THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT REQUIRE YOU TO ARBITRATE ALL DISPUTES YOU HAVE WITH QUIDWELL ON AN INDIVIDUAL BASIS. YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND QUIDWELL WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS WIDE ARBITRATION.
Acceptance of Terms. By accessing and/or using the Site, or clicking any button to indicate your consent, you accept and agree to be bound by these Terms, just as if you had agreed to these Terms in writing. If you do not agree to these Terms, do not use the Site.
Amendment of Terms. Quidwell may amend the Terms from time to time. Unless we provide a delayed effective date, all amendments will be effective upon posting of such updated Terms. Your continued access to or use of the Site or Classes after such posting constitutes your consent to be bound by the Terms, as amended.
2. Quidwell Platform
Quidwell Platform. The Quidwell platform enables users to read articles authored by Quidwell or Quidwell contributors, find companies (“Find You Fit”), that have had had articles written about them and/or that are a Quidwell partner, that are in a geographical area. Quidwell itself is not a gymnasium, place of amusement or recreation, health club, facility, fitness studio or similar establishment and does not own, operate or control any of the services that are offered at or through such facilities.
Membership Options. There are a number of ways to participate in events through Quidwell, such as various subscription plans, promotional plans, and non-subscription purchases. These options consist of different Materials and may be subject to additional and differing conditions, prices, policies and limitations. We reserve the right to modify, terminate or otherwise amend our offered options and plans at any time in our discretion. From time to time we may permit non-subscribers to access certain Material, content, or features for a cost or at no cost. Quidwell makes no commitment on the quantity, availability, type or frequency at which such Material, content and features will be available to non-subscribers and may modify, discontinue, remove or suspend access at any time and for any reason in our sole discretion.
Subscription Plans. To enjoy full access to the Site and information, you need to sign up for a subscription. A subscription starts on the date that you sign up for a subscription and submit payment via a valid Payment Method (defined below) or reactivate a pre-existing subscription. Quidwell offers two subscription options. The first is an annual subscription. The annual subscription fee will be charged at one time and shall be effective for a period of one year. The annual Quidwell subscription automatically renews each year, and we will automatically bill the annual subscription fee to your Payment Method on the anniversary of your joining Quidwell, until your subscription is cancelled or terminated. The second is a monthly subscription. Unless we otherwise communicate a different time period to you at the time of sign up or otherwise (such as a multi-month commitment plan), each billing cycle is one month in length (a “Subscription Cycle”). Your monthly Quidwell subscription automatically renews each month, and we will automatically bill the monthly subscription fee to your Payment Method each month, until your subscription is cancelled or terminated. For example, if you purchase your Quidwell subscription on March 15, your subscription will automatically renew on April 15 (as further explained in “Subscription Cycles,” below). You must provide us with a current, valid, accepted method of payment (“Payment Method”). We may update the accepted methods from time to times. If you upgrade or downgrade to a different subscription, all such subscriptions will be governed by these Terms and will continue indefinitely until canceled or terminated.
Non-Subscription Purchases. Quidwell may permit you to purchase certain Material products or events through the Site, in addition to your subscription or without having a subscription. You acknowledge and agree that these Terms apply to any such purchase you make, and you will be responsible to pay the applicable fees, which may change at any time.
Eligibility. The availability of all or part of our Site may be limited based on geographic, age, or other criteria as we may establish from time to time. You understand and agree we may disallow you from subscribing to Quidwell or may terminate your subscription at any time based on these criteria. For example, you must be 18 years of age or older to use the Site and/or purchase a Quidwell subscription. You further understand that the Site may not be available in every geography. THESE TERMS ARE ONLY APPLICABLE TO USERS IN THE U.S. THE SITE IS NOT AVAILABLE TO ANY USERS SUSPENDED OR REMOVED FROM THE SITE BY QUIDWELL. BY USING THE SITE, YOU REPRESENT THAT YOU ARE A RESIDENT OF THE UNITED STATES, AT LEAST 18 YEARS OLD AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED. THOSE WHO CHOOSE TO ACCESS THE SITE DO SO AT THEIR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL LOCAL RULES INCLUDING, WITHOUT LIMITATION, RULES ABOUT THE INTERNET, DATA, EMAIL OR OTHER ELECTRONIC MESSAGES, OR PRIVACY.
