Please note: Section 12.2 of these Terms (the “Dispute Resolution Agreement”) contains an arbitration clause, jury trial waiver, and class action waiver that applies to all users of the Platform. This provision applies to all disputes with BabyQuip and affects how disputes with BabyQuip are resolved. By accessing the Platform, you agree to be bound by the Dispute Resolution Agreement.
We may change these Terms from time to time to reflect changes in the way we do business or changes in the law. If you continue to use the Platform after changes to these Terms go into effect, you will be deemed to have agreed to those changes (other than changes to the Dispute Resolution Agreement, which are addressed in the Dispute Resolution Agreement).
Table of Contents
BabyQuip provides an online marketplace that enables certain third parties who offer baby and family equipment rental services, equipment cleaning services, and supply delivery services (the “Independent Quality Providers” or “IQPs” and the “Services,” respectively) to publish those Services on the Platform and to communicate and transact directly with users who are seeking to book such Services (“Users”).
The Platform includes content provided by BabyQuip that is proprietary to us or that is licensed or authorized for use by us (the “BabyQuip Content”) as well as content provided by IQPs, including text, photos, videos, and other materials (the “IQP Content”).
You must be at least 18 years old to access and use the Platform. You must register an account (“BabyQuip Account”) to access and use certain features of the Platform, such as seeing a history of your past orders. You are responsible for maintaining the confidentiality and security of your BabyQuip Account credentials. You must immediately notify us if you know or have any reason to suspect that your credentials have been lost, stolen, or otherwise compromised or in case of any actual or suspected unauthorized use of your BabyQuip Account. You are liable for any and all activities conducted through your BabyQuip Account.
If you "sign in with Facebook" or otherwise allow us to access or use any profile or other information about you that you have provided to Facebook or another third-party website, you acknowledge and agree that the information or content that is a part of your social media site profile, which you have designated as "public" (or a similar designation), may be accessed and used by us in connection with the Platform.
As the provider of the Platform, we do not provide, control, manage, offer, deliver, or supply any Services. Independent Quality Providers alone are responsible for the listing and provision of their Services. When you request Services and an IQP agrees to provide those Services, you and the IQP are entering into a contract directly with each other. We are not, and do not become, a party to or other participant in any contractual relationship between you and any IQP. However, IQPs are third-party beneficiaries to these Terms, including without limitation the following sections: § 9 (Limits on Liability); § 10 (Indemnification); and § 12.4 (No Class Action or Representative Proceedings).
We have no control over and do not guarantee (a) the existence, quality, safety, suitability, or legality of any Services provided, (b) the truth or accuracy of any IQP Content or any ratings or reviews posted by Users, or (c) the performance or conduct of any IQP. We do not endorse any IQP. You should always exercise due diligence and care when deciding whether to communicate, interact with, and engage in any transaction with any IQP, whether online or in person.
The Platform may also contain links to websites or resources offered by third parties other than IQPs ("Third-Party Resources"). Third-Party Resources may be subject to different terms and conditions and privacy practices. We are not responsible or liable for the availability or accuracy of any Third-Party Resources, or the content, products, or services available from any Third-Party Resources. Links to Third-Party Resources are not an endorsement by us of those Third-Party Resources.
While we do not provide the Services, as the provider of the Platform, we coordinate with the Independent Quality Providers to set certain terms and conditions that apply to the Services. We do this to ensure that the same terms and conditions apply to you regardless of the IQP you select in connection with any given request for Services.
3.1 Requesting Services. Each IQP provides Services in a specific geographic location. You can request Services via the Platform by selecting an IQP servicing the desired location and adding the desired Services to your cart.
3.2 Paying for Services and Tipping. All fees and taxes applicable to the requested Services will be included in the price set forth on the Platform (collectively, the “Fee”). Certain Services are subject to a minimum charge. You agree to pay the Fee for any Services requested. We will charge the Fee at the time the Services are requested to the payment method you provide at checkout. IQPs will not accept cash or personal checks for Services (other than for tips or for payment for repair or replacement to any rental equipment). After you have received Services, if you would like, you may tip your IQP via the Platform or in cash.
3.3 Service Requests that Cannot be Fulfilled. If the IQP you selected is for any reason unable to provide the requested Services, you will be notified and provided with a full refund.
3.4 Delivery/Pick Up and Service Locations. The IQP will work directly with you to establish delivery/pick up or service location and times (via telephone, text, or email). You are responsible for providing complete and accurate information regarding the delivery/pick up or service address and contact.
