Gazelle Flex Rental Terms & Conditions

Last Updated September 21, 2023.

ecoATM, LLC (doing business as Gazelle), and its parent, subsidiaries and affiliates ("Gazelle," "we," or "us") offers services (the "Gazelle Rental Services") through which you can rent, certain consumer electronic products (the "Products") on a subscription basis (“Rental”) for a set term of twelve (12) months (“Rental Contract Term”), which rolls over to a month to month term (“Rental Renewal Term”) (collectively the “Term”). You must agree to abide by the following terms in order to use the Gazelle Rental Services and/or the Gazelle Websites and enter into a Product Rental.

BY SETTING UP AN ACCOUNT, OR BY USING GAZELLE'S WEBSITES, YOU SIGNIFY THAT YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS, WHICH MAY BE AMENDED AT ANY TIME BY POSTING THE AMENDED TERMS ON THE GAZELLE WEBSITES. ANY AMENDED TERMS WILL BE AUTOMATICALLY EFFECTIVE IMMEDIATELY AFTER THEY ARE POSTED. Gazelle reserves the right to terminate or suspend your use of the Gazelle Websites and/or the Gazelle Services if you do not comply with this Agreement or any other Gazelle policy or procedure, or for any other reason we determine, in our sole discretion.

These terms govern any Product(s) you rent from Gazelle. These terms, the terms that govern your use of Gazelle's websites, including gazelle.com and flex.gazelle.com ("Gazelle Websites"), the Gazelle Rental Services and any and all applications included therein, which terms are located at www.gazelle.com/legal, and any supplemental terms or policies that accompany a specific transaction, feature or application, collectively, make up an agreement between you and Gazelle (the "Agreement"). You acknowledge that this Agreement is in electronic form and has the same force and effect as an agreement in writing. In this Agreement, the term "you" or "your" means an individual or entity exercising rights under this Agreement.

1. Requirements for Rental. In order to complete a Rental with Gazelle, you must: (i) Create and maintain an account with us; (ii) Provide true, up to date, accurate and complete, account information about yourself and update such information as needed; (iii) Comply with all terms and conditions of this Agreement; (iv) Comply with all applicable laws and regulations, including all import and export laws as described in Section 15 below; (v) Transact on behalf of yourself and not on behalf of others; and (vi) Be over eighteen (18) years of age and have the legal capacity to enter into agreements.
   
   In order to receive any Product, you must provide us with information including first and last name, email address mail, phone number, billing address, billing information, and a valid postal address at which you are able to receive mail (if different from the billing address) and you are required to provide your applicable credit card or debit card number, expiration date and CVV code.
   
   Gazelle shall not be responsible for communication, transactional, shipping, or billing errors should your contact and/or billing information be inaccurate or incomplete. You are responsible for ensuring that you can receive emails from Gazelle and Gazelle is not responsible for any emails that were not received by you because they were blocked or filtered as spam.
   
   
2. Title. Title to each Rental Product shall remain with Gazelle at all times. This means You do not own the Product.
   
   
3. Wireless Service and Technical Support Not Included. No Wireless Service.WIRELESS SERVICE PLANS AND DATA PLANS are not included in the RENTAL price OF THE PRODUCT(S) and are not provided by Gazelle.  You are responsible for purchasing a wireless carrier or data plan from your preferred provider for the Product(s) to be fully functional. Gazelle does not provide any technical or other support in connection with any Product offered for sale. You are responsible for all Product use and set up, including setting up a data or wireless plan.
   
   
4. Rental Contract Term. Gazelle offers a fixed rental period of twelve (12) months for each Rental Product. THE FIXED RENTAL CONTRACT TERM WILLWILL AUTOMATICALLY RENEW AND CONVERT INTO A MONTH-BY-MONTH RENTAL UNLESS YOU CANCEL YOUR RENTAL IN ACCORDANCE WITH THE CANCELLATION PROCESS. If You are eligible, and at Gazelle’s sole discretion, Gazelle may offer you an option to upgrade/change subscription Product for a fixed-term extension at the end of your Rental Contract Term, or at an earlier time during your Contract Term, (“Upgrade”). Should you affirmatively select this option, your contract with Gazelle will restart (i.e., a new contract, not a renewal). This new Rental Contract Term shall be subject to the same automatic renewal conditions as set forth herein. To be eligible for an Upgrade, you must be in full compliance with the terms of this Agreement, current on all Fees, do not have a history of any late or failed payments, or a history of failing to return a Product to Gazelle. Should you have any questions about the automatic renewal of your Rental, please contact us at here (https://flex-shp.gazelle.com/pages/email-us).
   
