NOTICE OF MANDATORY ARBITRATION PROVISION:
This Agreement contains provisions that govern how claims you and QPoint have against each other are resolved (see Section 10, “Limitation of Liability”; Section 14, “Dispute resolution and arbitration: MANDATORY BINDING INDIVIDUAL ARBITRATION INSTEAD OF COURT; CLASS ACTION WAIVER”; and Section 15, “Choice of Law and Forum” below).
It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 14(J). Unless you opt-out: (A) you will only be permitted to pursue claims against QPoint on an individual basis, not as part of any class or representative action or proceeding, and (B) you will be permitted only to seek relief (including without limitation monetary, injunctive, and declaratory relief) on an individual basis.
1. Changes to this Agreement
We reserve the right to, at any time, with or without cause:
You must accept all changes in order to continue to use and access the Service. Your access to or use of the Service after such changes constitutes your agreement to such changes. We will attempt to notify you of any material changes to the terms and conditions of this Agreement. If you do not accept such changes, your use and/or access to the Service will be terminated.
2. Use of the Service
We reserve the right to decline to provide the Service to any person for any or no reason. If and when you provide information to QPoint, you agree to: (A) provide accurate, current, and complete information as prompted (including without limitation your contact information), and (B) maintain and update your information to keep it accurate, current, and complete. By providing QPoint with your email address or other contact information, you consent to our use of this information to send you Service-related notices and other administrative notices, including without limitation any notices required by any applicable law, statute, rule, ordinance, code, order or regulation of any government or quasi-government authority (“Applicable Law”).
You represent and warrant that you have the full right, power, and authority to enter into and perform this Agreement without the consent or approval of any third party.
3. Rules Governing Your Use of the Service
You may not use the Service, or assist or encourage any other party to use the Service, to engage in any activity that QPoint deems objectionable, including without limitation any of the following prohibited activities:
Improper use of the Services may result in civil or criminal liabilities to you or the termination of access by us to the Services.
4. Intellectual Property
A. Your Rights. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Service solely for your own internal use. QPoint reserves all rights not expressly granted herein in the Service. Except as expressly set forth herein, no rights or licenses are granted to you under this Agreement, whether by implication, estoppel or otherwise.
B. QPoint Rights.
C. Proprietary Rights. The Service is owned and operated by QPoint, and the Service (and all intellectual property and other rights relating thereto) is and will remain the property of QPoint. The Service is protected by U.S. and international copyright, trademark and other Applicable Laws, and you acknowledge that these rights are valid and enforceable. The Service may be used by you solely to the extent expressly permitted in this Agreement. Use of the Service by you for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Service. The trademarks, trade names, service marks, brands, logos, and trade dress displayed on the Service (collectively, the “QPoint Trademarks”) are the registered and unregistered intellectual and proprietary property of QPoint and/or others. Nothing contained in this Agreement or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any QPoint Trademark(s) without the express written permission of QPoint or the third-party owner of any such QPoint Trademark.
D. User Content. You are solely responsible for any User Content that you submit, post, or display on or via the Service. Without limitation to the restrictions set forth in Section 3, you represent and warrant that: (i) you own the User Content or otherwise have the right to grant the rights and licenses set forth in this Agreement; (ii) the use of your User Content does not and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) the User Content does and will comply with Applicable Law. You acknowledge and agree that your relationship with QPoint is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any User Content does not place QPoint in a position that is any different from the position held by members of the general public, including without limitation with regard to your User Content.
5. Third-Party Links
The Service may contain links to other websites or third-party services for your convenience. We do not control the linked websites or services or the content provided through such websites or services, and we have not reviewed such websites or services. Your use of linked websites or services is subject to the privacy policies and terms of use established by the specific linked website or service, and we disclaim all liability for such use. The fact that we offer such links does not indicate any approval or endorsement by us of any linked website or service or any material contained on any linked website or service, and we disclaim any such approval or endorsement.
6. Competency
You hereby affirm that you are at least 18 years old and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement and to abide by and comply with this Agreement.
7. Privacy Policy
Your use of the Service shall be subject to QPoint’s Privacy Policy (the “Privacy Policy”), which can be accessed at: qpoint.io/privacy-policy. You expressly consent to the practices described in the Privacy Policy. QPoint reserves the right to modify the Privacy Policy in its discretion from time to time. Access to or use of the Service after any such changes shall constitute your agreement to such changes.
