Qwil Contractor Terms of Service
Last Updated: October 23rd, 2018
Thank you for using the Qwil Services (as defined below), a cloud-based platform for tracking Pending Earnings (as defined below) and facilitating payment advances. To be eligible to register for a Qwil account and use Qwil’s Services, you must review and accept the terms of this Agreement (this “Agreement” or these “Terms”) by clicking on the “Accept” button or other mechanism provided. PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THESE TERMS OR USING THE QWIL SERVICES, YOU AGREE TO THESE TERMS AND CONDITIONS WITH QWIL PBC (“US”, “WE”, “QWIL”). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” BUTTON AND YOU SHOULD NOT USE THE QWIL SERVICES.
In this Agreement, “you,” “your” and “Customer” will refer to you. If you are registering for a Qwil account or using the Qwil Services on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to Qwil that you have the authority to bind that entity or organization to these Terms (and, in which case, the terms “you”, “your” and “Customer” will refer to that entity or organization). The exception to this is if that organization has a separate contract with Qwil covering one or more accounts and use of the Qwil Services, in which case that contract will govern the Qwil Services with respect to those accounts only.
1. Definitions.
(a) “Company” means a business entity, association, sole proprietorship, or any other similar organization that has entered into an independent contractor management platform agreement or a similar agreement with us, that we deem is in good standing with us, and that you provide goods and services to or that acts as your placement agent.
(b) “Fee” means the amount disclosed to you that we charge you to (i) purchase the related Pending Earnings and/or (ii) facilitate payment from a person to you. Fees may vary by transaction, including whether you participate in the “AutoAdvance” feature.
(c) “Losses” means any claims, causes of action, liabilities, losses, damages, settlements, penalties, fines, forfeitures, fees (including legal, expert witness, and accounting fees), costs, and expenses.
(d) “Payment Account” means the valid bank account, PayPal account, debit card, prepaid card, or other financial account that you own and that you link to your Qwil Account.
(e) “Purchase Price” means the amount of the related Pending Earnings we decide to purchase minus the Fee.
(f) “Purchased Pending Earnings” means the Pending Earnings we purchase from you by paying the Purchase Price.
(g) “Qwil Account” means the account you open on our Website or mobile applications to obtain products and services from us.
(h) “Repurchase Event” means any breach by Seller of any of its representations, warranties, covenants, or agreements in this Agreement related to any Purchased Pending Earnings.
(i) “Repurchase Price” means, with respect to any Purchased Pending Earnings, the Purchase Price paid minus any amounts received from a Company on such Purchased Pending Earnings.
(j) “Pending Earnings” means the right to payment owed to you by a Company or any third party arising out of products and/or services you have provided to such Company or third party or to its customers (including digital receivables from the app stores, ad networks and any other monetization platforms connected to Qwil).
(k) “Website” means admin.qwil.co, app.qwil.co, qwil.co and any associated domain, subdomain, native application or any successor site.
2. Qwil Services.
(a) Access to Qwil Services. Subject to the terms and conditions of this Agreement, Qwil will make the Qwil Services available to you pursuant to this Agreement, and hereby grants you a non-exclusive right to access and use the Qwil Services for your internal business purposes. By using our “Cash Out” feature, you may receive payment faster by requesting Qwil purchase all or part of your current Pending Earnings. Through the “Cash Out” feature, you can either identify each of the specific Pending Earnings you would like Qwil to purchase, or, if eligible, you may participate in an “AutoAdvance” feature to automatically request Qwil purchase all of your Pending Earnings. Payments will be made to your Payment Account. We may provide other products and services to you. You will pay the Fees when we indicate due. Some of our products and services may be subject to additional terms and conditions, which are posted or made available separately from this Agreement. Some of our products and services may also be subject to additional policies, guidelines, or rules. Such additional terms, conditions, policies, guidelines and rules shall be presented in a separate appendix/addendum/exhibit in writing in order to be binding. If there is a conflict between the additional terms, conditions, policies, guidelines, or rules and this Agreement, this Agreement will control.
(b) Account Registration. To use the Qwil Services, you will be asked to create an account. As part of the account creation process, you will be asked to provide your email address and create a password. When registering an account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You must also keep that information true, accurate, current and complete after you create your account. You shall be responsible for all interaction with us through use of your account, whether or not expressly authorized.