   
5. Automatic Payment. When you enroll in a Rental through Gazelle, you authorize Gazelle (or Gazelle’s third-party payment processor (“Payment Processor”)) to charge your credit or debit card you designate in your account(“Payment Method”). Your Payment Method will be charged a one-time initiation fee of fifty dollars ($49.99 USD) (“Initiation Fee”) each time you order a Rental Product, along with the first monthly Rental Fee for the Product you select. For the avoidance of doubt, Your Payment Method will be charged an Initiation Fee each time you enter into a new Rental. Your Payment Method will then be automatically charged the Monthly Rental Fee each month on the date each Monthly Rental Fee is due, during your Rental Contract Term, as shown in your account. After your Rental Contract Term you will continue to be billed the monthly Rental Fee in each Renewal Term until you terminate the Rental by following the cancellation steps found in the Cancellation and Product Return Section of this Agreement. You must ensure that at all times your Payment Method is valid and up-to-date. State Sales Tax will apply to all items shipped to a jurisdiction in which we are legally obligated to collect sales tax. If you utilize a third-party money transfer service or mobile application, your transaction may be subject to additional terms and conditions of such applications and may incur fees or charges not assessed by Gazelle. Upon completion of each scheduled payment, Gazelle will provide a receipt indicating the amount and date of the payment that was automatically debited by means of an email message to the address you have provided.
   
   If you need to update your credit or debit card information at any time, you may update your Payment Method information online by logging on to My Account. Changes may take up to one (1) day to take effect.
   
   Failed Payment – It is your responsibility to ensure your Payment Method and account information is accurate and up to date. In the event your agreement expires for failure to make a timely Monthly Rental Fee, you will be required to pay any outstanding reinstatement plus an amount sufficient to renew the Rental on the previously established schedule.
   
   
6. Product Condition. All Products eligible for Rental are in “Gazelle Certified Good", which means all Product features work (except for those requiring wireless carrier service or data plans) and the device may include minor scratches.  
   
   
7. Use of the Product. You agree to treat the Product(s) your rent with great care. You are responsible for any loss, destruction, or damage to the Product(s) your rent for any reason, including due to theft, loss, mysterious disappearance, damage in transit, or any other cause. If you return a Product that is damaged beyond normal wear and tear, and that is no longer in “Gazelle Certified Good” condition, then you hereby authorize us (or our third-party Payment Processor) to charge your Payment Method for the price for repairing or replacing the Product, as determined in our discretion, up to the Fair Market Value of the Product. “Normal wear and tear” means minor damage from normal Product use that doesn’t materially diminish the value of the Product.
   
   
8. Shipping. Gazelle offers free ground shipping when you order a Rental. Gazelle also offers free ground shipping when you return the Product to Gazelle, in the event of cancellation. Free ground shipping is only valid for ground shipping within the United States, with the shipping label provided to you by Gazelle. The cost of any return without using the label supplied by Gazelle is your responsibility.
   
   
9. Delivery. Once payment is authorized and fully processed, the Product will be shipped to You. Your Rental Contract Term begins three (3) days after you receive an email that your Product is on its way, as reported by the shipping carrier (“Processing Date”). Each month of Your Rental Contract Term shall automatically be paid by you in advanced via the Payment Method in your account, chargeable on the rolling anniversary date of the Processing Date of the Product until your Rental is terminated.
   
   
10. Risk-Of-Loss. You remain responsible for the risk-of-loss for the Products from the time the Product ships to you until delivery of the Product back to Gazelle, as reported by the shipping carrier. You are responsible for any damages that may occur to your Product while in transit to or from Gazelle.
    
