These Terms of Use (“Terms”) constitute a legally binding agreement between You and Qwick, Inc., and its parents, subsidiaries (including Labor Force Group, LLC and Flex Affiliate Staffing Technology, LLC), representatives, affiliates, officers and directors (collectively, “Qwick” or “Company”) that governs the access or use by You, an individual, (“You”) of the Qwick mobile application (the “Application”), websites (including www.qwick.com), software, and technology platform, and any data or information made available to You and/or that You provide through the Services (collectively, the “Services”).
IMPORTANT: PLEASE BE ADVISED THAT BY AGREEING TO THESE TERMS YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND WAIVING YOUR RIGHT TO HAVE A JURY TRIAL ON YOUR CLAIMS.
PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN PROVISIONS THAT GOVERN HOW YOU CAN BRING CLAIMS BETWEEN YOU AND QWICK, INCLUDING THE ARBITRATION AGREEMENT IN SECTION XII BELOW. THE ARBITRATION AGREEMENT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH QWICK ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION.
Notwithstanding the foregoing, if you chose now, or in the future, to: (a) provide services pursuant to Qwick’s Professional Services Agreement, or (b) utilize the services as a Qwick business partner pursuant to Qwick’s Business Partner Services Agreement, these Terms do not supersede or otherwise impact the enforceability of any agreements you may have with Qwick or its subsidiaries as set forth in such agreements.
Qwick’s Services enable businesses in the hospitality industry (“Business Partners”) to connect with ready-to-work (“Professionals’) to work on-demand daily shifts in the hospitality industry. You acknowledge that Qwick does not and cannot control the behavior of the Users of our Services, including Professionals and Business Partners (“Users”). We do our best to make sure that all Users comply with these Terms, but we aren’t responsible if they do not.
You acknowledge that the engagement of a Professional to perform work (in the case of a Business Partner) or the performance of work for a Business Partner (in the case of a Professional) creates a direct business relationship between Business Partner and Professional. Once Services have been rendered by a Professional, Qwick facilitates payment of applicable fees by the Business Partner to the Professional, but Qwick is neither the beneficiary of the work, nor does it undertake any responsibility for the nature or amount of payment for the work. Rather, all such engagements are between the Business Partners and the Professionals and as such, both Business Partners and Professionals retain the right to negotiate such fees at the time services are provided, and Qwick will coordinate with a Professional to modify fees accordingly.
No agency, partnership, joint venture, or employment is created as a result of these Terms of Use or Your use of any part of the Service. Professionals and Businesses are not employees of Qwick unless otherwise agreed in writing by the parties.
By using the Services, You agree to be bound by these Terms, our Privacy Policy, and Community Guidelines, and Qwick’s Business Partner Services Agreement or Professional Services Agreement, as applicable to You, all of which are incorporated by reference. If You use the Services on behalf of an entity, organization or company, You represent and warrant that You have the authority to bind that entity to these Terms. You further agree that You are at least eighteen (18) years old and have legal authority to accept these Terms.
Qwick, in its sole discretion, may immediately terminate these Terms or any Services with respect to You, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason. You may terminate these Terms at any time by closing Your account, uninstalling the App, and ceasing use of the Services. The sections of these Terms of Use that by their nature are intended to survive termination, including but not limited to Sections IV-VII and XI-XV shall survive any termination of these Terms of Use.
Qwick reserves the right to modify these Terms or its policies relating to the Services at any time, effective upon the posting of such updated Terms or on Qwick’s website. You should regularly review these Terms, as Your continued access or use of the Services after such posting confirms Your agreement to such changes. If You do not want to be bound by these Terms, You cannot use Qwick’s Services. Qwick is not liable to You or any third party for any modification or discontinuance of the Services.
To access the Services, You must register for an account and provide accurate, current, and complete information about Yourself. We are not responsible for any claims or disputes related to any incomplete, inaccurate or untimely information provided by You to Us. Additionally, You are solely responsible for all charges associated with Your use of the applications.
