Who we are
Qwick uses technology to connect businesses with ready-to-work hourly temporary workers to work on-demand daily shifts across the United States. Qwick’s proprietary platforms feature automation of workforce management and staffing functions.
Qwick, Inc (“Qwick”, “we”, “us”, or “our”) uses its proprietary technology communications platform to connect businesses seeking to obtain services (“Businesses”) with individuals seeking to provide services (“Freelancers”).
Qwick provides an online platform for facilitating connections between Businesses and Freelancers.
Services are not directed to, and not intended for the use of, children under the age of 13. If you are under the age of 13, do not use the services, register or submit any personal information to the services.
Using the services:
Creating an account
In order to access certain password-restricted areas of this Services, you must successfully register for an account with us. If you want an account, you must submit all of the information required on the account registration page.
Once you submit the required registration information, we alone will determine whether or not to approve your proposed account. For so long as you use the account, you agree to provide true, accurate, timely, updated and complete information to us. We are not responsible for any claims or disputes related to any incomplete, inaccurate or untimely information provided by you to us.
You are responsible for complying with these Terms when you access and use the Services, whether directly or through any account that you may set up through or on the Services. Because it is your account, it is your job to obtain and maintain all equipment and services needed for access to and use the Services as well as paying related charges. It is also your responsibility to maintain the confidentiality of your password(s). Should you believe your password or security for the Services has been breached in any way, you must immediately notify us.
Using the services
Businesses may book Freelancers at any time. Once we receive a request, we relay your information to available Freelancers.
Cancellation Policy – Cancellations for work requests must be received 24 hours prior to requested start time, or potentially be subject to a minimum charge of 4 hours per Freelancer.
Minimum Request Duration – Work requests will be a minimum duration of 2 hours.
Minimum Work Duration – If a Freelancer works less than the posted work request duration, the Business agrees to be charged for 4 hours per Freelancer.
Qwick insurance – Coverage: $1 million limit Occupational Accident Insurance, $2 million limit General Liability Policy, $5 million aggregate coverage umbrella policy. Documentation available upon request.
Certain areas of Services may permit you to submit information, data, text, software, messages, or other materials (each, a “User Submission”). You agree that you are solely responsible for your User Submissions and that any and all User Submissions are considered both non-confidential and non-proprietary.
By submitting any User Submission, you represent and warrant that:
You own all rights in your User Submissions (including, without limitation, all rights to the reproduction and display of your User Submissions) or, alternatively, you have acquired all necessary rights in your User Submissions to enable you to grant to us the rights in your User Submissions as described in these Terms;
You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of your User Submissions;
Your User Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
You voluntarily agree to waive all “moral rights” that you may have in your User Submission;
Any information contained in your User Submission is not known by you to be false, inaccurate, or misleading;
Your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
Your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;
You were not and will not be compensated or granted any consideration by any third party for submitting your User Submission;
Your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than your own);
Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
Your User Submission does not contain any information that you consider confidential, proprietary, or personal; and
Your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
Unauthorized use of the Services may result in violation of various United States and international laws. Unless you have written permission from us stating otherwise, you are not authorized to use the Services in any of the following ways:
Impersonate another user or entity or create an account for anyone other than a natural person;
Harass others in any way, including stalking;
Expressly state or imply that any statements you or others make are endorsed by Qwick unless you have the prior written consent of Qwick;
Use any software, application, program, device or process, including the use of any robot or spider, to gather, catalog, or in any way duplicate or circumvent the structure or appearance of the Services;
Post, distribute, duplicate, infringe, remove, or otherwise use any copyrighted materials, trademarks, brands, logos or other proprietary information or notices without obtaining the prior written consent of the owner of such rights;
Disrupt or interfere in any way with the Services or any of the servers or networks connected to the Services;
Utilize or copy any information or content to provide any service that is competitive, in Qwick’s sole discretion, with Qwick or access the Services for any competitive purpose including monitoring availability, performance or functionality;
Share, provide, produce, display, publish or disseminate to others any material that contains any sort of virus or any files or programs that are designed to disrupt, destroy or reduce the functionality of the Services or any software, hardware, and/or equipment related to it;
Share any non-user information without such non-user’s express permission;
Disguise the origin of any information transmitted via the Services;
Direct any person to the Services by using meta tags, code, or any other devices including any reference to the Services to for any reason whatsoever;
Remove, cover or otherwise obscure any form of advertisement included on the Services;
“frame” or “mirror” any part of the Services without our prior written authorization;
Alter, adapt, sublicense, translate, sell, reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for any portion of the Services or any other software used on or for the Services; and/or
Override or attempt to override any security component on the Services.