    
11. Cancellation.
    1. Cancellation By You.  You may return the Product in its original packaging and condition within thirty (30) calendar days from the date you ordered the Product “Rental Order Date”, for a full refund for the Product being returned. If you cancel the Rental thirty (30) calendar days after your Rental Order Date, and you are still in the Rental Contract Term, you will be charged an early cancellation fee equal to 50% of your Monthly Rental Fee multiplied by the number of months remaining on your Rental Contract Term (“Early Termination Fee”). Gazelle offers free return shipping for Product, see Shipping for more details.
       
       
    2. Cancellation By Gazelle. Gazelle is entitled to automatic termination where You have defaulted on payment for more than two (2) months. If You have rented several Products and You are delinquent or have breached the Terms for one Product, Gazelle reserves the right to unilaterally terminate the remaining Rentals. A non-exhaustive list of actions that could trigger termination by Gazelle includes willfully damaging a Product; a breach of these Terms; transferring or attempting to transfer the Product to an unaffiliated third-party; using a rented Product to commit a criminal offense; or Your failure to pay the Fees due. In addition, Gazelle is entitled to automatically terminate or discontinue any and all Product Rental at any time upon written notice to You. If Gazelle provides you notice that your Product Rental is cancelled, you shall return the Product to Gazelle within fourteen (14) calendar days of you receipt of such notice. Gazelle offers free return shipping for Product, see Shipping for more details.
       
       
12. Cancellation Process. To cancel your Rental, you will need to login to "My Account", locate your Rental under transaction history and click View Rental", then select "Cancel Rental" and follow the steps to confirm the cancellation. You will receive an email with the directions on how to create a free return shipping label. You must return the Product, in accordance with Section 13 (Product Return), to Gazelle within fourteen (14) days of initiating your cancellation to complete the cancellation; THE CANCELLATION BECOMES EFFECTIVE UPON GAZELLE’S RECEIPT OF THE PRODUCT. You will be responsible for, and Your Payment Method will be charged for, the payment of all Fees associated with orders already processed before Your cancellation is complete.
    
    
13. Product Return. It is Your responsibility to return the Product to Gazelle within fourteen (14) days from when you or Gazelle initiate a cancellation of the Rental. You must return Products in the same condition in which You received it after following all steps in Preparing Product for Return . After a cancellation is initiated, you will receive an email outlining the steps to create your free return label to return the Product to Gazelle. FAILURE TO COMPLY WITH THIS SECTION OR SECTION 14 (PREPARING PRODUCT FOR RETURN), WILL RESULT IN GAZELLE CHARGING YOU A PRODUCT REPLACEMENT FEE UP EQUAL TO THE CURRENT FAIR MARKET VALUE OF THE PRODUCT "PRODUCT REPLACEMENT FEE".
    
    
14. Preparing Product for Return. You must back up and store any Device Data you wish to keep from the Product and remove all personal information, data, photos, emails, notes, SIM cards, memory cards and/or other files (“Device Data”) from the Product before you send or return the Product to Gazelle. Gazelle's standard practice is to remove all such data from the Product; however, Gazelle makes no guarantee that it will do so. In addition, you must remove password protection, your personal account(s) and any other impediments, such as Find My iPhone, that excludes or impairs Gazelle’s access or ownership rights. By sending or returning the Product to Gazelle, you agree to release us from any claim as to the Product, the data stored in such Product, or any information on any media used in conjunction with the Product and which you send to Gazelle, or for such data's security, integrity, confidentiality, disclosure, or use. Gazelle is not responsible for: (a) any loss suffered by you due to any data that is not erased from the device and transferred to a third party, or (b) any loss of data after you send the Product to us. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GAZELLE HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO THE DEVICE OR ANY DEVICE DATA ACCESSIBLE THEREIN.
    
