US Terms and Conditions

v.1.1

Effective Date: 16th May 2019

Last Revised Date:  16th May 2019


Please review these Terms of Service ("Terms") carefully, including the binding arbitration clause and class action waiver in section 10.6 below in which you agree to give up your rights to go to court. Your acceptance of these Terms is required in order for you to access and use the Cubitts Services (as defined below). By registering with us, purchasing any goods or services from us, or by using the Cubitts Services in whole or in part (whether as a shopper, browser/viewer, vendor, user, customer, merchant, and/ or contributor of content), you are entering into a legally binding agreement with us. If you do not agree to these Terms, you cannot use the Cubitts Services. We reserve the right at our discretion to propose modifications to these Terms periodically. We will notify you of such changes via an email sent to the email address we have on file for you or via other notification mechanisms. Your continued use of and access to the Cubitts Services, or your purchase of any goods or services from us, after such notification, indicates your acceptance of and agreement to the modified Terms.


You represent that you are over 16 years of age, not registered blind nor partially sighted, and have had your eyes tested by a suitably qualified optician within the last two years (12 months if you are aged 70 or over) and are in possession of the associated written prescription from which you have submitted details accurately to us.


1. DEFINED TERMS


"Access Information": user name, password, and other log-in information for access to the Cubitts Services or to conduct transactions.


"Content": text, images, graphics, photos, video, audio, and any other content, information or data (including transaction data), created, derived from or accessible via use of the Cubitts Services. The term "your Content" includes Content you provide to, or originating or derived from your use of, the Cubitts Services and/or Other Applications.


"Cubitts Services": the website features and other products and services made available to you when you visit or shop at be www.cubitts.com/us as such features, products and services may be offered, withdrawn, updated or modified by us in our sole discretion on one or more occasions.


"Other Applications": online or offline software, products, services, platforms, APIs, e-commerce sites, functionality, hardware, networks and Content not developed or provided by us, including any of the foregoing that is owned or licensed by you or other party, or that is processed, made available, or enabled for use and display, via the Cubitts Services.


"Privacy Policy": our privacy policy available at www.cubitts.com/us/privacy, as may be amended on one or more occasions.


"Subject Matter": these Terms, the Privacy Policy, Cubitts Services, Content, Other Applications, and any good, item, product or service made available via any of the foregoing.


"We", "us", "our", the "Company" or “Cubitts”: Cubitts KX Group Ltd., company number 09180837, located at 97 Caledonian Road, London, England, N1 9BT.


"You" or "your": the individual using the Cubitts Services, or clicking "accept" or "agree" or otherwise demonstrating acceptance of the Terms, or purchasing products offered via the Cubitts Services, and thereby becoming bound by these Terms, and the company or other legal entity that has employed, or retained as an agent, such individual, and all affiliates thereto.


2. ACCESS TO CUBITTS SERVICES


2.1 Availability. Subject to your compliance with these Terms, including payment obligations, we will use commercially reasonable efforts to make available the Cubitts Services. You acknowledge that your decision to use the Cubitts Services is not reliant or dependent on the availability of any current or future functionality, products, or features, or on any oral or written public or private comments or representations made by us. You may not use the Cubitts Services if you are barred from doing so under the laws of the United States or other countries including the country in which you are resident or from which you use the Cubitts Services. If you are using the Cubitts Services on behalf of a company, you warrant that you have full power and authority to bind such company to these terms.


2.2 Age of Majority. Cubitts Services are not intended for and should not be used by anyone under the age of 18. If you are under the age of majority in your jurisdiction (most commonly, 18 years of age), you represent that your parent or legal guardian has reviewed and agreed to these terms.


2.3 Privacy Policy; Consent to Emails. You agree and consent to the Privacy Policy and to receive email messages from us, which may be transactional, for account management purposes, or for communications relating to or provided as part of the Cubitts Services, including administrative notices and service announcements or changes.