You must create a password for your account and keep it confidential. If you suspect a password or security breach, You must inform us immediately. You are responsible for all activities under Your account, and You may be liable for any losses incurred due to unauthorized use, even if You haven't notified Qwick of such use. Qwick will not be held liable for these instances to the maximum extent permitted by applicable law.
You are responsible for all content You provide through the use of the Services, including compliance with applicable laws, rules and regulations, and Qwick has no responsibility with respect to such content. You agree that Your submissions are made voluntarily, are non-confidential and non-proprietary, and do not infringe on the intellectual property or any other rights of a third party. You will not be compensated for Your submissions. We may screen user submissions and we reserve the right to delete any such content that, in Our sole discretion, violates these Terms.
You agree that information including Your device on which You utilize to access these applications, mobile carrier, internet access provider, physical location, websites containing plugins, etc. may be communicated to Qwick and used by Qwick 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.
You hereby irrevocably grant to Qwick and its affiliates, advertisers, promoters, or distribution partners a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, sub-licensable, and transferable (in whole or part) license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights, and other intellectual property rights You own or control, to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit any user submission provided in any way by You to Us and hereby agree that We and Our affiliates, advertisers, promoters, or distribution partners may use such content as determined to be appropriate our sole discretion, all without further notice to You, with or without attribution, and without the requirement of any permission from or payment to You or to any other person or entity. In the interest of clarity, the license granted to Qwick shall survive termination of the Service or Your account.
Users must adhere to several guidelines to ensure the integrity and proper use of the Services. These include, but are not limited to, refraining from actions that violate the law or infringe on the rights of others, such as intellectual property rights. Harassing, defaming, or discriminatory behavior is prohibited, as is using the Services for advertising purposes or recruiting Users for other websites without Qwick's explicit consent. Posting links to third-party websites, copying or enabling competitive services, scraping data, or attempting to compromise the security of the Services is also prohibited. Users are not allowed to resell information obtained from the Services, decompile, reverse engineer, or exploit the Services in unauthorized ways, nor access them using automated processes.
Qwick owns and retains all rights in the Services, including all intellectual property and other proprietary rights, except as expressly set forth herein. Such rights include any software, text, typefaces, graphics, layouts, content, data, formatting, designs, html, graphs, photographs, videos, designs, sounds, images, look and feel, and other content on the Services (collectively, the “Materials”), and the coordination, selection, arrangement and enhancement of any such Materials. Qwick also owns certain service marks, trademarks, logos and/or trade names (collectively, “Qwick Marks”) appearing on the Services.
If You provide Us with comments, questions, suggestions, feedback or related materials regarding the Services (“Feedback”), the Feedback will be treated as non-confidential and non-proprietary, and You give ownership of and assign the ideas and Feedback to Us completely, without Us owing anything to You for it.
If You use the Services as intended, during the term of this Agreement, and subject to Your compliance with these Terms, Qwick grants You a limited, revocable, non-transferrable, non-assignable, non-exclusive license to use the Services for their intended purpose and to display and use the Qwick Marks solely with Your use of the Service. The Qwick Marks may not be used in any manner that is likely to cause confusion.
Violation of any provision of this License may result in immediate termination of the License, in Our sole discretion. All rights not expressly granted in these Terms of Use are expressly reserved by Qwick without limitation.
You are responsible for Your use of the Services, and You agree to indemnify, defend, and hold harmless Qwick and its affiliated and related entities and its and their respective officers, directors, agents, investors, and employees (the “Qwick Indemnitees”) from and against all past, present, and future claims, causes of action, demands, lawsuits, actions, liabilities, losses, expenses, obligations or damages of every kind and nature (including personal injuries, death and property damage) or other demand of liability of any kind (including attorneys’ fees and costs) incurred by Us in connection with any claim, cause of action, demand, lawsuit or action by a third party arising directly or indirectly out of or in any way connected with (a) Your use of the Services, (b) Your failure to comply with the Terms of Use, (c) any activity in which You engage on or through or because of Your use of the Services, and/or (d) any third-party claims, including, without limitation, those of any users or Your interaction with any other user.