3.5 Additional Services Requests. If, before or after delivery of initially requested Services, you would like to receive additional Services, you may request those Services via the Platform or by contacting the IQP. All additional Services will be provided at the rates set forth on the Platform, or in the case of special requests, at the rates agreed upon between you and the IQP. We will charge the additional Fee at the time the additional Services are requested to the payment method you provided for the initially requested Services. IQPs will not accept cash or personal checks for additional Services and you agree you will not attempt to pay any IQP outside of the Platform.
3.6 Dissatisfaction with Services. If you have a problem or are dissatisfied with any Services provided, you must notify the IQP within 24 hours of receipt of the Services (or you waive the right to any refund). The IQP will use best efforts to replace the item/reperform the Services as soon as possible. Rental equipment photos may or may not represent the actual equipment available for rent. If you require the specific item of equipment shown in the photo, you must communicate that to the IQP under Special Requests.
3.7 Convenience Fees. If you require delivery/pick up of equipment or provision of cleaning services outside the business hours provided by the IQP or on a holiday, you may be charged a convenience fee. If the IQP is unable to provide the requested service or required to return to a delivery or service location for any reason that is not due to an error on the part of the IQP (for example, no one is available at the prearranged time, Customer Equipment to be cleaned has been recalled or is expired, you request additional or replacement rental equipment), you will be charged a convenience fee.
3.9 Terms that Apply Only to Equipment Rental Services.
(a) Extension of Rental Period. If you would like to extend your rental period, you may do so via the Platform or by contacting the IQP, subject to availability. We will charge you for the additional rental period at the same rates we charged for the original rental period at the time the extension is requested. Extensions requested less than 24 hours prior to the originally scheduled pick up time may be subject to an extension fee.
(b) Condition of Equipment on Return. You are responsible for any loss, theft, or destruction of any rental equipment from any cause during the rental period. Equipment must be returned in the condition it was received. You may not allow food or beverage in any equipment other than high chairs or booster chairs and you may not allow smoking near the equipment. If any equipment is not reasonably clean on return, you may be charged a per-item cleaning fee. If any equipment is returned (i) with evidence of vomit or excrement or (ii) smelling of smoke, you may be charged an additional per-item detail cleaning fee. If any equipment is damaged (i.e., repair is reasonably feasible), you will be charged a reasonable amount for repair. If any equipment is lost, stolen, or otherwise not returned, or the equipment is destroyed (i.e., repair is not reasonably feasible), you will be charged the fair market value of the equipment plus any shipping costs incurred by the IQP in connection with replacement of the equipment. If you are required to pay any fees for cleaning, repair, or replacement of equipment, the IQP will notify you and we will charge the credit card associated with your BabyQuip Account.
(c) Compliance with Equipment Manufacturer Documentation and Applicable Law. You agree to comply with all (i) manufacturer user manuals or other written instructions for use provided or available to you and (ii) all laws, rules, and regulations relating to your use of any rental equipment, including without limitation, Child Passenger Safety Laws. IQPs will not install any car seat for you. All car seats will be provided with manufacturer user manuals and, upon request, the IQP will provide you with a list of certified agencies in the area that can assist you. If an IQP-provided car seat is in a vehicle involved in any accident, whether or not the child is in the car seat at the time, per the car seat manufacturer and the recommendations of the National Highway Traffic Safety Administration, the IQP may need to replace the car seat. If a car seat provided to you by an IQP is in a vehicle involved in any accident while in your possession, you agree to (A) notify the IQP of the accident, (B) supply the IQP with the accident report, if any, and (C) pay the IQP the fair market value to replace the equipment, if necessary. Most insurance companies will replace car seats involved in an accident.
(d) Request for Services on Behalf of a Guest. If you are a hotel or other provider of accommodations and you are requesting equipment rental services on behalf of a guest, you are required to provide us with the guest’s email address so that we can ensure that the guest is made aware of and agrees to these Terms.
3.10 Terms that Apply Only to Supply Delivery Services.
(a) Product Availability. Each IQP determines what types of products to make available for delivery via the Platform. Not all products are available in all locations or from all IQPs. Neither BabyQuip nor any IQP guarantees that any ordered product will ultimately be available for the IQP to purchase and deliver. If you request delivery of a product that is not available, your IQP will make reasonable efforts to contact you regarding a replacement. If the IQP is not able to purchase a requested product or replacement, you will not be charged for that product and the fees associated with your delivery will be adjusted accordingly.
(b) Third-Party Products. BabyQuip does not assume responsibility for any products delivered via the Platform. If you request delivery of any products by an IQP, through the Platform or otherwise, you agree that you do so at your own risk and that neither BabyQuip nor the IQP will have any liability based on your purchase, use, or access to such products.