2.4 Reservation of Rights. We retain all right, title and interest in and to the Cubitts Services and our Content, and all associated intellectual property rights. We grant no licensed rights to our patents. The user interface, user experience, icons, presentation layer and elements, reports, layouts, and screen displays of or generated by the Cubitts Services are our copyrightable content, our trade dress and our trademarks and servicemarks. You will not use, reproduce, distribute, or deploy the Cubitts Services, except for your own personal use or your own business operations, and solely in accordance with these Terms.


3. USE OF THE CUBITTS SERVICES


3.1 Orders. Orders are placed by selecting a frame in accordance with our instructions, entering your prescription details in the form provided and placing an order, which will be processed through our third party payment facilitator. We may require and you agree to provide further required information as and when necessary to your particular order, such as (a) a copy of your written prescription, for prescription products; (b) details of the optician who provided your prescription to verify and/or discuss your prescription; and (c) your pupillary distance measurement from your optician. Alternatively, we may request that you obtain a new written prescription from your optician as a condition of order fulfillment. We may reject orders at our absolute discretion. We may issue invoices in electronic form.  


3.2 Relationship. Any information supplied by us or by any of our employees or agents, whether by telephone, e-mail, letter, facsimile or other form of communication, is for informational purposes or general guidance and does not constitute medical or other professional advice. Health-related information provided through the Cubitts Services is not a substitute for medical advice and it is important that you not make medical decisions without first consulting your personal physician or other healthcare professional. The receipt of any questions or feedback you submit to us does not create a professional relationship.


3.3 Gift Cards; Codes. A Cubitts Gift Card entitles the owner to purchase products up to the nominated value. Once used, the card value will only be valid in that currency. The value on the card can be used for purchases in whole or in part, and on multiple occasions, but cannot be topped up, exchanged or redeemed for cash, or transferred to another Cubitts Gift Card. Cubitts cannot take responsibility for and will not honor discount codes published without permission or on third-party websites. Discount codes may be subject to additional terms and conditions (including an expiry date/time). Codes may not be used in conjunction with other offers and only one code can be used per order. In the event of returning products for a refund (as authorized by these Terms), the amount used from the promotion code will not be refunded.


3.4 No Resale. Products purchased via the Cubitts Services are for your personal or gift use only, and not for business, reseller, or commercial use. 


3.5 Necessary Systems. Access to and ability to effectively use the Cubitts Services is conditioned on your procurement of all necessary system, hardware, software, operating environment, Other Applications, connectivity, and network access. You acknowledge that use of the Cubitts Services requires connection to, and data transfers over, the network and therefore may impact your data usage charges imposed by your wireless operator or other service provider, and may impact usage limitations imposed by Other Applications.


3.6 Feedback. You agree that we may freely use and exploit in perpetuity any feedback, requirements, recommendations, ideas, bug fixes, reviews, ratings, comments, suggestions, or improvements, that you, or any employee or agent thereof, may at any time disclose or submit to us relating to the Cubitts Services for our business purposes, including for product, service or solution sales, support and development, without any obligation or payment to you. 


3.7 Information. You hereby consent to our collection and use of anonymized data (including meta-data, analytical, diagnostic and technical data, and usage statistics) concerning or arising from your use of the Cubitts Services in order to provide the functionality of and improve the Cubitts Services, for product development and marketing purposes, to protect against spam and malware, and for verifying Terms compliance.


3.8 Unauthorized Use  https://www.cubitts.com/us/acceptable-use You will not use the Cubitts Services or participate in any activities via the Cubitts Services in a manner that is likely to be prohibited by law or these Terms or violative of third party rights in any applicable jurisdiction, including intellectual property rights. You represent and warrant that your use of the Cubitts Services will be in full compliance with applicable law and the Cubitts Acceptable Use Policy at . You are solely responsible for the accuracy, quality and legality of the Other Applications. You will not use, or enable or permit the use of the Cubitts Services to store or transmit infringing, libelous, offensive or otherwise unlawful or tortious material or data or in violation of privacy rights, or to transmit malicious code, viruses, time bombs, Trojan horses, or similar mechanisms, scripts, agents, bots or programs. You will not use or access the Cubitts Services: (a) if you are a direct competitor of us or operating on behalf of such a direct competitor; or (b) for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.