Communications: By providing your information or creating an account, you agree that Quidwell may contact you by email, direct mail, telephone or text messages at any of the addresses or phone numbers, as applicable, provided by you or on your behalf in connection with a Quidwell account, including for marketing purposes. You may opt-out of marketing emails via the provided unsubscribe link or otherwise opt-out by contacting us at any time.
3. Fees, Billing, Cancellation
Recurring Billing. By initiating a Quidwell subscription, you authorize us to charge you for your initial subscription period and a recurring subscription fee (whether annual or monthly) at the then current rate, which may change from time to time. You acknowledge that the amount billed each year or month may vary for reasons that may include differing amounts due to promotional offers and/or changing or adding a plan, and you authorize us to charge your Payment Method for such varying amounts, which may be billed monthly in one or more charges. You also authorize us to charge you any other fees you may incur in connection with your use of the Site, such as any applicable sign-up fee, taxes and cancellation or late fees, as further explained below. Note that even if you do not use the subscription or access the Site, you will be responsible for subscription fees until you cancel your subscription, or it is otherwise terminated.
Subscription Cycle. When you sign up and purchase your Quidwell subscription, your first Subscription Cycle will be billed immediately. Unless we expressly communicate otherwise, your subscription will automatically renew each month/year and you will be billed on roughly the same date each month. We reserve the right to change the timing of our billing (and if we do, we’ll make adjustments to the amounts we charge, as appropriate). In the event your paid subscription began on a day not contained in a given month, we may bill your Payment Method on a day in the applicable month or such other day as we deem appropriate. Your renewal date may change due to changes in your subscription.
Refunds. Generally, our fees (including the monthly or yearly fee for your membership and any other fees) are nonrefundable unless we specifically communicate otherwise at the time of purchase. However, we will provide a refund to subscribers for their current prepaid subscription period only in the following circumstances: (i) if you are canceling your subscription and request a refund within 5 days of the date of your first payment for your subscription or (ii) if your subscription is cancelled prior to the end of a period for which you have incurred a charge, due to your relocation, disability or death; provided, however, in each case we reserve the right to charge a fee to cover the cost of any services or products you may have used or received prior to your cancellation and to ask for proof of such changed condition, to the extent permitted by law.
Price Changes. We reserve the right to adjust pricing at any time. Unless we expressly communicate otherwise, any price changes to your subscription will take effect on your next billing cycle upon notice communicated through a posting on the Quidwell website or such other means as we may deem appropriate from time to time, such as email. If you do not cancel your subscription, you will be deemed to have accepted these new fees.
Payment Methods. You may edit your Payment Method information by logging onto our website and editing it in your account settings. If a payment is not successfully settled due to expiration, insufficient funds or otherwise, you nonetheless will remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method or any other payment method you have provided, as it may be updated, including in the event you attempt to create a new account, reactivate the unsettled account or sign up for a new account. This may result in a change to your payment billing dates. If we cannot charge your account, we reserve the right, but are not obligated, to terminate your access to our Site or any portion thereof.
Cancellation of Subscription. Unless we communicate otherwise, you may terminate your subscription at any time before your subscription renews by going into your account settings on the Quidwell website and letting us know you would like to cancel. Unless we communicate otherwise, following any cancellation you will continue to have access to your subscription through the end of your current prepaid Subscription Cycle, unless you cancel and receive a refund (as described above) in which case your access will be terminated immediately. Note that if you do terminate your subscription, we reserve the right to charge a reactivation fee if you want to return to Quidwell in future months or to restrict your access in future months. If you cancel your subscription or it is terminated for any reason, you will lose access to all content or features available through the subscription.
