Qwick Terms of Service
Updated: April 30, 2025
1. INTRODUCTION
A. Welcome to Qwick. Qwick GP LLC and family of companies (as further described below) (“Qwick”, “we”, “us”, or “our”), through our Qwick™ Mobile App and our web-based Marketplace platform, provides a neutral facilitation marketplace where professionals and hospitality industry businesses can find, connect, and communicate with each other for establishing short-term work opportunities.
B. Your use of our Mobile App, the Marketplace, and our Services is governed by these Terms of Service (“Terms”), which includes our Privacy Policy, which may be amended from time to time and effective upon posting, and which is incorporated herein by reference (“Privacy Policy”).
C. IMPORTANT – PLEASE READ CAREFULLY: THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF OUR SOFTWARE AND SERVICES. BY DOWNLOADING AND INSTALLING OUR MOBILE APP, BY APPLYING TO ESTABLISH AN ACCOUNT, OR BY USING OUR MARKETPLACE OR OUR SERVICES, YOU ARE ACCEPTING THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE OUR MOBILE APP, MARKETPLACE OR OUR SERVICES. IMPORTANT: THESE TERMS CONTAIN AN ARBITRATION PROVISION REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION, AND ALSO CONTAINS A CLASS ACTION AND JURY TRIAL RIGHT WAIVER. Please carefully review Section 22 of these Terms for more information.
2. DEFINITIONS
The following terms have their assigned meaning.
A. “Business” means a business which has registered to participate in and post a Gig on the Platform.
B. “Gig” (whether or not capitalized) means a short-term work opportunity between a Pro and a Business .
C. “Gig Posting” means a request posted by Business on the Platform for a Gig.
D. “Qwick Services” or “Services” means providing access to the Software and related content, and facilitating a connection and transaction between Pros and Businesses through the Platform.
E. “Marketplace” means the gig marketplace hosted on Qwick’s Platform.
F. “Mobile App” means the Qwick mobile app software program downloadable from the Apple, Google, or other authorized digital store or directly from Qwick.
G. “Partner” means a third party that provides services to Qwick or is permitted by Qwick to offer goods or services to the Pro through the Software.
H. “Payments” mean payments made to the Pro (whether as a Contractor Pro or an Employee Pro).
I. “Platform” means Qwick’s proprietary online hosted software platform where Businesses and Pros can post and accept Gigs, where accounts are managed, and where Partners may make special offers available to Pros and Businesses.
J. “Pro” means a professional (as an employee of Labor Force Group, LLC (Employee Pro, or as an independent contractor (Contractor Pro, each of the foregoing as defined in Section 4.A), as applicable, seeking or participating in Gig opportunities who has registered to participate in the Platform and receive the Qwick Services.
K. “Pro Services” means the services provided by a Pro to a Business. For the avoidance of doubt, a Pro does not provide any services to Qwick.
L. “Software” means, together, the Marketplace and the Mobile App.
M. “User” means, as applicable, Business, Pro, or certain Partners with access to the Platform.
N. “you” or “your” means you as a Pro or a Business, as applicable.
3. CHANGES TO THESE TERMS
A. We regularly update and improve our Software and Services, and we may at times add, change, or remove features, and these Terms may also change. The current version of these Terms will be posted on our Website at https://www.qwick.com/legal/terms-of-use and will be effective immediately upon posting for all future uses of the Services. Although we may attempt to inform you if the Terms change and may have notified you of past changes, it is your responsibility to ensure you are aware of the most recent Terms before continuing to use our Services and we are under no obligation to alert you to future changes.
4. RELATIONSHIP BETWEEN US AND YOU
A. Our Relationship with Pros. If you are a Pro, each Gig will be marked as being available on either a contractor (“Contractor Pro”) basis or an employee (“Employee Pro”) basis. Depending on the law in the state in which you reside, either (a) your state’s law will require you to be an employee, or, (b) you can choose the Gig depending on which category (contractor or employee) that Gig is marked. If you choose a Gig which is marked as an Employee Pro Gig, you will need to sign up with Qwick, accept our Terms and our employment agreement and related documents, and pass an I-9, e-Verify process, and background check. Pros residing in California, Colorado, or Washington (or other states requiring you to be an employee, or where you elect to be an Employee Pro) will be Employee Pros, and the relationship and these Terms constitute a legal agreement between the Employee Pro and Labor Force Group, LLC (“LFG”), with the Employee Pro being an employee of LFG. LFG pays payroll weekly for Employee Pros. For Pros who will be Contractor Pros, the relationship and these Terms constitute a legal agreement between the Pro and Fast GP, LLC, and the Pro will be an independent contractor.
B. Our Relationship with Businesses. If you are a Business, when you set up your account with Qwick you will need to choose whether all Pros will be considered contractors or employees. Once this choice is made, all Pros engaged under this Agreement will only be the choice you have made (subject to applicable law). Where you choose to have all Pros be Employee Pros, , the relationship will be between you and LFG, LLC and these Terms constitute a legal agreement between both you and LFG, LLC. Where you choose to have all Pros be Contractor Pros, the relationship will be between you and Fast GP, LLC and these Terms constitute a legal agreement between both of you and Fast GP, LLC.
C. Labor Force Group, LLC and Fast GP, LLC are subsidiaries of Qwick GP LLC, and are collectively occasionally referred to as “Qwick”.
D. You and Qwick agree that no partnership, joint venture, employee, or employer relationship is intended by these Terms. For the avoidance of doubt, Qwick Services are not a referral service and Qwick GP, LLC. is not an employment agency (though LFG is). Furthermore, a Pro does not provide any services to Qwick. You agree not to hold yourself out in any way as sponsored by, affiliated with, endorsed by, in partnership or venture with, nor as an employee or employer of us, any of our Partners, affiliates, or service providers. You are not an agent of Qwick and you shall have no legal authority to enter into contracts on Qwick’s behalf or otherwise bind Qwick in any way and must not represent to any third party that you are authorized to make any commitment or otherwise act on behalf of Qwick. Pros agree not to hold themselves out as in any way sponsored by, affiliated with, endorsed by, in partnership or venture with, nor as an employee or employer of any Business, its affiliates, or any service providers as a result of providing the Pro Services. Without express written authorization from the Business on a Gig-by-Gig basis, Pros are not an agent of Business and Pros shall have no legal authority to enter into contracts on Business’s behalf or otherwise bind Business in any way and must not represent to any third party that the Pro is authorized to make any commitment or otherwise act on behalf of Business.
