1. ACCEPTANCE OF TERMS OF SERVICE
1.1 By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the Site, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Site by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you. Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference. These Terms of Service apply to all users of the Services, including, without limitation, registered and unregistered users.
You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
3.1 To sign up for the Services, you must register for an account on the Services (an “Account”). You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates.
4. CONTENT DEFINITION
4.1 For purposes of these Terms of Service, the term “Content” includes, without limitation, information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
5. NOTICES AND RESTRICTIONS
5.1 The Services may contain Content specifically provided by us or our partners and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
6. USE LICENSE
6.1 Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
7. AVAILABILITY OF CONTENT
7.1 We do not guarantee that any Content will be made available on the Site or through the Services. We reserve the right to, but do not have any obligation to, (i) remove, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Content from the Services.
8. RULES OF CONDUCT
9. THIRD PARTY SERVICES
9.1 The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
9.2 If you choose to purchase a product or service from a party other than Quip, including products manufactured by Quip or services delivered in part by Quip, please note that your ability to return said products, receive a refund, receive repair services, or other remedies, is governed by your contract with the third party, and not Quip. To the fullest extent allowed by applicable law, Quip shall have no liability or responsibilities towards you based on your dealings with any third party.
10.1 Certain of our Services may involve the purchase of products offered by us that would be shipped to an address provided by you.
10.2 All purchases of physical items from Quip are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
10.3 We will not be responsibility for any shipping delays or loss of product beyond our control, including any delays created by products being held at border customs en route to a customer’s shipment address.
11. PAYMENTS AND BILLING PAID SERVICES
11.1 Certain of our Services, including the purchase of any products offered by us, may be subject to payments now or in the future (the “Paid Services”). Please see our Help / FAQ [www.getquip.com/help] for a description of the current Paid Services. Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of this Agreement.
12. PAYMENT METHOD
12.1 We use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account on the Services (your “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for errors by the Payment Processor. By choosing to use Paid Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payments using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
12.1.1 We accept the following forms of payment...
12.1.2 The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
13. PAYMENT METHOD
13.1 Some of the Paid Services, such as the purchase of auto-replacing brush heads or other products, may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. You will have the ability to specify how regularly you would like to order any auto-replacing products. More information on auto-replacing products can be found at our Help / FAQ page. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. All recurring payments are fully earned upon payment.
13.2 WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO WWW.GETQUIP.COM.
14. CURRENT INFORMATION REQUIRED
14.1 YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT WWW.GETQUIP.COM. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
15. CHANGE IN AMOUNT AUTHORIZED
15.1 If the amount to be charged to your Billing Account varies from the amount you pre-authorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
16. AUTO-RENEWAL FOR SUBSCRIPTION SERVICES
16.1 Unless you opt out of auto-renewal, which can be done through your Account Settings [www.getquip.com/customer/account], any subscription services, such as any auto-replacing products (“Subscription Services”), you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign your Subscription Services at any time, go to Account Settings [www.getquip.com/customer/account]. If you terminate a Subscription Service, you may use your subscription until the end of your then-current term; your subscription will not be renewed after your then-current term expires. All fees related to Subscription Services are fully earned upon payment.
17. REAFFIRMATION OF AUTHORIZATION
17.1 Your non-termination or continued use of a Paid Service (including Subscription Services) reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
18. FREE TRIALS AND OTHER PROMOTIONS
18.1 Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. You must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact us at firstname.lastname@example.org.
19.1 We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your Account, you may do so by following the instructions on the Site or through the Services. Any fees paid hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
20. WARRANTY DISCLAIMER
20.1 We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding: which users gain access to the Services; what Content you access via the Services; or how you may interpret or use the Content. You release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
20.2 THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
21.1 You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services or Content in violation of these Terms of Service, or infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
22. LIMITATION OF LIABILITY
22.1 In no event shall we, nor our directors, employees, agents, partners, suppliers or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the Services (i) for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, compensatory or consequential damages of any kind whatsoever, substitute goods or services (however arising), (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), or (iii) for any direct damages in excess of (in the aggregate) of the greater of (A) fees paid to us for the particular Services during the immediately previous three (3) month period or (B) $500.00.
23. GOVERNING LAW AND JURISDICTION
23.1 These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, including its conflicts of law rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of New York County, New York.