4. Termination or Modification by Quidwell.
You understand and agree that, at any time and without prior notice Quidwell may (1) terminate, cancel, deactivate, disable, delete and/or suspend your subscription, your account, any orders placed, or your access to or use of the Site, your membership and/or (2) discontinue, disable, suspend, modify or alter any aspect, feature or policy of the Site , including of your subscription. This includes the right to terminate or modify any subscription prior to the end of any pre-paid or committed period. Upon any termination or otherwise, we may immediately deactivate your account and all related information and/or bar any further access to your account information, the Material, and the Site. Quidwell shall have no liability for, and you shall have no recourse for, any such termination or deactivation, except as set forth in the following sentence. If you are subscriber, then upon any such termination by us without cause, as your sole recourse, we will issue you a pro rata refund of the prepaid portion of your subscription applicable to future unused services (less any fees or costs for Materials already used). If we determine that you have violated these Terms or otherwise engaged in illegal or improper use of your membership and/or the Site, you will not be entitled to any refund and you agree that we will not be responsible to pay any such refund. You agree that Quidwell will not be liable to you or any third party for any termination or modification to the service regardless of the reason for such termination or modification. You acknowledge that your only right with respect to any dissatisfaction with any modification or discontinuation of service made by us is to cancel or terminate your subscription. If Quidwell deletes your account for these reasons, you may not re-register for or use the Site under any other user name, email, payment method or profile. Quidwell may block your access to the Site to prevent re-registration.
6. Ownership; Proprietary Rights; Content.
The Quidwell website are owned and operated by Quidwell. The content, recordings, visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software), or any music, images, video, text, services, and all other material or elements of or available through the Site provided by Quidwell (“Content”) are protected by the copyright, trade dress, patent, and trademark laws of the United States and other countries, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for your User Submissions, all Content contained on the Site are the copyrighted property of Quidwell or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Quidwell or its affiliates and/or third-party licensors whether registered or unregistered and may not be used in connection with any product or service or in any manner that is likely to cause confusion as to our endorsement, affiliation or sponsorship of any person, product or service. Except as expressly authorized by Quidwell, you agree not to sell, license, distribute, copy, modify, download, record, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Content and may only access the Content for your personal, non-commercial use. In the event that Content are downloaded to your computer or mobile phone, you do not obtain any ownership interest in such Content. All rights not expressly granted in these Terms are reserved.
By installing, copying, or otherwise using the Site or its software, you acknowledge that you have read and understood these Terms, and agree to be bound by its terms and conditions. If you do not agree to (or cannot comply with) the terms and conditions of this Agreement, do not install, copy, or use the Site or Content.
You agree that you will not, for any reason whatsoever, reverse engineer, decompile, disassemble, or otherwise tamper with any security components, usage rules or other protection measures applicable to the Site or Content. You agree to abide by the rules and policies established from time to time by Quidwell. Such rules and policies will be applied generally in a nondiscriminatory manner to users of the Site and software, and may include, for example, required or automated updates, modifications, and/or reinstallations of the software and obtaining available patches to address security, interoperability, and/or performance issues.
You agree not to make any use of the Content that would infringe the copyright therein.
The Site and any related software may enable you to obtain, listen to, view, and/or read (as the case may be) Content that may be obtained by you in digital form, and you shall do so solely for your individual, personal, noncommercial entertainment use.
You agree not to share your Quidwell account with anyone other than yourself nor will you allow anyone other than yourself to access or use any Content accessible on or through the Site. You agree that you will not attempt to modify any software, Material, or Content obtained through the Site for any reason whatsoever, including for the purpose of disguising or changing any indications of the ownership or source of the Content. You further understand that you are not granted any commercial, sale, resale, reproduction, distribution, or promotional use rights for the Content, or any rights for uses that require a synchronization or public performance license with respect to the underlying musical composition and any unauthorized reproduction or distribution of Content is expressly prohibited and may violate applicable law. You are not permitted to modify, edit or repurpose any Content.
