Last updated: June 17, 2019
QuikFix, Inc. User Agreement
Last updated: June 17, 2019
This User Agreement constitutes a legally binding agreement (“Agreement”) between you and QuikFix, Inc. (“Company”) governing your use of the QuikFix, Inc. Platform (defined below) or mobile applications. The platform services provided by Company, the Site and mobile applications together are hereinafter collectively referred to as the “QuikFix, Inc. Platform.”
PLEASE NOTE: THIS AGREEMENT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 21). PLEASE READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS IN SECTION 21) AND ACCEPT ALL OF ITS TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE QUIKFIX, INC. PLATFORM.
A few highlights of the User Agreement include:
- Your agreement that the QuikFix, Inc. Platform is provided “as is” and without warranty (Section 16).
- Your agreement that Company has no liability regarding the QuikFix, Inc. Platform (Section 17).
- Your acknowledgment and agreement that Company does not supervise, direct or control a Student’s work or the Tasks in any manner (Section 1).
- Your agreement that the Company has no liability regarding the performance of Tasks. Notwithstanding that, the Company provides Users the Satisfaction Pledge (Section 12) to ensure your satisfaction with the platform, which provides protection for Company’s Users.
- Your consent to release Company from liability based on claims between Users (Section 2) and generally (Section 17).
- Your agreement to indemnify Company from claims due to your use or inability to use the QuikFix, Inc. Platform or content submitted from your account to the QuikFix, Inc. Platform (Section 18).
- Your consent to submit any claims against Company to binding arbitration on an individual basis only (Section 21).
1. QuikFix, Inc. Platform Connects Students and Community Members
The QuikFix, Inc. Platform is a web-based communications platform that enables the connection between Community Members and Students. “Community Members” are individuals and/or businesses seeking to obtain task services (“Tasks”) from Students and are therefore Community Members of Students, and “Students” are individuals and/or businesses seeking to perform Tasks for Community Members. Community Members and Students together are hereinafter referred to as “Users.” If you agree on the terms of a Task with another User, you and such other User form a Service Agreement directly between the two of you as set forth in more detail in Section 3 below.
STUDENTS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OF COMPANY. COMPANY DOES NOT PERFORM TASKS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM TASKS. USERS HEREBY ACKNOWLEDGE THAT COMPANY DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A STUDENT’S WORK AND IS NOT RESPONSIBLE FOR THE WORK PERFORMED OR THE TASKS IN ANY MANNER.
The QuikFix, Inc. Platform only enables connections between Users for the fulfillment of Tasks. Company is not responsible for the performance of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Tasks, Students, Community Members, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. Company makes no representations about the suitability, reliability, timeliness, or accuracy of the Tasks requested and services provided by Users identified through the QuikFix, Inc. Platform whether in public, private, or offline interactions.
Scheduling a job online is a request to have a job performed but is not a scheduled appointment until confirmation is received from QuikFix, Inc.
2. User Vetting and User Representation and Warranties
In the Company’s sole discretion, Users may be subject to an extensive vetting process before they can register for and during their use of the QuikFix, Inc. Platform, including but not limited to a verification of identity and a comprehensive criminal background check, at the Country, State and local level, using third party services as appropriate. Users hereby give consent to Company to conduct background checks as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act.
Although Company may perform background checks of Users, as outlined above, Company is not required to do so and cannot confirm that each User is who they claim to be and therefore, Company cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the QuikFix, Inc. Platform.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE QUIKFIX, INC. PLATFORM AND YOU HEREBY RELEASE COMPANY AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO. COMPANY AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE QUIKFIX, INC. PLATFORM.
User Representations and Warranties
3. Contract between Community Members and Students
You acknowledge and agree that a contract (the “Service Agreement”) is formed when you agree on the terms of a Task with another User. The terms of the Service Agreement include the terms set forth in this Section 3, the engagement terms proposed and accepted on the QuikFix, Inc. Platform, and any other contractual terms accepted by both the Student and their Community Member to the extent such terms do not conflict with the terms in this Agreement including this Section 3 and do not expand Company’s obligations or restrict Company’s rights under this Agreement. You agree that Company is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstance, create an employment or other service relationship between Company and the Student.