(c) Purchased Pending Earnings. We may decide to purchase all or part of the Pending Earnings that you request we purchase, regardless of whether your request is made through the “Cash Out” or the “AutoAdvance” feature. At the time we pay you the Purchase Price, you sell, transfer, convey, and assign to us all of your right, title, and interest in and to the related Purchased Pending Earnings. We agree to keep all financial and payment information you provide to us confidential and to only use such information to provide you the services contemplated hereunder. We agree to only transfer funds to the accounts you have designated and will not misuse nor misappropriate any such funds. We take responsibility for any liabilities or obligations related to misuse and/ or misappropriate of any Purchased Pending Earnings. Any other liabilities and obligations will remain solely with you.
(d) Servicing of Purchased Pending Earnings. All Purchased Pending Earnings will be serviced, collected, and administered by us or our designee, with full right to take any action in doing so, including changing the terms of any Purchased Pending Earnings. For Pending Earnings that we do not purchase but you request that we facilitate payment to you on, we will endeavor to facilitate such payment, and any action we take in doing so we take as your agent. You will provide us reasonable assistance we request regarding servicing, collecting, and administering any Purchased Pending Earnings and facilitating payment of any Pending Earnings.
(e) Security Interest. You grant us a first priority continuing lien upon and perfected first security interest in, and right of set off with respect to, the Purchased Pending Earnings whether now owned or hereafter acquired, wherever located. Notwithstanding any provision of this paragraph, you do not grant us a security interest in any of your property to the extent that the grant of a security interest is prohibited by any requirement of law. You irrevocably authorize us at any time to file in any filing office in any Uniform Commercial Code jurisdiction any financing statements, amendments, and related documents that describe our lien, security interest, and collateral, if required by the applicable law. You will assist us in making any such filing as required by applicable law or regulation.
(f) Repurchase Event. Following the occurrence of any Repurchase Event relating to any Purchased Pending Earnings, at our request, you must repurchase any such Purchased Pending Earnings by paying us the Repurchase Price. You must pay the Repurchase Price within five business days of receiving our request. We may set off or cause set off of any Repurchase Price, indemnification, or other amounts you owe us from any Purchase Price, payments we facilitate, and other amounts owed or to be provided to you.
(g) Adjustments. In the event a Company asserts any offset, defense, claim, counterclaim, dispute, deduction, discount, allowance, right of return, right of recoupment, or warranty claim relating to any Purchased Pending Earnings arising from or relating to your breach of any representation or warranty contained in herein and resulting in the Company paying less than the full amount of the Purchased Pending Earnings (each, an “Adjustment”), we may, in our sole discretion, request that you pay us the amount of the Adjustment. You must pay us the amount of an Adjustment within five business days of receiving our request.
(h) Third-Party Providers of Financial Products or Services. On our Website or through our mobile applications you may be able to obtain products or services from third parties. If you request or apply for a product or service from a third-party provider, you may, at your sole discretion, authorize us to provide to such third party certain information we have in our possession or control relating to you to such third-party provider solely for purposes of evaluating your request or application. Although we may receive compensation from a third-party provider, we do not endorse any third-party provider. Any third-party provider may be an option for you to consider, but we encourage you to shop for the best deal for you. You should rely on your own judgment in deciding which financial product or service best suits your needs and financial means. If you ultimately obtain a financial product or service from a third-party provider, the third-party provider is solely responsible for its products and services provided to you, and you agree that we are not liable for any Losses arising out of or related to such third party products and services.
(i) Mobile Device Application. You are responsible for any requirements of our mobile applications, including any updates and fees. You are also responsible for compliance with the terms of your agreement with your mobile device and telecommunications providers. We may provide you with alerts related to your Qwil Account. You authorize us to send alerts by text message to your mobile phone at the number you have provided us. Any change to your mobile phone number will change our ability to provide you with alerts. You should notify us immediately of any change to your mobile phone number. Certain alert delays are outside our control. We are not responsible for the products and services provided by your mobile device or telecommunications provider.
3. Transaction Authorization.
(a) Transaction Information from Third Party Sites. We may use transaction data and account information from your bank and other financial accounts and third parties, only in the scope necessary to provide our products and services to you. In order to do so, you direct us to obtain transaction data and account information from third-party providers (“Transaction Information”).