24.1 We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes.
25. MISCELLANEOUS ENTIRE AGREEMENT AND SEVERABILITY
25.1 These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder
26. FORCE MAJEURE
26.1 We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
27.1 These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
28. COUPON CODES
28.1 Coupon codes have no cash value and cannot be redeemable for cash, and cannot be combined with any other offers. Limit one coupon code per order per Account. Coupon codes generally expire and are no longer valid for redemption 90 days after their date of generation, but certain coupon codes may have their own redemption period as specified in connection with the coupon code itself. The unauthorized reproduction, resale, modification, or trade of coupon codes is prohibited. Coupon codes are void where prohibited, taxed or restricted. Quip reserves the right to change or limit coupon codes in its sole discretion.
29. FREE REFILL COUPON
29.1 Coupons codes for a free refill can be redeemed for (1) one free brush head refill and one toothpaste refill, (2) one brush head, or (3) one toothpaste refill.
30.1 No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
31. AFFILIATE PROGRAM TERMS AND CONDITIONS.
31.1 BY SUBMITTING THE ONLINE APPLICATION, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
31.2 Affiliate Program. The terms and conditions set forth in this section are the terms and conditions applicable to the quip Dental Professional Affiliate Program (the “Affiliate Program”). Under the Affiliate Program, quip offers registered users who are dental professionals (each, an “Affiliate”) the opportunity to refer to its network (“Purchasers”) quip products and services (the “Products”). Affiliates who are dental professionals that wish to take part in the Affiliate Program are bound by these terms and conditions. If you do not agree and abide by these terms and conditions in their entirety, you are not authorized to participate in the Affiliate Program. We reserve the right to modify or amend, at any time, the terms and conditions of the Affiliate Program. We reserve the right to disqualify any Affiliate at any time from participation in the Affiliate Program.
31.3 How the Affiliate Program works.
To begin the enrollment process, you will complete and submit the online application at the getquip.com server. We may reject your application at our sole discretion. We may cancel your application, or your participation in the Affiliate Program, if we determine that your site is unsuitable for our Affiliate Program, including if it:
1. Promotes sexually explicit materials
2. Promotes violence
3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
4. Promotes illegal activities
5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
6. Includes “quip” or variations or misspellings thereof in its domain name
7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
8. Contains software downloads that potentially enable diversions of commission from other affiliates in our program.
9. You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are getquip.com or any other affiliated business.
10. You may only use quip Program Assets, defined in Section 2.2, in accordance with the Limited License described in Section 7 below. Any violation of this Limited License will be cause for cancelation of participation and subject Affiliate to liability for any losses associated with the violation of the Limited License.
As a member of getquip.com’s Affiliate Program, you will have access to download materials provided by quip, such as videos, photos or written materials (“Program Assets”).
31.4 Limited License: quip hereby grants Affiliate, solely for the purposes and subject to the conditions herein, a limited, non-exclusive, non-transferrable, non-sub licensable, revocable license in and to the Program Assets, including the quip trademark only when used in accordance with Program Assets. This limited license is only to be used in accordance with these Affiliate Program Terms and Conditions. No title or ownership in the quip trademark or the Program Assets is transferred to Affiliate and Affiliate acknowledges that the limited license inures to the benefit of quip, and Affiliate shall acquire no rights, interest or goodwill to the quip trademark or Program Assets. Affiliate agrees to cease distribution or use under this limited license within 24 hours of notice from quip, in its sole discretion.
31.5 Indemnification. By participating in the Affiliate Program, you agree to defend, indemnify and hold harmless quip, its service providers, and their respective parent companies, affiliates, and subsidiaries, together with their respective employees, directors, officers, licensees, shareholders, attorneys and agents (collectively, the “Released Parties”), from any and all claims, actions, demands, losses, liabilities, cost, or expenses, caused by, arising out of, in connection with, or related to your participation in the Affiliate Program, including but not limited to any claim alleging a violation of privacy, publicity, confidentiality, or other right of any Purchaser.
Suspension of Affiliate Program. quip reserves the right to cancel or suspend the Affiliate Program for any reason, or no reason at all, in its sole discretion, including if quip determines that the administration, security, or fairness of the Affiliate Program has been compromised in any way.
31.6 Disclaimer of Warranties. YOU AGREE THAT (A) YOUR PARTICIPATION IN THE AFFILIATE PROGRAM IS AT YOUR OWN RISK, THE AFFILIATE PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND QUIP EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND TERMS OF ANY KIND, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, OR CUSTOM, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; AND (B) QUIP MAKES AND GIVES NO WARRANTY THAT (I) THE AFFILIATE PROGRAM WILL MEET YOUR REQUIREMENTS, (II) BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (III) THE RESULTS, INCLUDING ANY AFFILIATE FEES, OBTAINED FROM THE USE OR PARTICIPATION IN THE AFFILIATE PROGRAM WILL BE ACCURATE OR RELIABLE.