The Community Member shall pay their Student through the PSP (as defined below) as indicated on the QuikFix, Inc. Platform at the rates agreed to by the parties in the Service Agreement. Each party agrees to comply with this Agreement during the engagement, performance and completion of a Task. Both parties agree to notify Company of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Company representatives for at least thirty (30) days before initiating any proceeding between the parties. (See paragraph 21(a))
4. Billing, Payment and Cancellation
Users of the QuikFix, Inc. Platform must contract for Tasks through the QuikFix, Inc. app. The Community Member shall pay either an annual or monthly fee in order to hire Students through the QuikFix, Inc. app. Payment for Task services through the QuikFix, Inc. Platform is made from the Community Member directly to the Student via the PSP (Stripe at this time but subject to change). The PSP handles all online payments and transfers. If a Community Member fails to pay for services provided through the platform, Company may, in its sole discretion, pay the Student for such services but Company is not obligated to do so. Notwithstanding the foregoing, Company is not obligated to pay Student for Community Member’s failure to pay for services. QuikFix, Inc. shall receive 40% of all payments made to Students by Community Members.
Users of the QuikFix, Inc. Platform will be required to provide their credit card and/or bank account details to the Payment Service Provider retained by Company (the “PSP”). Community Members will be responsible for paying the invoice for each Task (the “Invoice”), which will include (i) the pricing terms of the Task agreed with and provided by a Student (“Task Payment”), (ii) any out of pocket expenses agreed with and submitted by a Student in connection with the Task, (iii) any tips or gratuity, if applicable, must be paid directly to the Student, and (iv) cancellation fees, if applicable. Students will be responsible for paying (i) registration fees, if applicable, (applicable to Student registrants), (ii) cancellation fees, if applicable and (iii) repayment of erroneous payments.
When Community Member receives confirmation through the QuikFix, Inc. Platform or via email that a Task has been completed, Community Member automatically authorizes Company to provide Community Member’s payment details to the PSP for processing of Task Payment, and out of pocket expenses owed to Student. The Community Member or Student may be charged a cancellation fee through the PSP if he/she books a Task, but cancels it before it is completed, as set forth in the Task pricing terms or if the Student agrees to perform a Task but fails to complete it, as may be set forth in the Task pricing terms.
Community Members will be charged for the complete Task that was scheduled if the Task is cancelled by the Community Member within 24 hours of the job.
Community Members will be charged an additional fee per mile if they are located outside of the QuikFix, Inc. radius for the city in which they live or the job is requested.
Students may be charged if they accept a job and cancel it less than 8 hours prior to the start time of the job.
QuikFix, Inc. reserves the right to charge students for any damage to property they intentionally or unintentionally cause to a Community Member’s property or to QuikFix, Inc. property while performing a Task. Student will be directly liable to the Community Member for any damage to property that is intentionally or unintentionally caused or for any injuries caused to the Community Member.
Company reserves the right, in its sole discretion (but not an obligation), upon request from Community Member or Student or upon notice of any potential fraud, unauthorized charges or other misuse of the QuikFix, Inc. Platform, to (i) place on hold any Task payment and out of pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so.
Task Payment and fees must be paid through the PSP as indicated on the QuikFix, Inc. Platform.
Users of the QuikFix, Inc. Platform will be liable for any taxes required to be paid on the Task services provided under the Agreement (other than taxes on Company’s income). QuikFix, Inc. shall provide 1099 Forms to all Students who earn more than $600.00 in any given calendar year. By accepting jobs through the QuikFix, Inc. Platform, Students agree to provide their social security number upon request for purposes of filing of 1099 and other IRS forms.
The QuikFix, Inc. Platform is only a venue for connecting Users. Because Company is not involved in the actual contact between Users or in the completion of the Task, in the event that you have a dispute with one or more Users, you release Company and its affiliates (and their respective officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS QUIKFIX, INC. PLATFORM.
Students are responsible for any damages they incur if they are injured on a job or any damages or injuries caused by the Student and incurred by the Community Member and Student will indemnify QuikFix, Inc. QuikFix, Inc. is not liable for any injuries or damages to Students incurred while on a job or traveling to or from a job, including any injuries or damages that may be incurred in an automobile accident while on the job or traveling to or from a job. Students are strongly encouraged to procure liability insurance, medical insurance and professional insurance.
6. Public Areas; Acceptable Use
The QuikFix, Inc. Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum. For the safety and integrity of the QuikFix, Inc. Platform, you may not share your personal contact information with other Users.
Without limitation, while using the QuikFix, Inc. Platform, you may not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including Company staff, or use information learned from the QuikFix, Inc. Platform or during the performance of Tasks to otherwise defame, abuse, harass, stalk, threaten, intimidate or mislead, or otherwise violate the legal rights of any other User or Company staff outside of the QuikFix. Inc. Platform.