(b) Authorization. By using the Qwil Services, you expressly authorize us to access your Transaction Information maintained by identified third parties, on your behalf as your agent. At your direction, Qwil may submit information including usernames and passwords that you provide to log you into such third parties’ sites. You hereby authorize and permit Qwil to use and store information submitted by you to Qwil (such as account passwords and user names) to accomplish the foregoing and to configure our services so that they are compatible with the third party sites for which you submit your information. For purposes of this Agreement and solely to provide the Transaction Information to you as part of our services, you grant Qwil a limited power of attorney, and appoint Qwil as your attorney-in-fact and agent, to access third party sites, retrieve and use your information with the full power and authority to do and perform each thing necessary solely in connection with services provided herein. YOU ACKNOWLEDGE AND AGREE THAT WHEN QWIL IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY SITES, QWIL IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. You understand and agree that our services are not sponsored or endorsed by any third parties accessible through our services. You further acknowledge and agree to notify Qwil about any change or update to any account passwords or user names associated with third party services we use for collecting Transaction Information without unnecessary delay.
(c) Disclaimer Regarding Transaction Information. We work with vendors to obtain Transaction Information only with your permission in writing. The permission you may provide us with will allow the vendors to use your data, including aggregated data, so they may provide their services to us and for the vendors’ business purposes. We and our vendors will not provide Transaction Information to you in the form received from the third-party provider, but certain details of the Transaction Information may be provided to you. We do not review Transaction Information for accuracy or completeness. We have no liability for any actions or inactions on the part of any vendor. We and our vendors are not responsible for the Transaction Information or third-party products and services and make no warranties, including implied warranties of merchantability and fitness for a particular purpose, with respect to Transaction Information or third-party products or services. We and our vendors are not responsible for delays in obtaining Transaction Information or the accuracy, completeness, storage, or loss of Transaction Information, personalization settings, or service interruptions. Transaction Information may only be current at the time accessed and is provided on an “as is” and “as available” basis from providers.
4. Proprietary Rights and Confidentiality
(a) Qwil’s Ownership Rights. As between the parties, Qwil exclusively owns all right, title and interest in and to the Qwil Services. Except for the express rights granted hereunder, Qwil reserves all rights, title and interests in and to the Qwil Services and Qwil’s Confidential Information.
(b) License Restrictions. In connection with your use of the Qwil Services, you agree that you will not: (i) post, transmit, or otherwise make available: (1) any material that would give rise to criminal or civil liability; that encourages conduct that constitutes a criminal offense; or that encourages or provides instructional information about illegal activities or activities such as “hacking,” “cracking,” or “phreaking”; (2) any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is harmful or invasive or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment; (3) any unsolicited or unauthorized advertising, promotional material, “junk mail,” “spam,” “chain letter,” “pyramid scheme” or investment opportunity, or any other form of solicitation; or (4) any non-public information about any person without the proper authorization to do so; (ii) use our products and services for any fraudulent or unlawful purpose; (iii) use our products and services to violate the legal rights of others, including others’ privacy rights or rights of publicity, or harvest or collect personally identifiable information about other users; (iv) impersonate any person; (v) interfere with or disrupt the operation of our products or services or the servers or networks used to make our products or services available; (vi) restrict or inhibit any other person from using our products or services; (vii) reproduce, duplicate, copy, sell, resell, or otherwise exploit for any commercial purpose, any portion of, use of, or access to our products or services; (viii) modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of our Website, mobile applications, products, or services; (ix) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine,” or in any way gather our content or reproduce or circumvent our navigational structure or presentation; or (x) use the Qwil Services in violation of any applicable law or regulation or otherwise outside the scope of this Agreement (collectively, “License Restrictions”).
(c) Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (i) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (ii) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
(d) Feedback. Customer may from time to time provide Qwil suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Qwil Services. Qwil will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Qwil will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
(e) Aggregated Information. Notwithstanding anything to the contrary, Qwil shall have the right to aggregate, collect and analyze data and other information relating to the provision, use and performance of the Qwil Services and shall be free (during and after the term hereof) to (i) use such data and other information to develop and improve the Qwil Services and other Qwil offerings, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify you or any individual.
5. Representations and Warranties.
(a) Mutual. Each party represents and warrants to the other that: (i) it has full corporate or other power and authority to enter into this Agreement and to carry out the provisions hereof; (ii) it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder, and the person or persons executing this Agreement on its behalf has been duly authorized to do so; and (iii) this Agreement is legally binding upon it, enforceable in accordance with its terms, and does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any applicable law or regulation of any.