3.9 Notifications to You. For purposes of service messages and notices about the Cubitts Services to you, we may place a banner notice across site pages to alert you to certain changes such as modifications to these Terms. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you in relation to your account and these Terms through your account or through other contact information that you have provided to us, including email, mobile number, telephone, or delivery services. 


3.10 Notifications to Us. If you believe that you are entitled or obligated to act contrary to these Terms under any mandatory or applicable law, you agree to provide us with detailed and substantiated explanation of your reasons in writing at least thirty days before you act, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so. To be effective, notices to us must be sent to info@cubitts.co.uk. 


4. ACCESS INFORMATION & CONTENT


4.1 Access Information. You are wholly responsible for maintaining the confidentiality of Access Information and wholly liable for all activities occurring under such Access Information. You will not transfer to any party Access Information, or use access information of another, without our prior written consent. You will immediately notify us of any unauthorized use of Access Information or any other breach of security via email sent to info@cubitts.com. We will not be liable for any loss or damage arising from lost or forgotten Access Information (including associated loss of Content), from failure to comply with this section or from unauthorized use of Access Information.


4.2 Responsibility for Content. Your Content is your sole responsibility and the responsibility of the user from which such Content originated. We will have no responsibility or liability for the deletion or failure to store any Content or user data. We reserve the right to mark as "inactive" and archive accounts that are inactive for an extended period of time. It is your sole responsibility to back up Your Content and end user data. We may preserve and disclose any Content if required to do so by law or judicial or governmental mandate or as reasonably necessary to protect the rights, property or safety of us, users and/or the public. We may terminate Cubitts Services access in response to a violation or suspected violation of these Terms.


4.3 Use of Content. You will bear all risks associated with the use of any Content, including any reliance on the quality, integrity, accuracy, completeness, or usefulness of such Content. We may refuse or delete any Content, including Content of which we become aware that fails to fulfill the purpose of the Cubitts Services, is in breach of these Terms, is otherwise contrary to law, or is otherwise inappropriate in our discretion. We do not guarantee the accuracy, integrity or quality of any Content. Under no circumstances will we be liable in any way for any Content, including, but not limited to, liability for any errors, inaccuracies, or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content. We will have no obligation or liability to maintain, store, or license Content, protect and maintain Content owners' intellectual property rights, or to enforce these Terms. You hereby waive and release any claims you may have against us arising or resulting from use or misuse of Content or your inability to effectively use Content, your failure to comply with these Terms, or for any act, omission, or conduct of any Cubitts Services user.


4.4 Account Data. While we will endeavor to back up data, we have no responsibility or liability for the deletion or failure to store any Content. You acknowledge and agree that we are under no obligation to compile and return to you your Content, including if you elect to deactivate your account, except as we may otherwise agree in writing.


4.5 License to Content. You hereby grant to us the perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, non-exclusive right and license to use, reproduce, distribute, create derivative works of, display and perform your Content solely for the purposes of developing, implementing, maintaining, improving and providing the Cubitts Services.


5. OTHER APPLICATIONS


5.1 Responsibility. You are solely responsible for Other Applications. Under no circumstances will we be liable in any way for Other Applications, including, but not limited to, liability for any errors or omissions in any Other Applications, or for any errors, loss or damage of any kind incurred as a result of the use or unavailability of Other Applications. You hereby waive and release any claims you may have against us arising or resulting from use, misuse, alteration or loss of Other Applications. If the providers of Other Applications cease to make Other Applications available for interoperation with the corresponding features of the Cubitts Services and on reasonable terms or otherwise, we may cease providing Cubitts Services or such features, without entitling you to any refund, credit or other compensation.


5.2 Use of Your Content. We will not be responsible for any disclosure, modification or deletion of your Content resulting from (a) any access or use of such Content by Other Applications or (b) enabling Other Applications to interoperate with the Cubitts Services.


5.3 Other Applications Terms. You may be subject to additional terms and conditions that may apply when you use Other Applications, or affiliate or third party content or services.


