GEAR2GO, INC.
TERMS AND CONDITIONS
Last Updated: February 12, 2022
IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THESE TERMS AND CONDITIONS (THIS “AGREEMENT”). YOU MUST CLICK THE “I ACCEPT” BUTTON BELOW IN ORDER TO CREATE AN ACCOUNT TO BE ABLE TO USE THE SOFTWARE AND SERVICES PROVIDED BY GEAR2GO, INC. BY CLICKING THE “I ACCEPT” BUTTON BELOW, YOU ARE INDICATING THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THEM, PLEASE CLICK THE “CANCEL” BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SOFTWARE AND SERVICES PROVIDED THROUGH THIS WEBSITE.
1. Binding Agreement. These terms and conditions (this "Agreement") is a legally binding agreement between you and Gear2Go, Inc., a Delaware corporation, its affiliates, and its and their respective agents and representatives (individually and collectively, "Company," "we," "our" or "us"), and applies to your use of the URL, http://www.gear2go.us, and all other websites, social media pages and accounts owned by the Company (individually and collectively, the "Websites"), and all mobile applications owned by the Company (together with the Websites, collectively, the "Company Sites"). Through the use of the Company Sites, the Company provides users the opportunity to take advantage of the various services offered by the Company, including, without limitation, the opportunity to borrow, lease or rent tools, equipment and other items (collectively, the "Services").
2. Renters and Owners. The Company’s role in the transactions contemplated by this Agreement is that of a service provider that enables a user (the “Renter”) to borrow, lease or rent tools, equipment and other items (collectively, “Gear’) from another user (the "Owner") and to participate in the services and/or any other product offers offered on the Company Sites. All Gear that is borrowed, leased or rented through the Services is owned by the Owner, and not the Company. As a Renter, you acknowledge that you are borrowing, leasing or renting Gear directly from the Owner, and not the Company. As the Owner, you acknowledge that you lending, leasing or renting Gear directly to the Renter, and not the Company. Any Gear that a Renter borrows, leases or rents through the use of the Company Sites from an Owner must be for personal use only and not for re-borrowing, re-leasing or re-renting to a third party. The Company Sites and the Services may only be used to borrow, lease or rent Gear in the United States. Any request or offer to borrow, lease or rent Gear through the Company Sites and the Services is void where prohibited by applicable law.
3. Eligibility.
a. Registering. You must be at least eighteen (18) years of age to use the Company Sites and Services. To verify that you are at least eighteen (18) years of age, you may be required to enter your birth date prior to registering to use the Company Sites and Services. You represent and warrant that (i) you are at least eighteen (18) years of age. Your borrowing, lending, leasing or renting of Gear through use of the Company Sites and Services will not be private, and may be may accessible to other users of the Company Sites and Services. As required by the Communications Decency Act of 1996, the Company hereby notifies you that parental control protections (e.g., computer software, filtering services, etc.) are commercially available and may be used to assist with limiting access to the Company Sites to minors. Among the many companies that provide Internet blocking and screening software are CyberPatrol, NetNanny, SurfWatch and GuardOne. We do not sponsor or endorse any of these companies or their services. We may refuse to register any person or service any order at any time, at our sole discretion.
4. Registration; Account.To use the Company Sites, you must obtain a personal account with the Company (an "Account"), follow the instructions provided by Company, and provide the requested personally identifiable information (which may include name, phone number, email address, date of birth, and, to be able to pay fees associated with use of the Services, method of payment information) (collectively, the "PII"). You represent and warrant that all PII you provide in connection with registering your Account is complete and accurate and that you are authorized to use the method of payment you provide in connection with your use of the Services. We reserve the right to contact the service provider of your method of payment to conduct periodic security checks. You acknowledge and agree that you may never use another customer’s Account. You also agree to review and update your Account as and when necessary to maintain the most current PII. You may use your Account to track your history of usage on the Company Sites.