3.11 Terms that Apply Only to Cleaning Services.
(a) Recalled or Expired Equipment. BabyQuip will not provide cleaning services for equipment that is not in good working order, that has been recalled by the manufacturer, or, in the case of a car seat, that has expired. You represent and warrant that any equipment you provide to an IQP for cleaning has not been recalled by the manufacturer and is not expired.
(b) Removal of Flame Retardant Chemicals. While IQPs will follow manufacturer recommendations for cleaning your equipment, any cleaning of equipment may result in the removal of the equipment’s flame retardant chemicals. You understand and acknowledge this risk. You hold BabyQuip and your IQP harmless from any loss or liability that may result from removal of flame retardant chemicals in connection with cleaning of your equipment.
(c) Assembly and Reinstallation of Car Seats. To effectively clean your equipment, it may be necessary or convenient for the IQP to dis-assemble the equipment and, in the case of car seats, to remove the equipment from your car. You understand and acknowledge that it is your responsibility to verify correct re-assembly of any equipment that has been cleaned and to reinstall (or verify correct reinstallation) of any car seat that has been cleaned. You hold BabyQuip and your IQP harmless from any loss or liability that may result from improper reassembly or installation of equipment after cleaning.
(d) Dissatisfaction with Cleaning Service. If you are dissatisfied with the quality of any cleaning services, you should notify your IQP upon completion of the services. In any event, you must notify your IQP within 48 hours after completion of the services. If you notify your IQP within that time period, your IQP will promptly re-perform the cleaning services to your satisfaction. If you do not notify your IQP within that time period, you waive your right to reperformance of the services.
(e) Damage to Your Equipment. BabyQuip is not responsible for any damage to your equipment as a result of cleaning services. If there is damage to any of your equipment, you should notify your IQP upon completion of the services. In any event, you must notify your IQP within 48 hours of completion of the services, or you waive your right to compensation. If the damage is minor, your IQP will provide you with appropriate compensation (i.e., a reasonable amount for repair or replacement of any broken parts, or if repair/parts replacement is not feasible, a reasonable amount for reduction in resale value). If the damage is material (i.e., the equipment is made unsafe or unusable), your IQP will reimburse you for the cost of an equivalent replacement item (i.e., the current model of the same item) plus shipping costs, if any.
Users can submit a star rating or leave a public review on the Platform about their experiences with Independent Quality Providers. If you submit a rating or leave a review, it must be accurate and may not contain any offensive or defamatory language. Ratings and reviews reflect the opinions of individual Users and do not reflect the opinion of BabyQuip. Ratings and reviews are not verified by us for accuracy and may be incorrect or misleading.
The Platform and the BabyQuip Content, including all associated intellectual property rights, are the exclusive property of BabyQuip and its licensors. All trademarks, service marks, logos, trade names, and any other source identifiers of BabyQuip used on or in connection with the Platform and the BabyQuip Content are trademarks or registered trademarks of BabyQuip in the United States and abroad.
Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use the Platform and view any Content made available on or through the Platform solely for your personal use. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by BabyQuip or its licensors or any Independent Quality Provider, except for the license and rights expressly granted in these Terms.
Due to the nature of the Internet, we cannot guarantee the continuous and uninterrupted availability and accessibility of the Platform. We may restrict the availability of the Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Platform. We may improve, enhance and modify the Platform and introduce new features or functionality from time to time.
In connection with your use of the Platform, you will not and will not assist or enable others to:
use the Platform or the BabyQuip Content or IQP Content (collectively, the "Content") for any commercial or other purposes that are not expressly permitted by these Terms;
copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Platform or the Content;
use the Platform in connection with the distribution of unsolicited commercial messages ("spam");
contact IQPs for any purpose other than asking a question related to your own request for Services, including, but not limited to, recruiting or otherwise soliciting any IQP to join third-party services, applications, or websites;
use the Platform to request services independent of the Platform, to circumvent any service fees or for any other reason;
make any payment for services outside of the Platform (except for tips and payments for repair or replacement of rental equipment, which may be made directly to the IQP;
discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior;
use, display, mirror or frame the Platform or the Content, or (a) any individual element within the Platform, (b) BabyQuip’s name, trademark, logo, or other proprietary information, or (c) the layout and design of any page or form contained on a page in the Platform;
dilute, tarnish or otherwise harm the BabyQuip brand in any way, including through unauthorized use of the Content, registering or using BabyQuip or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domain names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to BabyQuip domains, trademarks, taglines, promotional campaigns or Content;
use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Platform for any purpose;
avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by us to protect the Platform;
attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Platform;
take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Platform;
export, re-export, import, or transfer any BabyQuip application except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws; or
violate or infringe anyone else’s rights or otherwise cause harm to anyone.
