User Agreement

Effective Date: 9/7/2018
Last updated: 9/7/2018

This User Agreement (this “Agreement”) is a contract between you (“you” or “User”) and frolyk inc. (“frolyk”, “we,” or “us”).  You must read, agree to, and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.frolyk.com, all affiliated websites, including mobile websites and applications, owned and operated by us, our predecessors or successors in interest, or our Affiliates (collectively, the “Site”), all services, applications and products that are accessible through the Site and all frolyk mobile applications that link to or reference this Agreement (“Site Services”) whether provided by us or our Affiliates.  

This Agreement includes and hereby incorporates by reference the following other agreements: Fee and ACH Authorization Agreement; Guest Refund Policy; and Privacy Policy; as such agreements may be in effect and modified by frolyk from time to time (collectively, with this Agreement, the “Terms of Service”). By clicking “Accept” at the end of this page, you agree to the Terms of Service. In the event of a conflict between this Agreement and the other agreements, this Agreement will control unless the other agreement explicitly states that it controls.  Capitalized terms are defined throughout this Agreement and in Section 21 (Definitions).

Subject to the conditions set forth herein, frolyk may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site and will provide reasonable advance notice of any amendment that includes a Substantial Change.   Any revisions to the Terms of Service will take effect on the noted effective date or when posted if there is no noted effective date (each, as applicable, the “Effective Date”).  Your continued use of the Site or the Site Services after the Effective Date of a revised version of this Agreement or of any other Terms of Service constitutes your acceptance of and agreement to be bound by the Terms of Service as revised.  

YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE, INCLUDING THE MANDATORY BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 19.4 OF THIS AGREEMENT.  IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES AFTER THE EFFECTIVE DATE.  IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE.  IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY OR AGENCY.

  1.  ACCEPTANCE OF TERMS OF SERVICE AND DIGITAL SIGNATURE

In order to maintain a safe and trusted Site and to avoid use of the Site for unauthorized or unintended purposes, we require you and all other Users of the Site to agree to and comply with the Terms of Service. This Agreement sets forth the acceptable and prohibited uses of our Site. You are also independently responsible for complying with all applicable laws related to your use of the Site or the Site Services whether or not covered by this Agreement. The uses described in this Agreement are prohibited regardless of where on the Site they occur. For example, the activities are prohibited in experience listings, frolyk messages, communications with customer service or disputes, the community forum, and Guest or Host feedback. By registering for an frolyk account on the Site (an “Account”) and by clicking to accept the Terms of Service when prompted on the Site, you have executed this Agreement and the other Terms of Service electronically, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.).  Your Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, the other Terms of Service, and any amendments.

  1.  CONSENT TO USE ELECTRONIC RECORDS

In connection with the Terms of Service, you may be entitled to receive certain records from frolyk or our Affiliates, such as notices and communications, in writing.  To facilitate your use of the Site and the Site Services, you give us permission to provide these records to you electronically instead of in paper form.

2.1 YOUR CONSENT AND YOUR RIGHT TO WITHDRAW CONSENT

By registering for an Account, you consent to electronically receive and access, via email or the Site, all records and notices for the services provided to you under the Terms of Service that we or our Affiliates would otherwise be required to provide to you in paper form.  However, we reserve the right, in our sole discretion, to communicate with you via the U.S. Postal Service and other third-party mail services using the address under which your account is registered.  Your consent to receive records and notices electronically will remain in effect until you withdraw it.  You may withdraw your consent to receive further records and notices electronically at any time by contacting Customer Support.  If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Site Services, and you will no longer be permitted to use the Site or the Site Services.  Any withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal.  Please note that your withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.

2.2 KEEPING YOUR ADDRESS AND EMAIL ADDRESS CURRENT WITH US

In order to ensure that we are able to provide records and notices to you electronically, you agree to notify us immediately of any change in your email address by updating your Account information on the Site or by contacting Customer Support.  In addition, so that we may communicate with you via the U.S. Postal Service and other third-party mail services, you agree to notify us immediately of any change in your address and related contact information.

  1. frolyk ACCOUNTS

3.1 ACCOUNT ELIGIBILITY

To use the Site and certain Site Services, you must register for an Account.  To register for an Account, you must be, and hereby represent that you are, a legal entity or an individual 18 years or older who can form legally binding contracts, and by using your Account, you further agree to: (a) abide by this Agreement and the other Terms of Service; (b) be financially responsible for your use of the Site (c) perform your obligations as specified by any Service Contract that you enter into, unless such obligations are prohibited by applicable law or the Terms of Service.  frolyk reserves the right, in our sole discretion, to refuse, suspend, or revoke your access to the Site and Site Services upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or such information or other conduct otherwise violates the Terms of Service, or for any other reason or no reason in frolyk’s sole discretion.

You represent that you are not: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services. 

3.2 ACCOUNT REGISTRATION; PROFILE

By registering for an Account, you must complete a User profile (“Profile”), which you consent to be shown to other Users but not to the public.  If you are a Host you represent and warrant that you use your Profile to market your business to others for the purpose of entering into independent contractor relationships with other Users.  You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness.  You agree not to provide and to correct any information about your location, your business, your skills, or the services your business provides that is or becomes false or misleading.  You agree not to ask and/or allow any other person to create an Account on your behalf, for your use, or for your benefit.

3.3 IDENTITY VERIFICATION  

When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity and your ability to represent your business on frolyk if it is a separate legal entity.  You authorize frolyk, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law.  

 

3.4 USERNAMES AND PASSWORDS

When you register for an Account, your username will be the registered email address and you will be asked to choose a password for the Account.  You are entirely responsible for safeguarding and maintaining the confidentiality of your Account username and password, and you shall remain responsible and liable for all activity occurring under your Account username and password.    You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password or the password of any User of your Account.  You further agree not to use any username, or password of another User of the Site that you are not authorized to use, and not to allow others who are not authorized to do so to use your Account at any time.

