Website Terms of Use

Last Updated:  April 13th, 2020

Acceptance of the Terms of Use.

These Terms of Use are entered into by and between you (“you” or “your”) and Qeep Up, LLC and its affiliated subsidiaries and related entities (collectively, “Company,” “we”, “our” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms of Use”), govern your access to, use of, and purchase of products from https://www.qeepupnation.com/ (“Website”), any other websites, and social media platforms owned or controlled by us, along with any content, functionality, products, and services offered through us (each a “Property,” collectively “Properties”). You and Company may each also be referred to as a “Party”, and collectively as the “Parties.”

Please read these Terms of Use carefully before accessing or using our Properties. By using the Properties, you accept and agree to be bound and abide by these Terms of Use and our Privacy Policy found at https://www.qeepupnation.com/privacy-policy/, incorporated herein by reference (“Privacy Policy”), and to comply with all applicable laws and regulations.

 

BY ACCESSING OR USING THE PROPERTIES, YOU AGREE TO THESE TERMS OF USE; IF YOU DO NOT AGREE, DO NOT ACCESS OR OTHERWISE USE THE PROPERTIES.

 

All rights not expressly granted to users in these Terms of Use are hereby reserved by Company.

Please note that our website is hosted by WPEngine, Inc. (“WP Engine”), a digital website hosting platform, and our e-commerce store is hosted by Woo Commerce (“Woo”), an e-commerce platform that allows us to sell our products to you. Our shipping partner is Easyship Inc (“Easyship”). We recommend reviewing such third parties’ Terms of Use and Privacy Policy.

The Properties are offered and available to users who are at least 13 years of age or older. By using these Properties, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Properties. Users younger than 18 years old shall only access and use the Properties upon specific and verifiable authorization from at least one of the parents or a legal guardian. We reserve the right to request proof of age of any user, at any time, to confirm if access and use are in compliance with these Terms of Use, as well as to cancel any noncompliant accounts.

Changes to Terms of Use.

Company reserves the right to amend or update these Terms of Use at any time with or without notice to you, and may also add new features or functionality to, or change or remove existing features or functionality from, the Properties that will be subject to the Terms of Use. Any user who continues to use the Property after any changes are made will be deemed to have agreed to those changes.

Arbitration Notice.

AS FURTHER SET FORTH HEREIN, YOU AGREE THAT DISPUTES BETWEEN YOU AND COMPANY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO RESOLVE ANY DISPUTES IN COURT (INCLUDING TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION).

Basic Terms and Rules of Conduct.

Any unauthorized use of the Properties is expressly prohibited. For the avoidance of doubt, you hereby agree to the following:

  1. You are responsible for making all arrangements necessary for you to have access to the Properties and ensuring that all persons who access the Properties through your internet connection are aware of these Terms of Use and comply with them.
  2. To access any Property or some of the resources it offers, such as to make a purchase, you may be asked to provide certain registration details or other information, including Personal Information (as defined in the Privacy Policy). It is a condition of your use of the Properties that all the information you provide on the Properties is correct, current, and complete. You agree that all information you provide to register with the Properties or otherwise, including but not limited to through the use of any interactive features on the Website, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
  1. Unless otherwise noted, the Properties as a whole or in part, and all materials that are part of the Properties, including without limitation, the Company name, trademarks, designs, logos, and products made available (collectively, “Company Content”) are copyrights, trademarks, trade dress or other intellectual properties owned, controlled, or licensed by Company or its subsidiaries and affiliates. You may only use Company Content and the Properties for your personal, noncommercial use; any other use of the Company Content or Properties without Company’s express written consent in each instance is strictly prohibited. No right, title, or interest in any Company Content is granted or transferred to you as a result of your access or use. Unless otherwise noted herein, you may not reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell, or participate in any sale of, or exploit in any way, any of the Company Content or Properties. Unauthorized use of the Company Content is expressly prohibited by law, and may result in severe civil and criminal penalties.
  2. We welcome your comments and feedback regarding our Properties, products, and services. We do not, however, accept confidential or proprietary information. Thus, all comments, feedback, ideas, suggestions, materials, information, and other submissions disclosed, submitted or offered to Company using Properties or otherwise (collectively, “Communications”) are not confidential and will become and remain Company’s property. The disclosure, submission, or offer of any Communications will constitute an assignment to Company of all worldwide rights, titles, and interests, and goodwill in the Communications without payment of any compensation. Additionally, Communications submitted by you must not violate any right of any third party, and must not contain any libelous, abusive, obscene, or otherwise unlawful material. If your Communications violate these Terms of Use, you may bear legal responsibility for such Communications.
  3. You may not use the Properties to participate in any activity that is in violation of any federal, state, or local law including without limitation, all regulatory, administrative and legislative authorities.
  4. You shall not disable, hack, circumvent or otherwise interfere with security related features of the Properties or features that prevent or restrict use or copying of any Company Content or materials.
  5. You shall not destroy, interfere with or disrupt, or attempt to interfere with or disrupt (including scan, probe or test the vulnerability of), any web pages available on the Properties, servers or networks connected to the Properties or the technical delivery systems of Company’s providers or break any requirements, procedures, policies or regulations of networks connected to the Properties.
  1. You are responsible for any activity that occurs in the real world and through your account. If available, Company prohibits the creation of and you agree that you will not create an account for anyone other than yourself. You also represent that all information you provide(d) to or were provided by the Company upon registration and at all other times will be true, accurate, current, complete, and confidential, and you agree to update your information as necessary to maintain its truth, accuracy, and confidentiality.
  2. You agree that you will not solicit, collect or use the login credentials or other confidential information of other users of the Properties (each and collectively, “Third Party Users”).
  3. You are responsible for keeping your password secret and secure.
  4. You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and you must not post private or confidential information via the Properties, including, without limitation, your or any other person’s credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses.
  5. You may not use the Properties for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Properties and your Communications, including but not limited to, copyright laws.
  6. You must not change, modify, adapt or alter the Properties or change, modify or alter another website so as to falsely imply that it is associated with the Properties or Company.
  7. You must not create or submit unwanted email, comments or other forms of commercial or harassing communications (a/k/a “spam”) to any Third Party Users.
  8. You must not interfere or disrupt the Properties or servers or networks connected to the Properties, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any of the Properties are or Company Content is rendered or displayed in a Third Party User’s browser or device.
  9. If available, you must not create accounts with the Properties through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper.
  10. You must not attempt to restrict any Third Party User from using or enjoying the Properties and you must not encourage or facilitate violations of these Terms of Use or any other Company terms.
  11. You must not infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity.
  12. You understand and agree that you use the Properties at your own risk. If you violate the letter or spirit of these Terms of Use, or otherwise create risk or possible legal exposure for Company as Company may determine in its sole discretion, we can stop providing all or part of the Properties to you.

General Conditions.

  1. We reserve the right to modify or terminate the Properties or your access to the Properties for any reason, without notice, at any time, and without liability to you. You can deactivate your account using your account’s settings. If your account is deactivated, all Communications and other purchase data may no longer be accessible through your account.
  2. Upon termination, unless subject to specific software or other Property licenses, all licenses and other rights granted to you in these Terms of Use will immediately cease.
  3. We are not responsible if information made available on the Properties is not accurate, complete or current. The material on the Properties is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
  4. The Properties may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of the Properties at any time, but we have no obligation to update any information on the Properties. You agree that it is your responsibility to monitor changes to our site.  We reserve the right to refuse access to the Properties to anyone for any reason at any time.

Linked Sites and Third Party Websites.

You acknowledge and agree that we have no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through Linked Sites (as defined in the Privacy Policy). Links to Linked Sites do not constitute an endorsement or sponsorship by us of such websites or the information, content, products, services, code or other materials presented on or through such websites. The inclusion of any link to such Linked Sites on our Properties does not imply our endorsement or recommendation of that site and we do not represent or warrant that the contents of any third party website is accurate, compliant with state or federal law, or compliant with copyright or other intellectual property laws. Any access to or reliance on the contents of a third party website is done at your own risk.

Territorial Restrictions.

The information provided within or in connection with the Properties is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Company to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Properties or any portion of the Properties, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, Property or other feature that Company provides.

These Terms of Use were written in English (US). To the extent any translated version of these Terms of Use conflicts with the English version, the English version controls.

Merchandise Availability.

Merchandise availability on our Website or via the Properties is not guaranteed as it may be low or out of stock. If merchandise is not available by the time your order processes, we will notify you of this via email. You can always verify availability by emailing our Customer Service team at customercare@qeepupnation.com.

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. Products shall be purchased for personal use only.