Qwick reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You (without limiting Your indemnification obligations) and You agree to cooperate with our defense of that claim. You further agree that You will reasonably cooperate in the defense of any such claims. Qwick reserves the right to select its own legal counsel to represent its interests and You agree to reimburse Qwick for its attorneys’ fees and costs immediately upon request as they are incurred. You agree not to settle any such claim without the prior written consent of Qwick. The obligations described in this section shall include indemnifying and holding harmless the Qwick Indemnities from and against losses incurred in enforcing this section. If You are a New Jersey resident, this indemnification clause is to be only as broad and inclusive as is permitted by the law of the state of New Jersey.
You agree that the provisions in this section will survive any termination of Your account, this Agreement, or Your access to the Services.
You are using the Services at Your sole risk. Neither Qwick nor its officers, directors, agents, investors, or employees shall be liable to You for any damages resulting from Your displaying, copying, or downloading any materials to or from the Services. In no event shall We be liable to You for any indirect, extraordinary, exemplary, punitive, special, incidental, or consequential damages, or damages related to loss of data, revenue, profits, cost of substitute goods and services, use, or other economic advantage) however arising, even if You and Qwick know there is a possibility of such damage. If You are a New Jersey resident, this limitation of liability section is to be only as broad and inclusive as is permitted by the law of the state of New Jersey.
You are solely responsible for all of Your communications and interactions with other users of the Services, and with other persons with whom You communicate or interact as a result of Your use thereof. Qwick does not have any liability for or control over any user’s authenticity, integrity, statements, abilities or responsibility online or onsite in the workplace. We make no representations or warranties as to the conduct of users of the Services or their compatibility with any current or future users of the Services. You agree to take reasonable precautions in all communications and interactions with any persons with whom You communicate or interact as a result of Your use of the Services, including, but not limited to, businesses and professionals. We explicitly disclaim all liability for any act or omission of any user of the Services and all other third parties.
We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operations or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications, nor are we responsible for any problems or technical malfunctions whatsoever including, but not limited to, malfunctions of telephone networks or lines, computer online systems, servers or providers, computer equipment, software, failure of email, traffic congestion on the internet or at any website. Such malfunctions further include damage or injury to Your or any other person’s computer or device relating to or resulting from participation or use of the Services.
We may provide links on the Services that lead to other websites. We do not control and are not responsible for such links, and You agree to hold Qwick harmless from any liability that may result from Your use of such links.
It is Qwick’s policy to terminate the account of a user who is deemed to infringe third-party intellectual property rights and/or to remove user content that is deemed to be infringing, pursuant to the Digital Millennium Copyright Act and applicable law. If You, in good faith, believe that any materials on the Services infringe upon Your copyrights or other intellectual property rights, please provide our Copyright Agent with the following information:
Our copyright agent can be reached at: Qwick, Inc, Attn: Compliance, 3550 North Goldwater Blvd. #1154, Scottsdale, AZ 85251 or by emailing compliance@qwick.com. This contact information is for intellectual property infringement notices only.
By using the Services, You agree and consent to be contacted by, and to receive and accept communications from Qwick and authorized partners, representatives, and/or affiliates. Messages from Qwick will include shift updates and communication with Our support team. You agree that Qwick and authorized partners, representatives, and/or affiliates may contact You via different communication methods, including through Your Qwick account, email, SMS/text message, push notifications, mobile number, telephone, or via delivery services including the postal service. Standard message and data rates may apply. You agree that any communications that we send You electronically will satisfy any legal communication requirements. You further agree that Qwick and its officers, directors, agents, investors, and employees have no liability connected with or arising from Your failure to maintain current and accurate contact information including, without limitation, Your failure to receive critical information regarding the Services. By consenting to be contacted, You represent that the telephone number(s) that You have provided to Qwick are Your contact numbers, that You are permitted to receive calls at such telephone number(s), and that You will promptly alert Qwick whenever You stop using or change a particular telephone number.
You can cancel the SMS text messaging service at any time by texting "Stop" to the short code from the mobile device receiving the text messages. We will then send a SMS message to confirm that You have been unsubscribed. It may take Us a few days to process Your request. After this, You will no longer receive SMS messages from Us. If You want to receive shifts again, You will need to re-sign up for SMS/text messages.