3.5 MARKETPLACE FEEDBACK

You acknowledge and agree that feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that frolyk post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, if any, will consist of comments, ratings, indicators of User satisfaction, and other feedback left by other Users.  You further acknowledge and agree that frolyk will make feedback results available to other marketplace Users, including composite or compiled feedback.  frolyk provides this feedback system as a means through which Users can share their opinions publicly and frolyk does not monitor or censor these opinions.  

 If you become aware of any violation of the Terms of Service, you must immediately report it to Customer Service. We reserve the right to investigate any actual or alleged violation of the Terms of Service, and you agree to assist us with any investigation we undertake and to take any remedial steps we require in order to correct a violation.   You may be held legally responsible for damages suffered by other Users or third parties as a result of your remarks if such remarks are legally actionable or defamatory.  frolyk is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable.  In order to protect the integrity of the feedback system and protect Users from abuse, frolyk reserves the right (but is under no obligation) to remove posted feedback or information that, in frolyk’s sole judgment, violates the Terms of Service or negatively affects our marketplace.

We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate User information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of the Terms of Service.

3.6 PROHIBITED ACTIONS

You may not use, or encourage, promote, facilitate, instruct or induce others to use, the Site or Services for any activities that violate any law, statute, ordinance or regulation; for any other illegal, fraudulent, harmful, or offensive purpose; or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive. Examples of prohibited uses of the Site or Site Services include:

  • Seeking, offering, or endorsing illegal, obscene, or pornographic services or activities, including services (i) that would violate the copyrights, of another person, entity, service, product, or website or (ii) that would involve the creation, review, or editing of pornographic, erotic, obscene, or sexually explicit material;
  • Posting content that is offensive, defamatory, profane, vulgar, obscene, threatening, discriminatory, illegal, pornographic, obscene or sexually explicit in nature;
  • Seeking, offering, or endorsing any services that would violate this Agreement or the terms of service of another website or any other contractual obligations;
  • Seeking, offering, or endorsing any services that violate the academic policies of any educational institution;
  • Discriminate in an experience, event or Host Service listing or otherwise on the basis of race, religion, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military/veteran status or any basis protected by applicable law;
  • Posting content that is harassing towards another person or violates the rights of a third party;
  • Posting identifying information concerning another person;
  • Making or demanding bribes;
  • Making or demanding payments without the intention of providing or receiving services in exchange for the payment; 
  • Spamming other Users;
  • Using any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission or collecting or harvesting any personally identifiable information, including Account names, from the Site;
  • Engaging in any conduct that is reasonably likely to or that is intended to harm the Site, including (i) imposing an unreasonable or disproportionately large load (in our sole discretion) on the Site’s infrastructure; (ii) interfering or attempting to interfere with the proper operation of the Site or Site Services or any activities conducted on the Site; (iii) bypassing any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; or (iv) attempting to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site.
  • Offering services for the sole purpose of obtaining positive feedback of any kind;
  • Attempting to falsify, manipulate, or coerce another User by threatening to give negative feedback;
  • Misusing the feedback feature to express views unrelated to the Experience booking, such as political, religious, or social commentary;
  • Duplicating or sharing accounts;
  • Sharing or soliciting contact information such as email, phone number, or Skype ID in a profile or experience, event or Host Services listing;
  • Soliciting or processing payment outside of frolyk inc. in violation of the Terms of Service;
  • Advertising products or services that are outside or beyond the scope of the frolyk marketplace;
  • Advertising on frolyk to recruit Hosts to join another website or company;
  • Misrepresenting a Host’s experience, skills, or information;
  • Impersonating any person or entity, including, but not limited to, a frolyk representative, forum leader, guest or host, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
  • Falsely attributing statements to any frolyk representative, forum leader, guide or host;
  • Allowing another person to use your account, which is misleading to other Users;
  • Falsely stating or implying a relationship with frolyk or with another company with whom you do not have a relationship;
  • Falsely stating or implying a relationship with another User, and
  • Falsely stating that one Host will deliver Services for an experience, event or Host Service listing when another will in fact deliver the Services.  
  1. PURPOSE OF THE SITE AND SITE SERVICES

The Site is a platform where Guests and Hosts can identify each other and advertise, buy, and sell Host Services online.  Subject to the Terms of Service, frolyk provides the Site Services to Users, including hosting and maintaining the Site, enabling the formation of Service Contracts, and coordinating disputes related to those Service Contracts.  If Users agree on terms for Host Services, a Service Contract is formed directly between such Users, subject to the provisions set forth in Section 5 (Contractual Relationship Between Guest and Host).  When a User enters a Service Contract, the User uses the Site to engage, communicate, and pay online. Users are expected to use the Site and Services for their intended purposes and Users may not use the Site and Services in contravention of their intended purposes.

  1. CONTRACTUAL RELATIONSHIP BETWEEN guest AND host

You acknowledge and agree that a Service Contract is comprised of (a) the terms in Section 8 (Service Contract Terms), unless other terms are agreed to by the parties, to the extent that the provisions do not, and do not purport to, expand frolyk’s obligations or restrict frolyk’s rights under the Terms of Service; and (b) any other contractual provisions accepted by both the Guest and the Host, to the extent that the provisions do not, and do not purport to, expand frolyk’s obligations or restrict frolyk’s rights under the Terms of Service.  You acknowledge and agree that frolyk is not a party to any Service Contracts, and that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between frolyk and any Host.

  1. PAYMENT TERMS

6.1 SERVICE FEE

Hosts will be charged a percentage of their Host Fee for Experiences booked through the Site to use the Site and Site Services (“Service Fee”). Host agrees to pay frolyk the Service Fee for using the Site’s communication, dispute resolution and payment services.