Product Information.

The prices displayed on the Properties are quoted in U.S. dollars, unless another currency is available and selected by the user. Prices for our products are subject to change without notice. We reserve the right at any time to modify or discontinue the Properties (or any part or content thereof) or any products available thereon without notice at any time. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the products or Properties.

Please note that while we have tried to accurately display the colors of products, the actual colors you see will depend on your monitor, display, or device and may not be accurately portrayed.

Company may elect to sell certain products exclusively online through the Property. These products may have limited quantities and are subject to returns only according to our Shipping and Returns Policy accessible at https://www.qeepupnation.com/shipping-returns/.

We reserve the right, but are not obligated, to limit the sales of our products to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time.

Order Processing and Shipping.

Our shipping and processing fees cover the processing, handling, packing, and delivery of your order. Delivery fees do not include gift wrap or surcharges that may apply to some items.

International orders may be subject to import taxes or customs fees as determined by the destination country. Limits for duty-free packages are established by your local customs authorities; please check your local customs website for more information. Certain international orders may be shipped DDP (Delivery Duty Paid), pre-paid at checkout. Customers are at all times responsible for all customs, taxes, VAT, and duty fees. All such amounts may be calculated by Easyship/Woo at checkout; we are not responsible for calculating or paying the foregoing amounts. International transit times may vary due to delays presented at customs.

As soon as your order is packaged and dispatched, you will also receive an email notification that will include relevant tracking information and an estimated delivery date. Please allow up to 24 hours from when you receive your tracking number for activity to update.

For more information on our shipping, order changes and cancellations, and returns/exchange policies, please find our Shipping and Returns Policy at https://www.qeepupnation.com/shipping-returns/.

Accuracy of Billing and Account Information.

You agree to provide current, complete and accurate purchase and account information for all purchases. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

Shipping and Returns Policy.

Please find our Shipping and Returns Policy (incorporated herein) at https://www.qeepupnation.com/shipping-returns/.

Sales Tax Disclaimer.

Taxes that appear in your online order confirmation are estimated. Because orders may be fulfilled from multiple locations across the U.S., the actual taxes charged to your credit card will be calculated based on the applicable state and local state taxes when your order is shipped. Company strives to comply with state and local tax laws as they currently exist and continues to monitor and update its taxation policies as those laws change.

Pre-Ordering.

From time to time, we may offer certain items for preorder. If you order both preorder and in-stock items in a single order, in-stock items will ship within 1-2 business days. Preorder items will ship separately as soon as they become available for shipment. You will be charged for each item (plus applicable tax and shipping and handling fees) at the time the item ships.

Unfortunately, promo codes are not applicable to preorder items. You may still use a promo code on an order that includes a preorder item, although it will only be applied to in-stock items. If you would like to cancel your preorder item, please contact Customer Care at customercare@qeepupnation.com. If the item has not yet shipped out, we will accommodate your request.

Rights.

By publicly posting information and materials relating to Company, its products or services on any social media site, website, or blog (e.g., Instagram, Facebook, Twitter, etc.) and tagging any Property, you hereby grant Company the worldwide, royalty free, irrevocable right and license to reproduce, display, distribute, re-post, re-share, or otherwise exploit such materials and information and your name, image, likeness, and any intellectual property controlled by you and all associated moral rights and goodwill, in whole or in part, on or through the Properties without further consent or compensation. Without limitation, such right and license includes Company’s right, though not obligation, to grant you attribution (e.g., tagging your profile, photo and/or video credit, etc.) via such Properties. Once posted, shared or otherwise distributed, Company shall have no obligation to remove such posts from its archival feed and you shall waive all claims related thereto.

No Special Relationship.

Except as otherwise described in the Privacy Policy, as between you and Company, you acknowledge and agree that your relationship with Company is not a confidential, fiduciary, or other type of special relationship.

Disclaimer of Warranties.

THE PROPERTIES, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, COMPANY CONTENT (INCLUDING COMMUNICATIONS), FUNCTIONS, AND ALL OTHER MATERIALS PROVIDED OR DISPLAYED THROUGH THE PROPERTIES IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER COMPANY NOR ITS PARENT COMPANY NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE “COMPANY PARTIES“) MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED,  INCLUDING WITHOUT LIMITATION AS TO INFORMATION, DATA, DATA PROCESSING, UPTIME OR UNINTERRUPTED ACCESS, THE AVAILABILITY, USABILITY, ACCURACY, PRECISION, CORRECTNESS, COMPLETENESS, OR USEFULNESS, AND SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO COMPANY OR VIA THE PROPERTIES. THE COMPANY PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE FOREGOING WARRANTIES AS WELL AS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.