You agree to immediately report to Qwick any suspected misconduct or false information provided by other users of the Services.
Qwick reserves the right to investigate and take legal action against anyone who violates the above provisions including, without limitation, the right to suspend or terminate the account of any such violators. The above list is not all inclusive as to activities for which an account may be suspended or terminated.
Term and termination
Interactions with third-parties
You are solely responsible for your interactions with third-party users. Businesses and third-party users agree to make their own decisions regarding persons they engage, and shifts (gigs), campaigns, events or projects they claim. You represent, understand and expressly agree that Qwick does not have any liability for or control over any third-party user’s authenticity, integrity, abilities or responsibility online or onsite in the workplace. Additionally, you expressly agree not to hold Qwick or its officers, directors, agents, investors, and employees liable for any damage, suits, claims, disputes or controversies whatsoever arising from any relationship with a third-party user developed on or in connection with the Services.
We are not a party to any service contract between you and a third-party user
You hereby acknowledge and agree that we are NOT a party to any oral or written agreement for services or any other contract entered into between you and a third-party user of the Services, even if we facilitate communications between you and such third-party users.
No agency or partnership
Disputes between you and third-party users
Your interactions with third-party users found on or through the use of the Services, including the performance of any services by such third parties and any other terms, conditions, warranties or representations associated with such transactions or dealings, are solely between you and such third parties. You should take reasonable precautions and make whatever investigation or inquiries you deem necessary or appropriate before proceeding with any online or offline transaction with any third party, including without limitation, Businesses, Freelancers and other service providers or recipients.
You understand that deciding whether to use the services of a Freelancer or other service provider, or to use information contained on the Services, is your personal decision for which you alone are responsible. You understand that we do not and cannot make representations as to the suitability or fitness of any third party with whom you may decide to interact on or through the Services and/or the accuracy or suitability of any advice, information, or recommendations made by any third party.
If there is a dispute between you and any third-party user of the services or any other third party, you acknowledge and agree that we are under no obligation to become involved. In the event that a dispute arises between you and any third party, you hereby release us, our officers, managers, members, directors, employees, attorneys, agents, and successors in rights from any claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, foreseeable or unforeseeable, disclosed or undisclosed, arising out of or in any way related to such disputes and/or the services. If you are a California resident or are located in California, you waive California civil code §1542, which says: “a general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor or released party.”
We may provide links on the Services that lead to other websites. We do not control and are not responsible for the content of such websites, nor do we endorse or make any representations about such websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. You acknowledge that all such links are provided for your convenience only. It is your responsibility to evaluate the content on other websites and you access and use all third-party websites at your own risk. All such websites are governed by the applicable privacy policies and terms and conditions of those sites, which we do not control and are not responsible for. You hereby agree to hold Qwick harmless from any liability that may result from your use of links that appear on the Services.
License and restrictions
The Services are for the use of Business users only and any use in connection with any non-Qwick commercial endeavors without the express prior written consent of Qwick is strictly prohibited.
Billing and payment policy
You are responsible for providing timely payment for your use of the Services and the provision of services by Freelancers. By using the Services, you authorize Qwick to charge you for all such services.