5. Borrowing, Lending, Leasing or Renting Gear.
a. Requests to Borrow, Lease or Rent. ALL EQUIPMENT DISPLAYED ON THE COMPANY SITES ARE LOANED, LEASED OR RENTED BY OWNERS, AND NOT THE COMPANY. The Company only provides a platform that enables Owners and Renters to borrow and lend items, but does not borrow or lend items itself. The listing of items of Gear on the Company Sites is merely a solicitation of offers from Renters to borrow, lease or rent such Gear, and such listing alone does not constitute any offer from any Owner to lend, lease or rent such Gear. As such, each request to borrow, lease or rent Gear submitted through the Company Sites is subject to acceptance by the applicable Owner. The Owner of an item of Gear has the right to refuse to lend, lease or rent Gear for any reason. The Company never takes possession to any Gear listed through the Services, and thus, possession of all Gear borrowed, leased or rented through the Services transfers directly from the applicable Owner to the applicable Renter. All borrowing, leasing or renting of Gear through the Company Sites are subject to this Agreement. The Company does not guarantee the availability of any Gear displayed on the Company Sites and also does not regularly monitor the quality of the items made available for rent by Owners through the Company Sites. In the event that a particular item of Gear that a Renter requests to borrow, lease or rent is unavailable for borrowing, leasing or renting by the desired date, or in the event that a Renter does not take possession of a particular item of Gear upon the desired date, the transaction will not be fulfilled and the Renter’s method of payment will not be charged. The Company shall not be liable for any description or depiction of Gear, the condition of Gear, the fitness of Gear for any intended purpose, the loss of or damage to any Gear, or the acts or inaction of any Owner or Renter.
b. Payment and Delivery Information. When you submit a request to borrow, lease or rent Gear through the Company Sites, you will be required to provide your PII (including your method of payment) together with your address and desired dates to take possession of the Gear and return the Gear to the Owner. The Company will not take possession of any Gear or otherwise facilitate the direct transfer of possession of Gear between an Owner and Renter. You expressly authorize us to use all information that you provide to us to communicate with Owners and Renters to facilitate the pairing of requests from Renters with applicable Owners.
c. Platform Fee. You may be charged a fee for using the Company Sites and Services, to borrow, lease or rent Gear as a Renter and/or to lend, lease or rent Gear as an Owner. Any such fee is for use of the Company’s technology platform and access to the Content, and does not include any portion of the lease or rent payment of an item of Gear, even if the amount of such fee is based upon or determined by reference to the lease or rent payment of an item of Gear.
6. Contact Information. If you have any requests, questions or comments about your use of the Services, your Account, your PII, the Company Sites, or any other questions or comments relating to our products and services, please contact us at:
Email:
team@gear2go.us
Mail:
Gear2Go, Inc.
Attn: Customer Service
2326 Kay Dr.
Santa Clara, CA 95050
When you send an email to us, you agree that we may electronically communicate with you. You acknowledge that communications by email may not be confidential.
