These Terms of Service and End User License Agreement are a legally binding agreement between KwikPick Inc., which owns and operates the KwikPick website, mobile application, and technology, and any user who visits or uses that website, mobile application, or technology, including any third party on whose behalf or for whose benefit such user was acting in doing so. If you do not agree to all of the terms and conditions, you should not visit or use the KwikPick website, mobile application, and technology.
Kwikpick Inc. (“Kwikpick," “we," “us," “our", “it(s)”) provides its services (described below) to Customers (“Customer(s)”, “you”) through its website located at https://www.kwikpick.app (the “Site“) and through its mobile applications and related technology and services (collectively, such services, including any new features and applications, the Site (Kwikpick’s website and domain), the “Service(s)“), subject to the following Terms of Service (as amended from time to time, the “Terms of Service").
These Terms of Service form a legally binding agreement (“the Agreement") between you and Kwikpick, its parents, subsidiaries, representatives, affiliates, officers and directors governing your use of the Service. We reserve the right, at our sole discretion, to modify portions of these Terms of Service at any time. If we do so, we will attempt to notify you of the changes on our website and will indicate on these pages the date these terms were last revised. However, your continued use of the Services after the date on which any such changes become effective constitutes your acceptance of the modified Terms of Service. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable). If you do not agree to abide by these or any future Terms of Service, do not use or access (or continue to use or access) the Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST KWIKPICK ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW. BY ACKNOWLEDGING THE TERMS OF SERVICE AND/OR USING THE KWIKPICK SITE, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT AND YOU ACCEPT ALL OF ITS TERMS.
ADDITIONAL TERMS AND POLICIES MAY APPLY
The Service is a technology platform enabling an online marketplace through which (1) personal chefs, caterers and other individuals who wish to list, offer, sell and deliver any item that they are lawfully allowed to sell to the general public directly from their home—including food items and meal orders (“Items”, “Meal(s)“)—and (2) customers who browse and purchase Items/Meals, may connect and transact business with one another. Users who purchase Items/Meals through the Service are “Customer(s)," and users who list, prepare and sell Items/Meals through the Service are “Seller(s)." A user may be both a Customer and Seller. All purchases are made directly (and any contract for purchase and sale is) between the Customer and Seller. We profit solely through fees earned when such transactions occur on through the KwikPick Services.
In other words, Kwikpick offers a marketplace only. It is itself neither a Seller nor a Customer because it does not prepare, package, or sell any Meals or other Items. KwikPick is not a party to any purchase or sales transaction.
To encourage ongoing use of the Service, Kwikpick may from time to time help facilitate the resolution of disputes between Customers and Sellers, but Kwikpick has no control over and does not guarantee (a) the existence, quality, safety, provenance of ingredients, authenticity, or legality of Items/Meals offered or sold on the Service; (b) the truth or accuracy of a Seller’s advertisements, content, or listings, including without limitation on the Service; (c) the ability of a Seller to sell Items/Meals through the Service and deliver Items/Meals within required delivery windows; (d) the ability of Customers to pay for Items/Meals purchased through the Service; or (e) that a Customer or Seller will actually complete a transaction, effectuate trouble-free delivery and shipping, or return a Item/Meal through the Service.
By using the Service, Sellers represent that they are independent business owners and not employees, partners, representatives, agents, joint venturers, independent contractors or franchisees of Kwikpick. Kwikpick does not cook, package or deliver items/food and does not employ people to cook, package or deliver items/food.
Each Seller is solely responsible for complying with all applicable laws, rules and regulations and standards, including but not limited to those pertaining to the preparation, sale, marketing, and packaging of all Items/Meals ordered through Kwikpick, and updating details and prices relating to the Items/Meals offered. Each Seller is solely liable for the quality, safety, and freshness of its products, and Kwikpick does not verify the credentials, representations, products, services or prices offered by any Sellers, and does not guarantee the quality or safety of the product or services, or that Sellers or Items/Meals comply with applicable laws. Kwikpick will not be liable or responsible for any Items/Meals provided by Sellers that are a cause of injury or that do not meet a Customer’s expectations in any manner.