    
15. Product Availability and Eligibility. Products are not guaranteed to be available. Notwithstanding the foregoing, Gazelle reserves the right to cancel any order for Rental at any time prior to delivery of the Product for any reason. Your ability to enroll in a Rental is only available while supplies last. Gazelle determines, in its sole discretion, which Products are eligible for Rental. Product availability is not guaranteed as it may be low in stock or out of stock. If a Product is not available, Gazelle will use its best efforts to notify you. Gazelle may terminate the eligibility of certain Products at any time and without advanced notice. Gazelle reserves the right to cancel any Rental at any time, upon written notice. In such cases Products must be returned to Gazelle within 14 days as described under Section 13 (Product Return) 
    
    
16. Maximum Product Quantity. Gazelle does not permit more than one (1) Product Rentals per account; or two (2) per household.
    
    
17. Notice for California Consumers.  Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice:
    
    The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814 or at (916) 445‐1254 or (800) 952‐5210.
    
    
18. Termination.  Gazelle reserve the right, without notice and in our sole discretion, to terminate your license to use the Gazelle Rental Services and/or any Rental and to block or prevent your future access to, and use of, the Gazelle Rental Services.
    
    
19. Import and Export Laws. You are responsible for fully complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
    
    
20. Promotions. From time to time, at Gazelle's sole discretion, Gazelle may offer promotional programs as an incentive to customers. Promotions applicable to payments are applied as an increment to the final value of a customer's Product, but they are not considered a change in that final value. Promotional programs have explicitly defined terms, including but not limited to, expiration, usage per person and per transaction, and other limitations and restrictions. Unless otherwise stated, promotions must be applied by you before checkout. For the avoidance of doubt, once checkout is completed, promotions cannot be applied to the same transaction. Gazelle reserves the right, in its sole discretion, to cancel or refuse promotions.
    
    
21. Product Pricing. Gazelle regularly adjusts prices based on a variety of factors, including market conditions and individual Product condition, and therefore does not price match other Product sellers/renters and does not provide price adjustments once a payment is complete. Prices for the same or similar Products may vary between the Gazelle Websites and third-party marketplaces.
    
    
22. Accuracy of all Information. Gazelle makes every effort to ensure the accuracy of all information you receive in relation to the Product. From time to time, however, there may be typographical errors, technical inaccuracies, pricing or other errors or omissions. As such, Gazelle reserves the right, at any time prior to payment, to: (a) Correct an error, (b) Change the offer or cancel the Rental prior to your receipt of the Product, (c) Void a transaction.
    
    
23. Privacy. Please refer to our Privacy Policy for information about how we collect, use and disclose information about you.
    
    
24. Electronic Notices and Transactions. You agree to transact with us electronically, including without limitation, agreeing to terms and conditions or offering to sell the Product by electronic means. You authorize Gazelle to provide you with terms and important notices about Gazelle and your transactions to an email address you provide to us or by posting notices on an applicable page (or my account area) on www.gazelle.com. It is your duty to keep your email address accurate and up to date and to maintain a valid email address and to ensure that emails we send you are not filtered or stopped by spam filters or other types of email blocking functionalities. If you no longer desire to transact electronically with us, you may no longer use the Gazelle Websites. You can retrieve and review this Agreement by clicking on the "Legal" link at www.gazelle.com.
    
    
25. Access. You are responsible for obtaining at your own expense all equipment and services needed to access and use the Gazelle Websites and the Gazelle Rental Services, including all devices, Internet browsers and Internet access. If you access the Gazelle Website and the Gazelle Rental Services through a mobile or wireless device, you are responsible for all fees that your carrier may charge you for data, text messaging and other wireless access or communications services.
    
    
26. Use of Services. By using Gazelle Websites, you agree not to (i) access any of the Gazelle Rental Services by any means (including, without limitation, by use of scripts, web crawlers or similar methods) other than through the user interface provided by Gazelle; and (ii) engage in any other activity that interferes with or disrupts the Rental Services or performance of the Gazelle Websites.
    
    
27. Gazelle Text Message Terms and Conditions. This section (“Text Message Terms”) applies to your participation in one or more of Gazelle’s text messaging programs (the “Program”). Your participation in the program constitutes your express consent to receive recurring and nonrecurring automated text messages (e.g., SMS and MMS) at the mobile number you provided, including text messages that may be sent using an automatic telephone dialing system.
    