7. Transferring Possession of Gear. Owners and Renters assume full responsibility and liability for transferring possession of Gear between themselves (including sharing contact information, Gear pickup and return location information, and sharing any information regarding the proper care and use of Gear). An Owner reserves the right to reject any offer to borrow, lease or rent Gear up to the time when such Owner transfers possession of the Gear to a Renter. A Renter reserves the right to rescind any offer to borrow, lease or rent Gear up to the time when such Renter takes possession of the Gear from an Owner. Unless an Owner and a Renter make other arrangements between themselves, Renters assume the full risk of loss or damage to Gear that they borrow, lease or rent from Owners from and after the time the Renter takes possession of the Gear and until the time the Renter returns possession of the Gear to the Owner. The Renter will be responsible for any items the Renter rents through the Company Platform, including compensating the Owner for any loss or damage to those items. The Renter will also be responsible for any damage the Renter causes to other people or property when the Renter uses and is in possession of the rented items. The Renter shall return the rented items in the same condition as when the Renters collected the items from the Owner (any reasonable wear and tear excepted). If an Owner suffers harm from the loss of or damage to Gear while in the possession of a Renter, the Owner shall first seek compensation directly from the Renter for the amount of harm, giving the Renter not less than twenty-four (24) hours to respond. If, after such twenty-four (24) hour period such claim is not resolved to the Owner’s satisfaction, the Owner may escalate the claim to the Company by providing the Company with evidence of such loss or damage, and the Company shall provide the Renter with an opportunity to respond of not less than twenty-four (24) hours. If the Renter agrees to pay the amount of the Owner’s claim, or the Company determines in its sole discretion that the Renter is responsible for the amount of the Owner’s claim, the Company may collect the amount of such claim from the Renter, including by way of using any method of payment that the Renter has previously provided to the Company in connection with use of the Company Sites. The Renter agrees that the Company may recover from the Renter under any insurance policies that the Renter maintains and the Company may also pursue against the Renter any remedies it may have under applicable law. Each Renter and each Owner agrees to cooperate in good faith, provide any information that the Company requests, execute documents and take further reasonable actions in connection with Owner claims, claims under insurance policies or other claims related to the Renter’s or the Owner’s use of the Company Sites. The Company agrees to pay to the Owner, within seventy-two (72) hours of the Company’s receipt, any amounts that the Company collects in connection with the Owner’s claim for loss or damage to Gear. Notwithstanding any of the foregoing, the Company shall not be responsible for any loss or damage to Gear.
8. Use of Equipment. The Renter agrees that:
- The Renter is legally allowed to use any item that the Renter borrows through the Company Platform.
- The Renter will comply with all applicable law when using the rented item.
- The Renter will use the equipment in a good and careful manner and will comply with (i) the Owner’s reasonable instructions provided in order to use the item safely, (ii) all of the manufacturer’s requirements and recommendations respecting the equipment and (iii) with any applicable law whether local state or federal, respecting the use of the equipment including but not limited to environmental and copyright law.
- The Renter will use the equipment for the purpose for which it was designed and note for any other purpose.
- Unless the Renter obtains the prior written consent of the Owner, the Renter will not alter, modify, or attach anything to the equipment unless the alteration, modification or attachment is easily removable without damaging the functional capabilities or economic value of the rented equipment.
9. Promotional Offers. By creating an Account, you may be eligible to receive various benefits provided from time to time by the Company or its commercial partners, including, without limitation, receiving discounts, vouchers and promotional offers. You will be notified of these special offers through various channels of communication, including, without limitation, email and/or U.S. mail. Each such offer will apply only to those specific products or services advertised, and will be governed by this Agreement, as amended from time to time, and the applicable terms of such promotions as communicated to you. You will be required to input the applicable reference code included in the advertisement of the promotional offer prior to enjoying any benefits. A particular reference code may only be used once and may not be used in conjunction with any other discount, voucher or promotional offer unless the applicable advertisement provides otherwise. The value of any such offer is not refundable. All offers are subject to availability and the Company reserves the right to change discounts, vouchers or offers at any time. Some states do not permit us to honor certain discounts, vouchers or offers, and the Company extends such discounts, vouchers and offers only if they are not prohibited by law.
10. Privacy Policy. Your use of the Company Sites is subject to our Privacy Policy that is accessible at the Company Sites, which we may amend from time to time, and you hereby agree to its terms.