THE COMPANY PARTIES DO NOT REPRESENT OR WARRANT THAT THE PROPERTIES WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PROPERTY OR THE SERVER THAT MAKES THE PROPERTY AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE COMPANY PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE PROPERTIES IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE PROPERTIES IS AT YOUR SOLE RISK. THE COMPANY PARTIES DO NOT WARRANT THAT YOUR USE OF THE PROPERTIES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE COMPANY PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS OF USE.

BY ACCESSING OR USING THE PROPERTY YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE PROPERTY.

THE COMPANY PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.

Limitation of Liability; Waiver.

UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE PROPERTIES; (B) THE COMPANY CONTENT (INCLUDING COMMUNICATIONS); (C) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE PROPERTIES; (D) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE COMPANY PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE PROPERTIES; (E) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (F) ANY ERRORS OR OMISSIONS IN THE PROPERTIES’ OPERATION; OR (G) ANY DAMAGE TO ANY USER’S OR THIRD PARTY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE PROPERTY). IN NO EVENT WILL THE COMPANY PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT SOME OF THE EVENTS, ACTIVITIES OR ACTIONS TAKEN BY YOU WHETHER IN CONNECTION WITH THE PROPERTY OR OTHERWISE CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED THEREWITH EVEN IF CAUSED IN WHOLE OR IN PART BY THE ACTION OR INACTION OR NEGLIGENCE OF COMPANY OR BY THE ACTION, IN ACTION OR NEGLIGENCE OF OTHERS. YOU EXPRESSLY AGREE THAT COMPANY DOES NOT ASSUME RESPONSIBILITY FOR THE SUPERVISION, PREPARATION, OR CONDUCT OF ANY ACTIVITY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE COMPANY PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00).

YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF COMPANY’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE COMPANY PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, OR OTHER CONTENT OWNED OR CONTROLLED BY THE COMPANY PARTIES.

BY ACCESSING THE PROPERTIES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

COMPANY IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.

Indemnification.

You (and any third party for whom you operate an account or activity on the Properties) agree to defend (at Company’s request), indemnify and hold the Company Parties harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities in connection with the Properties or those conducted on your behalf): (i) your Communications or your access to or use of the Properties; (ii) your breach or alleged breach of these Terms of Use; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by Company in the defense of any claim. Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Company.

Dispute Resolution.

Unless expressly noted in these Terms of Use, our Customer Service specialists are ready to assist you and address your concerns via email at customercare@qeepupnation.com. When contacting us, we ask that you include your name, address, phone number and email address, and a description of your problem or concern and any specific relief you seek. Customer service inquiries are typically returned within 2 business days.

In the event that our customer service team is unable to resolve your concern, by using the Properties, you unconditionally agree that any and all Disputes (as defined below) between you and Company (whether or not such Dispute involves a third party) with regard to your relationship with Company, including without limitation Disputes related to these Terms of Use, your use of the Properties, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the Federal Arbitration Act (Title 9 of the United States Code), which shall govern the interpretation and enforcement of this arbitration agreement (“Arbitration Agreement”).  Arbitration shall be before either (1) JAMS (formerly known as Judicial Arbitration and Mediation Services), www.jamsadr.com, or (2) the American Arbitration Association (“AAA”), www.adr.org.  If you initiate arbitration, you shall have the choice as between these two arbitration forums; if Company initiates arbitration, it shall have the choice as between these two arbitration forums.

WE EACH AGREE THAT, EXCEPT AS PROVIDED IN THE DEFINITION OF DISPUTES BELOW, ANY AND ALL DISPUTES WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, INCLUDING ALL ISSUES RELATING TO THE ENFORCEABILITY, INTERPRETATION, SCOPE, AND APPLICATION OF THIS ARBITRATION AGREEMENT (SUCH AS “GATEWAY” ISSUES OF ARBITRABILITY, WHETHER THE ARBITRATION AGREEMENT IS UNCONSCIONABLE OR ILLUSORY AND ANY DEFENSE TO ARBITRATION) WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT BY A JUDGE OR JURY, IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.

Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Use.

Class Action Waiver.

By using the Properties, you agree that the arbitration of any Dispute shall be conducted on an individual, not a class-wide basis, and that no such arbitration proceedings may be consolidated with any other arbitration or other legal proceedings involving Company or any other person.  You may bring claims only on your own behalf. You further agree that you, and anyone asserting a claim through you, will not participate in a class action, be a class representative, or otherwise participate in a class, representative, or consolidated proceeding against Company or class-wide arbitration for any claims covered by these Terms of Use. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Company is a party to the proceeding.

If the foregoing class action waiver (“Class Action Waiver”) or any portion thereof is found to be invalid, illegal, unenforceable, unconscionable, void or voidable, then the Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court.  Any claim that all or part of the Class Action Waiver is invalid, illegal, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.

Definition of Dispute.

Except as described below, the term “Dispute” in this Arbitration Agreement and Class Action Waiver means any dispute, claim, or controversy between you and Company regarding any aspect of your relationship with Company, whether based in contract, statute, regulation, ordinance, tort (including without limitation fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal, statutory or equitable theory, whether related to the access to and use of the Properties or otherwise, and includes the validity, enforceability or scope of these Terms of Use, except for the scope, enforceability and interpretation of the Arbitration Agreement and Class Action Waiver.

However, “Disputes” SHALL NOT include claims that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable, or any claim for public injunctive relief, i.e., injunctive relief that has the primary purpose and effect of prohibiting alleged unlawful acts that threaten future injury to the general public. Such claims may be determined only by a court of competent jurisdiction and not by an arbitrator.

How Will the Arbitration Work? 

Either you or Company may initiate arbitration proceedings.  The arbitration will be conducted before a single arbitrator.  The arbitration will be an individual arbitration, and shall in no event be commenced as a representative or class arbitration.

If you or Company initiate arbitration, you and we have a choice of doing so before JAMS or the AAA:

  • For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply.  The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267.
  • Which particular rules apply in AAA arbitration will depend on how much money is at issue.  For less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes/Consumer Arbitration Rules will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply.  The AAA rules are available at www.adr.org or by calling 1-800-778-7879.

If required for the enforceability of the Arbitration Agreement under the Federal Arbitration Act, Company will pay all arbitrator’s costs and expenses.  If not, those costs will be paid as specified in the above-referenced rules.

Where Will the Arbitration Be Held?

The parties agree to bring the arbitration in California in the County of Los Angeles.  As set forth in “Governing Law & Venue” section below, the arbitrator will apply California law.

Time Limitation on Claims.

You agree that any claim you may have arising out of or related to your relationship with Company must be filed within 1 year after such claim arose; otherwise, your claim is permanently barred. This provision expressly survives the termination of your relationship with Company.

Governing Law & Venue.

The law applicable to the interpretation and construction of these Terms of Use and any transaction (including purchases made via the Properties) using or relating to the Properties, shall be the Federal Arbitration Act, applicable federal laws, and the laws of the state of California, USA, without regard to principles of conflict of laws, but subject to the Federal Arbitration Act and other federal law relating to the arbitrability of claims. You agree that all matters relating to your access to or use of the Property, including all disputes, will be governed by the laws of the United States and by the laws of the State of California AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.

General Terms.

Severability.

 

If any provision of these Terms of Use is held to be unlawful, void, or for any reason unenforceable during arbitration or by a court of competent jurisdiction, then that provision will be deemed severable from these Terms of Use and will not affect the validity and enforceability of any remaining provisions. Company’s failure to insist upon or enforce strict performance of any provision of these Terms of Use will not be construed as a waiver of any provision or right. No waiver of any of these Terms of Use will be deemed a further or continuing waiver of such term or condition or any other term or condition.

 

Entire Agreement.

If you are using the Properties on behalf of a legal entity, you represent that you are authorized to enter into an agreement on behalf of that legal entity. These Terms of Use constitute the entire agreement between you and Company and governs your use of the Property, superseding any prior agreements between you and Company. You will not assign the Terms of Use or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Company. Any purported assignment or delegation by you without the appropriate prior written consent of Company will be null and void. Company may assign these Terms of Use or any rights hereunder without your consent. Neither the course of conduct between the Parties nor trade practice will act to modify the Terms of Use. These Terms of Use do not confer any third-party beneficiary rights.