Thank you for downloading the Qart mobile device application (the “App”) and/or and/or using the Qart website at www.Qart.io (the “Site”) and using Qart, Inc.’s (“Company" or “we” or “our” or “us”) corresponding service that connects users visiting the Service to obtain a product not available in their geographic location (“Shoppers”) with users who are visiting the Service to deliver a certain product to a Shopper in return for certain compensation calculated based upon product value and or other Company promotions (such individuals, “Travelers” and such products, “Products”) so that Travelers can purchase and deliver Products to such Shoppers pursuant to Orders (as defined below) entered into via the functionality of such service (such service collectively with the App and the Site, the “Service”). These Terms of Service (“Agreement”) govern your browsing, viewing and other use of the Service, including transactions you agree to enter into with other users.
Please read this Agreement carefully, as it (among other things) provides in Section 16 that you and the Company will arbitrate certain claims instead of going to court and that you will not bring class action claims against the Company. Please only create a Service account or otherwise use the Service if you agree to be legally bound by all terms and conditions herein. If you are viewing this on your mobile device, you can also view this Agreement via a web browser at www.Qart.io/terms. Your acceptance of this Agreement creates a legally binding contract between you and the Company. If you do not agree with any aspect of this Agreement, then do not create a Service account or otherwise use the Service. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity. Each user may only create one user account on the Service.
YOU UNDERSTAND AND AGREE THAT COMPANY IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN TRAVELERS AND SHOPPERS. COMPANY HAS NO CONTROL OVER THE CONDUCT OF TRAVELERS, SHOPPERS AND OTHER USERS OF THE SERVICES AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU UNDERSTAND AND AGREE THAT YOUR RELATIONSHIP WITH COMPANY IS LIMITED TO BEING A SITE USER AND AN INDEPENDENT, THIRD-PARTY CONTRACTOR, AND NOT AN EMPLOYEE, AGENT, JOINT VENTURER OR PARTNER OF COMPANY FOR ANY REASON, AND YOU ACT EXCLUSIVELY ON YOUR OWN BEHALF AND FOR YOUR OWN BENEFIT, AND NOT ON BEHALF OF OR FOR THE BENEFIT OF COMPANY. YOU AGREE NOT TO DO ANYTHING TO CREATE A FALSE IMPRESSION THAT YOU ARE ENDORSED BY, PARTNERING WITH, OR ACTING ON BEHALF OF OR FOR THE BENEFIT OF COMPANY, INCLUDING BY INAPPROPRIATELY USING ANY COMPANY INTELLECTUAL PROPERTY.
Note for Children. Use of the Service by anyone under the age of 18 is prohibited. By using the Service, you represent and warrant that are you at least 18 years of age.
The Service allows Shoppers to review existing lists of available Products and/or to submit descriptions of desired Products (each, an “Order Request”). If a Shopper identifies a Product they wish to obtain, they may indicate this in an Order Request and the Service’s functionality will attempt to match the Shopper to a Traveler who can purchase the Product and deliver it to them within certain price, geographic and pricing parameters (“Order Terms”). A Traveler may propose new or different Order Terms up until, but not after, selected by a Shopper to fulfill their Order Request. A user can act as both a Traveler and a Shopper. If the Service finds a match, the functionality of the Service will enable the Shopper will to communicate with applicable Travelers regarding the details of a potential transaction between them, including by using the functionality of the Service to agree on a price for the applicable Product (such agreed terms, an “Order”). The Service provides various functionality (including messaging features and user reviews of Travelers’ past performance) to help a Shopper determine which Traveler they chose to fulfill their Order Request. For an Order Request to be fulfilled, both Shopper and the Traveler the Shopper selects much agree to final Order Terms. As further described in Section 7, we collect amounts due for agreed Orders from Shoppers upon confirmation of an Order and release applicable amounts due Travelers when the applicable Shopper takes delivery of the applicable Product. Note that use of the Service is open to the general public, and the Company does not conduct any background checks on Service users. Without limiting the foregoing, the Company will make reasonable efforts to perform certain preliminary screening activities with respect to Service users, which may include verification of third party social networks information, provision of ratings and reviews, mobile phone number verification, and government identification verification (for Travelers).