6. ORDERS & PAYMENT


6.1 Billing Account. By providing us with a billing account, you represent and warrant that you: (a) are authorized to use the billing account that you provided and that any payment information you provide is true and accurate; and (b) authorize us to charge you using your billing account. You agree to provide current, complete and accurate purchase and account information for all purchases made. 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.


6.2 Orders. Products displayed on the Cubitts Services are subject to availability. A contract of sale is not formed until we have commenced shipment of any products ordered. Your order is considered an offer to purchase one of the products displayed as part of the Cubitts Services at the displayed price, with our acceptance occurring only upon commencement of product delivery. An order acknowledgment email is not an acceptance. Consistent with applicable law, we may refuse service, orders, or sale of products or services to anyone for any or no reason.


6.3 Risk of Loss; Title. Risk of loss for any purchased items pass to you upon our delivery to the carrier for shipment. Title passes upon our receipt of payment in full and upon delivery to you.


6.4 Returns. All products may be returned within thirty days of purchase. During the holiday season, purchases made between November 8th 2019 and December 25th 2019 can be returned up until January 31st 2020. You must notify us of your return in advance via info@cubitts.com. If you were not provided a pre-paid label, you must also provide us with valid tracking number. The product must be returned with all packaging and accessories, in its original condition. We do not take title to returned items until the item arrives at our or our third party's fulfillment center. At our discretion, a refund may be issued without requiring a return. In this situation, we do not take title to the refunded item.


6.5 Item Descriptions. We do not warrant that product descriptions or other content of any Cubitts Services is accurate, complete, reliable, current, or error-free, or that your computer's display of product colors accurately reflect the actual color of the products. If a product offered by us is not as described, your sole remedy is to return it in unused condition for a refund (unless we waive the need to return the item). We may, but are not obligated to, limit the sales of our products or provision of Cubitts Services or Content to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We may limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited. 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. If 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.


6.6 Pricing. Prices are exclusive of fees and charges as described in section 6.7, and any shipping, insurance, delivery and handling charges, and are subject to change without notice. With respect to items sold by us, we cannot confirm the price of an item until you place the order. Some items in our catalog may be mispriced. If the correct price of an item is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation.


6.7 Fees & Taxes. You will bear and be responsible for the payment of all credit card or payment processor fees, and for any taxes, including all sales, use, value-added, import duties, rental receipt, personal property or other taxes and their equivalents which may be levied or assessed in connection with these Terms or provision of the Cubitts Services (excluding only taxes based on our net income). If we are required to pay or collect any such taxes or other charges for which you are responsible under this section, the appropriate amount will be invoiced to and paid by you.


7. CUBITTS SERVICES INTEGRITY


7.1 Prohibited Acts. You are prohibited from breaching or attempting to breach any security features of the Cubitts Services, including, without limitation: (a) accessing content, data, information or materials not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Cubitts Services, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with use of the Cubitts Services by any user, host, or network, including, without limitation, by means of submitting a virus, overloading, flooding, spamming, mail bombing, or crashing; (d) publishing or linking to malicious content intended to damage or disrupt another user’s browser or computer or to compromise a user’s privacy or anonymity; (e) forging any TCP/IP packet header or any part of the header information; (f) accessing or tampering with non-public areas of the Cubitts Services, our computer systems, or the technical delivery systems of us or our providers; (g) publish, post, upload or otherwise transmit any data, material, information or content that contains any viruses, trojan horses, worms, time bombs, corrupted files or programming routines or mechanisms that are intended to damage, interfere with, monitor, intercept or expropriate any systems, data, information or property; (h) accessing or attempting to access the Cubitts Services by any means (automated or otherwise) other than through the currently available, published or enabled interfaces that are provided by us, unless you have been specifically allowed to do so in a separate agreement with us; or (i) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code or other information used by us in providing the Cubitts Services.