Depending on the jurisdiction, Kwikpick may enter into agreements with independent contractors (each a “Courier") to provide delivery services under certain circumstances. If a Seller or Customer chooses to use a Courier to deliver an Item/Meal, Kwikpick is not offering such delivery services directly and will have no responsibility or liability for the actions or inactions of any Courier. Kwikpick will not be liable or responsible for any delivery services provided by a Courier or any errors or misrepresentations made by them. Couriers will be required to comply with all applicable laws, rules and regulations, but Kwikpick will not supervise, or employ, them directly.
You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Kwikpick of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Kwikpick will not be liable for any loss or damage arising from your failure to comply with this Section.
Kwikpick reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Kwikpick shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
Kwikpick may establish general practices and limits concerning use of the Service. You agree that Kwikpick has no responsibility or liability for the deletion or failure to store any data or other content maintained or transmitted by the Service. You acknowledge that Kwikpick reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Kwikpick reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
The Service may include certain services that are available via a mobile device (e.g., an app), including (i) the ability to upload content (including Meal options or Seller or Customer information) to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services"). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
By using the Mobile Services, you agree that we may communicate with you regarding Kwikpick and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Kwikpick account information to ensure that your messages are not sent to the person that acquires your old number. You acknowledge and agree that your use of the Service must be in accordance with the usage rules established by your mobile device platform or service provider.
By registering for and using Kwikpick and providing your contact information, you are consenting to be contacted by Kwikpick or any of its business partners by telephone, text message (which may be automated), email, fax, telephone or any means, even if you have opted in to the National Do Not Call List, any state equivalent Do Not Call List or the internal Do Not Call List of any company. In the event you no longer want to receive communications from Kwikpick or its business partners, you agree to notify Kwikpick or its business partner directly. You opt-out of various contact methods by emailing firstname.lastname@example.org.
You are solely responsible for all descriptions, pictures, listings, information, data, text, music, sound, graphics, video, messages or other materials (“content") that you upload, post, publish or display (hereinafter, “upload") or email or otherwise use via the Service. Below are examples of the kind of content and/or use of the Service that is illegal or prohibited by Kwikpick. Kwikpick reserves the right to investigate and take appropriate legal action against anyone who, in Kwikpick’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
a) sell, post or otherwise transmit any content or information relating to an Item/Meal offering or any other content that (i) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another‘s privacy, hateful racially, ethnically or otherwise objectionable; (ii) you do not have a right to sell or transmit under any law or under contractual or fiduciary relationships; (iii) poses or creates a privacy or security risk to any person; (iv) infringes any intellectual property or other proprietary rights of any party; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail," “spam," “contests," “sweepstakes," or any other form of solicitation; (vi) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (vii) in the sole judgment of Kwikpick, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Kwikpick or its users to any harm or liability of any type; b) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; c) solicit personal information from anyone under the age of 18; d) harvest or collect email addresses or other contact information of other users from the Service or the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications; e) advertise or offer to sell or buy any goods or services other than Meals intended to be prepared, sold and purchased through the Service; f) use the Service to request, make or accept a Meal independent of the Service, to circumvent any fees that would otherwise apply to such transaction; g) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; h) violate any applicable local, state, national or international law, or any regulations having the force of law; i) engage in any activities that violate the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. and its regulations at 47 C.F.R. § 64.1200; the Do-Not-Call Implementation Act, 15 U.S.C. § 6101 et seq.; or any similar anti-spam, data protection, or privacy legislation in any jurisdiction; j) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or k) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
By registering an account with, or otherwise using, the Services, you represent and warrant that:
Sellers additionally represent and warrant that:
In addition to the foregoing conduct restrictions, to the extent you are a Seller, you represent and warrant that your use of the Services to market, advertise and sell Items/Meals does not violate any applicable law or regulation
For any particular Meal and related content posted using the Service, a Seller shall provide a comprehensive list of ingredients contained in or otherwise used to prepare the Meal, including any known allergens.
Kwikpick is not responsible for the accuracy of the information and labeling of Meals delivered to Customer. Customers should be advised that Meals may be prepared in facilities using the same equipment that is used to prepare Meals containing other allergens even if the allergen is marked as being absent from the food. Kwikpick shall not be liable for any illness, health problem, or other damages that may result from any order or consumption of any Meals and related items purchased through the Service.