(b) Representations and Warranties Concerning Purchased Pending Earnings. For each Purchased Pending Earnings, you make the following representations and warranties to us as of the time of purchase: (i) you hold legal title to the Purchased Pending Earnings, free and clear of any liens or encumbrances; (ii) you have not sold, pledged, assigned, or encumbered the Purchased Pending Earnings; (iii) no person has any rights, interest, or claims in or to the Purchased Pending Earnings; (iv) the Purchased Pending Earnings are not in dispute, and are presently and unconditionally owing; (v) the Purchased Pending Earnings are not past due and represent amounts owed by the Company arising from your actual and timely performance or provision of goods, property, or services to the Company in the ordinary course of your business; (vi) the Purchased Pending Earnings are not subject to any claim, offset, defense, or counterclaim of any kind; (vii) no agreement has been made under which the Company may claim any deduction or discount against the Purchased Pending Earnings; (viii) the Company is liable for the full amount of the Purchased Pending Earnings and has not objected to their payment or the quality or quantity of the goods, property, and services performed or provided; (ix) the Purchased Pending Earnings have not been modified, dismissed, settled, or paid; (x) there has been no error, misrepresentation, negligence, fraud, omission, or violation of law on the part of any person with respect to the Purchased Pending Earnings or their underlying goods, property, or services; and (xi) you have no knowledge that the Company has filed for bankruptcy or receivership or has been having any difficulty paying amounts due others in full and when due.
(c) Additional Representations and Warranties by Customer. You also represent and warrant to us as follows: (i) you will treat our purchase of any Purchased Pending Earnings as a sale for tax, accounting, and financial reporting purposes, and your books and records will reflect the sale of the Purchased Pending Earnings to us; (ii) you will take all actions requested by us to preserve and protect our right, title, and interest in and to any Purchased Pending Earnings; (iii) you will not take any action (including placing or allowing placement of a lien or security interest on any Purchased Pending Earnings) or make any omission that has, individually or in the aggregate, an adverse effect on any Purchased Pending Earnings or on our ability to collect on any Purchased Pending Earnings; and (iv) if you receive any payment on Purchased Pending Earnings, you must notify us immediately and remit the amount of such payment to us within one business day of receipt.
6. Termination and Suspension
(a) Term. The term of this Agreement will commence on the date these Terms are accepted by you and continue until your account is terminated as set forth below.
(b) Termination and Suspension. You may terminate your account at any time through the account management tools made available through the Service. Qwil may terminate or suspend your account in the event you commit any material breach of any provision of these Terms and fail to fix that breach within five (5) days after written notice of that breach. Qwil may also terminate or suspend your account immediately for cause if: (i) you violate (or give Qwil reason to believe you have violated) this Agreement; (ii) there is reason to believe the traffic created from your use of the Qwil Services or your use of the Qwil Services is fraudulent or negatively impacting the operating capability of Qwil Services; (iii) Qwil determines, in its sole discretion, that providing the Qwil Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Qwil Services; or (iv) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. If Qwil suspends your account, Qwil will make a reasonable attempt to notify you.
(c) Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability, dispute resolution, termination and the miscellaneous provisions below.
7. Indemnification.
(a) Indemnification by Qwil. Qwil will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Qwil Services as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against (or any settlement approved by Qwil) Customer in connection with any such Claim; provided that (a) Customer will promptly notify Qwil of such Claim, (b) Qwil will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Qwil may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Qwil in connection therewith. If the use of the Qwil Services by Customer has become, or in Qwil’ opinion is likely to become, the subject of any claim of infringement, Qwil may at its option and expense (i) procure for Customer the right to continue using and receiving the Qwil Services as set forth hereunder; (ii) replace or modify the Qwil Services to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement. Qwil will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) use of the Qwil Services by Customer not in accordance with this Agreement; (B) modification of the Qwil Services by any party other than Qwil without Qwil’ express consent; (C) data, information or materials provided by Customer or (E) the combination, operation or use of the Qwil Services with other applications, portions of applications, product(s) or services where the Qwil Services would not by itself be infringing. This Section states Qwil’ sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
(b) Indemnification by Customer. Customer will defend Qwil against any Claim made or brought against Qwil by a third party arising out of Customer’s use of the Qwil Services, and Customer will indemnify Qwil for any damages finally awarded against (or any approved settlement) Qwil in connection with any such Claim; provided that (a) Qwil will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Qwil’ prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Qwil of all liability) and (c) Qwil reasonably cooperates with Customer in connection therewith.