E. Contractor Pros agree to take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Qwick that is inconsistent with being an independent contractor (and not an employee). As an independent contractor, the Contractor Pro is not assigned Gigs; the Contractor Pro has sole control as to whether to apply for a Gig, to determine which Gig Posting the Contractor Pro responds to (based on the requested time, potential earnings and requirements of the particular Gig), and to choose when the Contractor Pro wants to work.
F. Pros determine how, when, and where (in accordance with the Gig Posting) Pros will provide the Pro Services to Businesses.
G. Neither Qwick nor the Pro has an exclusive relationship with each other. Qwick does not restrict a Pro’s right to provide services to businesses other than those participating in the Marketplace, including through competitors of Qwick. Qwick expects the individual performing services as a Pro will likely provide services for or through other companies.
H. Pro acknowledges and represents Pro can earn income from other sources. Qwick does not guarantee the Pro any minimum number of Gigs.
I. Qwick does not provide a performance assessment for Contractor Pros, and does not oversee the actual work or instruct the Contractor Pro as to how the work will be performed, or the method or process the Contractor Pro uses to perform Pro Services.
J. Qwick does not pay a salary or hourly rate to Contractor Pros, but rather, Fast GP facilitates Business’s payment at the rate set by the Business.
K. Qwick does not provide tools, equipment, benefits, or expense reimbursement to Contractor Pros.
L. Qwick does not combine its business operations in any way with the Pro’s business, but instead maintains such operations as separate and distinct.
M. You are responsible for obtaining and maintaining any applicable required registration, licenses, or other authorization necessary to render or receive Pro Services .
N. Benefits, Contributions, and Withholding. Contractor Pros are not entitled to or eligible for any benefits that Qwick, its parents, subsidiaries, affiliates or other related entities may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Because a Contractor Pro is an independent contractor, Fast GP will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on a Contractor Pro’s behalf. If, notwithstanding the foregoing, a Contractor Pro is reclassified as an employee by the U.S. Internal Revenue Service (“IRS”), the U.S. Department of Labor, or any other federal, state or foreign court or agency, the Pro agree that the Pro will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by either the Business or its parents, subsidiaries, affiliates or related entities, or by Qwick, its parents, subsidiaries, affiliates or other related entities. For Employee Pros, LFG will withhold amounts as required by applicable law or regulation. LFG may provide benefits to Employee Pros according to its policies.
O. Taxes. Contractor Pros are solely responsible for filing all tax returns and submitting all Payments as required by any federal, state, local, or foreign tax authority arising from the payment of Payments to the Contractor Pro under these Terms, and Contractor Pros agree to do so in a timely manner. Contractor Pros will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions. To the extent required by the IRS, Qwick will report the Payments paid to Contractor Pro for Pro Services rendered as part of Gigs by filing Form 1099-K and/or 1099-NEC (as applicable) with IRS. Contractor Pros consent to electronic delivery of such form(s), if such form(s) is required or filed. Contractor Pros agree to indemnify and hold harmless Qwick for the cost of any tax liabilities (including, but not limited to, penalties, assessments, fines, and interest) incurred by Qwick as a result of a Contractor Pro’s failure to pay all applicable taxes in a timely manner.
P. Insurance. Qwick requires all Contractor Pros to obtain and maintain a valid and sufficient Occupational Accident Insurance (“OAI”) policy. However, Qwick will not be responsible for a Contractor Pros’ failure to comply with this requirement. Qwick will deduct from each Payment a small portion for each hour worked and billed for each Gig for which a Contractor Pro provides Pro Services. This deducted amount will be used by Qwick to purchase OAI insurance for Contractor Pros. Alternative, Contractor Pros have the right to provide proof of their own current accident insurance policy by submitting proof to support@qwick.com, in which case, if such proof is satisfactory to Qwick, there will be no deduction for OAI. Employee Pros’ Workers’ Compensation insurance is covered by LFG. While Businesses shall have the sole responsibility for any obligations or liabilities to Pros or other third parties that arise from the Business arranging and obtaining and using Pro Services, Contractor Pros will be and are required to maintain OAI through the Platform. As a Contractor Pro, you acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper for a temporary labor relationship, which may include maintaining adequate insurance that meets the requirements of all applicable laws regarding any acts or omissions of a Pro, Business, or any third party. You agree to indemnify and hold harmless Qwick and its affiliates, parents, and subsidiaries from any dispute arising from any work-related accident, injury, or damage that may occur on the premises of a Business. Further, in the event that a Pro’s actions cause an injury to a third party while a Pro is working in the course and scope of performing a Gig, you acknowledge and understand that you will not be covered by any general liability or automobile liability insurance coverage that Qwick may have, and that Qwick is not making any commitment to defend and/or indemnify you in such circumstances, and specifically denies such obligation.
Q. Delivery/Driving Services. Under no circumstances may Pros perform any driving or delivery services or any pick-up services of goods or services for customers or on-call driving.
R. Heavy Machinery. Under no circumstances may Pros perform any work with heavy machinery, including, but not limited to, forklifts, or self-powered, self-propelled or pull-type equipment.
5. PRIVACY
A. Personal Information. We will maintain and use your “Personal Information” as defined in, and according to, our Privacy Policy.
B. Use By Minors. We do not knowingly collect or solicit Personal Information from children under 18. If you are under 18, please do not attempt to register for or use the Qwick Services or send any Personal Information about yourself to us. If we learn we have collected Personal Information from a child under 18, we will delete that information as quickly as possible. If you believe that a child under 18 may have provided us Personal Information, please contact us.
C. You, as a Contractor Pros or an Employee Pro, consent to our disclosing your historical earnings and performance to Businesses.
6. ACCOUNT CREATION AND USAGE
A. Our Software and Qwick Services are intended for access and use by individuals who are at least 18 years old, and by agreeing to the Terms you represent (i) that you are at least 18 years old and reside in a state, region, or country in which the Software and Qwick Services may legally be provided or accessed, (ii) you are the person whose name and other information have been provided for the account that you have created or are creating, (iii) that your account has not previously been suspended or terminated, and (iv) that your registration and your use of the Services is in compliance with any and all applicable laws and regulations.