You can unsubscribe from Qwick’s marketing communications by following the unsubscribe options in the email itself, or texting 79-425. Even if You unsubscribe, You may still receive emails or texts about Your account or use of the Services. You are not required to receive marketing communications from Qwick in order to use the Services.
The availability of the Services may be dependent on the third-party from which you received the license to the Application, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that these Terms of Use are between You and Qwick only, and not with any App Store. You must comply with the App Store’s then-current app store terms of service. Qwick, and not any App Store, is solely responsible for the application and the Services and content available thereon. The App Store has no obligation or liability to You with respect to the application or these Terms of Use.
Qwick is responsible for the provision of Services as described in these Terms. However, if you downloaded the Application from the Apple App Store, Apple and its subsidiaries are third-party beneficiaries of these Terms. Upon your acceptance of these Terms, Apple shall have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. These Terms incorporate by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are the “end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and these Terms, these Terms will control.
Your use of the Services is at your sole risk. The Services and all materials are provided on an “as is” and “as available” basis and the entire risk as to the use of the Services is with You. All warranties of any kind (express, implied or statutory) with respect to the Services, including, to the fullest extent permissible under applicable law, all implied warranties of merchantability, fitness for a particular purpose, title, accuracy of data, and non-infringement are hereby disclaimed by Qwick to the maximum extent permitted by applicable law..
Qwick makes no warranty that the Services will meet Your requirements or that Your use of the Services will be uninterrupted, timely, secure, or error free or that defects in Services will be corrected. Qwick makes no warranty as to the results that may be obtained from the use of the Services, or as to the accuracy or reliability of any information or Services obtained through the use of the Services, and are not responsible for the products, services, actions, or failure to act of any third party. No advice or information, whether oral or written, obtained by You through Services or from Us shall create any warranty. We disclaim all equitable indemnities.
We are not responsible for any communications occurring on or as a result of the Services and make no representations or warranties as to the delivery of any messages. Further, we do not represent or warrant that Your use of the Services will not infringe on the rights of third parties.
You understand that deciding whether to use the Services is Your personal decision for which You alone are responsible. You should take reasonable precautions and make whatever investigation or inquiries You deem necessary or appropriate before proceeding with any online or offline transaction with any third party. You understand that We do not and cannot make representations as to the suitability or fitness of User with whom You may decide to interact on or through the Services and/or the accuracy or suitability of any advice, information, or recommendations made by any individual.
You agree that Qwick and its officers, directors, agents, investors, and employees are not responsible for any incorrect or inaccurate content or information posted on or in connection with the Services and no user should rely on any information therein or on the continued availability of the Services.
Your interactions with individuals and/or organizations found on or through the use of the Services are solely between You and such individual or organization. If there is a dispute between Users of the Services, or between any User of the Services and any third party, You acknowledge and agree that We are under no obligation to become involved. In the event that a dispute arises between You and any third party, You hereby release Us, Our officers, managers, members, directors, employees, attorneys, agents, and successors in rights from any claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, foreseeable or unforeseeable, disclosed or undisclosed, arising out of or in any way related to such disputes and/or the Services. If You are a California resident, You waive California Civil Code §1542, which says: “a general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor or released party.”
Except as it otherwise provides, this arbitration provision applies to any dispute, past, present, or future, that Qwick may have against You or that You may have against (1) Qwick, (2) Qwick’s partners, officers, directors, principals, shareholders, members, owners, employees, or agents; (3) Qwick’s benefit plans or the plan’s sponsors, fiduciaries, administrators, affiliates, or agents; and (4) all successors and assigns of any of them. Each of the entities or individuals listed in (1) through (4) of the preceding sentence may enforce this Arbitration provision. All disputes covered by this arbitration provision will be decided by a single arbitrator through final and binding arbitration and not by way of court or jury trial. The Federal Arbitration Act, 9 U.S.C. § 1 et seq. governs this arbitration provision, which evidences a transaction involving commerce.