Kwikpick does not maintain insurance for liabilities that may arise from your use of the Service as either a Customer or Seller. If you are a Seller, Kwikpick recommends that you obtain appropriate insurance to cover the operation of your food facility and the preparation and delivery of Meals. Please review any respective insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Customers or any third party service.
To the extent you are a Customer, Kwikpick may allow you to upload content and leave reviews regarding your purchase of Meals. Kwikpick may accept, reject or remove reviews and any associated content in its sole discretion. Kwikpick has absolutely no obligation to screen or to delete reviews or associated content, even if anyone considers reviews objectionable or inaccurate. Those Customers posting reviews must comply with the following criteria: (1) reviewers should have firsthand experience with the person/entity being reviewed; (2) reviews should not contain: offensive language, profanity, or abusive, racist, or hate language; discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation or disability; or references to illegal activity; (3) unless a competitive relationship is clearly and prominently disclosed in all negative reviews, reviewers posting negative reviews should not be affiliated with competitors; (4) reviewers should not make any conclusions as to the legality of conduct; and (5) reviewers may not post any false statements or organize a campaign encouraging others to post reviews, whether positive or negative.
Reviews are not endorsed by Kwikpick, and do not represent the views of Kwikpick or of any affiliate or partner of Kwikpick. Kwikpick does not assume liability for any review or for any claims, liabilities or losses resulting from any review. Any review you post will be considered User Content (as defined below).
Kwikpick is not affiliated with or endorsed by any Seller, restaurant or other meal preparation service made available through the Service. Beyond its capacity as a technology platform, Kwikpick is not a party to or involved in any transaction between Customers and Sellers, and does not act as a Customer, Seller (or affiliate for a Customer or Seller) or broker with respect to any transactions.
There are risks that you assume when dealing with other users (including those who may be acting under false pretenses) and all of these risks are borne by you, and not Kwikpick. We encourage you to use the various functionalities of the Service (e.g., Seller profiles, meal options, and user reviews), as well as your own judgment and common sense, to help evaluate the user with whom you are dealing.
Sellers are independent businesses and independent contractors; neither they nor any of their personnel or owners are employees, representatives, or agents of Kwikpick.
By using the Services as a Seller, you agree that: (i) you are an independent business owner and not an employee or representative of Kwikpick; (ii) you shall be solely responsible for determining the means and manner of the work performed to create the goods you sell through the Marketplace; (iii) these Terms of Service do not create an association, joint venture, partnership, franchise, or employer/employee relationship between you and Kwikpick, or you and a Customer; (iv) you will not represent yourself as an employee or agent of Kwikpick to any Customer; (v) you will not be entitled to any of the benefits that Kwikpick may make available to its employees, such as vacation pay, sick leave, and insurance programs, including group health insurance or retirement benefits; and (vi) you are not eligible to recover contributor’s compensation benefits in the event of injury. As a Seller, you will not engage a Customer in any way that may jeopardize your status as an independent business.
Kwikpick does not control the behavior of users of the Service or the information or User Content (defined below) provided by other users. As a result, Kwikpick does not guarantee or endorse the legality, authenticity, quality, or safety of any Meals offered or sold, the truth or accuracy of any listings, or the ability of Sellers to sell Meals or of Customers to buy Meals. We cannot assure that all transactions will be completed. Additionally, Kwikpick does not guarantee the ability or intent of users to fulfill their obligations in any transactions. Kwikpick reserves the right to delay the completion of any transaction for a reasonable period of time for purposes of fraud detection, to protect Kwikpick and its users from illegal or wrongful activities or other violations of these Terms of Services, or otherwise as required by law.
Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service or technology enabling it, use of the Service or technology enabling it, or access to the Service or the technology enabling it.
Registering for the Service is free; however, Kwikpick charges certain fees for various transactions effected through the Service, as set forth in the fee policy located at https://kwikpick.app/price (the “Fee Policy“). Unless otherwise stated, all fees are quoted in U.S. dollars.
Meals purchased by and delivered to Customers in locations in the U.S. may be subject to applicable state or local sales or use tax, privilege tax or similar transaction-based taxes required in the food services industry of a particular location (“Taxes"). The amount of Taxes is based on a number of factors, including but not limited to a Customer’s designated delivery address, and/or the location of the Seller.