You represent, warrant and agree that you are using the Site hereunder for your own personal, noncommercial entertainment use and not for redistribution or transfer of any kind. You agree (a) not to redistribute, broadcast, publicly perform or publicly display any Content, or otherwise transfer any Content obtained through the Site, (b) you will comply with all applicable laws in your use of the Content, (c) that you will remain a resident of the United States for the duration of your use of the Site.
You understand and agree the Content may be owned by Quidwell or by third parties. However, in all circumstances, you understand and acknowledge that your rights with respect to Content will be limited by copyright law. All owners and providers of Content expressly reserve their rights in and to such Content and you are not permitted to infringe the rights of the copyright owner(s) of the Content, including but not limited to any sound recordings or musical compositions.
Quidwell and/or the owners of the Content may, from time to time, remove Content from the Site without notice.
The owners of Content are intended beneficiaries of this Agreement and shall have the right to enforce this Agreement against you.
The Site, including all software, Material, Content and other information, materials and products included on or otherwise made available to you through the Site are provided “as-is” and “as available” without warranties of any kind from Quidwell or any owners of Content. To the full extent permissible by applicable law, Quidwell and all owners of Content disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Neither Quidwell nor any owner of Content warrants that the Site or any software, Content, information, materials or products included on or otherwise made available to you through the Site are free of viruses or other harmful components.
7. Third-Party Sites, Products and Services; Links.
The Site may include links or access to other web sites or services (“Linked Sites”) solely as a convenience to users. Quidwell does not endorse any such Linked Sites, or the information, material, products, or services contained on other linked sites or accessible through other Linked Sites. Furthermore, Quidwell makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through linked sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, CONTENT, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
Sometimes promotional plans are offered in conjunction with the provision of third party products and services. We are not responsible for the products and services provided by such third parties, and use of such products and services is at your own risk. Your correspondence or business dealings with, or participation in promotions of, third parties found on or through the Site are solely between you and such third party. YOU AGREE THAT QUIDWELL WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH THIRD PARTIES ON THE SITE.
8. Electronic Signatures and Agreements.
You acknowledge and agree that by clicking on the button labeled “CONFIRM PURCHASE,” “SUBMIT”, “DOWNLOAD”, “PLACE MY ORDER”, “I ACCEPT” or such similar links as may be designated by Quidwell to accept the terms and conditions of these Terms, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by these Terms. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SITE OR SERVICES OFFERED BY QUIDWELL. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
9. General Disclaimers; No Warranties.
SERVICES MADE AVAILABLE VIA THE SITE ARE PROVIDED BY THIRD PARTIES (AND THE DESCRIPTIONS OF THE FOREGOING POSTED ON THE SITE ARE PROVIDED BY SUCH THIRD PARTIES), NOT QUIDWELL. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, YOUR USE OF THE SITE, IS SOLELY AT YOUR OWN RISK. WE DO NOT ASSUME ANY LIABILITY OR MAKE ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING OUT OF, IN CONNECTION WITH OR WITH RESPECT TO THE SITE.
IN NO EVENT SHALL QUIDWELL BE LIABLE FOR ANY ACT, ERROR OR OMISSION BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH A USER’S ATTENDANCE, USE OF OR PARTICIPATION IN A CLASS OR PRODUCT, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY. QUIDWELL IS NOT AN AGENT OF ANY THIRD-PARTY.
ALL ASPECTS OF OR CONTENT OR FEATURES AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, QUIDWELL, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND PARTNERS, DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
10. Waiver and Release.
YOU UNDERSTAND THAT QUIDWELL IS NOT A GYMNASIUM, PLACE OF AMUSEMENT OR RECREATION, HEALTH CLUB, FACILITY, FITNESS STUDIO OR SIMILAR ESTABLISHMENT AND THIS SITE AND THE MATERIAL IT PROVIDES ARE OPERATED AND DELIVERED BY VARIOUS THIRD-PARTIES. QUIDWELL IS THEREFORE NOT RESPONSIBLE FOR THE QUALITY OF ANY CLASS, MATERIAL OR OTHER OFFERING PROVIDED BY THE THIRD PARTY (INCLUDING BUT NOT LIMITED TO THE FACILITY, INSTRUCTOR OR CURRICULUM). YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE CLASS, MATERIAL, OR OTHER RECOMMENDATIONS AVAILABLE ON OR THROUGH THE SITE ARE RIGHT FOR YOU.