32.1 Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com.
33. NO WAIVER
33.1 Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
34.1 The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
35.1 You may contact us at the following address: Quip NYC Inc., c/o Chief Operating Officer, 45 Main St, Suite 628, Brooklyn, NY 11201.
36. MANDATORY ARBITRATION AND CLASS ACTION WAIVER FOR RESIDENTS OF THE UNITED STATES
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
36.1 Application. You and quip agree that these Terms affect interstate commerce and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This section entitled “Mandatory Arbitration and Class Action Waiver for Residents of the United States” is intended to be interpreted broadly and governs any and all disputes between you and quip. Any and all disputes may include, but are not limited to (i) claims arising out of or relating to any aspect of the relationship between you and quip, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and (iii) claims that may arise after the termination of these Terms. The only disputes excluded from the broad prohibition in this subsection entitled “Application” are the litigation of certain intellectual property and small court claims, as provided in the subsection entitled “Exception” below.
36.2 Initial Dispute Resolution. Most disputes can be resolved without resorting to arbitration. If you have any dispute with us, you agree that you will try to resolve your dispute directly with us before taking any formal action, by contacting us at the address or email address set forth in below. When you contact us, you must provide a brief, written description of the dispute and your contact information. If you have an account with us, you must include the email address associated with your account. Except for intellectual property and small claims court claims (see the subsection entitled “Exception” below), you and quip agree to use good faith efforts to resolve any dispute, claim, question, or disagreement directly through consultation with each other. You and quip agree to engage in good faith discussions before initiating a lawsuit or arbitration and understand that good faith discussions are a precondition of initiating a lawsuit or arbitration.
36.3 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided in the subsection entitled “Exception” below), as long as the party agrees with the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties' relationship with each other, and/or your use of quip shall be finally settled by binding arbitration administered by JAMS in accordance with either (i) the JAMS Streamlined Arbitration Procedure Rules, for claims that do not exceed $250,000; or (ii) the JAMS Comprehensive Arbitration Rules and Procedures, for claims exceeding $250,000. The JAMS rules and procedures just identified shall be those effect at the time the arbitration is initiated (not the Last Modified date of these Terms), excluding any rules or procedures governing or permitting class actions.
36.4 Arbitrator’s Powers. The arbitrator (and not any federal, state, or local court or agency) shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms. Such disputes may include, but are not limited to, any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
36.5 Filing a Demand. To start an arbitration, you must do all three of the following: (i) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (ii) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, California 94111; and (iii) send one copy of the Demand for Arbitration to us at: Quip NYC, Inc., 45 Main Street, Suite 628, Brooklyn, NY 11202. Attn: Chief Operating Officer. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, quip will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, quip will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise. The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in New York, New York, United States, and you and quip agree to submit to the personal jurisdiction of any federal or state court in Kings County, New York in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, quip will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, quip will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in New York, New York, United States, and you and quip agree to submit to the personal jurisdiction of any federal or state court in Kings County, New York in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
36.6 Class Action Waiver. YOU AND QUIP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. This means that you and quip expressly waive any rights to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
36.7 Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties' agreement to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights. “Intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but does not include privacy or publicity rights. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
36.8 30-Day Right to Opt Out. 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 Quip NYC, Inc., 45 Main Street, Suite 628, Brooklyn, NY 11201 Attn: Chief Operating Officer. Your written notice must have the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of (i) April 1, 2020; or (ii) your first date that you used the Site that contained any versions of the Terms that included this version of the Mandatory Arbitration and Class Action Waiver, whichever is later. Otherwise you shall be bound to arbitrate disputes in accordance with this section entitled “Mandatory Arbitration and Class Action Waiver”. If you opt out of these arbitration provisions, quip also will not be bound by them.
36.9 Changes to This Section. quip will provide thirty (30) days' notice of any material changes to this section by posting notice on the Site or informing you via email, and complying with any other applicable legal notice or consent requirements. Amendments will become effective thirty (30) days after they are posted on the Site or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day.
If a court or arbitrator decides that this subsection (“Changes to this Section”) is not enforceable or valid, then this subsection will be deemed to be severed from the section entitled “Mandatory Arbitration and Class Action Waiver.” If this happens, the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section or similar section in existence after you began using the Site.
36.10 Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Site.
37. EFFECTIVE DATE OF TERMS OF SERVICE:
37.1 April 1st, 2020