The Shopper and Traveler agree within the Order Terms on a specific time and place to meet each other so that the Traveler can take delivery of the Order. Shoppers should identify an acceptable safe and public place to meet with their Traveler for the purpose of inspection and exchange of goods. The time for delivery can be extended only by written agreement between the Shopper and Traveler on the Service, or otherwise with the express written consent of the Company. It is the Shopper’s obligation to inspect and accept the Order at the time of delivery, and the agreement between the parties is deemed complete at the time of acceptance by scanning a unique QR Code or entering the unique code via the App, regardless of whether the Shopper inspects and accept the Order. The Order will be only marked complete and the Traveler receives the Item Fees and Traveler Fees only once such scan or entry is complete. Any communication between the Shopper and Traveler should be performed via the Service or through notification by the Company through the Service.
2.1 You acknowledge that all transactions you enter into in connection with the Service are voluntary and between you and the other Service user acting as a Traveler or Shopper (as applicable) and the Company is not a party to such transactions. The Company’s sole involvement in user-to-user transactions is to make available a marketplace for introducing and matching Travelers and Shoppers for the applicable transaction. Any agreement to a proposal made within the Service constitutes a contract directly between the applicable Traveler and Shopper for the provision of the stated Product(s) at the stated price and subject to such other terms as may be agreed to between the Traveler and Shopper. Although we may provide limited means to facilitate and resolve disputes, we are not a party to any such disputes, and have no liability in connection therewith. If you do have an issue with respect to an Order or another Service users, please contact us at email@example.com, and we will attempt to assist in facilitating resolution of such dispute.
2.2 You are solely responsible for investigating the qualifications, experience, skills and credentials of any user with whom you may communicate with through the Service. You acknowledge that the Company: (i) does not screen users with respect to their trustworthiness, history of violence, criminal background or any other background checks with the exception of the preliminary screening noted above; (ii) makes no warranties regarding the existence, safety, quality, adequacy or fitness for a particular purpose of any provided Products, that a Traveler has properly obtained or transported any Product or that another user will consummate any transaction; and (iii) makes no warranties as to whether a Shopper will pay amounts owed for a transaction after an Order is agreed (however, we do collect amounts due from Shoppers prior to confirming to the Traveler that an Order is confirmed). Additionally, you understand and agree that nothing in this Agreement or the Services shall be construed as indicating that Company is directly selling any Products, or that Company acts as an agent for any third parties who manufacture or sell such Products, or that Company offers any warranties or promises (express or implied) with respect thereto.
2.3 You are solely responsible for determining your legal obligations in relation to any Product purchase you may consummate, including as may relate to taxes or import/export obligations and compliance. The Company does not provide legal advice. Although Company has no obligation to monitor such compliance, and without limiting the foregoing, you agree to not directly or indirectly do any act or thing that will or could constitute a violation of any applicable export control laws, or other laws and regulations similar in purpose or effect. Without limiting the foregoing, you covenant that you shall not, directly or indirectly, sell, export, reexport, transfer, divert, or otherwise dispose of any Product to any country (or national thereof) subject to antiterrorism controls or U.S. embargo, or to any other person, entity, or destination prohibited by the applicable laws, rules or regulations of any applicable jurisdiction.
2.4 While the Company does not control the acts or omissions of Service users, the Company does desire for Service users to have a good experience using the Service and interacting with other users. As such, you agree to use your reasonable best efforts to timely complete all of your obligations to other users. In addition, you agree to promptly make any payments as agreed within the Service. Without limiting the Company’s other rights to terminate this Agreement or your use of the Service, you acknowledge that the Company may terminate your use of the Service and this Agreement in the event that the Company determines (in its sole discretion) that you have breached any portion of this Section 2.4.
You represent, warrant and covenant that, in connection with this Agreement or the Service, you will not and will not attempt to: (i) violate any laws (or rules or regulation), third party rights or our applicable policies, including, without limitation, import/export related laws described in Section 2.3; (ii) offer for sale or rent, sell or rent, purchase or otherwise transfer, deal in or dispose of illegal products or services or products or services that encourage illegal activities, controlled substances, offensive materials, stocks or other securities, pharmaceuticals, medical devices, firearms, weapons, explosives, hazardous materials, any item that has been subject to a recall or that you believe may be unsafe when used in an ordinary manner, alcohol, tobacco products, animals, plants or seeds; (iii) re-join or attempt to use the Service if the Company has banned or suspended you; (iv) defraud the Company or another user; or (vi) use another user’s account or allow another person to use your user account. Any illegal activities undertaken in connection with the Service may be referred to the authorities.