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the QuikFix, Inc. Platform.
- Use the QuikFix, Inc. Platform for any purpose, including, but not limited to posting or completing a Task, in violation of local, state, national, or international law.
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
- Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer.
- Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
- Advertise or offer to sell any goods or services for any commercial purpose through the QuikFix, Inc. Platform which are not relevant to the Task services offered through the QuikFix, Inc. Platform.
- Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- Impersonate another person or a User or allow any other person or entity to use your identification to post or view comments.
- Post the same Task repeatedly (“Spamming”). Spamming is strictly prohibited.
- Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the QuikFix, Inc. Platform.
- Restrict or inhibit any other User from using and enjoying the Public Areas.
- Imply or state that any statements you make are endorsed by Company, without the prior written consent of Company.
- Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the QuikFix, Inc. Platform in any manner.
- Hack or interfere with the QuikFix, Inc. Platform, its servers or any connected networks.
- Adapt, alter, license, sublicense or translate the QuikFix, Inc. Platform for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by Company.
- Upload content to the QuikFix, Inc. Platform that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
- Upload content that provides materials or access to materials that exploit people under the age of 18 in an abusive, violent or sexual manner.
- Use the QuikFix, Inc. Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the QuikFix, Inc. Platform as set forth herein.
- Use the QuikFix, Inc. Platform to collect usernames and or/email addresses of Users by electronic or other means.
- Use the QuikFix, Inc. Platform or the Task services in violation of this Agreement.
- Use the QuikFix, Inc. Platform in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes.
- Attempt to circumvent the payments system or service fees in anyway including, but not limited to, processing payments outside of the platform, including inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
- Register under different usernames or identities, after your account has been suspended or terminated or register under multiple usernames or identities.
- Cause any third party to engage in the restricted activities above.
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas, and Company will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
7. Termination and Suspension
Company may terminate, limit or suspend your right to use the QuikFix, Inc. Platform in the event that we believe that you have breached this Agreement (a “User Breach”) by providing you with written or email notice of such User Breach and such termination or suspension, and termination or suspension will be effective immediately upon delivery of such notice.
If Company terminates, limits, or suspends your right to use the QuikFix, Inc. Platform as a Community Member for a User Breach, you will not be entitled to any refund of unused balance in your account, and you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating, limiting, or suspending your account, Company reserves the right to take appropriate legal action, including without limitation pursuing arbitration, criminal, and injunctive redress.
Even after your right to use the QuikFix, Inc. Platform is terminated, limited, or suspended, this Agreement will remain enforceable against you.
Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the QuikFix, Inc. Platform at its sole discretion. Except for refundable fees that have been advanced to Company (if any), Company is not liable to you for any modification or discontinuance of all or any portion of the QuikFix, Inc. Platform. Notwithstanding anything to the contrary in this Section 8, Company has the right to restrict anyone from completing registration as a Student if Company believes such person may threaten the safety and integrity of the QuikFix, Inc. Platform, or if, in Company’s discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the QuikFix, Inc. Platform. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
8. Account, Password, Security, and Mobile Phone Use, Texts and Calls
You must register with Company and create an account to use the QuikFix, Inc. Platform. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password and account number provided by you or Company for accessing the QuikFix, Inc. Platform. You are solely and fully responsible for all activities that occur under your password or account. Company has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you will contact Company immediately.
By providing your mobile phone number and using the QuikFix, Inc. Platform, you hereby affirmatively consent to our use of your mobile phone number for calls and texts (including prerecorded and/or by automatic telephone dialing systems) in order to (a) perform and improve upon the QuikFix, Inc. Platform, (b) facilitate the carrying out of tasks through the QuikFix, Inc. Platform, (c) provide you with information and reminders regarding your registration, orientation, upcoming Tasks, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming tasks and/or in follow up to any push notifications delivered through our mobile application. Company will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings on the Site or Company’s mobile application, texting “STOP” in response to any texts, or by emailing email@example.com and specifying you want to out-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing firstname.lastname@example.org and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
9. Your Information and Likeness
“Your Information” is defined as any information and materials you provide to Company or other Users in connection with your registration for and use of the QuikFix, Inc. Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for Your Information, and we act merely as a passive conduit for your online distribution and publication of Your Information. The information and materials described in this Section, as provided by each User, is collectively referred to herein as “User Generated Content.”