Additionally, except as this arbitration provision otherwise provides, the Arbitrator, and not any court, will have exclusive authority to resolve any dispute relating to the validity, applicability, enforceability, unconscionability or waiver of this arbitration provision, including (but not limited to) any claim that all or any part of this arbitration provision is void or voidable.
However, the preceding sentence does not apply to any claims under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, and it does not apply to the Class and Collective Action Waiver and California Private Attorneys General Act Individual Action Requirement. Notwithstanding any other clause or language in this arbitration provision or any rules or procedures that might otherwise apply because of this arbitration provision (including, without limitation, the Commercial Arbitration Rules of the AAA (“AAA Rules”) (the AAA Rules are available via the internet at www.adr.org/commercial or by using a service such as Google to search for “AAA Commercial Arbitration Rules”) discussed below) or any amendments or modifications to those rules, any claim that the Class and Collective Action Waiver and California Private Attorneys General Act Individual Action Requirement (in whole or in part) is unenforceable, inapplicable, unconscionable, or void or voidable, will be determined only by a court of competent jurisdiction and not by an Arbitrator. The right to a judicial determination of any claim that the Class and Collective Action Waiver and California Private Attorneys General Act Individual Action Requirement (in whole or in part) is unenforceable, inapplicable, unconscionable, or void or voidable may not be waived.
Limitations On How This Arbitration Provision Applies. These claims are not covered under this arbitration provision:
Nothing in this arbitration provision prevents You from reporting to or filing a claim or charge with a government agency, including, without limitation, the Equal Employment Opportunity Commission, U.S. Department of Labor, National Labor Relations Board, Occupational Safety and Health Administration, or law enforcement authorities. Nothing in this arbitration provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this arbitration provision. This arbitration provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this arbitration provision. Nothing in this arbitration provision prevents or excuses a party from satisfying any conditions precedent or exhausting administrative remedies. The Company will not retaliate against You for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act. This arbitration provision also does not prevent or prohibit You from reporting, communicating about, or disclosing claims for discrimination, harassment, retaliation, or sexual abuse.
A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy under applicable law, and any such application will not be deemed incompatible with or waiver of this arbitration provision to arbitrate. The court to which the application is made may consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law. All determinations of final relief, however, will be decided in arbitration.
Starting the Process. The party bringing the claim must demand arbitration in writing and deliver the written demand by personal delivery or via certified or registered mail, return receipt requested, to the other party. The demand for arbitration must include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. The demand for arbitration must be signed in ink by the party making the demand. Any demand for arbitration by You must be delivered via personal delivery or via certified or registered mail, return receipt requested, to Qwick, Inc., Attn: Legal, 3550 North Goldwater Blvd. #1154, Scottsdale, AZ 85251. You will be given notice of any demand for arbitration by the Company at the last home address You provided to the Company. The Arbitrator will resolve all disputes regarding the timeliness (demands must be made within the applicable limitations period(s)) or propriety of the demand for arbitration.
Cooling Off Period. After a party initiates a claim by making a written demand for arbitration to the other party, neither party will begin the arbitrator-selection process as described below or submit the demand to AAA for thirty (30) days after the demand is made (“Cooling Off Period”). During the Cooling Off Period, the parties may attempt in good faith to resolve the claim. The parties may also mutually agree to extend the Cooling Off Period. During the Cooling Off Period, either party may request an informal meeting to discuss in good faith a potential informal resolution of the dispute, without the need to go forward in an arbitration (“Informal Settlement Conference”). If timely requested, the Informal Settlement Conference will take place at a mutually agreeable time by telephone or videoconference. You and a Company representative must both personally participate; any counsel representing You or the Company also may participate. The requirement of personal participation in an Informal Settlement Conference may be waived only if both You and the Company agree in writing. At the end of the Cooling Off Period or (if an Informal Settlement Conference is timely requested) 30 days after completion of the Informal Settlement Conference, and unless the parties have resolved the claim, the parties will begin the arbitrator-selection process as described below. The demand for arbitration will be submitted to AAA for administration by the party initiating the claim. Unless otherwise prohibited by applicable law, AAA and the Arbitrator are without authority to accept or administer any arbitration demand until the parties have complied with the demand-for-arbitration process and Cooling Off Period, and Informal Settlement Conference, if requested by either party.