11. Customer Conduct. You agree not to engage in any of the following activities: (i) interfere with or inhibit the use of the Company Sites by other users; (ii) use the Company Sites for any commercial purposes (e.g., re-lending, re-leasing or re-renting Gear to others) or any purpose other than to lend, lease or rent Gear for yourself; (iii) create an account using an alter-ego or by impersonating a third party, or providing any other false information; (iv) create an account if you are under eighteen (18) years of age; (v) copy, reverse engineer, or attempt to derive the source code of any part of the Company Sites; (vi) post any comment or product review on the Company Sites that is private, obscene, vulgar, violent, harassing, discriminatory or defamatory; or (vii) use the Company Sites in a manner that would violate this Agreement or any applicable laws. We may investigate any reported violation of these restrictions or other provisions in this Agreement. If we determine that you have violated these restrictions, or other provisions of this Agreement, we may take any action that we deem appropriate and you potentially may be subject to liability. Such action may include, without limitation, issuing warnings, immediately terminating your Account, unilaterally removing posted content and/or reporting any activity that we suspect violates any law or regulation to appropriate law enforcement officials or regulators and, in doing so, we may disclose any relevant information to such officials or regulators, including, without limitation, your PII, IP address(es) and your Company Sites usage history.
12. Intellectual Property. a. Access to Company Sites.
a. Access to Company Sites. The Company grants you the limited right to access and make use of the Company Sites as a user. The Company Sites, including, without limitation, all text, graphics, images, logos, software, trademarks, service marks and trade names incorporated in the Company Sites (the "Content") are owned by or licensed to the Company. Unless authorized in writing and in advance by the Company or the applicable rights holder, you may not sell, reproduce, copy, distribute, modify, display, publicly perform or otherwise exploit the Content for any public or commercial purpose. No provisions of this Agreement shall be construed to convey any property right or license to the Content unless expressly provided.
b. DMCA. We respect the intellectual property rights of others and require that our users do the same. If you believe your work has been copied in a manner that constitutes copyright infringement, or you believe your rights are otherwise infringed or violated by anything on the Company Sites, you must notify us and give us an opportunity to correct the problem before taking any other action by sending an email to the following address: customerservice@gear2go.us. The notification must include all of the following: (i) a physical or electronic signature of the owner of the right claimed to be infringed or the person authorized to act on the owner’s behalf; (ii) a description of the copyrighted work or other right you claim has been infringed or violated; (iii) information reasonably sufficient to locate the material in question on the Company Site; (iv) your name, address, telephone number and e-mail address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the rightful owner, its agent or the law; and (vi) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the owner of the right claimed to be infringed or violated or are authorized to act on behalf of the owner.
13. Third Party Servicers; Release. You may have contact or other interaction with third parties (e.g. Renters, Owners or other third parties) (“Third Parties”) in connection with your use of the Company Sites and you may be directed to Third Party websites from the Company Sites. You hereby acknowledge and agree that you are proceeding at your own risk and any such Third Parties are not under the control of the Company. The Company shall be in no way responsible or liable for any acts, omissions, breaches, representations or warranties made by any such Third Party, or for any losses, injuries, or other damages you incur in connection with your contact or other interaction with such Third Parties ("Third Party Claims"). YOU HEREBY RELEASE THE COMPANY, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND STOCKHOLDERS FROM ANY AND ALL SUCH THIRD PARTY CLAIMS NOT ATTRIBUTABLE TO THE COMPANY’S GROSSLY NEGLIGENT ACTS.
14. Disclaimer; Notice of Violations.
a. "As Is." THE COMPANY SITES AND THE CONTENT ARE PROVIDED "AS IS", "AS AVAILABLE" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES THAT MAY BE IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. YOUR USE OF THE COMPANY SITES IS SOLELY AT YOUR OWN RISK. THERE IS NO, AND NEVER HAS BEEN ANY, GUARANTEE THAT THE SERVICES OR ANY EQUIPMENT WILL MEET YOUR REQUIREMENTS, ARE DEFECT-FREE OR ERROR-FREE, RELIABLE, WITHOUT INTERRUPTION OR AVAILABLE AT ALL TIMES. THE COMPANY DOES NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, RELIABLE, ACCURATE OR MEET YOUR REQUIREMENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A COMPANY REPRESENTATIVE SHALL CREATE A WARRANTY. The Company Sites are subject to constant change. You will not be eligible for any compensation because you cannot use any part of the Company Sites or because of a failure, suspension or withdrawal of all or part of the Company Sites. The Company strives to provide complete, accurate, up-to-date information on the Company Sites. Unfortunately, despite those efforts, human or technological errors may occur. For example, the Company Sites may contain typographical mistakes, inaccuracies or omissions,some of which may relate to pricing and availability, and some information may not be complete or current. We reserve the right to correct any errors, inaccuracies or omissions, including after a request to borrow, lease or rent has been submitted, and to change or update information at any time without prior notice. In addition, you acknowledge that the particular technical specifications and settings of your computer and its display could affect the accuracy of its display of the colors and look of Gear listed on the Company Sites.