You hereby represent and warrant to Company that Your Information (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain child pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
The QuikFix, Inc. Platform hosts User Generated Content relating to reviews and ratings of specific Students (“Feedback”). Such Feedback is such User’s opinion and not the opinion of Company, has not been verified or approved by Company and each Community Member should undertake their own research to be satisfied that a specific Student is the right person for a Task. You agree that Company is not liable for any Feedback or other User Generated Content. Company encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Company does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Company do so.
You hereby grant Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub licensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in Your Information, in any media now known or not currently known in order to perform and improve upon the QuikFix, Inc. Platform.
Each Student who provides to Company any videotape, film, record, photograph, voice, or all related instrumental, musical, or other sound effects, in exchange for the right to use the QuikFix, Inc. Platform, hereby irrevocably grants to Company the non-exclusive, fully-paid, royalty-free, transferable, sub licensable, worldwide, unrestricted, and perpetual right to:
- Use any videotape, film, record or photograph that such Student provides to Company or that Company takes of student, and use, reproduce, modify, or creative derivatives of such Student picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”), in and in connection with the exhibition, distribution, display, performance, transmission, broadcasting on any and all media, including, without limitation, the internet, of any videos or images of such student in connection with the QuikFix, Inc. Platform.
- Reproduce in all media any recordings of such student’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the QuikFix, Inc. Platform.
- Use, and permit to be used, such Student’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the QuikFix, Inc. Platform in any media.
- Use, and permit to be used, such Student’s name and identity in connection with the QuikFix, Inc. Platform.
Each Student hereby waives all rights and releases Company from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such Student’s identity, likeness or voice in connection with the QuikFix, Inc. Platform.
Each Student acknowledges that Company shall not owe any financial or other remuneration for using the recordings provided hereunder by such Student, either for initial or subsequent transmission or playback, and further acknowledges that Company is not responsible for any expense or liability incurred as a result of such Student’s recordings or participation in any recordings, including any loss of such recording data.
10. Links to Other Websites
The QuikFix, Inc. Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute the endorsement by Company of those sites or their content. They are provided as an information service, for reference and convenience only. Company does not control any such sites, and is not responsible for their (1) availability or accuracy, or (2) content, advertising, or products or services. The existence of links on the QuikFix, Inc. Platform to such websites (including without limitation external websites that are framed by the QuikFix, Inc. Platform as well as any advertisements displayed in connection therewith) does not mean that Company endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
As part of the functionality of the QuikFix, Inc. Platform, you may link your account with online accounts you may have with third party service providers (such as Facebook) (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the QuikFix, Inc. Platform; or (ii) allowing Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Company and/or grant Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third party service providers. By granting Company access to any Third Party Accounts, you understand that (i) Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “SNS Content”) so that it is available on and through the QuikFix, Inc. Platform via your account, including without limitation any friend lists, and (ii) Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Unless otherwise specified in these User Agreement, all SNS Content, if any, shall be considered to be User Generated Content for all purposes of these User Agreement. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the QuikFix, Inc. Platform. Please note that if a Third Party Account or associated service becomes unavailable or Company’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the QuikFix, Inc. Platform. You will have the ability to disable the connection between your account on the QuikFix, Inc. Platform and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Company is not responsible for any SNS Content. You acknowledge and agree that Company may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the QuikFix, Inc. Platform. At your request made via e-mail to email@example.com . Company will deactivate the connection between the QuikFix, Inc. Platform and your Third Party Account and delete any information stored on Company’s servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
11. Worker Classification and Withholdings
AS SET FORTH IN SECTION 1, COMPANY DOES NOT PERFORM TASKS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM TASKS. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges that Company does not, in any way, supervise, direct, control or monitor a Student’s work or Tasks performed in any manner. Company does not set a Student’s work hours or location of work. Company will not provide any equipment, labor or materials needed for a particular Task. Company does not provide any supervision to Users.
The QuikFix, Inc. Platform is not an employment service and Company is not an employer of any User. As such, Company is not responsible for and will not be liable for any tax payments or withholding, including but not limited to unemployment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with your use of Users’ Task services.