B. Account Creation and Verification. In order to use the Software and Qwick Services, you will need to create an account with us (“Account”). All of the information that you supply to us in creating your user Account must be accurate. We request certain information of Pros (e.g., driver’s license) for identity verification and we use third-party service providers for such verification. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Software and Qwick Services, or Qwick’s termination of these Terms with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account login credentials at all times. Unless otherwise permitted by Qwick in writing, you may only possess one Account.
C. The Pro’s name must match the ID used in the Stripe ID verification process, not a preferred name. The Pro’s Account profile picture must match the picture on the ID used to create the profile. In order to be able to use the Platform, all Pros must have a working cellular/mobile phone number that can make and receive calls and texts. If it is discovered the Pro’s phone number is not active, Qwick may deactivate or suspend the Pro’s account until the phone number is active again.
D. Pro hereby consents and authorizes us and our parents, affiliates, subsidiaries, designated agents, and service providers to conduct a comprehensive review of the Pro’s background, and to perform a background check s. Pro understands that the scope of the background check may include, but is not limited to, the following areas: verification of Social Security number; current and previous residences; employment history, including all personnel files; education; references; credit history and reports; criminal history, including records from any criminal justice agency in any or all federal, state or county jurisdictions; birth records; motor vehicle records, including traffic citations and registration; and, any other public or available records.
E. You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity. Pros may not accept a Gig and have someone perform in the Pro’s place. Qwick welcomes referrals through Qwick’s Invite a Friend program, available in the Pro’s account page.
F. Compliance with Laws. You (as a Pro or as a Business, as applicable) agree to comply with all applicable laws, regulations, and ordinances (now existing or enacted or amended thereafter), including, but not limited to, independent contractor laws, executive orders, and government agency rules, when using the Qwick Services and in connection with your acting as a Pro or a Business under these Terms. You may only use the Qwick Services for lawful purposes. In your use of the Qwick Services you agree to not cause nuisance, annoyance, inconvenience, or property damage, whether to a Pro, a Business, to the Platform or to any third party. In certain instances, you may be asked to provide proof of identity to access or use the Qwick Services, and you agree that you may be denied access to or use of the Qwick Services if you refuse to provide adequate proof of identity.
G. Account Confidentiality. You are responsible for maintaining the confidentiality of your Account and login credentials. We reserve the right to invalidate your login credentials and require you to change them if we believe they have become unsecure. We may reject any username that violates these Terms, including any username that uses another person’s identity or that violates our community and content guidelines. We may use the email you provide to us in your Account profile to email you with service messages and updates. By creating an account, you are consenting to the use and receipt of these communications.
H. Account Security. The safety and security of your information also depends on you. You should maintain good internet security practices. You are responsible for keeping your login credentials confidential. You should not share your password with anyone. You must prevent unauthorized access to your Account and Personal Information by selecting and protecting your password appropriately and limiting access to your computer or mobile device and browser by signing off after you have finished accessing your Account. If your email account is compromised, it could be used to ask us to reset a password and gain access to your Account with us. If you think that your Account has been compromised you should change your account password, and in particular make sure any compromised login credentials do not allow access to your Account. The information you share in public areas may be viewed by other users. We will never email you to ask for your password or other account login information. If you receive such an email, please send it to us so we can investigate.
I. Text Messaging. By creating an Account, you give express consent that we may send you informational text messages as part of the normal business operation of your use of the Services and that use of SMS is necessary to utilize the Services. Our Services may include sending you Short Message Service (“SMS”) messages to your wireless device e.g., notification to Pros of upcoming Gigs (unless you communicate further with us); message frequency may vary. We may use your information to contact you about your Account, Gigs, Website updates, conduct surveys, or informational and service-related communications, including important security updates. You may stop receiving SMS messages from us by replying “STOP” to the SMS message you received. After you send the SMS message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed. Alternatively, you may submit your request by email to us, including the email address and phone number you registered with us, or by any reasonable means. After this, you will no longer receive SMS messages from us and your Account will be terminated. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again. For help, please reply to a SMS message with HELP. Message and data rates may apply, depending on your cell phone plan. Carriers are not liable for delayed or undelivered messages.
J. By registering to become a Pro and confirming a Gig Posting, you agree to use your best efforts to perform the Gig such that the Pro Services meet the requirements and specifications of the Business for whom the Gig was created. Once a Pro has accepted a Gig Posting, the Gig will no longer be available for performance by other Pros who may have viewed the same Gig Posting. By accepting a Gig Posting, Pro is entering into a binding legal agreement with the Business to provide the Pro Services for the Payment specified in the Gig Posting. A Pro should not accept a Gig Posting unless the Pro is sure that: (1) Pro understands what Pro is being asked to do; (2) Pro can perform the Pro Services identified in the Gig Posting; (3) Pro can provide the Pro Services at and during the requested time (and, as applicable, being able to travel to the Business’s location). If Pro fails to show up at the Business location by the specified start time as noted on the Gig Posting, Business in its sole discretion may cancel the Gig Posting without any penalty to the Business. Please be aware that if a Pro fails to show up for a Gig it may adversely affect the Pro’s rating as a Pro. Please review our cancellation policy below. Failure to timely deliver the Pro Services consistent with the Business’s requirements will constitute a breach of the agreement with the Business, resulting in non-payment. Pro agrees to not possess, sell, receive, or operate under the influence of any illegal drugs or alcohol while performing any Gig.
K. You agree to comply with all applicable local, state, federal and international laws including, without limitation, privacy, intellectual property, and tax laws along with all other regulatory requirements.