Class and Collective Action Waiver and California Private Attorneys General Act Individual Action Requirement. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class action and the Arbitrator will have no authority to hear or preside over any such claim (“Class Action Waiver”). The Class Action Waiver will be severable from this arbitration provision if there is a final judicial determination that the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the class action must be litigated in a civil court of competent jurisdiction—not in arbitration.
There will be no right or authority for any dispute to be brought, heard or arbitrated as a collective action and the Arbitrator will have no authority to hear or preside over any such claim (“Collective Action Waiver”). The Collective Action Waiver will be severable from this Arbitration provision if there is a final judicial determination that the Collective Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the collective action must be litigated in a civil court of competent jurisdiction—not in arbitration.
Regardless of anything else in this arbitration provision or the AAA Rules or any amendments or modifications to those rules, any claim that all or part of the Class And Collective Action Waiver, including, but not limited to any claim that all or part of it is invalid, unenforceable, unconscionable, void or voidable, may be determined only by a court of competent jurisdiction and not by an arbitrator.
The Company and You agree to arbitrate claims under the California Private Attorneys General Act (“PAGA”) on an individual basis only. Therefore, any claim by You under PAGA to recover unpaid wages, civil penalties, or any other individual relief must be arbitrated under this arbitration provision. The Company and You also agree Your non-individual PAGA claims will be stayed and You will not pursue any such claims in Court until after the Arbitrator, and not any court, issues a final and written determination as to Your status as an “aggrieved employee.” The Arbitrator is without authority to preside over any PAGA claim by You on behalf of any other person or joined by or consolidated with another person’s PAGA claim. This PAGA Individual Action Requirement clause will be severable from this arbitration provision if there is a final judicial determination that it is invalid, unenforceable, unconscionable, void or voidable. In such case, the PAGA action must be litigated in a civil court of competent jurisdiction—not in arbitration—but the portion of the PAGA Individual Action Requirement that is enforceable will be enforced in arbitration.
Arbitration Procedures and Selection. Unless You and the Company mutually agree otherwise, the Arbitrator will be an attorney licensed to practice law in the state in which the arbitration is convened or a retired federal or state judicial officer from any jurisdiction. The location of the arbitration proceeding will be no more than 25 miles from the place and in the same state where You last worked for the Company unless each party to the arbitration agrees in writing otherwise.
The arbitration will be administered by AAA, and except as provided in this arbitration provision, will be under the then current AAA Rules; provided, however, that if there is a conflict between the AAA Rules and this arbitration provision, this arbitration provision will govern.
The parties will attempt to mutually agree on an Arbitrator via direct negotiation. Failing that, the Arbitrator will be selected under the AAA Rules. If AAA will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted to appoint a neutral Arbitrator.
The Arbitrator may award any remedy to which a party is entitled under applicable law, but remedies will be limited to those that would be available to a party in his or her individual capacity for the claims presented to the Arbitrator, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The Arbitrator will apply the substantive federal, state, or local law applicable to the claims asserted. Either party may file dispositive motions, including, without limitation, a motion to dismiss or a motion for summary judgment, and the Arbitrator will apply the standards governing such motions under the Federal Rules of Civil Procedure.
Discovery and Subpoenas. Each party may take the deposition of two individual fact witnesses and any expert witness designated by another party. Each party may also propound interrogatories, requests for admission, or requests for production of documents, and each party may subpoena witnesses and documents for discovery or the arbitration hearing, including testimony and documents relevant to the case from third parties. The subpoena will be issued under any state or federal law. Additional discovery may be conducted by mutual stipulation, and the Arbitrator will have exclusive authority to entertain requests for additional discovery, and to grant or deny such requests based on the circumstances of a particular case. The Arbitrator will have exclusive authority to resolve discovery disputes.