    The Program may include recurring and nonrecurring text messages relating to promotions, products, your orders, cart reminders, transactional communications, requests for customer feedback and customer experience reviews, and information that we think will be of interest to you. Message frequency varies. Gazelle reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent text messages. Consent to receive automated marketing text messages is not a condition of Rental. We do not charge for the service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply. Not all mobile phone carriers and not all mobile devices or handsets may be supported, and our text messages may not be deliverable in all areas. Gazelle reserves the right to add or remove mobile phone carriers from the Program from time to time.
    
    You may opt out of the Program at any time. If you wish to unsubscribe, text STOP[, UNSUBSCRIBE, CANCEL, END or QUIT to any text message sent from us. After texting us STOP, you will receive one additional message confirming that your request has been processed. You understand and agree that alternative methods of opting out, such as using alternative words or requests, may not be recognized by Gazelle as an unsubscribe request and that Gazelle and its service providers will have no liability for failing to honor such requests.
    
    For any questions, please text HELP to the number you received the messages from. You can also contact us here for more information.We have the right to modify any telephone number or short code we use to operate the service at any time. You will be notified on such occasions. You agree that if we have provided you with such notice, any messages you send to a telephone number or short code we have changed, including any STOP or HELP requests, may not be received, and we will not be liable for honoring requests made in such messages.
    
    To the extent permitted by applicable law, you agree that Gazelle, our service providers and the mobile phone carriers will not be liable for failed, delayed, undelivered or misdirected text messages, including any information contained therein, sent in connection with the Program, any errors in such text messages, and/or any action you may or may not take in reliance on the text messages or Program.You can see our Privacy Policy to determine how we collect and use your personal information.
    
    
28. No Warranties. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE PROVIDE THE GAZELLE RENTAL SERVICES AND WEBSITES "AS IS," "WITH ALL FAULTS," AND "AS AVAILABLE," WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND. WE DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THE IMPLIED CONDITIONS OF SATISFACTORY QUALITY. WE MAKE NO REPRESENTATIONS THAT YOUR TRANSACTIONS WITH GAZELLE WILL MEET YOUR REQUIREMENTS.
    
    
29. Limited Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GAZELLE OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DISTRIBUTORS OR CONTRACTORS (COLLECTIVELY, THE "GAZELLE PARTIES") BE LIABLE FOR ANY COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, OR ANY CLAIMS OF YOU OR OTHER THIRD PARTIES WHATSOEVER WITH RESPECT TO YOUR TRANSACTIONS WITH GAZELLE UNDER THIS AGREEMENT REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, WARRANTY, OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF GAZELLE AND THE GAZELLE PARTIES (JOINTLY) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF THE GAZELLE RENTAL SERVICES AND GAZELLE WEBSITES EXCEED THE GREATER OF (I) THE AMOUNT PAID, IF ANY, BY YOU TO US OR (II) $100. THE LIMITATIONS SET FORTH IN THIS AGREEMENT WILL NOT LIMIT OR EXCLUDE LIABILITY FOR OUR GROSS NEGLIGENCE, FRAUD OR INTENTIONAL, MALICIOUS OR RECKLESS MISCONDUCT, OR FOR PERSONAL INJURY OR PROPERTY DAMAGE CAUSED BY PRODUCTS YOU RENT THROUGH THE GAZELLE RENTAL SERVICES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
    
    
30. Indemnity. You agree to indemnify, defend, and hold harmless Gazelle and the Gazelle Parties from and against any and all claims, liabilities, damages, losses, costs, expenses, or fees (including reasonable attorneys' fees) that such parties may incur as a result of or arising from (a) your violation or breach of any terms under this Agreement, (b) your activities in connection with the Rental Services; (c) any User Content you post, store or otherwise transmit on or through the Rental Services or Website; (d) any feedback you provide; and (e) your violation of the rights of any third party. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with our defense of such claim.
    
    
31. Entire Agreement/No Waiver. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. The captions are used only as a matter of convenience and are not to be considered a part of this agreement or be used in determining the intent of the parties to it. No waiver by Gazelle of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Sections 10, 14, 22, 24, 28 through 36 shall survive termination of this Agreement.
    