7. PROMOTIONAL CODES
A. We may, in our sole discretion, create promotional codes (“Promo Codes”) for referrals or other activities that may be redeemed for Account credit, or other features or benefits related to the Qwick Services and/or Pro Services, subject to any additional terms that Qwick establishes on a per promotional code basis. You agree that Promo Codes: (i) will be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by Qwick; (iii) may be disabled by Qwick at any time for any reason and without liability to Qwick; (iv) may only be used pursuant to the specific terms that Qwick establishes for such Promo Code; (v) are not valid for cash; and, (vi) may expire prior to your use. Qwick reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that Qwick determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
8. QWICK SERVICES
A. Qwick does not recommend or endorse any of its Users. Qwick only provides a neutral Marketplace through which Businesses seeking a Pro may interact whereby the Pro will operate under the complete supervision of the Business. The Pro and the Business are transacting with each other through the Marketplace. Qwick makes no representations or warranties concerning the qualifications of Pros or the suitability of the Business. Qwick is not responsible for review or verification of Business or Pro information. Businesses and Pros should use their own judgment when using a Pro or going to complete a Gig at a Business and each does so at their own risk.
B. 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.
C. Geolocation. The Platform has a feature for which the Pro can optionally allow the Pro’s geolocation (i.e., precise location at a point in time) to be shared with Qwick. Qwick may use geolocation information to monitor and ensure proper clock-in and clock-out of a Gig by the Pro (e.g., by allowing clock-in/clock-out only within a certain radius from the Business’s location), to permit Qwick and the Business to monitor location during a Gig, and for managing the relationship between the parties. Qwick may share the Pro’s geolocation information with the Business. Qwick will use the Pro’s geolocation only for such purposes and will not disclose such geolocation information to any third party other than the Business for whom the Pro has or has had a Gig, or as permitted in the Privacy Policy. Qwick will not collect or use the Pro’s geolocation information outside of the context described in this Section 8C.
D. AutoSelect Feature. The AutoSelect feature of the Platform and Service enables the automatic selection and confirmation of Pros who apply for a Gig based on various factors and data. A Business can override that selection and continue to select the Pro the Business desires.
9. LICENSES
A. Subject to these Terms, we grant you a personal, limited, nonexclusive, and nontransferable license to: (i) download, install and use the Mobile App on a single mobile device owned or otherwise controlled by you, and (ii) access and use the Services made available in or otherwise accessible through the Software, strictly in accordance with these Terms.
10. USER FEEDBACK; THIRD-PARTY SOCIAL MEDIA POSTINGS
A. By submitting any ideas or suggestions to us (through the Software, social media sites, or other digital platforms, or through Google, or other review sites, or other means) related to improvements to the Mobile App or Services (collectively, “Feedback”) you agree that such Feedback shall be deemed, and shall remain, our property, and you agree to and do hereby assign to us all your right, title, and interest in and to all Feedback (including without limitation intellectual property rights and moral rights) without compensation or further notice to you. We shall be entitled to use of the Feedback without restriction for any purpose whatsoever, commercial or otherwise, without compensation or further notice to you. None of the Feedback shall be subject to any obligation of confidentiality on our part and we shall not be liable for any use or disclosure of any Feedback.
B. By posting or submitting for posting User Content to our Facebook, YouTube, Instagram, or other social media pages or platforms, or on other websites, e.g., Facebook, Google, Yelp, Trip Advisor, etc., you agree to and do hereby grant us and our licensors, affiliates, partners, successors and assigns, a nonexclusive, perpetual, irrevocable, worldwide, sublicensable, transferrable, royalty-free right and license to use, store, display, publish, transmit, transfer, distribute, reproduce, rearrange, edit, modify, aggregate, summarize, translate, create derivative works of and publicly perform the User Content that you post or otherwise submit to us for any purpose, in any form, medium, or technology now known or later developed.
11. USER CONTENT
A. The Software may permit the posting or submission for posting of content, including, but not limited to, reviews, comments, or other textual content, files, images, photographs, videos, animation, sounds, musical works, data, or other materials and content by you (collectively, “User Content”). We do not endorse or approve any User Content submitted or posted. We respect the intellectual property rights of others. You must have the legal right to submit to us or, where permitted, post any User Content to the Software. You are solely responsible for any User Content that you create, transmit, or display while using the Mobile App. All User Content you post or submit for posting to the Mobile App is deemed nonconfidential.
B. You agree to not engage, or permit others to have access to your login credentials to engage, in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information or content.
C. You also agree to take sole responsibility for any royalties, fees or other monies owed to any person or entity by reason of any User Content you post or transmit.
D. User Content Submission and Posting Guidelines. You are responsible for all User Content that you submit to us. You may not submit or post User Content that:
i. Is not your own original creation or that you do not have permission to use (keep in mind that just because something on the internet does not have a copyright notice on it doesn’t mean you can use it without permission);
ii. Infringes the copyright, trademark, patent right, or other proprietary right of any person or that is used without the permission of the owner;
iii. You know to be inaccurate;
iv. Is pornographic, sexually explicit, or obscene;
v. Exploits children or minors;
vi. Violates the rights of privacy or publicity of any person;
vii. Is harassing, libelous, slanderous, or defamatory;
viii. Contains any personally identifying information about any person without their consent or about any person who is a minor;
ix. May be deemed generally offensive to the Website community, including blatant expressions of bigotry, prejudice, racism, hatred, profanity or religious or political radicalism;
x. Includes advertisements, promotions, solicitations, spam, or offers to sell any goods or services for any commercial purpose;
xi. Is off topic;
xii. Is intended to provide professional advice, including but not limited to, the provision of medical treatment, or legal, financial or investment advice;
xiii. Violates any local, state, federal, and/or international laws or regulations;
xiv. Promotes or provides instructional information about illegal or illicit activities;
xv. Contains software viruses or any other computer code, files, or programs designed to destroy, interrupt, or otherwise limit the functionality of any computer software, computer hardware, or other equipment; or,
xvi. Is intended to overwhelm, cause technical disruptions of or denial of service to the Software.
E. Qwick does not vouch for the accuracy of reviews. You acknowledge and agree that Feedback results for you may include comments, ratings, indicators of User satisfaction, and other Feedback left by Users or Qwick. You further acknowledge and agree that Qwick may make Feedback results available to other Users, including Pros, Partners and to Businesses, including composite or compiled Feedback. Qwick provides this Feedback system as a means through which Users can share their opinions publicly and Qwick does not monitor these opinions. These reviews do not constitute a guarantee, warranty, or prediction regarding the outcome of any future engagements.