If you have downloaded the App, then, subject to your compliance with all the terms and conditions of this Agreement, the Company grants you a limited, nonexclusive, nontransferable, revocable license to use the App on a compatible mobile device for your personal use, in each case in the manner enabled by the Company. If you are using the App on an Apple, Inc. (“Apple”) iOS device, the foregoing license is further limited to use permitted by the Usage Rules set forth in Apple’s App Store Terms of Service.
As between you and the Company, the Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the App, Service and all usage and other data generated or collected in connection with the use thereof (the “Company Materials”). Except for as expressly set forth herein, you agree not to license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the Company Materials. You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, algorithm or programs underlying the Company Materials. The Company reserves the right to modify or discontinue the Service or any version(s) thereof at any time in its sole discretion, with or without notice.
The Service may include advertisements or other links that allow you to access web sites or other online services that are owned and operated by third parties. You acknowledge and agree that the Company is not responsible and shall have no liability for the content of such third party sites and services, products or services made available through them, or your use of or interaction with them. Mobile Services; SMS. Use of the App requires usage of data and messaging services provided by your wireless service carrier. In particular, the App may use SMS messaging to provide you information relating to your use of the Service, Service updates, and phone number verification. You hereby consent to receiving such messages. You acknowledge and agree that you are solely responsible for data usage fees, messaging fees and any other fees that your wireless service carrier may charge in connection with your use of the App. If you do not agree to receive such updates, it may impact your ability to interact with the Service, however if you prefer to stop receiving such updates, you may de-activate them through the Service user interface, by using options presented to you within such SMS messages or by contacting us at firstname.lastname@example.org
7.1 Each Traveler hereby appoints Company as such Traveler's limited payment collection agent solely for the purpose of accepting applicable fees from Shoppers, which include the fee due the Traveler to reimburse the Traveler for the applicable Product (“Item Fee”), the fee due the Traveler delivering the Product (“Traveler Fee”), and, the Company Fees due Company under Section 7.5 (collectively, “Total Fees”). Each Traveler agrees that payment made by a Shopper through the Service shall be considered the same as a payment made directly to the Traveler, and the Traveler will make the applicable Product(s) available to the Shopper in the agreed-upon manner as if the Traveler has received the Item Fee and Traveler Fee directly. Each Traveler understands that Company accepts payments from Shopper as the Traveler’s limited payment collection agent and that Company’s obligation to pay the Traveler is subject to and conditional upon successful receipt of the associated payments from Shoppers. Company does not guarantee payments to Travelers for amounts that have not been successfully received by Company from Shoppers. In accepting appointment as the limited authorized agent of the Traveler, Company assumes no liability for any acts or omissions of the Traveler.
7.2 It is the responsibility of the parties to determine applicable duties, sales tax, VAT, or other duties and taxes applicable to an Order. Unless otherwise agreed between Shopper and Traveler, Shopper will be responsible for all such duties and taxes incurred prior to the delivery of a particular Order, subject to the Traveler’s responsibility to provide reasonable documentation of such duties and/or taxes via the Service interface. If you do have an issue with respect to an Order or another Service users, please contact us at email@example.com, and we will attempt to assist in facilitating resolution of such dispute.
7.3 Each Service user, whether acting as a Shopper or a Traveler, acknowledges and agrees that such user, and not Company, will be responsible for performing obligations they agree to within the Service, that Company is not a party to such agreements, and that, with the exception of its payment obligations hereunder, Company disclaims all liability arising from or related to any such agreements. Upon payment of the Total Fees to Company, a Shopper’s payment obligation to the Traveler for applicable Order is extinguished, and Company is responsible for remitting the Item Fee and the Traveler Fee (less any applicable taxes), in the manner described in this Agreement. In the event that Company does not remit any such amounts to Travelers after such amounts have been received by Company as described in this Agreement, such Traveler will have recourse only against Company.
7.4 Each Shopper agrees to pay Company for the Total Fees for any confirmed Order in connection with such Shopper’s Service account. You understand and agree that Company, on behalf of the Traveler, reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the Total Fees or (ii) charge your credit card a nominal amount, to verify your credit card. As a general rule, Company will collect the Total Fees due once Company receives the Order has been confirmed by both the Shopper and the Traveler; if necessary, Total Fees may instead be collected at a later point.