    
32. Correction of Errors and Inaccuracies. The Gazelle Websites and any correspondence related to a transaction may contain typographical errors or other errors or inaccuracies and may not be complete or current. Gazelle therefore reserves the right to correct any errors, inaccuracies or omissions and to change or update the Content at any time without prior notice. Gazelle does not, however, guarantee that any errors, inaccuracies, or omissions will be corrected.
    
33. Modification. Gazelle reserves the right to modify this Agreement at any time. If you do not agree to the changes, you may discontinue using the Gazelle Websites and/or the Gazelle Services. Your continued use of any Gazelle Website and/or Gazelle Services after any such changes take effect constitutes your acceptance to such changes. Each time you Rent a Product from Gazelle, you reaffirm your acceptance of this Agreement as in effect at the time of such use. You are responsible for reviewing this Agreement each time you use the Gazelle Websites and/or the Gazelle Websites. The Agreement is and will be located at www.gazelle.com/service_terms.
    
    
34. Dispute Resolution; Binding Arbitration. PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND GAZELLE TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND GAZELLE FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND GAZELLE AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. GAZELLE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
    
    THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION ARE INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY'S CLAIMS.
    
    FOLLOW THE INSTRUCTIONS BELOW, IN SECTION 34(K), IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.
    1. Claims This Section Applies To. The dispute resolution and binding arbitration terms in this Section 34 apply to all Claims between you and Gazelle. A “Claim” is any dispute, claim, or controversy (excluding those exceptions listed below) between you and Gazelle, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, that either party wishes to seek legal recourse for and that arises from or relates to this Agreement or the Gazelle Services, including any privacy or data security claims or claims related to the validity, enforceability, or scope of the arbitration requirement or any portion of it.
       
       
    2. Informal Dispute Resolution Prior to Arbitration. If you have a Claim against Gazelle or if Gazelle has a Claim against you, you and Gazelle will first attempt to resolve the Claim informally in order to try and resolve the Claim faster and reduce costs for both parties. You and Gazelle will make a good-faith effort to negotiate the resolution of any Claim for 30 days, or such longer period as mutually agreed in writing (email suffices) by the parties, (“Informal Resolution Period”) from the day either party receives a written notice of a dispute from the other party (a “Claimant Notice”) in accordance with this Agreement.
       
       You will send any Claimant Notice to Gazelle by certified mail addressed to ecoATM, LLC, Attn: Chief Legal Officer, 10121 Barnes Canyon Rd, San Diego, CA 92121 or by email to ecoatmlegal@ecoatm.com. Gazelle will send any Claimant Notice to you by certified mail or email using the contact information you have provided to Gazelle. The Claimant Notice sent by either party must (i) include the sender’s name, address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
       
       The Informal Resolution Period is designed to allow the party who has received a Claimant Notice to make a fair, fact-based offer of settlement if it chooses to do so. You or Gazelle cannot proceed to arbitration before the end of the Informal Resolution Period. If you or Gazelle file a Claim in court or proceed to arbitration without complying with the requirements in Section 34, including waiting until the conclusion of the Informal Resolution Period, the other party reserves the right to seek relief from a court to enjoin the filing and seek damages from the party that has not followed the requirements in this Section to reimburse it for any arbitration fees and costs already incurred as a foreseeable consequence of that breach.
       
       The statute of limitations and any filing fee deadlines for a Claim will be tolled for the duration of the Informal Resolution Period for that Claim so that the parties can engage in this informal dispute-resolution process.
       
       
    3. Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court (provided that the small-claims court does not permit class or similar representative actions or relief) and any disputes exclusively related to the intellectual property or intellectual property rights of you or Gazelle, including any disputes in which you or Gazelle seek injunctive or other equitable relief for the alleged unlawful use of your or Gazelle’s intellectual property or other infringement of your or Gazelle’s intellectual property rights (“IP Claims”), all Claims, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 34(b) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
       
       
    4. Binding Individual Arbitration. Subject to the terms of this section, Claims may only be settled by binding individual arbitration conducted by National Arbitration and Mediation (“NAM”), https://namadr.com, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”) and according to NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Claim arose (the “Rules”), as modified by this Agreement.
       