F. Removal of User Content. We reserve the right (but have no obligation) to remove, block, edit, move or disable User Content that is objectionable to us for any reason, or after a certain period of time. The decision to remove User Content at any time is in our sole and final discretion. To the maximum extent permitted by applicable law, we do not assume any responsibility or liability for User Content or for any failure to or delay in removing User Content or other Content. You are solely responsible for your User Content and may be held liable for User Content that you post.
12. DMCA NOTICE
A. If you believe that any content on the Website violates these Terms or your intellectual property rights, you can report such violation to us in accordance with the Digital Millennium Copyright Act (17 U.S.C. §512, “DMCA”). In the case of an alleged infringement, please provide the following information:
i. A description of the copyrighted work or other intellectual property that you claim has been infringed;
ii. A description of where the material that you claim is infringing is located on the Website (including the exact URL);
iii. An address, a telephone number, and an email address where we can contact you;
iv. A statement that you have a good faith belief that the use is not authorized by the copyright or other intellectual property rights owner, by its agent, or by law;
v. A statement by you under penalty of perjury that the information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the owner’s behalf; and,
vi. Your electronic or physical signature, or that of the person authorized to act on behalf of the owner of the copyright or other right being infringed.
B. We may request additional information before we remove allegedly infringing material. You may report a copyright violation by providing the above information to the designated agent at: Qwick GP, LLC, P. O. Box 31938, Charleston SC 29417, Attn: DMCA.
C. We have the right to terminate the user account of any User who repeatedly submits content that violates our intellectual property policies. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had User Content removed from the Software more than twice.
D. Suspension of Service. We may suspend your account and access to the Service, with or without notice, if you violate any provision of these Terms.
E. Reliance on Content on the Qwick Service. You agree that Qwick is not responsible for your reliance on any information or content made available through the Services, other than that provided directly by Qwick, and the authors of such information and content are solely responsible for such content. Qwick does not guarantee the accuracy or completeness of any information on the Services or adopt, enforce or accept responsibility for the accuracy or reliability of any statement made by any third party or user that appears on the Services. You agree that Qwick will under no circumstances be responsible for any loss or damage resulting from your reliance on information or content on the Services.
13. RESTRICTIONS ON USE
A. Use of the Software and any of your information or content collected, transmitted or stored in connection with the Software is limited to the functionality of the Software. In no event may the Software be used in a manner that (a) harasses, abuses, threatens, defames or otherwise infringes or violates the rights of others; (b) is unlawful, fraudulent or deceptive; (c) uses technology or other means to access our proprietary information that is not authorized by us; (d) uses or launches any automated system to access the Services or computer systems; (e) attempts to introduce viruses, Trojans, worms, malware, or any other malicious computer code that interrupts, destroys or limits the functionality of any computer software, hardware or telecommunications equipment; (f) attempts to gain unauthorized access to our or our service provider’s computer network or user accounts; (g) encourages conduct that would constitute a criminal offense, or would give rise to civil liability; (h) “stalks” or otherwise harasses any person; (i) uses any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Software or its contents; (j) asks users or uses users to conceal the identity, source, or destination of any illegally gained money or products; (k) collect usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Software; (l) forges headers or otherwise manipulates identifiers in order to disguise the origin of any information transmitted to or through the Software (either directly or indirectly through use of third party software); (m) “frames” or “mirrors” any part of the Software, without our prior written authorization; (n) uses meta tags or code or other devices containing any reference to us or the Software (or any of our trademarks, trade names, service marks, logos, or slogans) to direct any person to any other website for any purpose; (o) access the Software in order to directly or indirectly build either (i) a competitive product or service or (ii) a product or service that contains features similar to any portion of the accessed Software; (p) reverse engineer any Software (to the extent such restriction is permitted by law); or, (q) otherwise violates these Terms. Qwick reserves the right, in its sole discretion, to terminate these Terms, request that you remove the Mobile App from your Mobile Device for any reason, including, but not limited to, our reasonable conclusion that you have violated these Terms.
B. No Solicitation of Businesses or Defamation of Qwick. You expressly acknowledge and agree that you shall not use the Software or any information or data obtained therefrom (including the name or contact information of any Business) to (i) solicit a Business, or (ii) post any content (on the Platform or any other online or offline location) which is misleading, paints in a false light, misrepresentative, libelous, harassing, or defaming of Qwick or its personnel.
C. Suspension; Termination of Account. We may terminate or suspend your account at any time without notice if we believe that you have breached these Terms, or for any other reason, with or without cause, in our sole discretion. We are not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your Account. After your Account is terminated for any reason, all terms of these Terms survive such termination, and continue in full force and effect, except for any terms that by their nature expire or are fully satisfied. You agree to not perform any security test activities related to the Software or associated infrastructure without our prior written consent, including, but not limited to, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing.
14. THIRD-PARTY SERVICES AND CONTENT
A. When you use the Qwick Services or Software you may be served with advertisements of third parties. You acknowledge that different terms of use and privacy policies may apply to your use of those third-party services and content. Qwick has no control over third-party services and content and in no event shall Qwick be responsible or liable for any interactions you may have with or any products or services you may receive from such third party providers.
B. There may be links in the Software that lead to other websites, we do not control and are not responsible for the content of such websites, nor do we endorse any such websites, and 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 enter all third party websites at your own risk. All such websites are not covered by our Terms; they may be governed by 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.
C. We may offer services through various applications including applications on smartphones, tablets and similar devices, and interactive plug-ins distributed on other websites. You agree these Terms and any other agreements required to download such applications shall govern, and you agree that various information including, but not limited to, your device on which you utilize to access these applications, mobile carrier, internet access provider, physical location, websites containing plug-ins, etc., may be communicated to us and used by us in our sole discretion. If you import any content through any such application, you represent that you have the authority to share such content with us and/or your mobile carrier, Internet access provider, or other provider. Should you change phone numbers or deactivate your device account, you agree to update your account information to reflect such a change and agree that any failure to do so is solely your responsibility. You are solely responsible for all charges related to your use of these applications.
15. INTELLECTUAL PROPERTY OWNERSHIP
A. 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, and the coordination, selection, arrangement and enhancement of any such materials as a collective work under the United States Copyright Act, as amended, is owned by or licensed to Qwick. You agree Qwick owns and retains all such rights 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 of these rights without Qwick’s prior express permission in a signed writing, unless such use falls under an exception. Users are prohibited from posting, sending, sharing, or distributing any Qwick materials or content 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. The Services contains materials that may be protected by the domestic and international laws of copyrights, trademarks, patents, and other proprietary rights and laws and any use of such materials is expressly prohibited without the prior signed written permission of Qwick or the relevant right holder or as otherwise permitted herein.