7.2 Illicit Access. You will not attempt to gain unauthorized access to other accounts, computer systems or networks connected to any of our servers, through hacking, password mining or any other means. You will not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Cubitts Services, which is for your personal/internal and individualized use only. Without limiting the generality of the foregoing, you will not publish, distribute or transmit to the general public via any medium the Cubitts Services, except through and as otherwise authorized by us, and you will not engage in framing, mirroring, or otherwise reproducing or simulating the appearance or function of the Cubitts Services. You will not remove any copyright, trademark or other proprietary rights notices associated with or visible via use of the Cubitts Services.


8. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY & INDEMNITY


8.1 Disclaimer. TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, we provide the Cubitts Services on an as-is, as-available basis with all faults, and WE DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE CUBITTS SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Specifically, we make no warranty that (a) the Cubitts Services will meet your requirements, goals or needs, (b) Cubitts Services access will be uninterrupted, timely, secure or error-free, or (c) any errors or deficiencies in the Cubitts Services will be corrected. We have no responsibility or liability for the deletion of or failure to store your Content or to ensure that your Content is accurate or complete. It is your sole responsibility to back up and maintain the accuracy and completeness of your Content. Because no online system is perfectly secure or reliable, the internet is an inherently insecure medium, and the reliability and security of hosting services, internet intermediaries, your internet service provider, and other application or service providers cannot be assured, you accept such inherent security risks associated with your use of the Cubitts Services.


8.2 Exclusion. In no event will Cubitts, its affiliates, successors, assigns, and any officers, directors, employees or agents or any of the foregoing, be liable to you for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever resulting or arising from or related to the Subject Matter, or any (a) errors, mistakes, delays, or inaccuracies of or defects in Content, Cubitts Services or Other Applications, (b) damages of any nature whatsoever (including personal injury, property damage or loss, or reliance damages), resulting from your access to and use of, or inability to access and use Cubitts Services, Other Applications, or Content, (c) any unauthorized access to or use of our secure servers and/or any and all personal information and/or financial information stored therein, (d) any termination, interruption or cessation of Cubitts Services, Content or Other Applications, (e) any bugs, viruses, trojan horses, or the like, which may be transmitted to or through Cubitts Services or Other Applications by any third party, and/or (f) any errors or omissions in any Content, Cubitts Services or Other Applications, or for any loss or damage of any kind incurred as a result of your use of Content, Cubitts Services or Other Applications, or any Content, product, item or service posted, emailed, transmitted, or otherwise made available via the Cubitts Services. Liability is so limited and excluded, whether based on warranty, contract, tort, or any other legal theory, and whether or not we are advised of the possibility of such damages. Liability for damages will be so limited and excluded, regardless of the validity or efficacy of any remedy provided herein and even if any remedy fails of its essential purpose. The provisions of this section allocate the risks under these Terms between the parties and each party has relied upon the limitations set forth herein in determining whether to enter into this relationship. The parties have voluntarily agreed to define the parties’ rights, liabilities and obligations respecting the Subject Matter exclusively in contract pursuant to these Terms, and you expressly disclaim that you are owed any duties or are entitled to any remedies not expressly set forth in these Terms. The foregoing limitations and exclusions apply to the maximum extent permitted by applicable law.


8.3 Indemnification. You hereby agree to fully indemnify, defend and hold harmless us, our affiliates, and officers, directors, employees and agents of us and our affiliates, from and against any and all claims, losses, damages, judgments, awards, costs, liabilities, expenses, sanctions, and fees (including our reasonable in-house and external lawyers fees and costs) directly or indirectly caused by or incurred by reason of a third party allegation, lawsuit, claim or proceeding, arising out of or related to (a) your use of Content, Cubitts Services, or Other Applications; (b) breach of these Terms; (c) infringement of intellectual property rights; or (d) your business activities. We may assume the exclusive defense and control of any matter for which you are required to indemnify us at your expense, and you agree to cooperate with our defense of these claims. You will not settle or compromise any such claims without our prior written consent.


8.4 General Release. You further agree that these Terms waive and release any claims that would otherwise be preserved by operation of section 1542 of the California Civil Code, which provides: “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 and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." You understand that you are releasing us from all claims, whether known or unknown to you, and whether or not you suspect that those claims may exist at this time.