b. Good Faith Complaince. The Company Sites may be accessed from many locations. You acknowledge and agree that consumer protection laws vary by location and that the Company has made a good faith attempt to comply with all such applicable laws. You agree that you will notify the Company if you believe that it is not in compliance with any laws and provide the Company with an opportunity to cure any alleged violations before invoking the Dispute Resolution mechanisms set forth in Section 22 (“Dispute Resolution”).
15. Termination. The Company reserves the right to terminate your Account at any time, with or without cause or notice, and which shall be effective immediately. If you wish to terminate your Account, you may do so by contacting us using the contact information provided in Section 6 ("Contact Information") above. You acknowledge and agree that any platform fees or lease or rent payments that have become due and payable before such termination are non-refundable. Sections 1 – 7 and 10 – 24 of this Agreement shall survive any such termination.
16. Modification. The Company reserves the right to modify or augment any of the terms and conditions of this Agreement, at any time, at our sole discretion. You should periodically review this Agreement, accessible from the Company Sites, for any modifications, each time that you request to borrow, lend, lease or rent Gear. All modifications will become effective upon their posting on the Company Sites, but no modification will affect any loan, lease or rental of Gear made prior to the modifications becoming effective. Your continued use of the Company Sites or your Account following any modification will be confirmation of your acceptance of such changes.
17. Indemnification of the Company. You agree to indemnify, defend and hold the Company and its employees, officers, directors, agents and stockholders harmless to the fullest extent permitted by law from and against any losses, costs, liabilities, settlements, fines, payments or damages (including reasonable attorneys’ fees and costs) resulting from any claim, suit or proceeding, threatened or otherwise, at law or in equity made or brought against any of them, and caused by, arising out of, resulting from or attributable to: (i) your misuse of the Company Sites; (ii) anything you post to the Company Sites; (iii) a Renter’s borrowing, leasing or renting of Gear through the Services, (iv) an Owner’s lending, leasing or renting of Gear through the Services, (v) any loss of or damage to Gear loaned, leased or rented through the Services or any injury or damage to person or property as a result of Gear loaned, leased or rented through the Services, (vi) your violation of this Agreement; (vii) your violation of the rights of any third parties (including Third Parties); or (viii) use of the Company Sites by any other person accessing the Company Sites using a computer or Internet access account that you provided to such person.
18. Indemnification of the Owner. Renters agree that it will indemnify and hold harmless the Owner against any and all claims, actions, suits, proceedings, damages and liabilities including attorneys’ fees and costs arising out of or related to the Renters use of the equipment.
19. Limitation of Liability. In no event shall the Company’s liability, or the liability of our affiliates, officers, directors, stockholders, agents, vendors, or suppliers, for any and all claims relating to the use of the Services exceed the total amount of money that you paid us during the previous twelve (12) month period. UNDER NO CIRCUMSTANCES WILL THE COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE COMPANY PLATFORM OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE FAT LLAMA SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE COMPANY WEBSITE OR COMPANY PLATFORM; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY, TOGETHER WITH ITS AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, AGENTS, VENDORS AND SUPPLIERS, SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR ANY OTHER BASIS FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST DATA, GOODWILL USE, OR OTHER INTANGIBLE LOSSES OR ANY OTHER COMMERCIAL DAMAGES, OR LOSSES, EVEN IF THE COMPANY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. If any jurisdiction does not allow the exclusion or the limitation of liability for consequential or incidental damages, in such jurisdiction, our liability, and the liability of our affiliates, officers, managers, agents, vendors, and merchants, shall be limited to the maximum extent permitted by law. FOR ANY RELEASES CONTAINED IN THESE TERMS, 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 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
20. Governing Law. This Agreement and all issues collateral thereto shall be governed and construed in accordance with the laws of the State of California pertaining to contracts made and to be performed entirely therein and without regard to its conflict of laws principles.