YOU UNDERSTAND THAT THERE ARE CERTAIN INHERENT RISKS AND DANGERS IN EXERCISING AND THAT THE CLASSES, MATERIALS, OR OTHER OFFERINGS YOU MAY ATTEND OR PARTICIPATE IN OFFER A RANGE OF ACTIVITY AND INTENSITY LEVELS. BY USING QUIDWELL AND ITS SITE (INCLUDING BUT NOT LIMITED TO ATTENDING, PARTICIPATING IN THE MATERIAL), YOU ACKNOWLEDGE AND AGREE, ON BEHALF OF YOURSELF, YOUR HEIRS, PERSONAL REPRESENTATIVES AND/OR ASSIGNS THAT YOU ARE AWARE OF THESE RISKS WHICH INCLUDE, BUT ARE NOT LIMITED TO, PROPERTY DAMAGE, ILLNESS, LOSS AND BODILY INJURY OR DEATH. YOU ACKNOWLEDGE THAT SOME OF THESE RISKS CANNOT BE ELIMINATED AND YOU SPECIFICALLY ASSUME THE RISK OF INJURY OR HARM.
YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR RESPONSIBILITY TO CONSULT WITH YOUR PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL PRIOR TO USING QUIDWELL (INCLUDING BUT NOT LIMITED TO ATTENDING, PARTICIPATING IN ANY MATERIAL OR OTHER OFFERING) AND TO DETERMINE IF AND HOW PARTICIPATING IS APPROPRIATE FOR YOU. DO NOT USE ENGAGE IN ANY ACTIVITY OFFERED THROUGH THE SITE IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. IF YOU EXPERIENCE FAINTNESS, DIZZINESS, PAIN OR SHORTNESS OF BREATH AT ANY TIME WHILE EXERCISING, YOU SHOULD STOP IMMEDIATELY.
YOU ALSO UNDERSTAND AND AGREE THAT THE SITE OFFERS FITNESS AND RELATED INFORMATION THAT IS DESIGNED FOR INFORMATIONAL, EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. NOTHING STATED OR POSTED ON OR OTHERWISE AVAILABLE THROUGH ANY ASPECT OF THE SITE AND/OR MATERIAL IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL, PROFESSIONAL OR COUNSELING CARE. YOU SHOULD NOT RELY ON ANY INFORMATION ON OR THROUGH THE SITE AND/OR MATERIAL AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH OR FITNESS LEVEL, YOU SHOULD ALWAYS CONSULT A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT EVER DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ OR HEARD ON OR THROUGH THE SITE. THE USE OF ANY OF THE CONTENT, RECOMMENDATIONS AND INFORMATION PROVIDED ON OR THROUGH QUIDWELL IS SOLELY AT YOUR OWN RISK.
THE SITE IS CONTINUALLY UNDER DEVELOPMENT AND QUIDWELL MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN RESEARCH MAY IMPACT THE FITNESS OR RELATED ADVICE THAT APPEARS ON OR IN CONNECTION WITH THE SITE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE OR RECOMMENDATIONS CONTAINED IN OR THROUGH THE SITE AND/OR A CLASS WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL OR CONTENT.
THEREFORE, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU RELEASE, INDEMNIFY, AND HOLD HARMLESS QUIDWELL, ITS PARENT, SUBSIDIARIES OR AFFILIATED ENTITIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, CONSULTANTS, CONTRACT EMPLOYEES, REPRESENTATIVES AND AGENTS, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM ANY AND ALL RESPONSIBILITY, CLAIMS, ACTIONS, SUITS, PROCEDURES, COSTS, EXPENSES, DAMAGES AND LIABILITIES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR PARTICIPATION IN OR USE OF THE SITE AND/OR ATTENDANCE AT, PARTICIPATION IN, PURCHASE OF AND/OR USE OF ANY MATERIAL, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO BODILY INJURY, PHYSICAL HARM, LOSS, ILLNESS, DEATH OR PROPERTY DAMAGE.