12. QuikFix, Inc. Satisfaction Pledge
The QuikFix, Inc. Satisfaction Pledge is part of these User Agreements and incorporated by reference. Students determine what categories they are qualified to task in and scope the task directly with their Community Member. QuikFix, Inc. does not direct how a Student performs a task and does not monitor tasks or chat threads between Users. Community Members are advised to confirm with their Student that their Student is qualified to perform the task prior to the task taking place. Accordingly, the Company is not liable for the acts or omissions of Users and the QuikFix, Inc. Satisfaction Pledge in no way contradicts that premise. That said, QuikFix, Inc. wants Users to be satisfied with their experience using the QuikFix, Inc. Platform and the Satisfaction Pledge is in place to encourage continued use of the Platform.
Community Members who are dissatisfied with work performed by a Student shall contact QuikFix, Inc. immediately and shall comply with the terms set forth for informal negotiations pursuant to paragraph 21(a). QuikFix, Inc. wants all of its Users to be satisfied with their experience using the QuikFix, Inc. Platform and will strive to resolve all disputes informally between Users.
13. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the QuikFix, Inc. Platform is owned by Company, excluding User Generated Content that Company has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Company owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the QuikFix, Inc. Platform without Company’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Company and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Company, including without limitation Company and Company logos are service marks owned by Company. Any other trademarks, service marks, logos and/or trade names appearing via the QuikFix, Inc. Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
14. Copyright Complaints and Copyright Agent
Company respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the QuikFix, Inc. Platform infringe upon your copyright or other intellectual property right, please send the following information to firstname.lastname@example.org .
A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the QuikFix, Inc. Platform where the material you claim is infringed is located. Include enough information to allow Company to locate the material, and explain why you think an infringement has taken place;
- A description of the location where the original or an authorized copy of the copyrighted work exists — for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- Your address, telephone number, and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
15. Confidential Information
You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Company and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Company in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Company upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Company’s trade secrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical, financial, strategic and other proprietary and confidential information relating to Company’s business, operations and properties, including information about Company’s Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
16. Disclaimer of Warranties
USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.
THE QUIKFIX, INC. PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE QUIKFIX, INC. PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE QUIKFIX, INC. PLATFORM AND 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 AND USE OF THE QUIKFIX, INC. PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE QUIKFIX, INC. PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE QUIKFIX, INC. PLATFORM WILL BE UNINTERRUPTED OR THAT THE QUIKFIX, INC. WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE QUIKFIX, INC., OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY TASK OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE QUIKFIX, INC. PLATFORM. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE QUIKFIX, INC. PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
IN ADDITION, NOTWITHSTANDING ANY FEATURE A COMMUNITY MEMBER MAY USE TO EXPEDITE QUIKFIX, INC. SELECTION, EACH COMMUNITY MEMBER IS RESPONSIBLE FOR DETERMINING THE TASK AND SELECTING THEIR STUDENT AND COMPANY DOES NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A COMMUNITY MEMBER AND DOES NOT RECOMMEND ANY PARTICULAR STUDENT. COMPANY DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY STUDENT’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
17. No Liability
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE QUIKFIX, INC. PLATFORM IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD COMPANY, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE QUIKFIX, INC. PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY COMPANY OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION, OTHER THAN PURSUANT TO THE SATISFACTION PLEDGE.
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE QUIKFIX, INC. PLATFORM OR THE TASK SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
COMPANY DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE QUIKFIX, INC. PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
18. Insurance Information for Students
Whether you are planning to prune trees, clean gutters, scrub bathrooms or simply hang a few pictures on the wall, don’t assume that nothing can go wrong. Accidents can and do happen when performing chores. You could be hurt, someone in the Community Member’s home could be hurt or property could be damaged or stolen.
Be forewarned that QuikFix, Inc. expects you to assume all of the risk. You are strongly encouraged to secure medical insurance, liability insurance and/or professional insurance. By agreeing to the terms of this User Agreement, you agree to indemnify QuikFix, Inc. for any injuries or damages which you cause, intentionally or unintentionally, or for which you are found to be responsible.
19. Insurance Information for Community Members
Student workers are not employees of QuikFix, Inc. QuikFix, Inc. does not provide professional liability insurance for its Students. Students are individually liable for any injuries they cause to Community Members, intentionally or unintentionally, damage they cause to Community Members’ property, intentionally or unintentionally, or any property that is stolen by a Student.
By agreeing to the terms of this User Agreement, you agree to pursue all legal remedies directly against the Student for injuries or damages incurred by you during a Student’s performance of a Task that was sought by you or arranged on the QuikFix, Inc. Platform.