All payments will be automatically withdrawn from the specified checking account or charged to the designated credit card at the time of service provided. In an effort to better serve our users and simplify the billing experience, you hereby authorize Qwick to (as applicable): (a) initiate automated clearing house (ACH) debit entries or (b) charge a specific credit card account. The amount of any such payments will be the total amount due for services provided, plus all applicable credit card transaction fees. You also authorize Qwick to credit a specific credit card account in the appropriate amount for any refunds or other billing adjustments. You agree to review each payment receipt received and provide Qwick written notice of any errors or disputed charges within one week of receipt via email to firstname.lastname@example.org. If you inform Qwick that an error exists, Qwick will attempt to correct that error as soon as practically possible.
Qwick shall bear no liability or responsibility for any losses of any kind that you may incur as a result of an erroneous statement, any delay in the actual date on which an account is debited or your failure to provide accurate and/or valid payment information.
If any changes occur in the billing information provided, you must immediately update your account or notify Qwick in writing of such changes by email to: email@example.com. If you either do not notify Qwick in writing of such changes or do so in an untimely fashion, Qwick shall bear no liability or responsibility for any losses incurred to the extent permitted by law. Qwick’s sole liability to you shall be Qwick’s obligation to make any appropriate changes once in receipt of notification.
Intellectual property rights
Qwick owns and retains all intellectual property and other proprietary rights throughout the world in the Services. All such intellectual property and other proprietary rights, including any software, text, typefaces, graphics, layouts, content, data, formatting, designs, HTML, graphs, photographs, videos, designs, sounds, images, look and feel, and other content on the Services (collectively, the “Materials”), and the coordination, selection, arrangement and enhancement of any such Materials, are owned by or licensed to Qwick. You agree that, as between you and Qwick, Qwick owns and retains all such right, title and interest that are protected in all forms and through all media and technologies now known or hereinafter developed. Users are prohibited from copying, downloading, using, redesigning, reconfiguring, or retransmitting any Materials without Qwick’s prior express permission in a signed writing. Users are prohibited from posting, sending, sharing, or distributing any Qwick Materials that they do not own or have permission to use. In addition to the termination of your account, violation of this policy may result in copyright, trademark, patent or other intellectual property rights violations and liability, and civil or criminal penalties.
Notice of trademark rights
Qwick owns certain service marks, trademarks, logos and/or trade names (collectively, “Qwick Marks”) appearing on the Services. The other service and trademarks appearing on the Services are the property of their respective owners. Users may not copy or use any of the Qwick Marks without the prior written permission of Qwick. You acknowledge Qwick’s rights and the rights of third parties with respect to the foregoing.
Intellectual property infringement
You are prohibited from posting, distributing, or reproducing in any way any copyrighted material, trademarks, or other proprietary information without obtaining prior written consent of the owner of such proprietary rights. If you, in good faith, believe that any Materials on the Services infringe upon your copyrights or other intellectual property rights, please provide our Copyright Agent with the following (see 17 U.S.C. 512(c)(3) for further detail):
A description of the copyrighted work that you believe has been infringed upon, why you think it has been infringed, and the exact location on the Services where such material is located;
A description of where the original or an authorized copy of the copyrighted work exists;
An electronic or physical signature of the person who either owns the copyright or has authorization to act on behalf of the owner;
Your contact information including your full name, address, telephone number, and email address;
A statement from you that you in good faith believe that the disputed use is not authorized by the copyright agent or owner or the law; and
An additional statement by you, made under penalty of perjury, that the information in your notice is complete and accurate, and that you are the copyright owner or authorized to act on the owner’s behalf.
If you believe that your content that was removed (or to which access was disabled), is not infringing, is subject to the copyright defense of “fair use” pursuant to 17 U.S.C. 107, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in such removed content, you may send a counter-notice containing the following information to our Copyright Agent:
your physical or electronic signature;
identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled;
a statement that you have a good faith belief that the User Content was removed or disabled as a result of mistake or a misidentification of the User Content; and
your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in the United States District Court for the Southern District of New York, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by our Copyright Agent, we may, in our sole discretion, send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the provider of the content or user, the removed content may be replaced, or access to it restored.