7.5 Other than for the accurate communication of transaction information to the payment services provider identified in Section 7.6 below as expressly set forth in this Section 7.5, the Travelers and Shoppers are solely responsible for all aspects of their transaction, including fulfillment of any delivery of applicable Orders in accordance with all applicable laws and any applicable terms and conditions. Company has no obligation or liability with respect to the quality, safety, morality or legality of any transaction between Travelers and Shoppers. You agree to defend, indemnify and hold Company and its officers, directors, employees and agents harmless from and against any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any and all demands, claims, actions, suits or proceedings brought by a third party against any of them arising out of or relating to any transaction relating to you effectuated in connection with the Services, except solely to the extent arising out of or relating to any failure by the Services to communicate accurate information regarding such transaction to our Payment Processor (as defined below).
7.6 Company shall deduct from all transactions and retain as fees for the services provided hereunder the amounts (“Company Fees”) set forth in the fee schedule made available to you by Company prior to confirmation of any Order (the “Fee Schedule”). Fees are subject to change from time to time upon prior written notice from Company, but will remain fixed with respect to a particular Order once that Order is confirmed. Company Fees are nonrefundable in all instances and regardless of whether the Traveler elects to provide a refund, except solely in the instance of a refund provided due to failure by the Services to communicate accurate information regarding such transaction to the payment services provider identified in Section 7.7.
7.8 You acknowledge that by entering into this Agreement, you are also entering into the separate agreements referenced in Section 7.7 directly with the applicable Payment Processor, that Company is not a party to such separate agreements and that Company is not an affiliate of our Payment Processors. You acknowledge and agree that Company does not control our Payment Processors or their performance of payment processing services, and that Company shall have no liability of any kind for any act or omission (including negligence) of any Payment Processor or any claim, demand, suit, damage, judgment, liability, loss, expense or cost incurred by you in relation to the performance or non-performance of payment processing services by such Payment Processor, other than to the extent to which any of the foregoing may arise from the gross negligence or willful misconduct of Company.
8.1 The Service may allow you and other users to upload, post and share text and other media, including in a manner such that it may be viewed by other end users of the Service (“Your Content”, or in relation to other users, “User Content”), such as your basic profile and user reviews you upload to the Service. You acknowledge that Your Content that is posted to the Service is stored on and made available through the Service by the Company’s servers and not on your device.
8.2 You understand that all Your Content is provided to you through the Service only on an “as-available” basis and the Company does not guarantee that the availability of Your Content will be uninterrupted or bug free. You agree you are responsible for all of Your Content and all activities that occur under your user account.
8.3 You shall retain all of your ownership rights in Your Content. You hereby grant the Company a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable and transferable license to use, reproduce, display, transmit and prepare derivative works of Your Content, and to additionally distribute and publicly perform Your Content in connection with the Service and the Company’s (and its successor’s) business, in any media formats and through any media channels. To promote the Service and to increase the availability of Order Request to potential Travelers, Order Requests and other of Your Content may be displayed on other websites, in applications, within emails, and in online and offline advertisements. You also hereby grant to each user of the Service a non-exclusive license to access and view Your Content as permitted by the functionality of the Service and this Agreement. The aforementioned licenses will terminate with respect to any particular item of Your Content when you or the Company remove it from the Service, provided that (i) any sublicenses may be perpetual and irrevocable and (ii) you acknowledge that such licenses survive to the extent necessary for a copy of Your Content to be retained by the Company.
8.4 In connection with Your Content, you further agree that you will not: (i) use material that is subject to third party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant the Company all of the license rights granted herein; (ii) use material that is unlawful, defamatory, libelous, threatening, pornographic, obscene, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate; or (iii) post advertisements or marketing content or solicitations of business, or any content of a commercial nature. The Company may investigate an allegation that any of Your Content does not conform this to Agreement and may determine in good faith and in its sole discretion whether to remove such of Your Content, which it reserves the right to do at any time. If you are a copyright holder and believe in good faith that your content has been made available through the Service without your authorization, you may follow the process outlined to notify the Company’s designated agent (pursuant to 17 U.S.C. § 512(c)) and request that the Company remove such content.