21. Notice for California Users. Under California Civil Code Section 1789.3, residents of California who use the Company Sites are entitled to know that they may file grievances and complaints with: the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210, or by email at dca@dca.ca.gov.
b. IF YOU AND WE ARE UNABLE TO RESOLVE OUR DISPUTE BY TALKING TO EACH OTHER, YOU AND WE EACH AGREE THAT WE WILL SUBMIT THE DISPUTE TO BINDING ARBITRATION, SUBJECT TO SECTION 22 BELOW. To the fullest extent permitted by law, any controversy or claim arising out of or relating to our relationship, this Agreement (including any dispute as to their breach, termination, enforcement, interpretation or validity), our Privacy Policy (including any dispute as to its breach, termination, enforcement, interpretation or validity), the Company Sites, any promotional offers or any product or service provided under or in connection with our relationship will be resolved exclusively by binding arbitration, subject only to Section 22 below. The arbitration shall be conducted before JAMS using a single arbitrator under the JAMS Comprehensive Arbitration Rules and Procedures (or their replacement) that are in effect at the time the arbitration is initiated and under the terms set forth in this Agreement. The arbitrator shall be chosen by mutual agreement from a slate of five (5) potential arbitrators proposed by either you or us and, if you and we are unable to agree, the arbitrator shall be chosen by the JAMS administrator. In the event of a conflict between the JAMS rules and this Agreement, this Agreement shall govern. Arbitration is not a court proceeding. The rules of arbitration differ from the rules of court and there is no judge or jury in an arbitration proceeding. YOU ARE HEREBY WAIVING YOUR RIGHT TO HAVE A JURY TRIAL OR TO GO TO COURT, other than as provided in Section 22 below. You may, in arbitration, seek any and all remedies otherwise available to you where you reside, other than as waived in this Agreement. You have a right to hire an attorney to represent you in arbitration. The arbitration shall permit the discovery of relevant information that is not privileged or protected.
22. Dispute Resolution, including Arbitration and Class Action Waiver.
a. You and we agree that in the event of any dispute between us, you and we will first try to resolve the dispute by talking with each other. Accordingly, neither you nor we may start a formal proceeding for at least sixty (60) days after one of us notifies the other in writing of a dispute. You will send your notice to us at the address provided in Section 6 ("Contact Information") above, and we will send our notice to you using the PII that you have provided to us. The notice must be sent by U.S. mail or private courier, with confirmation of delivery requested.
b. The arbitration will be conducted at the JAMS office in or nearest to San Francisco, California, unless you and we mutually agree to a different location or to a telephonic arbitration. We shall evenly share the costs of the arbitration proceeding, including the arbitrator’s fees and case management fees. We will not, however, pay any portion of your attorney’s fees. To start an arbitration, you or we must do the following three things:
- Write a Demand for Arbitration. The demand must include a description of the dispute and the amount of damages or other relief sought. You can find a copy of a Demand for Arbitration at www.jamsadr.com.