8. Limitation of Liability.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF THE CONFIDENTIALITY OBLIGATIONS OR THE LICENSE RESTRICTIONS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
9. Miscellaneous.
(a) Publicity. You agree that Qwil may refer to your name and trademarks in Qwil’s marketing materials and website; however, Qwil will not use your name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without your prior written consent (which may be by email).
(b) Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. In addition, you agree that Qwil may have any of its obligations performed through an affiliate of Qwil, provided that Qwil will remain responsible for its obligations hereunder and will be liable for such affiliate’s performance hereunder as if it were Qwil hereunder. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
(c) Waiver. No waiver of any rights hereunder will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
(d) Amendment. Qwil may amend or modify this Agreement from time to time, in which case the new Agreement will supersede prior versions. Qwil will notify you via e-mail not less than 30 days prior to the effective date of any such amendment or modification and will inform you about the intended amendments or modifications. If you do not object to the amendment or modification within 30 days from the sending of such notice, such non-objection may be relied upon by Qwil as your consent to such amendment. Qwil will inform you about its right to object and the consequences of non-objection in such notice. If you object to such amendment, you must do so in writing by written notice to Qwil delivered within such 30-day notice period, in which case Qwil may elect by written notice (which may be sent by email) to either (i) consider the amendment request rejected and have this Agreement continue without such amendment or (ii) terminate this Agreement immediately. Subject to the foregoing, no amendment or modification to this Agreement will be effective unless assented to in writing by both parties.
(e) Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
(f) Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
(g) Entire Agreement. This Agreement comprises the entire agreement between you and Qwil with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Qwil, its agents or employees will create a warranty.
(h) Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
(i) Electronic Communications and Records. You agree that we may provide you notices, disclosures, electronic records, and other communications by posting on our Website, by e-mail, by text message, or by regular mail. We will use the e-mail address, postal mail address, and mobile phone number you provide us. It is your responsibility to promptly update us with e-mail address, postal mail address, and phone number changes. Communications sent to an e-mail address, postal mail address, or phone number you have changed will be considered received when sent by us to the address or phone number we have on file.
10. Dispute Resolution
(a) Governing Law. The enforceability and interpretation of the arbitration provisions below will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from such arbitration provisions, this Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws, and all disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of San Francisco, CA, and the parties hereby consent to the personal jurisdiction of these courts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
(b) Agreement to Arbitrate. If the parties are not able to the dispute through Qwil customer support, you and your affiliates on one hand, and Qwil and any of Qwil’s affiliates on the other hand, all agree to resolve any dispute arising under these Terms or in relation to the Qwil Services by binding arbitration in San Francisco, CA, or in another location that both parties agree to. This applies to all claims under any legal theory, unless the claim fits in one the exceptions below. It also applies even after you have stopped using your Qwil account or have deleted it. If the parties have a dispute about whether this agreement to arbitrate can be enforced or applies to such dispute, the parties agree that the arbitrator will decide that too.
(c) Exceptions to Agreement to Arbitrate. You and your affiliates on one hand, and Qwil and its affiliates on the other hand, agree that the parties will go to court to resolve disputes relating to (a) your, your affiliate’s, Qwil’s or Qwil’s affiliates intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents); or (b) your violation of the License Restrictions. In addition, if either party brings a claim in court that should be arbitrated or either party refuses to arbitrate a claim that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). Either party may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
(d) Details of Arbitration Procedure.
(i) Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between the parties by mediation conducted by the American Arbitration Association (“AAA”), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this agreement to arbitrate conflicts with the Rules, the language of this agreement to arbitrate applies.
(ii) Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This agreement to arbitrate does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
(iii) The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms.
(iv) Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
(e) Class Action Waiver. Both you and your affiliates, on one hand, and Qwil and its affiliates on the other hand, agree that any claims or controversies between the parties must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand nor Qwil and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless both parties agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Qwil customers, and cannot be used to decide other disputes with other customers. If a court decides that this class action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of the Terms will still apply.
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