Our copyright agent can be reached at:
3550 North Goldwater Blvd. #1154
Scottsdale, AZ 85251
Modifications to the services
Qwick reserves the right to evaluate, improve, amend, or temporarily or permanently discontinue the Services or any content or information thereon with or without providing notification to users. You agree that Qwick and its officers, directors, agents, investors, and employees are not liable to you or any third party for any modification or discontinuance of the Services.
Notifications and service messages
You agree that we may communicate with you regarding the Services, your Qwick account and all services via your Qwick account or through certain other means including email, text message, mobile number, telephone, or via delivery services including the postal service. Standard carrier data charges may apply to your use of text messaging and you are solely responsible for such charges. These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. You further agree that Qwick and its officers, directors, agents, investors, and employees have no liability connected with or arising from your failure to maintain current and accurate contact information including, without limitation, your failure to receive critical information regarding the Services.
By providing your mobile phone number to us, you agree to receive transactional communications, including text messages from Qwick. Text messages (including SMS and MMS messages) from Qwick will include Services updates and communication with our support team, who provide details on questions on user accounts, customer support issues, and as needed communication related to your use of the Services.
Users can cancel the SMS service at any time by texting “STOP” to the short code or phone number from which the user received a Qwick SMS message. After users send the SMS message “STOP” to us, we will send an SMS message to confirm that users’ phone number has been unsubscribed. After this, users will no longer receive SMS messages from us to the opted-out phone number. If users want to receive SMS messages at the opted-out phone number again, they should contact firstname.lastname@example.org.
If users experience issues with the messaging program they can reply with the keyword HELP for more assistance or contact email@example.com.
Wireless services providers are not liable for delayed or undelivered messages. We will not be liable for any delays or failures in the receipt of any text messages related to the Services. Delivery of text messages is subject to effective transmission from your wireless service provider/network operator and is outside of our control.
Message and data rates may apply for any text messages sent to users from us and to us from users. Message frequency varies. If users have any questions about their text messaging plan or data plan, you should contact your wireless services provider.
The following additional terms and conditions apply with respect to any application that we provide to you designed for use on an Apple iOS-powered mobile device (an “Apple App”):
Your use of the Apple App must comply with Apple’s then-current App Store Terms of Service.
Qwick, and not Apple, is solely responsible for the Apple App and the Services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our Apple App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the Apple App.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You agree to comply with all applicable third-party terms of agreement when using the Apple App (e.g., you must not be in violation of your wireless data service terms of agreement when using the Apple App).
The following additional terms and conditions apply with respect to any application that we provide to you designed for use on Android-powered mobile devices:
Your use of such applications must comply with Google Play Store’s then-current terms of service.
You agree that Qwick and its officers, directors, agents, investors, and employees are not responsible for any incorrect or inaccurate content or information posted on the Services or in connection with the Services and no user should rely on any information therein or on the continued availability of the Services.
The services and all materials are provided on an “as is” and “as available” basis and the entire risk as to the use of the services is with you. Qwick, its officers, directors, agents, investors, and employees, and each of their respective affiliates, advertisers, promoters, or distribution partners expressly disclaim all warranties of any kind (express, implied or statutory) with respect to the services, including, to the fullest extent permissible under applicable law, all implied warranties of merchantability, fitness for a particular purpose, title, accuracy of data, and non-infringement.
Without limiting the generality of the foregoing, we make no warranty that the services will meet your requirements or that your use of the services will be uninterrupted, timely, secure, or error free or that defects in services will be corrected. We make no warranty as to the results that may be obtained from the use of this services, or as to the accuracy or reliability of any information or services obtained through the use of the services, and are not responsible for the products, services, actions, or failure to act of any third party. No advice or information, whether oral or written, obtained by you through services or from us or our subsidiaries/other affiliated companies shall create any warranty. We disclaim all equitable indemnities.