- Send two (2) copies of the Demand for Arbitration, plus the appropriate case management fee and reference to this Agreement to: JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA
- Send one (1) copy of the Demand for Arbitration to the other party.
c. The arbitrator’s decision shall be final and binding and may be enforced by any state or federal court that has jurisdiction; provided, however, that the arbitrator shall not have authority to make errors of law and any arbitration award may be challenged if the arbitrator does so. The arbitrator shall give a written statement of the disposition of each claim and the award shall provide a concise written statement of the essential findings and conclusions upon which it is based. You and we agree that the Federal Arbitration Act shall govern this agreement to arbitrate.
d. You and we agree not to join or consolidate claims in arbitration by or against the other. You and we also agree that you and we will not be entitled to bring any claim as a representative member of a class or in a private attorney general capacity against the other, or against our service partners, Licensed Retailers, retailers, licensors, officers, directors, agents, employees, affiliates or predecessors. Accordingly, you and we agree that the JAMS Class Action Procedures (or their replacement) will not apply in any arbitration between us. YOU HEREBY WAIVE ANY RIGHT TO BRING A CLASS ACTION OR PRIVATE ATTORNEY GENERAL CLAIM. You and we retain our respective rights to make any complaint to regulatory agencies or governmental investigators. A court may sever any portion of this Section 22 that it may find to be unenforceable, except for the prohibition on class, representative or private attorney general proceedings. You understand and agree that the waivers of rights in this Section 22, including the waivers of the rights to bring a lawsuit in court and to assert a class action, are knowing and voluntary.
e. In lieu of initiating an arbitration, you may instead choose in your sole discretion to file an individual action in a small claims court. If you do so, we do not agree to pay any of your fees or costs. The provisions of Section 22(c) above remain effective, even if you elect to file in a small claims court.
23. Waiver of Statutory Claims. By agreeing to this Agreement, you are giving up statutory claims or rights that you may have under your state’s laws, including claims for certain forms of relief or for attorneys’ fees. You agree that your waiver of any such laws does not violate your state’s laws.
24. Miscellaneous.
a. Severability. In the event that any provision of this Agreement (except as otherwise provided in Section 22(c)) is declared void or unenforceable, such provision shall be deemed severed from this Agreement, and this Agreement shall otherwise remain in full force and effect unless its purpose cannot be effected absent the severed provision.
b. Entire Agreement. This Agreement, our Privacy Policy and the terms and conditions that may be posted on the Company Sites or of any promotional offers we make and you accept ("Company Sites Agreements") constitute the entire agreement between you and us with respect to the subject matter hereof, and supersede all prior agreements, whether written or oral. You confirm that you have not relied on any representation except insofar as the same has expressly been made a representation in these Company Sites Agreements.
c. Notices. Unless otherwise specified to the contrary herein, all notices due under this Agreement shall be in writing and shall be deemed to have been made or given when any such notice is received, if personally delivered or sent by certified or registered mail; when receipt is electronically confirmed, if sent by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight courier service. Electronic notices to us shall be sent to the email address provided in Section 6 (Contact Information) above.
d. Assignment. This Agreement is personal to you and your Account. You may not assign this Agreement without the prior written consent of the Company. The Company may assign any of its rights and delegate any of its duties hereunder at any time, without your consent, at its sole discretion. This Agreement will inure to the benefit of the Company’s successors, assigns and licensors.
e. Relationship of the Parties. Nothing contained herein will be construed as creating any relationship of employer/employee, partnership, agency, joint venture, or otherwise between you and the Company, nor will this Agreement be construed as conferring on any party any express or implied right, power, or authority to enter into any agreement or commitment, express or implied, or to incur any obligation or liability on behalf of the other party.
f. Force Majeure. The Company shall not be liable for performance of its obligations under this Agreement if it is prevented or delayed from performing such obligations as a result of (i) any provision of any present or future law or regulation of any state or of the United States, (ii) any act of God, war, civil unrest or emergency condition (including pandemic or material worsening of a pandemic), or (iii) any other circumstances beyond the reasonable control of the Company.
g. Waiver. Any waiver of either party’s rights hereunder must be in writing. No waiver by either party of any breach or default of any of the provisions contained in this Agreement and required to be performed by the other party shall be construed as a waiver of any succeeding breach of the same or of any other provision.