6.2 NO FEE FOR INTRODUCING OR FOR FINDING ENGAGEMENTS  

frolyk does not introduce Guests to Hosts and does not help Hosts to secure Experience bookings; frolyk merely makes the Site Services available to enable Hosts to do so themselves. Therefore, frolyk does not charge a fee when a Host finds a suitable Guest or finds an Experience booking. However, a Guest and a Host are obligated to use the Site to pay and receive payment for Experience bookings if they identified each other through the Site, as detailed in Section 7 (Non-Circumvention), below.  In addition, frolyk does not charge any fee or dues for posting public feedback and composite or compiled feedback.

6.3 DISBURSEMENTS TO hosts

Host Fees become payable to Hosts 72 hours after the experience takes place. Notwithstanding any other provision of the Terms of Service, and except as prohibited by applicable law, if we determine in our sole discretion that you have violated the conditions and restrictions of the Site or the Terms of Service, frolyk may withhold the disbursement of the Host Fees.  Additionally, frolyk may also withhold the disbursement of the Host Fees if: (a) we require additional information, such as Host’s tax information, government-issued identification, address, or date of birth; (b) we have reason to believe the Host Fees may be subject to dispute or chargeback; (c) we suspect fraud; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under a Service Contract, this Agreement, or other Terms of Service; (e) we deem it necessary in connection with any investigation; or (f) required by applicable law.

In cases of fraud, abuse, or violation of the Terms of Service, frolyk reserves the right to revoke any payments and to withhold all Host Fees due to Host unless prohibited by applicable law.  In addition, we reserve the right to seek reimbursement from you, and you will reimburse us, if we suspect fraud or criminal activity associated with your payment or Experience booking; if we discover erroneous or duplicate transactions; or if we have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you, or used by your Guest if you are a Host.  You agree that we have the right to obtain such reimbursement by charging accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining reimbursement from you by any other lawful means.  Failure to pay for reimbursements of chargebacks is cause for revocation of your access to the Site.

6.4 NON-PAYMENT

If Guest fails to pay the Host Fees or any other amounts due under the Terms of Service, whether by canceling Guest’s credit or debit card, initiating an improper chargeback, or any other means, frolyk may suspend or close Guest’s Account and revoke Guest’s access to the Site, including Guest’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Host Services, and frolyk shall seek all such Host Fees and/or any other amounts due through an alternative means.  Without limiting other available remedies, Guest must pay frolyk upon demand for amounts owed under the Terms of Service, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.  To the extent permitted by applicable law, frolyk, at our discretion, may set off amounts due against other amounts received from or held by frolyk for Guest, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any resulting investigation or prosecution.

6.5 RETURN OF FUNDS

Guest acknowledges and agrees that frolyk will charge Guest’s designated Payment Method for the Host Fees.  Therefore, and in consideration of the Site Services provided by frolyk, Guest agrees that once frolyk charges the Guest’s designated Payment Method for the Host Fees as provided in this Agreement or the other Terms of Service, the charge is non-refundable, except (i) guest cancellation within twenty-four (24) hours of Experience booking confirmation, (ii) as stipulated by host’s cancellation and refund terms defined in the Experience listing, or as otherwise required by applicable law.  Guest also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Guest resolve disputes.  To the extent permitted by applicable law, Guest therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Host Fees or other Fees charged pursuant to the Terms of Service for any reason.  A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service.  If Guest initiates a chargeback in violation of this Agreement, Guest agrees that frolyk may dispute or appeal the chargeback and institute collection action against Guest.

6.6 TAXES  

frolyk will have no responsibility for withholding any taxes applicable to the Host Fees.  Host will also be solely responsible for determining whether: (a) Host or frolyk is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Host Fees and remitting any such taxes or charges to the appropriate authorities on behalf of itself or frolyk, as appropriate; and (b) frolyk is required by applicable law to withhold any amount of the Host Fees and for notifying frolyk of any such requirement and indemnifying frolyk (either by frolyk, at our sole discretion, offsetting the relevant amount against a future payment of Host Fees to Host or Host reimbursing frolyk for the applicable amount) for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest).  In the event of an audit of frolyk, Host agrees to promptly cooperate with frolyk and provide copies of Host’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Host is engaging in an independent business as represented to frolyk.

6.7 PAYMENT METHODS

In order to use certain Site Services, Guest must provide account information for at least one valid Payment Method.  Guest hereby authorizes frolyk to run credit card authorizations on all credit cards provided by Guest and to charge Guest’s credit card (or any other Payment Method).  

When Guest authorizes the payment of the Host Fees for an Experience booking on the Site, Guest automatically and irrevocably authorizes and instructs frolyk to charge Guest’s Payment Method for the Host Fees.  

By providing Payment Method information through the Site, Guest represents, warrants, and covenants that: (a) Guest is legally authorized to provide such information; (b) Guest is legally authorized to perform payments using the Payment Method(s); and (c) such action does not violate the terms and conditions applicable to Guest’s use of such Payment Method(s) or applicable law.  When Guest authorizes a payment using a Payment Method via the Site, Guest represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method.  To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Guest’s Payment Method(s), Guest is solely responsible for paying such amounts by other means.

6.8 US DOLLARS AND FOREIGN CURRENCY CONVERSION

The Site and the Site Services operate in U.S. Dollars. frolyk will charge Guest’s Payment Method in U.S. Dollars and Guest’s Payment Method provider will convert the payment at a foreign currency conversion rate selected by Guest’s Payment Method provider.  Guest’s Payment Method provider may also charge fees directly to the Payment Method used to fund a cross-border payment even when no currency conversion is involved.  frolyk is not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars, and frolyk is not responsible for currency fluctuations that occur when receiving or sending payments via wire transfer, check or automated clearinghouse.