We are not responsible for any communications occurring on the Services or as a result of any of the Services and make no representations or warranties as to the delivery of any messages. Further, we do not represent or warrant that your use of the Services will not infringe on the rights of third parties.
Limitation of liability
You are using the services at your sole risk. Neither Qwick nor its officers, directors, agents, investors, or employees shall be liable to you for any damages resulting from your displaying, copying, or downloading any materials to or from the services. In no event shall we be liable to you for any indirect, extraordinary, exemplary, punitive, special, incidental, or consequential damages, or damages related to loss of data, revenue, profits, cost of substitute goods and services, use, or other economic advantage) however arising, even if we know there is a possibility of such damage.
You acknowledge and agree that we do not have an obligation to conduct background checks on any user, including, but not limited to, Businesses and Freelancers. You are solely responsible for all of your communications and interactions with other users of the services, and with other persons with whom you communicate or interact as a result of your use thereof. You understand that we do not make any attempt to verify the statements of users of the services. We make no representations or warranties as to the conduct of users of the services or their compatibility with any current or future users of the services. You agree to take reasonable precautions in all communications and interactions with any persons with whom you communicate or interact as a result of your use of the services, including, but not limited to, Businesses and Freelancers, particularly if you organize an event and meet offline or in person, regardless of whether we facilitate such meetings. We explicitly disclaim all liability for any act or omission of any user of the services and all other third parties.
We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operations or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications, nor are we responsible for any problems or technical malfunctions whatsoever including, but not limited to, malfunctions of telephone networks or lines, computer online systems, servers or providers, computer equipment, software, failure of email, traffic congestion on the internet or at any website. Such malfunctions further include damage or injury to your or any other person’s computer or device relating to or resulting from participation or use of the Services.
If you send or transmit any communications, comments, questions, suggestions, or related materials to us, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Services or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant Qwick an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Dispute resolution, arbitration, and governing law
You agree to first try to resolve any dispute informally by contacting us at firstname.lastname@example.org. We will respond to you by email and attempt to resolve disputes you submit to us. If a dispute you present to us is not resolved within 30 days of the first email submission regarding the dispute, formal proceedings may be initiated according to the following terms.
This Dispute Resolution and Arbitration provision (this “Provision”) facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and Qwick. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve the Dispute which is first done by emailing us at email@example.com the following information: (1)Your name, (2) Your address, (3) A written description of your Claim, and (4) A description of the specific relief you seek. If we do not resolve the Dispute within 45 days after receiving your notification, then you may pursue your Dispute in arbitration. You may pursue your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or we may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) you opt-out of these arbitration procedures within 30 days from the date that you first consent to this agreement(the “Opt-Out Deadline”). You may opt-out of this Provision by emailing us at firstname.lastname@example.org the following information: (1) Your name; (2) Your address; (3) A clear statement that you do not wish to resolve disputes with us through arbitration. Either way, we will not take any decision you make personally. In fact, we promise that your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with us. But, we do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or we may initiate arbitration in either Arizona or the federal judicial district that includes your billing address. In the event that you select the latter, we may transfer the arbitration to Arizona so long as we agree to pay any additional fees or costs which the arbitrator determines you incur as a result of the transfer.
Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, we will pay all arbitration fees and associated costs and expenses. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and we specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of this Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of Services can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
No Judge or Jury In Arbitration
Arbitration does not involve a judge or jury. You understand and agree that by accepting this Provision you and we are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g. the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
This Provision shall survive the termination of your account with us or our affiliates and your discontinued use of the Services. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any change to this Provision (other than a change to the notice address), you may reject any such change and require us to adhere to the language in this Provision if a dispute between us arises.