Section 16 Term and Termination. Back to topThe term of this Rental Agreement begins when You first use the Services, and the term ends 10 years after Your last use of the Services; provided, however, that Your personal financial responsibility under Section 4 of this Rental Agreement, titled Credit and Debit Card Matters, expires one year after the later of (i) Your last use of the Services, or (ii) the expiration of Your membership. At any time and from time to time, and without Your consent, Motivate may unilaterally terminate Your right to use any of the Services, in Motivate‘s sole discretion and without any notice or cause.
You may terminate Your use of the Services at any time; provided, however, that (i) no refund will be provided by Motivate, (ii) the term of this Rental Agreement continues in accordance with this Section, and (iii) You may still be charged any applicable additional fees arising under this Rental Agreement. This Rental Agreement remains in full force and effect, in accordance with its terms and conditions, after any termination of Your right to use any of the Services, regardless of how the Agreement is terminated.
If You select a monthly billing option, (a) You will be responsible for monthly payments in amounts as listed on the Website at the time you enroll, billed with an annual (12-month) commitment, and (b) if You cancel your membership before your annual commitment is complete, You will be responsible for paying in full at the time you cancel the balance remaining to complete the annual commitment.
All annual memberships may be auto-renewed upon the membership period's expiration. Members who have been enrolled into auto-renew may prevent their membership from auto-renewing by deselecting the "Auto-Renew Membership" box found on the Profile page within the Member Area of the Website. Members who wish to be enrolled into auto-renew may do so by selecting the Auto-Renew Membership box found on the Profile page within the Member Area of the Website.
No sooner than thirty (30) days before and no later than one (1) year after the expiration of Your membership term, You may renew the membership on the Website, under the "Member Login" heading. If the membership is not renewed within this period of time, then You may be required to (i) take certain actions to reactivate Your old account, or (ii) create an entirely new account for a new membership. The membership, and the personal identification number and system key related thereto, are non-transferable and may be terminated if Member breaches this Rental Agreement, as decided by Motivate in its sole discretion.
Section 17 Notices. Back to topYou may contact Motivate by writing, calling, or emailing Motivate at the street address, telephone number, and email address listed below:
Motivate International Inc.
5202 Third Avenue
Brooklyn, NY 11220
Customer Service: 1-855-55-DIVVY (1-855-553-4889)
Section 18 Mandatory Arbitration; Class Action Waiver. Back to top This Rental Agreement is governed by, and must be construed and enforced in accordance with, the laws of the state of Illinois, excluding principles of conflicts of laws.
You agree that any dispute or Claim relating in any way to Your use of the Services will be resolved by binding arbitration, rather than in court, except that You may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Rental Agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Rental Agreement as a court would.
To begin an arbitration proceeding, You must send a letter requesting arbitration and describing Your claim to Motivate International Inc. at 5202 Third Avenue, Brooklyn, NY 11220. The arbitration will be conducted by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. Payment of all filing, administration and arbitrator fees will be governed by JAMS's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where You live or at another mutually agreed location.
YOU AND MOTIVATE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If for any reason a Claim proceeds in court rather than in arbitration You and Motivate each waive any right to a jury trial. We also both agree that You or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of Your decision to opt out to firstname.lastname@example.org with the subject line, "DIVVY ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of Your first use of the Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If You opt out of these arbitration provisions, Motivate also will not be bound by them.
This Arbitration and Class Action Waiver section shall survive any termination of your Account or the Platform.
In the event that the arbitration provisions above are found not to apply to You or to a particular claim or dispute, either as a result of Your decision to opt out of the arbitration provisions or as a result of a decision by the arbitrator or a court order, You agree that any Claim or dispute must be resolved exclusively by a state or federal court located in Cook County, Illinois. You and Motivate agree to submit to the personal jurisdiction of the courts located within Cook County, Illinois for the purpose of litigating all such claims or disputes.
Further, if Motivate prevails in litigation against a Member to enforce its rights under this Rental Agreement, Motivate shall be entitled to its costs, expenses, and reasonable attorneys’ fees (whether incurred at or in preparation for trial, appeal, or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which Motivate may be entitled.
Section 19 Waivers. Back to top
No waiver of any breach of any provision of this Rental Agreement is a waiver of any other breach or of any other provision of this Rental Agreement. The terms of this Rental Agreement may be waived or amended only in writing and only by the party that is entitled to the benefits of the term being waived or amended.
For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, You do hereby knowingly, voluntarily, and irrevocably: (1) give Your full and unconditional consent to Motivate and its affiliates, successors, and assigns to use at any time and from time to time, without any restriction, Your appearance and voice in photographs, videos, and other recordings, on all websites and for all press, promotional, advertising, publicity, and other commercial purposes, including all formats and media, whether now known or hereafter devised, throughout the world and in perpetuity; (2) grant to Motivate and its affiliates, successors, and assigns (a) the right to photograph, videotape, and otherwise record Your appearance and voice, at any time and from time to time, (b) all rights, copyrights, title, and interests in the results of such photographs, videos, and other recordings, as a work for hire for copyright purposes, and (c) the right to use, reproduce, exhibit, distribute, transmit, alter, and exploit, at any time and from time to time and as Motivate may decide in its sole discretion, the photographs, videos, and other recordings, or any component thereof, and all related merchandising, promotions, advertising, and publicity; and (3) waive, release, and discharge all Released Persons from all Claims that You have or may have for any libel, defamation, invasion of privacy, right of publicity, infringement of copyright, or violation of any right granted by You in this paragraph.
Section 21 Cumulative Remedies. Back to top
All rights and remedies granted under or referred to in this Rental Agreement are cumulative and nonexclusive, and resort to one does not preclude the availability or applicability of another or to any other right or remedy provided by law.
Section 22 Final Agreement; Modification by Motivate. Back to top
This Rental Agreement contains the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Rental Agreement supersedes all other prior agreements, written or oral, relating to such subject matter. At any time and from time to time, and without Member's consent, Motivate may unilaterally amend, modify, or change this Rental Agreement, in its sole discretion and without any notice or cause. By continuing to use any Services after any amendment, modification, or change, Member has agreed to be bound by all such amendments, modifications, and changes. Member must carefully review this Rental Agreement on a regular basis to maintain awareness of all amendments, modifications, and changes. Whenever a change is made to this Rental Agreement, Motivate will post a notification on the Website. Notwithstanding any provision in this Rental Agreement that may be to the contrary, the pricing set forth on the Website supersedes all pricing set forth in this Rental Agreement.