  1. NON-CIRCUMVENTION

You acknowledge and agree that a substantial portion of the compensation frolyk receives for making the Site available to you is collected through the Service Fee described in Section 6.1 (“Service Fee”). frolyk only receives this Service Fee when a Guest pays and a Host receives payment through the Site. You agree not to circumvent the Payment Methods offered by the Site.  You agree to notify frolyk immediately if another person improperly contacts you or suggests making or receiving payments outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to frolyk by sending an email message to:  office@frolyk.com.

  1. SERVICE CONTRACT TERMS

The default terms and conditions of the Service Contract that a Host enters directly with a Guest when the Host agrees to provide Host Services to the Guest are as set forth in this Section 8.  

8.1 SERVICES

Host will perform the Host Services in a professional manner and in compliance with all applicable laws. The manner and means of performing the Host Services will be determined and controlled solely by Host, which is engaged by Guest as an independent contractor.  

8.2 Guest PAYMENTS

When making an Experience booking on the frolyk platform, Guest becomes obligated to pay for such Experience immediately upon receiving the Experience booking confirmation from the Host.

8.3 DISPUTE RESOLUTION

With respect to disputes arising between Guests and Hosts, each party agrees to abide by frolyk’s dispute resolution provisions set forth in “19. Disputes”.  

8.4. Booking Cancellations and Refunds

Guests may cancel an Experience booking within twenty-four (24) hours after booking without an obligation to the Host.

A Guest may cancel a confirmed Experience booking at any time subject to the Experience’s cancellation policy. frolyk will provide any applicable refund to the Guest in accordance with such cancellation policy. Unless extenuating circumstances exist, any amounts due to the Host under the applicable cancellation policy will be remitted to the Host by frolyk.

If a Host cancels a confirmed Experience booking, the Guest will receive a full refund of the Total Fees for such Experience booking and frolyk may publish an automated review on the Experience cancelled by the Host indicating that an Experience booking was cancelled. In addition, frolyk may (i) keep the calendar for the Experience unavailable or blocked for the dates of the cancelled Experience booking, and/or (ii) impose a cancellation fee, unless the Host has a valid reason for cancelling the Experience booking pursuant to frolyk's Extenuating Circumstances Policy (see below in section 20.7) or has legitimate concerns about the Guest’s behavior.

If inclement weather creates an unsafe or uncomfortable scenario for Guests, Hosts may modify or cancel a Host Service. If the Host Service needs to be cancelled, frolyk will work with the Host to provide Guests an alternative date for the Host Service, an appropriate refund or a rebooking of the Experience booking.

In certain circumstances, frolyk may decide, in its sole discretion, that it is necessary to cancel a confirmed Experience booking and make appropriate refund and payout decisions. This may be for reasons set forth in frolyk's Extenuating Circumstances Policy (see below in section 20.7) or (i) where frolyk believes in good faith, while taking the legitimate interests of both parties into account, this is necessary to avoid significant harm to frolyk, other Members, third parties, or property, or (ii) for any of the reasons set out in these Terms.

If a Guest suffers an Experience Issue pursuant to the Guest Refund Policy, frolyk may determine, in its sole discretion, to refund the Guest part or all of the Total Fees in accordance with the Guest Refund Policy.

 

  1. Copyright

Notification of Copyright Infringement

frolyk inc. ("frolyk") respects the intellectual property rights of others and expects its users to do the same. It is frolyk’s policy, in appropriate circumstances and at its discretion, to disable and/or terminate the account or access of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others.

In accordance with the Digital Millennium Copyright Act of 1998, frolyk will respond expeditiously to claims of copyright infringement committed using the frolyk website (the "Site”) that are reported to office@frolyk.com, identified in the sample notice below.

If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site and Application by completing the following DMCA Notice of Alleged Infringement and delivering it to frolyk’s copyright agent for notice of claims as follows: office@frolyk.com.

DMCA Notice of Alleged Infringement ("Notice")

  • Identify the copyrighted work that you claim has been infringed, or provide a comprehensive list of the copyrighted works that you claim have been infringed.
  • Identify the material that you claim is infringing and provide information to permit us to locate the material.
  • Provide your contact information.
  • Provide a statement by you, made under penalty of perjury, that the information in the notice is accurate and that you are the copyright owner, or are authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.
  1. RELATIONSHIP WITH frolyk

frolyk is not a party to the dealings between Guest and Host, including listings, selection, contracting, and performance of Host Services.  frolyk does not introduce Hosts to Guests or help Hosts find Experience bookings.  frolyk merely makes the Site Services available to enable Hosts to identify and determine the suitability of Guests for themselves and to enable Guests to identify and determine the suitability of Hosts for themselves.  frolyk does not, in any way, supervise, direct, or control Host or Host’s experience listings other than ensuring they comply with frolyk’s policies.  frolyk does not set Host’s active hours, schedules, or location of experience hostings, nor is frolyk involved in determining the Host Fees.  frolyk will not provide Host with training or any equipment, labor, or materials needed for a particular Service Contract.  frolyk does not provide the premises at which the Host will perform the experience hosting.  frolyk makes no representations about, and does not guarantee the quality, safety, or legality of, the Host Services; the truth or accuracy of Host’s listings on the Site; the qualifications, background, or identities of Users; the ability of Hosts to deliver the Host Services; the ability of Guests to pay for the Host Services; or that a Guest or Host can or will actually complete an Experience booking.