You acknowledge that we have no obligation to monitor the access to or use of the Platform by any User or IQP or to review, disable access to, or edit any Content, Third Party Resources, or any ratings or reviews, but have the right to do so to (i) operate, secure and improve the Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Users’ compliance with these Terms; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental agency; (iv) respond to any Content, Third Party Resource, or review that we determine is harmful or objectionable; or (v) as otherwise set forth in these Terms.
We may immediately, without notice, terminate or suspend your BabyQuip Account and your access to the Platform if (a) you have materially breached your obligations under these Terms, (b) you have violated applicable laws, regulations or third-party rights, or (c) we believe in good faith that such action is reasonably necessary to protect the personal safety or property of BabyQuip, its IQPs, or third parties. If your access to your BabyQuip Account and your access to the Platform has been terminated or suspended, you may not register a new BabyQuip Account or access and use the Platform through a BabyQuip Account of another User.
If you choose to use the Platform or the Content, you do so voluntarily and at your sole risk. The Platform and the Content are provided “as is”, without warranty of any kind, either express or implied.
If we choose to conduct identity verification or background checks on any Independent Quality Provider, to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by an IQP or guarantee that an IQP will not engage in misconduct in the future.
You acknowledge and agree we are not a party to any transaction between you and any IQP. We have no control over and do not guarantee the existence, quality, safety, suitability, or legality of any services provided by IQPs, the truth or accuracy of any IQP Content or any ratings or reviews posted by Users, or the performance or conduct of any IQP.
The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
If you are dissatisfied with the Platform, you do not agree with any part of these Terms, or you have any other dispute or claim with or against us, any Independent Quality Provider or any other User with respect to these Terms, the Platform, or the Services, then your sole and exclusive remedy against us is to discontinue using the Platform.
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Platform and the Content and your use of the Services, and any interaction you have with IQPs or other Users, whether in person or online, remains with you. Use of certain rental equipment, including without limitation, trampolines, inflatables, and play structures, may result in physical injury, especially when used by multiple persons at once. Neither BabyQuip nor any other party involved in creating, producing, or delivering the Platform, the Content, or the Services, including without limitation any IQP (“Released Parties”), will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (a) these Terms, (b) the use of or inability to use the Platform or the Content, (c) any communications, interactions or meetings with, other Users or other persons with whom you communicate, interact or meet with as a result of your use of the Platform, or (d) your use of the Services, including your use of any rental equipment, use of any of your equipment after it has been cleaned, or use or consumption of any products delivered, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not we have been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
Except for our obligations to pay amounts to Independent Quality Providers or make refunds to Users pursuant to these Terms, in no event will BabyQuip’s and any other Released Party’s aggregate liability arising out of or in connection with these Terms and your use of the Platform, the Content, or the Services, exceed the lesser of $100.00 (USD) or the aggregate amount you have paid or owe for Services requested via the Platform in the twelve-month period prior to the event giving rise to the liability.
The limitations of damages set forth above are fundamental elements of the basis of the bargain between us and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. If you reside outside of the U.S., this does not affect our liability for death or personal injury arising from our negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law.
If you reside in the EU, we are liable under statutory provisions for intent and gross negligence by us, our legal representatives, directors, or other vicarious agents. The same applies to the assumption of guarantees or any other strict liability, or in case of a culpable injury to life, limb, or health. We are liable for any negligent breaches of essential contractual obligations by us, our legal representatives, directors, or other vicarious agents, but the amount shall be limited to the typically occurring foreseeable damage. Any additional liability is excluded.
You agree to release, defend (at our option), indemnify, and hold BabyQuip, the Released Parties and its and their affiliates and subsidiaries, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your breach of these Terms or any laws, regulations or third party rights, (b) your improper use of the Platform, the Content, or any Services, and (c) your interaction with any Independent Quality Provider, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind.
We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you may not in any event settle any matter without our prior written consent.
11.1 Severability. If any provision of these Terms is or becomes invalid or nonbinding, the parties will remain bound by all other provisions hereof. In that event, the parties will replace the invalid or nonbinding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or nonbinding provision, given the contents and purpose of these Terms.
11.2 Assignment. You may not assign or transfer these Terms or any of your rights or obligations hereunder, in whole or in part, without our prior written consent.