8.5 You hereby acknowledge that you may be exposed to User Content from other users that is inaccurate, offensive, obscene, indecent, or objectionable when using the Service, and further acknowledge that the Company does not control the User Content posted by Service users and does not have any obligation to monitor such content for any purpose.
As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by this Agreement. You may not use the Service in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of it. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You agree not to scrape or otherwise use automated means to access or gather information from the Service, and agree not to bypass any robot exclusion measures we may put into place. In addition, you agree not to use false or misleading information in connection with your user account, and acknowledge that we reserve the right to disable any user account with a profile which we believe (in our sole discretion) is false or misleading (including a profile that impersonates a third party).
When you use certain features or materials on the Service, or participate in a particular promotion, event or contest through the Service, such use or participation may be subject to additional terms and conditions posted on the Service. Such additional terms and conditions are hereby incorporated within this Agreement, and you agree to comply with such additional terms and conditions with respect to such use or participation.
You may terminate this Agreement at any time, for any reason or for no reason, by deleting your Service account by contacting us at firstname.lastname@example.org. Note that deleting the App from your device will not terminate your Service account. You agree that the Company, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the Service, at any time and without notice. The Company may also in its sole discretion and at any time terminate this Agreement or discontinue providing the Service, or any part thereof, with or without notice. Without limiting the foregoing, the Company may restrict the availability of the Service or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers. You agree that the Company shall not be liable to you or any third-party for any such termination. Sections 2, 3, 5, 6, 7, 8.3, 8.4, 8.5, 9 through 17 will survive any termination of this Agreement.
You hereby acknowledge and agree that Apple, Inc.: (i) is not a party to this Agreement; (ii) has no obligation whatsoever to furnish any maintenance or support services with respect to the App; (iii) is not responsible for addressing claims by you or any third party relating to the App, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; (iv) has no responsibility to investigate, defend, settle or discharge any claim that the App or use thereof infringes any third party intellectual property rights; and (v) is a third party beneficiary of this Agreement with the right to enforce its terms against you directly.
THE SERVICE AND ANY MEDIA, INFORMATION OR OTHER MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY DOES NOT GUARANTEE THE CONTINUOUS AND UNINTERRUPTED AVAILABILITY AND ACCESSIBILITY OF THE SERVICE. WE DO NOT GUARANTEE THAT TRAVELERS WILL FULFILL ORDERS, THAT PRODUCTS WILL BE AS DESCRIBED, OR THAT PRODUCTS WILL BE IN THE ANTICIPATED CONDITION OR MEET ANY DESCRIPTIONS PROVIDED BY TRAVELERS OR ANY OTHER PARTY. WE DISCLAIM ANY LIABILITY IN CONNECTION WITH REPRESENTATIONS MADE BY OTHER USERS, NOR WITH ANY USER CONTENT. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree to indemnify and hold the Company and its affiliated companies, and each of their officers, directors and employees, harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, (any of the foregoing, a “Claim”) arising out of or relating to your use or misuse of the Service, entry into or performance of any transaction, breach of this Agreement or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity, provided that the foregoing does not obligate you to the extent the Claim arises out of the Company’s willful misconduct or gross negligence. The Company reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT ARISE OUT OF OR RELATE TO THE SERVICE, INCLUDING YOUR USE THEREOF, OR ANY OTHER INTERACTIONS WITH THE COMPANY, EVEN IF THE COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE THE COMPANY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE TOTAL LIABILITY OF COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE EXCEED ONE HUNDRED U.S. DOLLARS.
16.1 Agreement to Arbitrate.This Section 16 is referred to herein as the “Arbitration Agreement.” The parties that any and all controversies, claims, or disputes between you and Company arising out of, relating to, or resulting from this Agreement, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
16.2 Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
16.3 Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures (the "AAA Rules"), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 15. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against the Company.
16.4 Venue. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
16.5 Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the state of California, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Service users, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.
16.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA's Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
16.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
16.8 Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 16.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 16.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
The Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after the Company provides notice of the Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first. Under this Agreement, you consent to receive communications from the Company electronically. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to arbitration under Section 16 shall be filed only in the state or federal courts in California (or a small claims court of competent jurisdiction) and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.
The services hereunder are offered by Qart, Inc., which may be contact at email: email@example.com, telephone: +1 (949)-385-0642. If you are a California resident, we are required to inform you that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700.