You expressly acknowledge, agree, and understand that: (a) the Site is merely a platform where Members may act as Guests and/or Hosts; (b) frolyk is not a party to any Service Contracts between Guests and Hosts; (c) you are not an employee of frolyk, and frolyk does not, in any way, supervise, direct, or control the Host or Host Services; (d) frolyk will not have any liability or obligations under or related to Service Contracts for any acts or omissions by you or other Users; (e) frolyk has no control over Hosts or the Host Services offered or rendered by Hosts; and (f) frolyk makes no representations as to the reliability, capability, or qualifications of any Host or the quality, security, or legality of any Host Services, and frolyk disclaims any and all liability relating thereto.

frolyk does not deduct any amount for withholding, unemployment, Social Security, or other taxes for Guest or Host, each of which is solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority in any nation with respect to Host’s performance, and Guest’s acceptance, of Host Services.

frolyk is not required to and may not verify any feedback or information given to us by Hosts or Guests, nor does frolyk perform background checks on Hosts or Guests.

You hereby acknowledge and agree that frolyk may provide information on the Site about a Host or Guest, such as feedback, composite feedback, including a strength or risk score, geographical location, or verification of identity or credentials.  However, such information is based solely on data that Hosts or Guests voluntarily submit to frolyk and does not constitute and will not be construed as an introduction, endorsement, or recommendation by frolyk. frolyk provides such information solely for the convenience of Users.

  1. THIRD-PARTY BENEFICIARY

Users appoint frolyk as a third-party beneficiary of their Service Contracts for purposes of enforcing any obligations owed to, and any benefits conferred on, frolyk hereunder.  Users further agree that frolyk has the right to take such actions with respect to their Accounts, including, without limitation, suspension, termination, or legal actions, as we, in our sole discretion, deem necessary to enforce our rights as a third-party beneficiary under the Service Contracts.

The Terms of Service and any Account registration will not be construed as creating or implying any relationship of agency, franchise, partnership, or joint venture between Users and frolyk, except and solely to the extent expressly stated in this Agreement.  

  1. COMMUNICATIONS FROM YOU TO frolyk

All notices to frolyk or our Affiliates intended to have a legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to the following address: Attn: frolyk inc., PO Box 16368, Chapel Hill, NC 27516; or (c) in writing via email to office@frolyk.com.  All such notices are deemed effective upon receipt by frolyk.  frolyk does not accept service of any legal process by email or mail; all such service should occur by hand delivery on frolyk or its registered agent for service of process.

  1. privacy

frolyk is committed to processing and protecting the personal data collected when you use the Site in compliance with its obligations under applicable laws governing the privacy of your personal data, including, if applicable to you, the European Union General Data Protection Regulation (“GDPR”). frolyk’s policy is to retain personal data necessary to provide our services, except that we may retain your personal data for longer periods where reasonably necessary to comply with our legal obligations (including law enforcement requests), meet regulatory requirements, resolve disputes, maintain security, prevent fraud and abuse, enforce these Terms, or fulfill your request to “unsubscribe” from further messages from us. This policy applies to personal data that you or others provided to us and personal data generated or inferred from your use of our services. When frolyk is the data controller, we will decide how your personal data is processed and for what purposes.

We implement a number of security features to help guarantee and ensure the best possible way your information that your information is safe. We use industry standard technologies when transferring and receiving data exchanged between frolyk and third parties to ensure its security. User data may be stored on servers maintained by our third party partners and subject to their security safeguards which are continuously audited, with certifications from accreditation bodies across geographies and verticals. All financial transactions are made securely.

For additional information about your rights and your personal data, what data is collected, how it is processed, protected, shared, and how long it is retained, please see the frolyk’s Privacy Policy located at www.frolyk.com/policies

 

  1. LICENSES AND THIRD-PARTY CONTENT

14.1 SITE LICENSE AND INTELLECTUAL PROPERTY RIGHTS

Subject to and conditioned on your continued compliance with the Terms of Service, frolyk grants you a limited license to access and, if you have created an Account, to use the Site for the purpose of using the Site Services.  You must not access (or attempt to access) the Site or Site Services by any means other than the interface provided, and you will not use information from the Site or Site Services for any purposes other than the purposes for which it was made available.  You agree not to use the Site or Site Services for offering any goods or services other than Host Services as permitted by this Agreement.  You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site or Site Services in any way for any public or commercial purpose without frolyk’s prior written consent.  You must not use any content of the Site or Site Services on any other website or in a networked computer environment for any purpose except your own viewing without frolyk’s prior written consent.  You must not frame or link to the Site or Site Services except as permitted in writing by frolyk.  You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law.  You will not access Site Services in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Site Services.  frolyk and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Site Services.  The frolyk logos and names are trademarks of frolyk and may be registered in certain jurisdictions.  All other product names, company names, marks, logos, and symbols on the Site or Site Services may be the trademarks of their respective owners.  Except as expressly stated in this Agreement, nothing in the Terms of Service confers any license under any of frolyk’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.

14.2 USER CONTENT LICENSE

When you post User Content on the Site or through the Site Services or provide frolyk with User Content, you represent and warrant that you have the right, power, and authority to post that User Content and grant the licenses specified below.  You further represent and warrant that by posting or providing such User Content you will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and privacy rights.  To the extent your User Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such User Content and that frolyk may exercise the rights to your User Content granted under the Terms of Service without any liability or obligation for any payment.

You retain all ownership rights in any User Content you post on frolyk.  To the extent permitted by applicable law, you also grant to frolyk and our successors and Affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Site and frolyk’s (and our successors’ and Affiliates’) business, including, without limitation, for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels.  You also hereby grant each User a non-exclusive license to access your User Content through the Site and to use, reproduce, distribute, display, and perform such User Content to the extent permitted through the normal functionality of the Site and subject to all applicable confidentiality and other provisions of this Agreement, our Privacy Policy, and applicable law.

The licenses to User Content granted by you in this Agreement will terminate within a commercially reasonable time after you remove or delete your User Content from the Site, except that you grant frolyk and our successors and Affiliates the irrevocable and perpetual license to retain and use, but not publicly display or distribute, server or archival copies of all User Content that you have removed or deleted to the extent permitted by applicable law.