16. PAYMENT
A. Qwick does not provide professional services and does not charge for professional services or services provided by a Pro. Qwick receives a fee in exchange for using the Platform (“Platform Fee”).
B. Business understands that use of Qwick and the Platform may result in charges (possibly in the form of a promotional credit) to Business for the Pro Services you receive from a Pro, which include the Payment and the Platform Fee (collectively, the “Charges”). These Charges are due once you have posted a gig and accepted a Pro for the Gig and Qwick reserves the right to pull payment from your account at that time and to bill you for any unpaid Charges at any time.
C. All transactions conducted via the Marketplace are between the Pro and the Business.
i. For Contractor Pro Gigs
a. After the Pro accepts a Business’s Gig, for Contractor Pro Gigs the Platform will facilitate the payment of Charges using a third-party payment processor (“Processor”). Facilitation of payment through the Processor is subject also to the terms and conditions of the Processor. Businesses and Pros both agree that the use of the Processor is for convenience of payment and is provided at your request, and that use of the Processor is also subject to its own terms and conditions, which may also be subject to change. Once the Business selects “Pay” the Business’s transaction will be processed through the Processor, which will result in the deduction of OAI (as discussed above in Section 4.N) from the Payment for each Gig worked and billed for OAI. Businesses agree to facilitate payment to the Pro by clicking on the “Pay” button. Charges paid by Business are final and non-refundable, unless otherwise determined by Qwick. Businesses retain the right within the limitations of the Qwick Platform to set the rate of Payment through the Platform when posting a Gig. Qwick will respond accordingly to any request from a Pro to modify the charges for a particular Pro Service if necessary. Once the Business has engaged a Pro, the Business is responsible for making payment to that Pro and Business agrees to indemnify, defend, and hold harmless Qwick for all losses and damages due to Business’s failure to make timely payment in accordance with applicable law. If Business does not hit “Pay,” then Business agrees to allow Qwick to extract the payment from Business.
b. By selecting the “Instant Pay” option, Pros may opt to receive their Payment within thirty (30) minutes, for which Qwick will apply a three percent (3%) fee for expedited payment, otherwise Pros will receive Payment within about two (2) business days.
ii. For Employee Pro Gigs, the Employee Pro will be paid weekly by LFG, and all applicable taxes, etc., will be withheld and remitted as required and will be reflected on your paystub.
D. As between you and Qwick, Qwick reserves the right to establish, remove and/or revise Charges for any or all Services and Pro Services obtained through the use of the platform at any time in Qwick’s sole discretion. Qwick will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. Qwick may from time to time provide certain Users with promotional offers and discounts that may result in different amounts charged for the same or similar services obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you.
E. Service Charge
i. In consideration of Qwick’s provision of the Qwick Services for your use and benefit hereunder, Qwick charges a Platform Fee that is a percentage of the Pro’s compensation for each Gig, which is charged to the Business’s account when the Gig is completed. Qwick reserves the right to change the Platform Fee at any time in its sole discretion. Continued use of the Qwick Services after any such change in the Platform Fee shall constitute your consent to such change.
ii. For Contractor Pros after each Gig, the Contractor Pro will be paid the Gig amount after all deductions are made. The amount will appear in the Contractor Pro’s account. Contractor Pros must provide their payment account information prior to receiving payment.
iii. In the event that a Business hires a Pro as a full or part-time employee of that Business within sixty (60) days after last receiving Pro Services arranged via the Platform, Business agrees to promptly notify Qwick of such hire and pay Qwick the then-current finder’s fee (“Finder’s Fee”) within ten (10) days of the date such Pro commences employment. The current Finder’s Fee rate is zero percent (0%) of the Pro’s annual total compensation (including salary, wages, bonuses and tips).
F. Payment Methods. For Businesses, all Charges and Platform Fees are due immediately and payment will be facilitated by Qwick using the preferred payment method designated in your Account. If Business’s primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, Businesses agree that Qwick may, as the Pro’s limited payment collection agent, use a secondary payment method in a Business’s Account, if available. In the event that there are unpaid or past due amounts for Charges, Platform Fees, or any other fees associated with a Business’s account, Business agree to pay a finance charge of the lesser of 1.5% per month or the maximum amount permitted by law on such outstanding balances, plus all expenses of collection, including reasonable attorneys’ fees. Businesses who are more than 5 days late paying Qwick for a Gig may be deactivated from the Platform until their Gig payments are brought current. Repeated deactivations may result in permanent removal from the Qwick Platform. Pros will be paid through the Processor.
17. Cancellation Policy and Fee. A cancellation fee may be charged under certain circumstances for cancellation. Cancellation notice is given through the Platform.
A. For Pros. The following is our “Cancellation Policy” for Pros. Cancellations within 24 hours of a confirmed Gig and no shows to a confirmed Gig may result in the suspension of a Pro, which may include, but is not limited to, removal of future confirmed Gigs and/or a restriction on the ability to book new Gigs. Cancellations within 24 hours of a Gig and no-shows are treated as violations of these Terms and may result in the suspension of the Pro’s right to access the Marketplace. Violations of the Cancellation Policy will be tracked over a trailing 12-month period. In addition: (i) if the first violation of the Cancellation Policy is a failure to show to a confirmed Gig and that is the Pro's first confirmed Gig, then the result will be an indefinite suspension, (ii) if the first violation is a late cancellation or a failure to show to a confirmed Gig that is not the Pro's first confirmed Gig, then a 5-day suspension may occur, (iii) any second violation may result in a 14-day suspension, (iv) any third violation may result in an indefinite suspension.
B. For Businesses.
i. In the event that Business cancels a confirmed Gig within 24 hours before the start time of the Gig, Business may be required and agrees to pay a 4-hour minimum, including both the Payment for the Pro, processor fee, and the Platform Fee. If more than 24 hours’ notice of cancellation is given, there will be no charge to Business.
ii. In the event that a Business sends a Pro home early from a Gig, the Business Partner will be charged the greater of the time actually worked by the Pro and 4 hours of the Pros’ time.