11. Indemnification; Hold Harmless.
You agree to indemnify and hold Quidwell, its affiliated entities, subsidiaries, its suppliers, service providers and partners and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns, harmless from any claims, actions, suits, costs, expenses, losses, damages, liabilities, including attorneys’ fees, arising out of or in connection with your misuse of the Site, the Materials, violation of these Terms, violation of the rights of any other person or entity, or any breach of your representations, warranties, and covenants set forth in these Terms.
12. Limitation of Liability and Damages.
UNDER NO CIRCUMSTANCES WILL QUIDWELL OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE, EVEN IF QUIDWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, QUIDWELL’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
QUIDWELL’S LIABILITY TO YOU IS LIMITED TO THE AMOUNTS, IF ANY, PAID BY YOU TO QUIDWELL UNDER THIS AGREEMENT IN THE THREE MONTHS IMMEDIATELY PRIOR TO THE EVENT FIRST GIVING RISE TO THE CLAIM, WHICHEVER IS MORE. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER QUIDWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. Third-Party Waivers and Terms.
Quidwell Members taking engaging in Material with third-parties are deemed to agree to the liability waivers and terms of individual Venues. Your participation in any such activity may be subject to addition policies, rules or conditions of the applicable third-party and you understand and agree that you may not be permitted to reserve or attend these Materials if you do not comply with these Terms or the policies of the Venues or as otherwise determined by a Venue. If you have questions about a Venue’s waiver or other terms, please see the applicable Venue’s website or contact the Venue directly..
14. Arbitration Agreement
Please read this Arbitration Agreement carefully. It provides that all disputes between you and Quidwell shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Arbitration Agreement, “Quidwell” means Quidwell and its parents, subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, members, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Quidwell regarding any aspect of your relationship with Quidwell, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
Before initiating any Dispute, whether in court or arbitration, you must first give Quidwell an opportunity to resolve the Dispute by mailing written notification to Quidwell, Attn: Legal Claims, 2437 Kenilworth Avenue, Norwood, Ohio 45212. That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If Quidwell does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.
If the Dispute is not resolved as provided above in the Pre-Arbitration Claim Resolution process described above, either you or Quidwell may initiate arbitration proceedings. The American Arbitration Association (“AAA”) will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Arbitration Agreement. The arbitration will take place in Cincinnati, Ohio under the Rules of Commercial Arbitration then in effect.
Any Disputes arising out of or relating to your use of the Site and/or attendance at, participation in or use of Materials, any purchase you make on or through the Site, any information you provide via the Site, and/or these Terms (including the formation, performance, or alleged breach), shall be submitted individually by you and will not be subject to any class action or representative status. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action). Neither you, nor any other Member of Quidwell and/or user of Quidwell services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding with respect to the matters set forth in the first sentence of this paragraph. You agree that this Class Action Waiver is material and essential to the arbitration of any dispute between you and Quidwell and is non-severable from the Arbitration Agreement. You understand that by agreeing to this Class Action Waiver, you may only pursue Dispute against Quidwell in an individual capacity and not as a plaintiff or class member in any purported class action or representative proceeding.
If any clause within this Arbitration Agreement, other than the Class Action Waiver clause above, is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable and the Dispute will be decided by a court of competent jurisdiction.
Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of Ohio, without regard to conflict of law provisions, consistent with the Federal Arbitration Act (to the extent permitted by applicable law). If for any reason a claim proceeds in court rather than in arbitration (including any claims brought by parties outside the United States), the dispute shall be exclusively brought in state or federal court located in Cincinnati, Ohio.
Assignment. We may assign our rights and obligations under these Terms. The Terms will inure to the benefit of our successors, assigns and licensees.
Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
Entire Agreement. These Terms and any applicable Additional Terms, as each may be amended as set forth herein, are the entire agreement between you and Quidwell relating to the subject matter herein.