14.3 UNAUTHORIZED ACCESS AND USE; SITE INTERFERENCE; MALICIOUS SOFTWARE

The Site contains robot exclusion headers.  You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission.  You will not access the audiovisual content available on the Site for any purpose or in any manner other than streaming.  You agree that you will not: (a) take any action that imposes or we believe may impose (in our sole discretion) an unreasonable or disproportionately large load on the Site’s infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site without the prior express written permission of frolyk and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site; (d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (g) collect or harvest any personally identifiable information, including Account names, from the Site; (h) access any content on the Site through any technology or means other than those provided or authorized by the Site; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services.

Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of frolyk or any third party.

14.4 THIRD-PARTY VERIFICATION

The Site may make available various services provided by third parties to verify a User’s credentials and provide other information.  Any information or content expressed or made available by these third parties or any other Users is that of the respective author(s) or distributor(s) and not of frolyk.  frolyk neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than frolyk’s authorized employees acting in their official capacities.

14.5 LINKS AND APPLICATIONS

The Site may contain links to third-party websites.  The Site may also contain applications that allow you to access third-party websites via the Site.  Such third-party websites are owned and operated by the third parties and/or their licensors.  Your access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. You acknowledge and agree that frolyk is not responsible or liable for: (a) the availability or accuracy of third-party websites; or (b) the content, advertising, or products on or available from third-party websites.  You are responsible for deciding if you want to access third-party websites by clicking on a link or installing an application.  The inclusion of any link or application on the Site does not imply that we endorse the linked site or application.  You use the links and third-party websites at your own risk and agree that your use of an application or third-party website via the Site is on an “as is” and “as available” basis without any warranty for any purpose.

14.6 SITE UPDATES

We may from time to time in our sole discretion develop and provide Site Services updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively “Updates”).  Updates may also modify or delete in their entirety certain features and functionality.  You agree that we do not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality.  You will promptly download and install all Updates and acknowledge and agree that Site Services or portions thereof may not work properly should you fail to do so. You further agree that all Updates will be subject to the terms of the Terms of Service, unless otherwise provided in terms associated with such Update.  frolyk reserves the right, at any time, to modify, suspend, or discontinue Site Services or any part thereof without notice.  You agree frolyk will not be liable to you or any third party for any modification, suspension, or discontinuance of Site Services or any part thereof.

  1. LIMITATION OF LIABILITY

frolyk is not and shall not be liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:

  • your use of or your inability to use our Site or Site Services;
  • delays or disruptions in our Site or Site Services;
  • viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
  • glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
  • damage to your hardware device from the use of the Site or Site Services;
  • the content, actions, or inactions of third parties’ use of the Site or Site Services;
  • a suspension or other action taken with respect to your account;
  • your need to modify practices, content, or behavior or your loss of or inability to deliver Host Services, as a result of changes to the Terms of Service.

 

ADDITIONALLY, IN NO EVENT WILL FROLYK, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES.  THE LIABILITY OF FROLYK, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED ANY FEES RETAINED BY FROLYK WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS GUEST OR HOST.  THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.  SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

  1. RELEASE

In addition to the recognition that frolyk is not a party to any contract between Users, you hereby release frolyk, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, and employees from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity.  This release includes, for example and without limitation, any disputes regarding the performance, and quality of the Host Services provided to Guest by a Host and requests for refunds based upon disputes.  Procedures regarding the handling of certain disputes between Users are discussed in subsection 8.3 (Dispute Resolution).

TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

This release will not apply to a claim that frolyk failed to meet our obligations under the Terms of Service.

  1. INDEMNIFICATION

You agree to release, defend, indemnify, and hold frolyk and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Application, Services, or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) Booking of an Experience, or (iii) creation of a Listing; (d) the participation in an Experience by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a Booking or participation in of an Experience.

  1. AGREEMENT TERM AND TERMINATION

The Terms of Service as amended from time to time, will become effective on the later of the Effective Date or your first visit to the Site and will remain in effect for the duration of your use of the Site or Site Services.  Unless both you and frolyk expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein.  You may provide written notice to office@frolyk.com.  A proper closing of your host account requires that open Experience bookings have been delivered or cancelled at the time you terminate this Agreement. In the event you properly terminate this Agreement, your right to use the Site is automatically revoked, and your Account will be closed. frolyk will continue to perform those Site Services necessary to complete any open related transaction between you and another User.  Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you, any User with whom you have entered into a Service Contract, or frolyk from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.  Those portions of the Terms of Service necessary to implement the foregoing survive termination of this Agreement for any reason.

Without limiting frolyk’s other rights or remedies, we may temporarily suspend, indefinitely suspend, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or other parts of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or frolyk or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit activity.  If your Account is suspended or closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without frolyk’s prior written consent.  If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.

Without limiting frolyk’s other rights or remedies, if you engage in actions or activities that circumvent the Site or otherwise reduce fees owed frolyk or our Affiliates under the Terms of Service, you must pay frolyk, and you authorize frolyk or its Affiliate to charge you, for all fees owed to frolyk and our Affiliates, and, if applicable, all losses and costs (including any and all time of frolyk’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.  In addition, violations of the Terms of Service may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.

If your Account is closed for any reason, you will no longer have access to data, messages, files, and other material you keep on the Site.  If practicable or required by law, frolyk will retain this information along with all your previous posts and proposals for a period of up to five years from the date of closure.  However, you understand that any closure of your Account may involve deletion of any content stored in your Account for which frolyk will have no liability whatsoever.