8. Term & Termination
This Agreement is effective from the date on which you first access the Service and shall remain effective until terminated in accordance with its terms. QPoint may immediately terminate this Agreement, and/or your access to and/or use of the Service, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. QPoint may also terminate this Agreement immediately if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement, your right to access and use the Service shall immediately cease and you shall cease all access to and use of the Service. In the event of termination of this Agreement for any reason, Sections 1, 2, 3, 4(B)-(D), and 5–14 shall survive, except that you shall no longer have any right to access or use the Service.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part or portion thereof, with or without notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service, or any part or portion thereof. Nothing in this Agreement shall be construed to obligate QPoint to maintain and support the Service, or any part or portion thereof, during the term of this Agreement.
9. Disclaimers
THE SERVICE ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE SERVICE IS CURRENT AND/OR UP-TO-DATE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
THERE IS NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE SERVICE, OR YOUR USE OF THE SERVICE, OR ANY INFORMATION, MATERIAL, OR CONTENT ACCESSIBLE USING THE SERVICE, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE SERVICE, OR ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM THE SERVICE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE SERVICE AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE AND YOUR RELIANCE THEREON.
10. Limitation of Liability
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER QPOINT NOR ANY OF ITS AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SERVICE OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. QPOINT’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED TEN DOLLARS ($10).
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
11. Indemnification
You agree to fully indemnify, defend (at QPoint’s request), and hold harmless QPoint, our agents, successors, and assigns, and our and their directors, officers, employees, consultants and other representatives (collectively, the “QPoint Parties”) from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from: (A) your actual or alleged breach of this Agreement; (B) any allegation that any User Content or other materials you submit to us or transmit to the Service infringe, misappropriate, or otherwise violate the copyright, patent, trademark, trade secret or other intellectual property or other right of any third party; (C) your activities in connection with the Service or any other website to which the Service is linked; (D) your negligence or willful misconduct; (E) your use of the results, content, data, or information provided via the Service; (F) any service or product offered by you in connection with or related to your use of the Service; and/or (G) your violation of any Applicable Law.
12. Jurisdictional Issues
QPoint makes no representation that the Service operates (or is legally permitted to operate) in all geographic areas or that the Service is appropriate or available for use in other locations. Accessing the Service from territories where the Service or any content or functionality of the Service or portion thereof is illegal is expressly prohibited. If you choose to access the Service, you agree and acknowledge that you do so on your own initiative and at your own risk and that you are solely responsible for compliance with all Applicable Laws. The Service is operated from the United States. If you are located outside of the United States and choose to use the Service or provide your User Content to us, your User Content will be transferred, processed, and stored in the United States. U.S. privacy laws may not be as protective as those in your jurisdiction. Your agreement to the terms of this Agreement or your submission of your User Content in connection with the Service represents your agreement to this practice. If you do not want your User Content transferred to or processed or stored in the United States, you should not use the Service.
13. Notice for California Users
Under California Civil Code Section 1789.3, California Service users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
14. Dispute resolution and arbitration: MANDATORY BINDING INDIVIDUAL ARBITRATION INSTEAD OF COURT; CLASS ACTION WAIVER
A. Binding Arbitration. You and QPoint both agree that any and all disputes or claims arising out of or relating in any way to QPoint products or services or from any advertising for any such products or services, including any question regarding the existence, validity, or termination of the Agreement as well as any issue regarding the interpretation of this Section 14, will be resolved by binding arbitration before a sole arbitrator (rather than in court), except that you may assert claims in small claims court if your claims qualify and QPoint may pursue a collection action against you in court. This also includes any claims that arose before you accepted the Agreement, regardless of whether prior versions of the Agreement required arbitration. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) and federal arbitration law apply to this arbitration agreement.
B. Neutral Arbitrator. Arbitration uses a neutral arbitrator instead of a judge and jury. An arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of the Agreement as a court would. Arbitration procedures allow for more limited discovery, and court review of an arbitration award is limited.