       If NAM notifies the parties in writing (email suffices) that it is not available to arbitrate any Claim, then that Claim may only be settled by binding individual arbitration conducted by American Arbitration Association (“AAA”), https://www.adr.org. For Claims that must be arbitrated by AAA, if you are a “Consumer,” meaning that you only use the Gazelle Services for personal, family or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules are the Rules applicable to Claims between you and Gazelle as modified by this Agreement. For Claims that must be arbitrated by AAA, if you are not a Consumer, the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures are the Rules applicable to Claims between you and Gazelle as modified by this Agreement.
       
       This Agreement affects interstate commerce, and the enforceability of this Section 34 will be substantively and procedurally governed by the FAA to the extent permitted by law. As limited by the FAA, this Agreement, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or Gazelle to satisfy one of our individual Claims (that the arbitrator determines are supported by credible relevant evidence).
       
       
    5. Arbitration Procedure and Location. You or Gazelle may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing a demand for arbitration with NAM in accordance with the Rules (or with AAA in accordance with the Rules if applicable pursuant to Section 34(d)).
       
       Instructions for filing a demand for arbitration with NAM are available on the NAM website or by calling NAM at 800-358-2550, and instructions for filing a demand for arbitration with AAA are available on the AAA website or by calling AAA at 800-778-7879. You will send a copy of any demand for arbitration to Gazelle by certified mail addressed to ecoATM, LLC, Attn: Chief Legal Officer, 10121 Barnes Canyon Rd, San Diego, CA 92121or by email to ecoatmlegal@ecoatm.com. Gazelle will send any demand for arbitration to you by certified mail or email using the contact information you have provided to Gazelle.
       
       The arbitration will be conducted by a single arbitrator in the English language. You and Gazelle both agree that the arbitrator will be bound by this Agreement.
       
       For Claims in which the claimant seeks less than USD $10,000, the arbitrator will decide the matter solely based on written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For Claims in which the claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings will be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required and you reside in the United States, the hearing will take place in New York, New York, unless the arbitrator determines that this would pose a hardship for you, in which case the in-person hearing may be conducted in the claimant’s state and county of residence. If you reside outside the United States, the site of any in-person hearing will be determined by the applicable Rules.
       
       The arbitrator (not a judge or jury) will resolve all Claims in arbitration. Unless you and Gazelle agree otherwise, any decision or award will include a written statement stating the decision of each Claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.
       
       An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent in any other case except to enforce the award itself unless the parties agree prior to issuance of the award. Any arbitration decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.
       
       
    6. Arbitration Fees. Each party will be responsible for arbitration fees in accordance with the applicable Rules and this Agreement.
       
       
    7. Frivolous or Improper Claims. To the extent permitted by applicable law, a claimant must pay all costs incurred by the defending party, including any attorney’s fees, related to a Claim if an arbitrator determines that (i) the Claim was not warranted by existing law or by a nonfrivolous argument or (ii) the Claim was filed in arbitration for any improper purpose, such as to harass the defending party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.
       
       
    8. One Year to Assert Claims. To the extent permitted by law, any Claim by you or Gazelle against the other must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you or Gazelle will no longer have the right to assert that Claim.
       
       
    9. Confidentiality. If you or Gazelle submits a Claim to arbitration, you and Gazelle agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of discovery in the arbitration. You and Gazelle agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.
       
       
    10. Coordinated Filings. If 25 or more Claimant Notices are received by a party that raise similar claims and have the same or coordinated counsel, these will be considered “Coordinated Claims” and will be treated as mass filings or multiple case filings according to the Rules, if and to the extent Coordinated Claims are filed in arbitration as set forth in this Agreement. You or Gazelle may advise the other of your or Gazelle’s belief that Claims are Coordinated Claims, and disputes over whether a Claim meets the definition of “Coordinated Claims” will be decided by the arbitration provider as an administrative matter. To the extent either party is asserting the same Claim as other persons and are represented by common or coordinated counsel, that party waives any objection that the joinder of all such persons is impracticable.
        