9. GENERAL PROVISIONS


9.1 Service Discontinuance/Modification. We may from time to time modify or discontinue access to, temporarily or permanently, any part, feature, or functionality of the Cubitts Services. We will not be liable for any such modification, suspension or discontinuance, even if certain features or functions, your settings, and/or any Content you have contributed or have come to rely on, are permanently lost.


9.2 Account Termination. We may terminate your account or access to Cubitts Services for cause, including without limitation for: (a) violation of these Terms; (b) abuse of our resources or any attempt to gain unauthorized entry to the Cubitts Services; (c) use of the Cubitts Services in a manner inconsistent with its purpose; (d) any authorized user's request for such termination; or (e) requirements of or for failure to comply with applicable law, regulation, court or governing agency order, or ethical requirements. We may in addition terminate the availability of the Cubitts Services for our own business reasons, including if we elect to cease being in the business of providing them or if the owners of Other Applications make continued operation commercially impracticable or unreasonable. After account termination for any reason, you will not attempt to register a new account without our permission.


9.3 Trademarks; Media. You are granted no right, title or license to any third-party trademarks by these Terms, or to any of our trademarks or servicemarks. We reserve all right, title and interest in and to our trademarks, servicemarks, trade names, domain names, and similar identifiers. All trademarks not owned by us that appear in the Cubitts Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use our trademarks or servicemarks and/or variations and misspellings thereof.


9.4 England-Based. The Cubitts Services is controlled by us from our offices in London, England. We make no representation that the Cubitts Services is appropriate for use in other jurisdictions. Your use of or access to the Cubitts Services will not be construed as our purposefully availing ourselves of the benefits or privileges of doing business in any state or jurisdiction.


9.5 Governing Law; Choice of Forum. The Subject Matter and any disputes between us and related to or concerning any of the Subject Matter (including tort as well as contract claims, and whether pre-contractual or extra-contractual) will be governed by the procedural and substantive laws of Delaware, without regard to conflicts of laws rules, and to the maximum extent permitted by applicable law, the parties hereby waive the right to a jury trial for any such disputes. The United Nations Convention on Contracts for the International Sale of Goods will not apply and is hereby expressly excluded. Subject to section 10.6, the state and federal courts located in New York City, New York, will have exclusive jurisdiction over any disputes between the parties in connection with, arising out of or related to the Subject Matter, and both parties hereby consent and submit to the jurisdiction of such courts for such disputes and waive any objections to the exercise of such jurisdiction, except that we may bring an action for recovery of injunctive or provisional relief, or an action claiming infringement or misappropriation of intellectual property rights, or both, in any court of competent jurisdiction under the laws applicable thereto.


9.6 Arbitration.
 

(a) Any disputes between or claims brought by you or us in connection with, arising out of or related to the Subject Matter (including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the arbitrability of any disputes) will be referred to and finally settled by (1) informal means, as set forth in section 10.6(b); and (2) binding arbitration before a single arbitrator in arbitration conducted by the American Arbitration Association (AAA), in accordance with (except as inconsistent with this section 10.6) the AAA Consumer Arbitration Rules in effect at the time of arbitration (current version available here). Venue for the arbitration will be any one of the following cities that is closest to your residence: New York City, New York; San Francisco, California; Denver, Colorado; or Chicago, Illinois. 


(b) Except for actions or claims described in section 10.6(e)(2) or 10.6(e)(3), The parties agree to first try to resolve dispute(s) informally and neither party may start a formal arbitration proceeding for at least thirty days after one party notifies the other of a dispute in writing. Notice of the dispute will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. 

 

(c) The arbitration will be conducted without in-person appearances (as in a live hearing) if (1) the credibility of testifying witnesses is unnecessary to the resolution of the dispute; (2) the parties agree to waive in-person appearances; (3) the applicable arbitration rules permit waiver of or otherwise don't require in-person appearances; (4) the claim does not exceed $10,000; or (5) the arbitrator determines that in-person appearances are unnecessary or unhelpful, or would be burdensome to any of the parties, to the arbitrator, or to witnesses or staff. If in-person appearance is required, such hearings will be held via videoconference unless the arbitrator determines, in the arbitrator's reasonable discretion, that a videoconference is not suitable. For clarity, nothing in these terms abrogates either party's right to a transcription of all arbitration proceedings at such party's own expense.