Customers are responsible for paying to a Seller the applicable purchase price for a purchased Meal, plus any delivery costs, as well as applicable Taxes associated with the purchase and sale of any Meals through the Service. Delivery costs and Taxes attributable to the sale of any Meals are not included in the listed price for any Meals listed by Sellers through the Service but will be displayed to Customers before confirmation of any purchase.
Sellers are responsible for paying Kwikpick’s commission set forth in the Fee Policy as well as their own taxes imposed or measured by such Seller’s net income, net profits, income, profits, and/or revenues associated with the sale of any Meals through the Service.
Sellers may be able to choose to purchase packaging materials and/or labels from us for the delivery of Meals prepared for Customers. If purchased, we may charge your credit card or other acceptable payment method you provide.
Customers may pay for Items using credit cards or other payment methods as determined by Kwikpick from time to time. Sellers will be required to provide bank account information to us so that we may facilitate transfer of payments received from Customers purchasing Meals. If you submit your payment information through the Service, then you authorize Kwikpick to store that payment information and charge your payment method for any Item you purchase. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
If you purchase Meals on a recurring or subscription basis, you hereby authorize Kwikpick to bill your payment instrument in advance on a periodic basis in accordance with the terms of any particular subscription order until you terminate or pause such order or terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Kwikpick know within fourteen (14) days after the date that Kwikpick charges you.
We reserve the right to change or discontinue, temporarily or permanently, some or all of the fees for the Service. Any change will be effective upon posting of a revised Fee Policy unless a different notice period is required by law. Your continued use of the Service after the fee change becomes effective constitutes your agreement to pay the changed amount.
From time to time, Kwikpick may offer Users certain promotions, incentives, or credits (“Promotions“) that may be used in connection with the purchase of Meals and/or fees associated with use of the platform, and Users may use such Promotions in accordance with their terms. Depending on the specific Promotion at issue, its use may reduce the amount of taxes that apply to a Customer’s order. The application of the Promotion will be reflected at the time of checkout and on the receipt of purchase.
Promotions are personal to the User that they are sent to and may not be shared or redeemed with anyone else unless it is explicitly permitted by the terms of that Promotion. Sellers may also offer Promotions to their customers through the platform and are solely responsible for any costs associated with redemption of that Promotion.
In some locations, the sale and delivery of alcohol may be permitted through the Service. In such jurisdictions, the Seller must hold a valid liquor license that permits the sale of cocktails for delivery and it is the responsibility of such Seller and any delivery provider they use to verify identification and age, and to determine whether it is otherwise safe and appropriate to furnish their Customers with alcohol. They may require a valid form of photo identification with birth date and a signed acknowledgment confirming acceptance at the time of pick-up or delivery. If they cannot verify a Customer’s age or identity, if a Customer appears intoxicated, or if the situation is otherwise unsafe or inappropriate (for example, the Customer is clearly an adult but appears willing to provide alcohol to minors), they may refuse to furnish the Customer with alcohol. Alcohol cannot be left unattended (contactless delivery is not available for alcohol orders) — someone 21 or older must be present to accept and sign for it. If a Kwikpick is unable to deliver your product for this or a similar reason, the Kwikpick may still charge you for the order. If we believe that your order is fraudulent or unlawful, we may suspend your use of the Platform.
Kwikpick offers Software applications that may be made available through the Apple App Store, Android Marketplace or other distribution channels (“Distribution Channels“). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms of Service are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third party products and services.
With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software"), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Kwikpick and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
You acknowledge and agree that the Service may contain content or features (“IP“) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Kwikpick, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the IP, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Kwikpick from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the IP other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith (the “Software“) are the property of Kwikpick, our affiliates and our partners. You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any IP, source code, sell, assign, sub license, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Kwikpick.
The Kwikpick name and logos are trademarks and service marks of Kwikpick (collectively the “Kwikpick Trademarks“). Other Kwikpick, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Kwikpick. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Kwikpick Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Kwikpick Trademarks will inure to our exclusive benefit.