18. DISCLAIMER OF WARRANTIES
A. THE SOFTWARE AND QWICK SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND, WHETHER STATUTORY OR IMPLIED, OTHER THAN AS EXPRESSLY STATED HEREIN. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND WARRANTIES ARISING FROM COURSE OF DEALING, OR COURSE OF PERFORMANCE OR USAGE OF TRADE. WE DO NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR RELATED TO THE QWICK SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE OR THE QWICK SERVICES OR THE SERVER THAT ENABLES THE PLATFORM TO BE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE CONTENT IN THE SOFTWARE IN TERMS OF ITS COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. DEPENDING ON THE STATE IN WHICH YOU RESIDE SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. WE ARE NOT RESPONSIBLE FOR THE ACTIONS OR INFORMATION OF THIRD PARTIES, AND YOU RELEASE US FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
19. LIMITATION OF LIABILITY
A. YOU AGREE THAT IN NO EVENT WILL QWICK OR ITS PARENTS, SUBSIDIARIES, OR AFFILIATES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF THE SOFTWARE OR QWICK SERVICES) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE SOFTWARE OR QWICK SERVICES (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF OUR OR OUR SERVICE PROVIDERS’ SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY US OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY THIRD PARTY’S USE OF THE SOFTWARE OR QWICK SERVICES, ANY LOSS THAT MAY OCCUR DUE TO ANY LOSS OF USE OF THE SOFTWARE OR THE QWICK SERVICES, ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SERVICES, THE NON-DELIVERY OR MIS-DELIVERY OF DATA BETWEEN YOU AND US, EVENTS BEYOND OUR REASONABLE CONTROL, THE NON-RECOGNITION OF OUR HOSTING SERVERS, THE PROTECTION OR PRIVACY OF ELECTRONIC MAIL OR OTHER INFORMATION TRANSFERRED THROUGH THE INTERNET OR ANY OTHER NETWORK PROVIDER OR SERVICE ITS CUSTOMERS MAY UTILIZE, OR THE APPLICATION OF ANY POLICY SET FORTH HEREIN.
B. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US, OUR OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, AND PARTNERS ARISING OUT OF OR RELATING TO THE SOFTWARE OR QWICK SERVICES, OR ANY USER CONTENT, IS TO STOP USING THE SOFTWARE AND THE QWICK SERVICES, AND TO CANCEL YOUR ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT WE, OUR OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, AND PARTNERS ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON OR ENTITY REGARDING CONDUCT, COMMUNICATION OR USER CONTENT. IN NO CASE SHALL THE TOTAL AGGREGATE LIABILITY OF US, OUR OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, AND PARTNERS TO YOU EXCEED FIVE HUNDRED DOLLARS (US$500).
C. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR OTHER WARRANTY LIMITATIONS OR OTHER RESTRICTIONS, IN WHICH CASE THE ABOVE EXCLUSIONS OR RESTRICTIONS DO NOT APPLY TO YOU, BUT ONLY TO THE EXTENT REQUIRED BY APPLICABLE LAW.
D. NOTICE TO CALIFORNIA RESIDENTS: IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
20. INDEMNIFICATION
A. By utilizing the Software or the Qwick Services you agree to indemnify and hold us and our officers, directors, employees, agents, and affiliates harmless from and against any and all liability, losses, costs, and expenses (including attorneys’ fees) incurred by us through your use of the Software or the Qwick Services or your posting or submission of User Content (if permitted) in violation of these Terms (including, but not limited to, negligent or wrongful conduct, infringement of any third party’s intellectual property, confidentiality, privacy or publicity rights). We reserve the right, at our own expense, 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. This section shall survive any termination of this agreement.
21. QWICK ZERO-TOLERANCE POLICY
A. Qwick’s Zero Tolerance Policy (“Policy”) is part of our commitment to providing a safe and dignified platform for all our Users, regardless of gender, race, ethnicity, sexual orientation, disability, national origin, religion, or any other protected class under federal, state or local law that is applicable. All Users are responsible for conducting themselves in a professional and respectful manner, and disciplinary action will be taken in situations where a user’s behavior violates this expectation. This Policy covers harassment, threats, violence, bullying, drug or alcohol use, and discrimination before, during and after the Gig and provides a standard for addressing allegations of inappropriate behavior, ensuring fairness and equal treatment. Qwick reserves the right to remove any User from the platform and terminate our relationship for violations of our Policy.
22. DISPUTE RESOLUTION
A. Time Limitation. Any claim or action against us must be brought within twelve (12) months of the cause arising, otherwise such claim or action is permanently barred.
B. MANDATORY BINDING ARBITRATION
i. Other than for the grounds set forth in the section below labeled “Exceptions to Agreement to Arbitrate,” in the event of any dispute, claim, question or disagreement arising from or relating to the Terms or the breach thereof or the access or use of the Software or our Qwick Services, the parties hereto shall use reasonable efforts to settle the dispute, claim, question, or disagreement. To this effect, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the parties do not reach such solution within a period of thirty (30) days, then, upon notice by either party to the other, such dispute, claim, question or disagreement shall be resolved by binding arbitration in North Charleston, South Carolina, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), subject to the limitations of this Section. This agreement to arbitrate will be specifically enforceable under the prevailing law of any court having jurisdiction. Notice of a demand for arbitration shall be filed in writing with the other party hereto and with the AAA. The demand for arbitration shall be made within a reasonable time after the dispute has arisen, and in no event shall any such demand be made after the date when institution of legal or equitable proceedings based on such dispute would be barred by the applicable statute of limitations. The parties agree that one (1) arbitrator shall arbitrate the dispute. The arbitrator shall be selected by the joint agreement of the parties, but if they do not so agree within twenty (20) days after the date of the notice of a demand for arbitration referred to above, the selection shall be made pursuant to the Commercial Arbitration Rules of the AAA from the panels of business arbitrators maintained by the AAA. The decision of the arbitrator shall be made in writing and shall be final. Judgment may be entered upon it in any court having jurisdiction thereof, and the decision shall not be subject to vacation, modification or appeal, except to the extent permitted by Sections 10 and 11 of the Federal Arbitration Act, the terms of which Sections the parties agree shall apply. The expenses of arbitration, including and the fees and expenses of the arbitrator and the AAA, shall be shared equally by the parties.
ii. The arbitrator will have no authority to award attorneys’ fees, punitive damages, or any other monetary relief not measured by the prevailing party’s actual damages and each party irrevocably waives any claim thereto. The award may include equitable relief. The arbitrator will not make any ruling, finding, or award that does not otherwise conform to the Terms. The arbitrator may render a summary disposition relative to all or some of the issues, provided that the responding party has had an adequate opportunity to respond to any such application for such disposition.
iii. The parties agree to treat all aspects of the arbitration as confidential, as provided in the AAA Rules. Before making any disclosure permitted by the Rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests. Further, judgment on the arbitrators’ award may be entered in any court having jurisdiction.