Paying For The Arbitration. You and the Company will follow the AAA Rules applicable to initial filing fees, but You will not be responsible for any portion of those fees over the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted. After You pay Your portion of any initial filing fee, the Company will pay any remaining portion of the initial fee and also will pay all costs and expenses unique to arbitration, including without limitation the Arbitrator’s fees. Each party will pay for its own costs and attorneys’ fees, if any, but if any party prevails on a claim which affords the prevailing party attorneys’ fees, the Arbitrator may award reasonable fees to the prevailing party as provided by law. The Arbitrator will resolve any disputes regarding costs or fees associated with arbitration.
The Arbitration Hearing And Award. The Arbitrator will issue a reasoned decision or award in writing. A court of competent jurisdiction will have the authority to enter a judgment upon the award made pursuant to the arbitration.
Enforcement Of This Arbitration Provision. You may assent to this arbitration provision by signing it, either in writing or electronically. You may consult with counsel of Your choice about this arbitration provision or any aspect of the arbitration proceeding. This arbitration provision is the full and complete arbitration provision about arbitration of disputes covered by this Arbitration provision and replaces any prior arbitration provisions regarding the arbitration of disputes. Any contractual disclaimers the Company has in any handbooks, other arbitration provisions, or policies do not apply to this arbitration provision. This arbitration provision will survive the termination of Your relationship with Qwick. If any portion of this arbitration provision is deemed unenforceable, the remainder of this Arbitration provision will be enforceable
Failure by Qwick to enforce any provisions of these Terms of Use shall not be construed as a waiver of any provision or right.
These Terms of Use constitute the entire agreement between You and Qwick with respect to the Services and subject matter hereof.
If any provision of these Terms of Use is found to be invalid or unenforceable, the remaining provisions shall be enforced to the fullest extent possible, and the remaining Terms of Use shall remain in full force and effect (in New Jersey, this shall include the sections referenced below in the “notice for New Jersey residents” section).
These Terms inure to the benefit of Qwick, its successors, and assigns.
Qwick insurance coverage: $1 million limit Occupational Accident Insurance, $2 million limit General Liability Policy, $3 million limit Professional Liability, $1 million limit Employment Practices Liability, and $5 million aggregate coverage umbrella policy. Documentation available upon request.
Other than the Arbitration Agreement and Class Action Waiver, which shall be governed by the laws described therein, these Terms of Use shall be governed by and construed in accordance with the laws of the state of Arizona without reference to its principles of conflicts of laws.
If You live in New Jersey, please carefully read our Terms of Use and understand that by using the services, in addition to the other terms You agree to, You agree that (I) any dispute between us will be governed by Arizona law and decided by non-judicial arbitration, (ii) You waive rights to maintain a court action, the right to a jury trial, and the right to participate in any form of class or representative claim (see “arbitration provision and class action waiver” section above), (iii) under the laws of the state of New Jersey, limitations on implied warranties or the exclusive or limitation of certain damages as set forth in the “limitation of liability” section may not apply to You, and (iv) You are responsible for any harm (see “indemnification” section above) that You cause us, whether it is because of (a) the content or materials posted on or submitted to the services by You, (b) Your material uncured breach of these Terms of Use, any applicable laws that protect us, or our legal rights or those of any third party whose legal rights Your actions have damaged or (c) any and all activities that occur under Your account, username and/or password.
Under California Civil Code Section, 1789.3, California Users are entitled to the following consumer rights notice: the Services are provided by Qwick, Inc, 3550 North Goldwater Blvd. #1154, Scottsdale, AZ 85251. If You have a question or complaint regarding the Services, please contact customer service by texting Us at 79-425 or sending an email to support@qwick.com. You may also contact us by writing to Qwick, Inc, Attn: Legal, 3550 North Goldwater Blvd. #1154, Scottsdale, AZ 85251. 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.
We reserve the right to place limitations on Your account in order to maintain the performance and availability of the Services and to enforce the Terms. Such limitations may include, without limitation, the number of reviews posted, the number of messages sent through the system, and the number of requests made. Such limitations supersede all special offers made by us and the limitations may be enforced at our sole discretion. You agree to contact our customer services department with any concerns You have over the limitations on Your use and You agree to abide by any determinations made by our customer services representative.
