the basis on which you are claiming the Warranty Remedy. Flywheel will review the Warranty Notice and notify you if additional information is needed. Warranty Notices must be received within thirty (30) days after the end of the Warranty Period. Flywheel will pay the shipping and handling charges back to you for Equipment properly referred to Flywheel as Nonconforming Equipment; otherwise, you will be responsible for such charges.
g. Exclusions. Flywheel’s Limited Warranty and/or Extended Warranty, where applicable, does not apply to: (i) Warranted Equipment in other than its original condition; (ii) any defect or nonconformance caused by modifications or alterations made to the Warranted Equipment by you or any third party or combination with any unauthorized product or component; or (iii) any Warranted Equipment that has been subjected to operating or environmental conditions in excess of limits established in the applicable specifications, or otherwise has been subjected to accident, mishandling, damage, misuse, neglect or alteration, unusual physical or electrical stress, or improper or unauthorized testing or repair.
4. INDEMNIFICATION. You will defend, indemnify and hold harmless Flywheel and its affiliates, officers, employees and agents from and against any loss, liability, claim, demand, damage or expense (including reasonable attorneys’ fees) arising out of or relating to your breach of this TOS or your use or misuse of Products or Services. Flywheel will provide notice to you of any such claim, suit or proceeding. Flywheel reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section 4 if Flywheel believes that you are unwilling or incapable of defending Flywheel’s interests. In such case, you agree to cooperate with any reasonable requests to assist Flywheel in its defense of such matter at your sole expense.
5. LIMITATION OF LIABILITY AND WARRANTY DISCLAIMERS FOR MERCHANDISE. THE FOLLOWING TERMS IN THIS SECTION 5 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
a. IN NO EVENT WILL FLYWHEEL’S LIABILITY ARISING OUT OF OR RELATED TO THIS TOS EXCEED THE AMOUNT PAID BY YOU TO FLYWHEEL FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE DISPUTE. IN NO EVENT WILL FLYWHEEL HAVE ANY LIABILITY FOR ANY LOSS OF DATA, USE, COSTS OF REPLACEMENT GOODS OR SERVICES, OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS TOS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
b. ALL MERCHANDISE IS PROVIDED ON AN “AS IS” BASIS, AND WE HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES WITH RESPECT TO MERCHANDISE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6. DISPUTE RESOLUTION.
a. Generally. In the interest of resolving disputes between you and Flywheel in the most expedient and cost effective manner, you and Flywheel agree that any dispute arising out of or in any way related to this TOS will be resolved by individual binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this TOS, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of this TOS. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS TOS, YOU AND FLYWHEEL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
b. Exceptions. Notwithstanding Section 6(a) above, nothing in this TOS will be deemed to waive, preclude or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between you and Flywheel will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this TOS, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Flywheel. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of this binding arbitration agreement.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). Flywheel’s address for Notice is: 53 West 23rd Street, 9th Floor, New York, NY 10010, Attn: Chief Executive Officer. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Flywheel may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Flywheel must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by Flywheel prior to selection of an arbitrator, then Flywheel will pay you the highest of the following: (1) the amount awarded by the arbitrator, if any; (2) the last written settlement amount offered by Flywheel in settlement of the dispute prior to the arbitrator’s award; or (3) $15,000.
e. Fees. If you commence arbitration in accordance with this TOS, then Flywheel will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand 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 fees will be governed by the AAA Rules. In that case, you agree to reimburse Flywheel for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. Notwithstanding anything in this TOS to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration required under this Section 6.
f. No Class Actions. YOU AND FLYWHEEL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Flywheel 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.
g. Modifications to this Arbitration Provision. Except as otherwise provided in this TOS, if Flywheel makes any future change to this arbitration provision, other than a change to Flywheel’s address for Notice, then you may reject the change by sending us written notice within 30 days of the change to Flywheel’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Flywheel.
h. Enforceability. If Section 6(f) above is found to be unenforceable or if the entirety of this Section 6 is found to be unenforceable, then the entirety of this Section 6 will be null and void.
7. MISCELLANEOUS. This TOS is governed by the internal substantive laws of the State of New York without respect to its conflict of laws provisions. You agree that no joint venture, partnership, employment or agency relationship exists between you and Flywheel as a result of this TOS. If any provision of this TOS is found to be invalid by any dispute resolution body having jurisdiction and authority pursuant to this TOS, then the invalidity of such provision will not affect the validity of the remaining provisions of this TOS, which will remain in full force and effect. Failure of Flywheel to act on or enforce any provision of this TOS will not be construed as a waiver of that provision or any other provision in this TOS. No waiver will be effective against Flywheel unless made in writing, and no such waiver will be construed as a waiver in any other instance. This TOS constitutes the entire agreement between you and Flywheel with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be used to interpret this TOS. This TOS will inure to the benefit of our successors and assigns. You may not assign this TOS or any of the rights granted hereunder, directly or indirectly, without the prior express written consent of Flywheel. Flywheel may assign this TOS, including all of its rights hereunder, without restriction. Neither party will be in default or otherwise liable for any delay in or failure of its performance under this TOS (except that your performance with regard to the payment of any fees owed will not be excused) if such delay or failure arises from any reason beyond its reasonable control, including, without limitation, any act of God, terrorist attacks, earthquakes, floods, fires, epidemics, riots, failures or delays in transportation or communications. Each party will promptly inform and consult with the other as to any of the above causes that, in its judgment, may or could be the cause of a substantial delay in the performance of this TOS. You agree to comply with all applicable export and re-export control laws and regulations applicable to the products, software, technology and documentation received from Flywheel under this TOS, including, without limitation, the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the U.S. Department of State.
Last Updated: November 13, 2017