        Coordinated Claims may only be filed in arbitration as permitted by the process set forth below. Applicable statutes of limitations will be tolled for Claims asserted in Coordinated Claims from the time a compliant Claimant Notice has been received by a party until this Agreement permits such Coordinated Claim to be filed in arbitration or court.
        
        Initial Bellwether: The bellwether process set forth in this section will not proceed until counsel representing the Coordinated Claims has advised the other party in writing (email suffices) that all or substantially all the Claimant Notices for the Coordinated Claims have been provided.
        
        After that point, counsel for the parties will select 30 Coordinated Claims to proceed in arbitration as a bellwether to allow each side to test the merits of its arguments. Each side will select 15 claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. The parties acknowledge that resolution of some Coordinated Claims will be delayed by this bellwether process. Any remaining Coordinated Claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those Claims, unless and until they are selected to be filed in individual arbitration proceedings as set out in this Section 34(j).
        
        A single arbitrator will preside over each Coordinated Claim chosen for a bellwether proceeding, and only one Coordinated Claim may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
        
        Mediation: Once the arbitrations that are part of the bellwether process have concluded (or sooner if the claimants and the other party agree), counsel for the parties must engage in a single mediation of all remaining Coordinated Claims, with the mediator's fee paid half by Gazelle and half by the other parties. Counsel for the claimants and the other party must agree on a mediator within 30 days after the conclusion of the last bellwether arbitration. If counsel for the claimants and the other party cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. All parties will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.
        
        Remaining Claims: If the mediation process concludes with 100 or more unresolved Coordinated Claims remaining, any party to a remaining Coordinated Claim may elect to no longer have the arbitration requirement in this Section 34 apply to all remaining Coordinated Claims for which a compliant Claimant Notice was received by the other party but that were not resolved in the bellwether process or global mediation. To be effective, such an election must be communicated in writing (email suffices) to counsel for the opposing party within 30 days of mediation concluding. Coordinated Claims released from the arbitration requirement must be resolved in accordance with Section 35.
        
        If the mediation process concludes with fewer than 100 Coordinated Claims remaining or if no party makes a timely election as provided for in the previous paragraph, the arbitrator will randomly select 50 Coordinated Claims (or the total remaining amount if less than 50) to proceed in arbitration as a second batch. The arbitrator will randomly select eligible claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. Once all arbitrations in the foregoing process are complete, the parties will repeat this process until all Coordinated Claims have been arbitrated.
        
        If Coordinated Claims released from the arbitration requirement are brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in Coordinated Claims for which a compliant Claimant Notice was received by the other party. Any party may contest class certification at any stage of the litigation and on any available basis.
        
        A court will have authority to enforce the bellwether and mediation processes defined in this section and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.
        
        
    11. Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted this Agreement by emailing ecoatmlegal@ecoatm.com. To be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration in order to be valid. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 35.
        
        
    12. Rejection of Future Arbitration Changes. You may reject any change we make to Section 34 (except address changes) by sending us notice of your rejection within 30 days of the change via email at ecoatmlegal@ecoatm.com or by certified mail addressed to ecoATM, LLC, Attn: Chief Legal Officer, 10121 Barnes Canyon Rd, San Diego, CA 92121. Changes to Section 34 may only be rejected as a whole, and you may not reject only certain changes to Section 34. If you reject changes made to Section 34, the most recent version of Section 34 that you have not rejected will continue to apply.
        
        
    13. Severability. If any portion of this Section 34 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from this Agreement; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 34 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 34; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction, in accordance with this Agreement, and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 34 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 34 will be enforceable.
        
        
35. Applicable Law or Venue. Any dispute arising from this Agreement or your use of the Gazelle Services will be governed by and construed and enforced in accordance with the laws of California except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration and cannot be heard in small claims court will be resolved in the state or federal courts in the County of San Diego, California.
    
    
36. Severability. If any provision of this Agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

Frequently Asked Questions. Please also refer to our online FAQ’s for general information regarding our Gazelle Flex Services.