20. Additional Indemnification Provisions
You hereby agree to indemnify, defend, and hold harmless Company, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, successors and assigns, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys’ fees and costs incurred, in connection with (i) your use or inability to use the QuikFix, Inc. Platform or Task Services, (ii) your breach or violation of this Agreement; (iii) your violation of any law the rights of any User or third party or (iv) any content submitted by you or using your account to the QuikFix, Inc. Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Company.
21. Dispute Resolution – Arbitration
(a) Informal Negotiations.
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and Company (each a “Claim” and collectively “Claims”), you and Company agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address if on record with Company or with an email copy to the email address you have provided to Company. Company’s address for such notices is Quik Fix, Inc., Post Office Box 40002, Memphis, Tennessee 38174. If necessary to preserve a Claim under any applicable statute of limitations, you or Company may initiate arbitration while engaging in the informal negotiations.
(b) Binding Arbitration.
YOU AND COMPANY MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate, contained in Section 21, (“Arbitration Agreement”), is governed by the Federal Arbitration Act and survives the termination of this Agreement or your relationship with Company. Claims include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof), the QuikFix, Inc. Platform, services, Tasks, your relationship with Company, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any city, county, state or federal wage-hour law, compensation, breaks and rests periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress, any promotions, offers made by Company, breach of any express or implied contract or breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including Claims about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND COMPANY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED EXCEPT THOSE CLAIMS AND DISPUTES WHICH BY TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(c) Agreement Prohibiting Class Actions and Non-Individualized Relief.
You and Company agree that any arbitration will be limited to the Dispute between Company and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”). Further, unless both you and Company otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against the Company which are addressed separately in Section 21 (d) below. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the Claim is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(d) Rules and Logistics Governing Arbitration
The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Company will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Students or Community Members, but is bound by rulings in prior arbitrations involving the same Student or Community Member to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction in accordance with the Federal Arbitration Act.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
(i) If Company initiates arbitration under this Arbitration Agreement, Company will pay all AAA filing and arbitration fees. If a Community Member or Student, however, files a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed USD 10,000, Company will pay all such filing and arbitration fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)); (ii) For Claims that (A) are based on an alleged employment relationship between Company and the Student; (B) arise out of, either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in the Federal Rule of Civil Procedure 11(b)), (iii) For Claims that are (A) are based on an alleged employment relationship between Company and the Student; (B) arise out of, or relate to, the Company’s actual or threatened deactivation of the Student’s user account; (C) arise out of, or relate to the Company’s actual or threatened termination of a Student’s Agreement with the Company; or (D) arise out of, or relate to, monies earned or paid for Task services tips, bonuses or monies owed by Community Members or Company to a Student, other than disputes relating to referral bonuses, other Company sponsored promotions, or consumer-type disputes (the subset of Claims in subsections (A)-(D) shall be collectively referred to as “Student Claims”), Company shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by Company pursuant to the fee provisions above). However, if you are the party initiating the Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Services to Community Members, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection 21(e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. (iii) Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Dispute(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.). (iv) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Unless you and Company agree otherwise, any arbitration hearings between Company and a Student will take place in the county of your billing address, and any arbitration hearings between Company and a Community Member will take place in the county in which you received student services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(f) Exceptions to Arbitration
The following types of Claims are not required to be arbitrated under the Arbitration Agreement:
- Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
- Claims that may not be subject to arbitration as a matter of law.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. However you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision and do not prevent you from receiving an award for information provided to any government agencies.
In addition to the severability provisions in Section 21(d) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(h) Right to Opt Out of Arbitration Agreement
You may opt out of the Arbitration Agreement by notifying Company in writing within 30 days of the date you first registered for the QuikFix, Inc. Platform or 30 days from the date this Agreement was last updated. To opt out, you must send a written notification to Company at QuikFix, Inc., Post Office Box 40002, Memphis, Tennessee 38174, that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
22. Governing Law
Except as provided in Section 22 or expressly provided otherwise, this Agreement will be governed by, and will be construed under, the laws of the State of Tennessee, without regard to choice of law principles.
23. Special Promotions
Company may from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of Company, and can be activated, modified or removed at any time by Company without advance notification and the liability of any of Company’s partners pursuant to such promotional opportunities, sweepstakes and contests shall be limited pursuant to Section 20 of these User Agreements, including but not limited to Section 20 of these User Agreements.
24. No Agency
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
25. General Provisions
Failure by Company to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and Company with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement will inure to the benefit of Company, its successors and assigns.
26. Changes to this Agreement and the QuikFix, Inc. Platform