 

(d) The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class, consolidated or representative proceeding. All disputes will be arbitrated only on an individual basis and not in a class, consolidated or representative action, whether in arbitration or in court. The arbitrator does not have the power to vary these provisions. The validity and effectiveness of this section 10.7(d) is not arbitrable.

 

(e) Notwithstanding the foregoing, nothing in this section 10.6 will preclude the right and ability of either party to bypass arbitration and file and maintain at any time: (1) an individual action in US small claims court; (2) an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto; and (3) an action claiming infringement or misappropriation of intellectual property rights in any court of competent jurisdiction under the laws applicable thereto. Such actions, either party's right to pursue such actions, and the validity and effectiveness of this section 10.6(e) are not arbitrable. For clarity, nothing in this Agreement will be construed as either party's consent to the exercise of the jurisdiction of any court except as set forth in section 10.5.

 

(f) Subject to sections 10.6(b) and 10.6(e), all claims and disputes between the parties must be resolved using arbitration in accordance with this section 10.6. Should either party file an action contrary to this section, the other party may recover lawyers' fees and costs associated with enforcing this section, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim in a timely fashion.

 

(g) Except to the extent required by law or in order to enforce arbitral awards in court, the parties shall keep confidential, make no public announcements regarding, and shall not disclose the existence of (1) any dispute, (2) the existence or details of the arbitration proceeding, and (3) all related documents, materials, evidence, judgments and awards therein.

 

(h) The arbitrator will apply the law specified in section 10.5, without regard to conflicts of law rules. The parties agree that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this section 10.6.

 

(i) The parties acknowledge that if one or more provisions of this section 10.6 is found to be unenforceable, invalid, preempted or unlawful for any reason, the parties' intention is to (1) maintain the enforceability of such invalid or unenforceable provision in any circumstances other than those this in which the provision is held to be unenforceable, (2) modify such provision to the extent the provision can be rendered enforceable, and (3) sever such invalid or unenforceable provision from the remaining section 10.6 so as to preserve as much of the remaining as possible, so that such provision will not impact the ability to compel arbitration of any remaining claims on an individual basis. To the extent that any claims must proceed on a class, collective, consolidated, or representative basis, such claims will be litigated in the courts specified in section 10.6, and the parties agree that litigation of those claims will be stayed pending the outcome of any individual claims in arbitration.


9.7 Limitation. You agree that regardless of any statute of limitations to the contrary, any claim or cause of action arising out of or related to the Subject Matter must be filed within one year after such claim or cause of action arose, or be forever barred. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period established by applicable law.


9.8 Assignment. These Terms will not be assigned, delegated, or transferred by you, in whole or in part, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without our prior written consent. Any such purported assignment, delegation or transfer without such written consent will be void. We may at any time assign these Terms without prior consent or notice. These Terms will be binding on, and inure to the benefit of, the parties and their respective and permitted successors and assigns.


9.9 Injunctive Relief. You acknowledge and agree that breach of these Terms, or any unauthorized use, disclosure or distribution of the Cubitts Services, may cause irreparable harm to us, the extent of which would be difficult to ascertain, and that we will be entitled to seek immediate injunctive relief (in addition to any other available remedies), in any court of competent jurisdiction under the applicable laws thereto.


9.10 California Residents. If you are a California resident, you are entitled to the following consumer rights notice: if you have a question or complaint regarding the Website you may contact Cubitts via telephone at 187 7672 4040 (toll free) or via email at info@cubitts.com. You may also reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.


9.11 Miscellaneous. The Terms constitute the entire agreement between you and us and govern your use of the Cubitts Services, superseding any prior agreements, understandings, communications or proposals. If any provision of the Terms 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 the Terms will remain in full force and effect. No waiver of any provision of these Terms will be deemed a further waiver or continuing waiver or such provision or any other provision, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision. Nothing herein will be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these terms extend rights to any third party.