C. Exceptions to Agreement to Arbitrate. You and we agree that we may (but are not required to), by mutual agreement in writing, bypass arbitration and go to court to resolve disputes relating to: (a) your or our intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents), (b) your violation of the restrictions on use, (c) your violation of our User Content Posting Guidelines, or (d) the failure of Business to pay any portion of any fees that are due.
D. Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. You agree that neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity, and each party hereby waives any right to assert consolidated claims with respect to any disputes subject to arbitration under these Terms or any disputes between you and us. No arbitration or proceeding will be combined with another without the prior written consent of you and us to all affected arbitrations or proceedings.
E. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right we or you may have to a trial by jury for any legal action arising out of or relating to these Terms or the transactions contemplated hereby.
23. COOPERATION WITH LAW ENFORCEMENT AND GOVERNMENT AGENCIES; REQUIRED DISCLOSURES
A. You acknowledge that we have the right to investigate and prosecute violations of these Terms, including intellectual property, publicity and privacy rights infringement and website security issues, to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that we have no obligation to monitor your access to or use of the Mobile App or the Services, but we have the right to do so for the purpose of providing the Services, to ensure your compliance with these Terms or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental or regulatory body.
B. You understand and agree that we may disclose your Personal Information if required to do so by law, court order, legal process, or subpoena, including to respond to any government or regulatory request (after, if permitted, giving reasonable notice to you and using commercially reasonable efforts to provide you with the opportunity to seek a protective order or the equivalent (at your expense), or if we believe that such action is necessary to (a) conform to the law, comply with legal process served on us or our affiliates or partners, or investigate, prevent, or take action regarding suspected or actual illegal activities; (b) to enforce these Terms (including for billing and collection purposes), take precautions against liability, to investigate and defend ourselves against any third-party claims or allegations, to assist government enforcement agencies, or to protect the security or integrity of our Website; or, (c) to exercise or protect the rights, property, or the safety of us, our users or others.
24. ACCOUNT TERMINATION AND DATA RETENTION
A. The Terms are effective immediately and will remain in full force and effect during the duration of your use of the Services (including the duration your account is open, regardless of your activity thereon). We may keep the information we obtain from or about you as long as is permitted or required under the law. If your account is deactivated, we may remove your User Content from the site and may retain your data in our systems in order to ensure our ability to satisfy the authorized uses under our privacy policy. For example, we may use retained data to prevent, investigate, or identify possible wrongdoing in connection with the Site, to enhance the Site, or to comply with legal obligations. Please note that information may exist in backup storage even after it has been removed from our active databases.
25. CHOICE OF LAWS; VENUE; JURISDICTION
A. These Terms are governed by and construed in accordance with the laws of the State of South Carolina, without giving effect to any conflict of law principles. All litigation permitted under this Agreement may be brought only in the state or federal courts located in or nearest to Charleston, South Carolina and each party irrevocably submits to such exclusive jurisdiction and venue.
26. MISCELLANEOUS
A. Agreement. These Terms, including, the Privacy Policy (and updates to the foregoing) shall constitute the entire and exclusive understanding and agreement between you and us regarding this subject matter, and shall supersede any and all prior or contemporaneous representations or understandings relating to this subject matter. In the event that any part of these Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration. The failure of us to exercise or enforce any right or provision of these Terms, including any failure to act with respect to a breach, will not constitute a waiver of such right or our right to act with respect to subsequent or similar breaches. The headings of sections and paragraphs in these Terms are for convenience only and shall not affect its interpretation.
B. Assignment. You may not assign these Terms without Qwick’s prior written approval. Qwick may transfer, assign, or delegate these Terms and its rights and obligations without your consent. Any purported assignment in violation hereof shall be of no power or effect.
C. Notifications and Service Messages.
i. Qwick may give notice by means of a general notice on the Marketplace or in-app in the Mobile App, electronic mail to your email address in your Account, and/or by written communication sent by first class mail or pre-paid post to your address in your Account, and is effective when sent. You may give notice to Qwick with such notice deemed given when received by Qwick at any time by using the Qwick support email at support@qwick.com.
ii. To alert you to changes to the Services (such as for example modifications to these Terms and other applicable terms, such as our Privacy Policy, other policies, and guidelines) we may place a notice at the top of these Terms or place a banner notice on the Services. In the alternative, we may email you at the email address associated with your account. We are not undertaking or promising to provide this notice and you agree we have no obligation to do so. It is your responsibility to check for modifications to the Terms and you agree we will have no liability if you fail to do so.
iii. 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, mobile number, telephone, or via delivery services including the postal service. 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.
D. Customer Service. Qwick provides assistance to its Users through its Customer Service Representatives. Communications between you and our Customer Service Representatives may be recorded for quality assurance purposes and you are prohibited from being abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, or otherwise inappropriate toward our Customer Service Representatives. We reserve the right to immediately terminate your account, and you will not be entitled to any refund, if we, in our sole discretion, feel that you have mistreated our Customer Services Representatives in any way.
27.Notice to California Residents.
A. The following applies only to California Residents. Under California Civil Code Section, 1789.3, California Users are entitled to the following consumer rights notice: the Services are provided by Qwick GP, LLC. If you have a question or complaint regarding the Services, please contact us by email to support@qwick.com. You may also contact us by writing to Qwick GP, LLC, P. O. Box 31938, Charleston SC 29417. California residents may reach the complaint assistance unit of the division of consumer services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210 or hearing impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
For information about our policies and other inquiries, Pros and Businesses, please email support@qwick.com.