18.1 ENFORCEMENT OF AGREEMENT  

frolyk has the right, but not the obligation, to suspend or revoke your access to the Site and Site Services if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement or the Terms of Service or violated our rights or those of another party.  Without limiting frolyk’s other rights or remedies, we may suspend or close your Account, use self-help in connection with our rights to reclaim funds, and refuse to provide any further access to the Site or the Services to you if (a) you breach any terms and conditions of this Agreement or other Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, other Users, or frolyk.  

18.2 CONSEQUENCES OF AGREEMENT TERMINATION

Except as otherwise required by applicable law, we will notify you if we close your Account.  You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you.  You therefore agree as follows: IF FROLYK DECIDES TO SUSPEND OR CLOSE YOUR ACCOUNT, FROLYK HAS THE RIGHT BUT NOT THE OBLIGATION TO:  (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR SUSPENDED OR CLOSED ACCOUNT STATUS, AND (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT SUSPENSION OR CLOSURE.

18.3 SURVIVAL

After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect.  For example, the provisions, requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.

  1. DISPUTES

19.1 DISPUTE PROCESS AND SCOPE

If a dispute arises between you and frolyk or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively.  Accordingly, you, frolyk, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with frolyk (including any claimed employment with frolyk or one of its Affiliates or successors), the termination of your relationship with frolyk, or the Site Services (each, a “Claim”) in accordance with this Section.  For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to the Terms of Service, any Service Contract, any payments or monies you claim are due to you from frolyk or its Affiliates or successors.  Only with respect to the Arbitration Provision, Claims do not include disputes that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) and are excluded from the coverage of the Arbitration Provision.

You agree that any Claim must be resolved as described in the subsections below titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration and Class Action/Jury Trial Waiver.”  

19.2 CHOICE OF LAW

This Agreement, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of the State of North Carolina provided, however, that any Claims made by any Host located within the United States will be governed by the law of the state in which such Host resides.

19.3 INFORMAL DISPUTE RESOLUTION

Before serving a demand for arbitration of a Claim, you agree to first notify frolyk of the Claim at: frolyk inc., PO Box 16368, Chapel Hill, NC 27516 or by email to office@frolyk.com, and frolyk agrees to provide to you a notice at your email address on file (in each case, a “Notice”) and seek informal resolution of the Claim.  Any Notice from you must include your name, pertinent account information, a brief description of the Claim, and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim.  Any Notice from frolyk must include pertinent account information, a brief description of the Claim, and frolyk’s contact information, so that you may evaluate the Claim and attempt to informally resolve the Claim.  Both you and frolyk will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.

19.4 MANDATORY BINDING ARBITRATION & CLASS ACTION/JURY TRIAL WAIVER (DOES NOT APPLY TO USERS LOCATED OUTSIDE THE UNITED STATES AND ITS TERRITORIES)

This Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision (“Arbitration Provision”) applies to all Users except Users located outside of the United States and its territories.

In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, frolyk, and our Affiliates agree to resolve the Claim by binding arbitration before an arbitrator from JAMS. JAMS may be contacted at www.jamsadr.com.

  1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION

Arbitration as provided in this Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision (“Arbitration Provision”) is governed by the United States Federal Arbitration Act (9 U.S.C. §§ 1 et seq.).  This Arbitration Provision applies to any Claim the parties may have and survives after your relationship with frolyk ends.  This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration.  If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.

Except as otherwise provided herein, arbitration will be conducted in Wake County, North Carolina in accordance with the JAMS Comprehensive Arbitration Rules and Procedures under the Optional Expedited Arbitration Procedures then in effect for JAMS.  Notwithstanding the foregoing, any Claims by Hosts that allege employment or worker classification claims will be conducted within 25 miles of where the Host is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect.  The parties agree that any party will have the right to appear at the arbitration by telephone and/or video rather than in person.

You and frolyk will follow the applicable JAMS rules with respect to arbitration fees.  In any arbitration under the JAMS Employment Arbitration Rules and Procedures, the Host will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted.  The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court.  Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.

This Arbitration Provision does not apply to litigation between the Company and you to which you are a party that is or was already pending in a state or federal court before the expiration of your opt-out period.  This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits.  Either you or frolyk may apply to a court of competent jurisdiction for provisional injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief; the arbitrator will render the final judgment in the matter.  

Regardless of any other terms of this Arbitration Provision, a claim may be brought by or to, and remedies awarded by, an administrative agency if applicable law permits the agency to adjudicate, investigate or prosecute the claim notwithstanding the existence of this agreement to arbitrate.  Such administrative claims include without limitation claims or charges brought before the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor, or the National Labor Relations Board.  Nothing in this Arbitration Provision will be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration, if any.

  1. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION

This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims.  For the avoidance of doubt, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision.  All such matters shall be decided by an arbitrator and not by a court.  The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Agreement or any other part of the Terms of Service is void or voidable.

In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.  If any portion of the Class Action Waiver in subsection C, below, of this Arbitration Provision is deemed to be unenforceable, you and frolyk agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.  

  1. CLASS ACTION AND JURY TRIAL WAIVER

This arbitration provision affects your ability to participate in class, collective or representative actions.  Both you and frolyk agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or representative basis on behalf of others.  There will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective, representative or private attorney general action, or as a member in any such class, collective, representative or private attorney general proceeding (“Class Action Waiver”).  The Class Action Waiver does not prevent you from bringing a Claim in arbitration as a private attorney general solely on your own behalf and not on behalf of others.  Notwithstanding any other portion of this Arbitration Provision or the JAMS Rules, the arbitrator will have authority to hear any Claim on a class, collective, or representative basis if, only if, and only to the extent that, the arbitrator determines that the waiver of such class, collective, or representative Claim is unenforceable.  You and frolyk agree that you will not be retaliated against, disciplined or threatened with discipline as a result of exercising any rights under Section 7 of the National Labor Relations Act by filing or participating in a class, collective or representative action in any forum.  However, frolyk may lawfully seek enforcement of this arbitration provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class, collective or representative actions or claims.