Under no circumstances will Kwikpick be liable in any way for any content or materials of any third parties (including Users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. By using the Services, you acknowledge and accept the risk that Kwikpick does not pre-screen content, and that Kwikpick and its designees have the right (but not the obligation), in their sole discretion, to refuse or remove any content that is available via the Service. Without limiting the foregoing, Kwikpick and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Kwikpick, in its sole discretion, to be otherwise improper, dangerous, or otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content“), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content, you hereby grant and will grant Kwikpick and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“UserSubmissions“), provided by you to Kwikpick are non-confidential and non-proprietary, and Kwikpick will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Kwikpick may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Kwikpick, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Kwikpick respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Kwikpick of your infringement claim in accordance with the procedure set forth below.
Kwikpick will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA") and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Kwikpick’s Copyright Agent at email@example.com (Subject line: “DMCA Takedown Request“). You may also contact us by mail at:
42420 Village Center Plz, Suite 120-159, Stone Ridge, VA, 20105, US
To be effective, the notification must be in writing and contain the following information:
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
In accordance with the DMCA and other applicable law, Kwikpick has adopted a policy of terminating, in appropriate circumstances and at Kwikpick’s sole discretion, users who are deemed to be repeat infringers. Kwikpick may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
The Service may provide, or Users or other third parties may provide, links or other access to other sites and resources on the Internet. Kwikpick has no control over such sites and resources and Kwikpick is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Kwikpick will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found before, while, or after using the Service are between you and the third party, and you agree that Kwikpick is not liable for any loss or claim that you may have against any such third party.
In addition, Kwikpick is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with third party services. As such, Kwikpick is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third party service. Kwikpick enables these features merely as a convenience and the inclusion of such features does not imply an endorsement or recommendation.
By using the Service, you agree to release, indemnify, and hold harmless Kwikpick and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees“) from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another.
Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS" AND “AS AVAILABLE" BASIS. KWIKPICK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
KWIKPICK MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT KWIKPICK WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF KWIKPICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL KWIKPICK’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID KWIKPICK IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES" AND “LIMITATION OF LIABILITY" ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS IN THE EVENT A DISPUTE ARISES INVOLVING YOUR USE OF THE SERVICES
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement." You agree that any and all disputes or claims that have arisen or may arise between you and Kwikpick, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Kwikpick are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
For Sellers, or Seller registrants, you may opt out of the requirement to arbitrate if you have not previously agreed to an arbitration provision in Kwikpick’s Terms of Service where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this version of the arbitration agreement in the manner specified below, but opting out of this arbitration agreement has no effect on any previous, other, or future arbitration agreements that you may have with Kwikpick. Except as specified in this arbitration agreement, if you are a Seller, you may opt out of the Arbitration Agreement by notifying Kwikpick in writing within 30 days of your agreement to these Terms of Service. To opt out, you must send a signed written notification to 42020 Village Center Plaza, Suite 120-159, Stone Ridge, VA 20105 Attention: Legal, 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 wish to opt out of the Arbitration Agreement. b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND KWIKPICK AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND KWIKPICK AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Kwikpick is always interested in resolving disputes amicably and efficiently, and most customer concerns be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice"). The Notice to Kwikpick should be sent to 42020 Village Center Plaza, Suite 120-159, Stone Ridge, VA 20105. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Kwikpick and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Kwikpick may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Kwikpick or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Kwikpick is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA") rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules"), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator award the same damages and relief on an individual basis that a court award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Kwikpick and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Kwikpick agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees") will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Kwikpick will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Kwikpick will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Kwikpick will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief" above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief" are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
Notwithstanding any provision in this Terms of Service to the contrary, Kwikpick agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Kwikpick written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that Kwikpick, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for breach of the Terms of Service, for lack of use or if Kwikpick believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Kwikpick may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be affected without prior notice, and acknowledge and agree that Kwikpick may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Kwikpick will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and Kwikpick will have no liability or responsibility with respect thereto. Kwikpick reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and Kwikpick and govern your use of the Service, superseding any prior agreements between you and Kwikpick with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the Commonwealth of Virginia without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Kwikpick agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Loudoun County, Virginia. The failure of Kwikpick to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Kwikpick, but Kwikpick may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact Kwikpick, Inc. in writing at 42020 Village Center Plaza, Suite 120-159, Stone Ridge, VA 20105, or by telephone at (703) 662-5600.
Please contact us at email@example.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.
Date of Last Revision: December8, 2021