C. Notice. If you have a dispute and elect to seek arbitration or file a claim in small claims court, you must first send to QPoint, by certified mail, a written notice of your claim that (i) describes the nature and basis of the claim or dispute; (ii) sets forth the specific relief sought; and (iii) includes a physical address and email address where you may be reached (“Notice”). The Notice must be addressed to: QPoint, Inc. 12855 Butler Bay Ct. Windermere, FL 34786, (“Notice Address”). You may download or copy a form Notice at www.adr.org. If QPoint and you do not reach an agreement to resolve the claim within sixty (60) days after the Notice is received, you or QPoint may commence an arbitration proceeding or file a claim in small claims court.
D. Initiation of Arbitration. You may download or copy a form to initiate arbitration at www.adr.org.
E. Consumer Arbitration Rules. The arbitration will be governed by the AAA’s then current Consumer Arbitration Rules, as modified by the terms of the Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In the event of any conflict between the terms of the Agreement and the AAA Consumer Arbitration Rules, the terms of the Agreement will apply.
F. Fees. Each party will bear its own fees in connection with the arbitration, including the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence at any arbitration hearing.
G. Hearings. If your claim is for US$25,000 or less, you and QPoint agree that you may choose whether the arbitration will be conducted solely on the basis of documents or through a telephonic hearing. You may also request an in-person hearing, which the arbitrator may grant at his or her discretion. If the arbitrator grants an in-person hearing, such hearing will be conducted either at a mutually agreed location or a location determined by the AAA or the arbitrator. In such an in-person hearing, the parties, or any of their witnesses, have the right to participate remotely by way of videoconference or some similar means. If your claim exceeds US$25,000, the right to a hearing will be determined by the arbitrator. All in-person hearings will be held in San Francisco, California.
H. No Class Action. You and QPoint agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, representative, consolidated, or mass action. Neither you nor QPoint may join or consolidate claims by or against a third party or arbitrate or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity. If this provision is found to be unenforceable, then the entirety of this Section 14 shall be null and void.
I. Confidentiality. Any arbitration will be confidential. Neither you, QPoint, the AAA, nor the arbitrator may disclose the existence, content (including any oral or written submissions), or results of any arbitration, except as may be required by Applicable Law or for purposes of enforcing or challenging of the arbitration award.
J. Opt-Out. You may opt out of this dispute resolution procedure by providing written notice to QPoint at the Notice Address no later than thirty (30) calendar days from the date of your purchase of QPoint products or services (or date of first use, in the case of free products or services). Opting out of this dispute resolution procedure will not otherwise affect the coverage or applicability of the Agreement or your ability to use QPoint products or services in any way.
K. Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with QPoint and this Agreement must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
15. Choice of Law and Forum
Without limiting Section 14 of this Agreement and your relationship with QPoint, disputes between the you and QPoint shall be governed by, and construed and interpreted in accordance with, the Federal Arbitration Act, applicable federal law, and the laws of the State of California without regard to conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to Section 14, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in San Francisco, California, and you consent to the exclusive jurisdiction of the federal or state courts located in San Francisco, California.
16. Miscellaneous
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. This is the entire Agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to such subject matter. This Agreement may not be changed, waived or modified except by QPoint posting such changes, waivers or modifications within the Services. If any employee of QPoint offers to modify this Agreement, he or she is not acting as an agent for QPoint or speaking on QPoint’s behalf. You may not rely, and should not act in reliance on, any statement or communication from an employee of QPoint or anyone else purporting to act on QPoint’s behalf. This Agreement is between you and QPoint; there are no third-party beneficiaries. You are responsible for compliance with all Applicable Laws, including without limitation United States export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States or are a foreign person or entity blocked or denied by the United States government. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Neither this Agreement nor any right, obligation or remedy hereunder is assignable, transferable, delegable or sublicensable by you except with QPoint’s prior written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void. QPoint may assign, transfer or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. QPoint shall not be in breach of this Agreement nor liable for any delay in performing, or failure to perform, any of its obligations under this Agreement, if such delay or failure result from events, circumstances or causes beyond its reasonable control. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Except as explicitly stated otherwise, legal notices shall be served, in the case of QPoint, at 12855 Butler Bay Ct., Windermere, FL 34786 or, in your case, to contact information you choose to provide us. Notice to you shall be deemed given 24 hours after the e-mail is sent. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.