  1. RIGHT TO OPT OUT OF ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER.

You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying frolyk in writing within 30 days of the date you first registered for the Site.  To opt out, you must send a written notification to frolyk at Attn: Legal, PO Box 16368, Chapel Hill, NC 27516 that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions. Alternatively or in addition, you may send this written notification to office@frolyk.com.  

  1. GENERAL

20.1 ENTIRE AGREEMENT

This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and frolyk relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof.  The section headings in the Terms of Service are included for ease of reference only and have no binding effect.  Even though frolyk drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service.  If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or frolyk because of the authorship of any provision of the Terms of Service.

20.2 COMPLIANCE

User will not violate any applicable foreign, federal, state, or local laws or third-party rights on or related to the Site.  Without limiting the generality of the foregoing, User agrees to comply with all applicable laws and regulations, including, but not limited to third parties’ Intellectual Property Rights.

20.3 MODIFICATIONS

frolyk reserves the right, at its sole discretion, to modify the Site, Application or Services or to modify these Terms, including the Service Fees, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Application and/or provide you notice of the modification by email. We will also update the “Last Updated” date at the top of these Terms. Changes to the Terms will be effective at the time of posting. Your continued access or use of the Site, Application or Services will constitute acceptance of the modified Terms. Additionally, if the modified Terms contain material changes applicable to existing Members (by decreasing your rights or increasing your responsibilities), we will provide you with notice prior to the changes taking effect. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Services. If you do not close your frolyk Account you will be deemed to have accepted the changes.

 

20.4 NO WAIVER

The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of such party.

20.5 ASSIGNABILITY

User may not assign the Terms of Service, or any of its rights or obligations hereunder, without frolyk’s prior written consent in the form of a written instrument signed by a duly authorized representative of frolyk (and, for the purposes of this subsection, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles).  frolyk may freely assign this Agreement or the other Terms of Service without User’s consent.  Any attempted assignment or transfer in violation of this subsection will be null and void.  Subject to the foregoing restrictions, the Terms of Service will inure to the benefit of the successors and permitted assigns of the parties.

20.6 SEVERABILITY

If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties.  The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.

20.7 extenuating circumstances

Experience hosts set and manage their cancelation policies. If a host or guest needs to cancel a reservation, it’s their responsibility to cancel as soon as possible. At times, certain circumstances outside of a host or guest’s control can impact their ability to meet the terms of an Experience booking.

In rare instances, if frolyk determines that a Guest’s reason for cancellation falls within frolyk’s Extenuating Circumstances Policy, frolyk may override the Host's cancellation policy and make refund decisions. If frolyk determines that a Host’s reason for cancellation falls within frolyk’s Extenuating Circumstances policy, frolyk may waive the host cancellation penalties outlined in frolyk’s Terms of Service and frolyk’s Service Fee Agreement.

Valid circumstances include:

  • Unforeseen location issues that directly impact the ability to host the experience safely
  • Unexpected death or serious illness of a host, guest or immediate family member such as spouse/partner, child, parent, legal guardian, grandparent, or sibling
  • Serious injury that directly restricts a guest’s ability to participate or a host’s ability to host
  • Significant natural disasters or severe weather incidents impacting the location of destination or location of departure
  • Urgent travel restrictions or severe security advisories issued after the time of Experience booking, by an appropriate national or international authority such as a government office or department
  • Endemic disease declared by a credible national or international authority such as the US Center for Disease Control or the World Health Organization
  • Government-mandated obligations issued after the time of Experience booking like for example jury duty, court appearances, military or government assignments

Making a claim

Claims can only be considered after an Experience booking has been canceled. Once you've informed your host or guest and canceled an Experience booking, if you feel that your reason for cancelation is covered by frolyk’s Extenuating Circumstances Policy, contact frolyk for consideration. We generally require claims to be submitted no later than 14 days from the original Experience booking date and we may require valid supporting documentation.

20.8 PREVAILING LANGUAGE AND LOCATION

The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any.  The Site is controlled and operated from our facilities in the United States.  frolyk makes no representations that the Site is appropriate or available for use in other locations.  Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control.  You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities.  You also warrant that you are not prohibited from receiving U.S. origin products, including services or software. You may not use or access the Site if you are: (a) a resident of a geographic area embargoed by the United States; (b) subject to United States economic sanctions that prohibit your use or access to the Site; or (c) a foreign person or entity blocked or denied by the United States government.  

  1. DEFINITIONS

Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with frolyk.

Guest” means any authorized User utilizing the Site to seek and/or obtain Host Services from another User.  

 “Experience booking” means a booking for Host Services that a Host provides to a Guest under a Service Contract on the Site.

 “Host” means any authorized User utilizing the Site to advertise and provide Services to Guests.

Host Deliverables” means all elements of an experience listing that a Guest receives from a Host for a particular Service Contract.

Host Fees” means the fixed fee defined in the experience listing set by the Host.

Host Services” means all services performed for or delivered to Guests by Hosts.

Member” means any registered User utilizing the Site to seek and/or obtain Host Services from another Member.  

 “Payment Method” means a valid credit card issued by a bank acceptable to frolyk, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as frolyk may accept from time to time in our sole discretion.

 “Service Contract” means the contractual provisions between a Guest and a Host governing the Host Services to be performed by a Host for Guest for an Experience booking, and the additional agreements referenced in Section 5 (Service Contracts).

 “User Content” means any data, feedback, content, text, photographs, images, video, music, or other information that you post to any part of the Site or provide to frolyk.

  1. CONTACTING frolyk

If you have questions or need assistance, please contact Customer Support at office@frolyk.com.