11.3 Entire Agreement. These Terms, including any policies referenced herein, constitute the entire agreement and understanding between us and you with respect to your use of the Platform, the Content, and the Services and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding your use of the Platform, the Content, or the Services.
11.4 No Waiver. If we fail to enforce any right or provision in these Terms, the failure will not constitute a waiver of that right or provision.
11.5 Interpretation. In these Terms, the words “including” and “include” mean “including, but not limited to.” Section headings are for convenience of reference only and shall not affect the meaning of any provision of these Terms.
11.6 No Third-Party Beneficiaries. The Released Parties are intended to be third-party beneficiaries. Except for the Released Parties, there are no third-party beneficiaries to these Terms.
11.7 Notices. Any notice delivered by us to you will be delivered by email to the email address associated with your BabyQuip Account or, if you don’t have a BabyQuip Account, the email address you provided when you submitted the relevant request for Services (to be clear, IQP’s will contact you via whatever method you and the IQP agree upon (e.g., email, cell phone)). Any notice delivered by you to us will be delivered by email to email@example.com.
11.8 Feedback. You may provide us with comments, suggestions, enhancement requests, recommendations or other feedback arising out of your experience with the Platform, the Content, or the Services (collectively "Feedback"). If you do provide Feedback, you assign to us all right, title, and interest, including any intellectual property rights therein, and agree not to assert any "moral rights", in and to the Feedback. Further, you understand and acknowledge that we will own all right, title and interest, including intellectual property rights therein, in and to any enhancements to the Platform, the Content, or the Services, or other services offered by us or any of our affiliates, or any new services developed by us or any of our affiliates, based upon or otherwise incorporating your Feedback.
12.1 Choice of Law. As between BabyQuip and you, these Terms will be governed by the laws of the State of California, without regard to the choice of law or conflicts of law provisions of any jurisdiction. Both BabyQuip and you submit to the exclusive jurisdiction of the state and federal courts located in the State of California for enforcement of arbitral awards or for temporary or preliminary injunctive relief for the limited purpose of avoiding immediate and irreparable harm, which will not be subject to the requirements of Section 12.2.
12.2 Dispute Resolution
Our right to amend these Terms at any time as set forth above does not apply to this Section 12.2 (this “Dispute Resolution Agreement”). The version of this Dispute Resolution Agreement in effect on the date you last accepted these Terms controls.
We want your experience with the Platform and the Independent Quality Providers to be a positive one. If you have a problem or dispute, we will do our best to resolve your concerns. If we are unsuccessful, you may pursue claims as explained in this Dispute Resolution Agreement.Step 1: Amicable Resolution
You agree to give us an opportunity to resolve any disputes relating in any way to the Platform, the Services, any interaction with an IQP, or these Terms by contacting us at firstname.lastname@example.org.
If we are unable to resolve the dispute, you agree to first attempt to settle the dispute through a nonbinding mediation proceeding. In the event any party to such mediation proceeding is not satisfied with the results thereof, then any unresolved disputes will be finally settled in accordance with a binding arbitration proceeding. In no event will the results of any mediation proceeding be admissible in any arbitration or judicial proceeding.Step 2: Non-binding Mediation
Mediation proceedings will be conducted in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") in effect on the date the notice of mediation was served, other than as specifically modified herein, and will be nonbinding on the parties thereto. Any party may commence a mediation proceeding by serving written notice thereof to the other parties, by mail or otherwise, designating the issues to be mediated and the specific provisions of these Terms under which the issues and dispute arose. The initiating party will simultaneously file two copies of the notice with the AAA, along with a copy of these Terms. A party may withdraw from the dispute by signing an agreement to be bound by the results of the mediation, to the extent the mediation results are accepted by the other parties as provided herein. A party who withdraws will have no further right to participate in the dispute.
The parties will select one neutral third party AAA mediator with expertise in the area that is in dispute. If a mediator has not been selected within ten (10) business days after receipt by the non-initiating party of the notice of mediation, then a mediator will be selected by the AAA in accordance with the Commercial Mediation Rules of the AAA.
The mediator will schedule sessions, as necessary, for the presentation by all parties of their respective positions, which, at the option of the mediator, may be heard by the mediator jointly or in private, without any other members present. The mediation proceeding will be held in San Francisco, California, or such other place as agreed by the mediator and all of the parties. Each of the parties may submit to the mediator, no later than ten (10) business days prior to the first scheduled session, a brief memorandum in support of their position.
The mediator will make written recommendations for settlement in respect of the dispute, including apportionment of the mediator’s fee, within ten (10) business days of the last scheduled session. If any party involved is not satisfied with the recommendation for settlement, that party may commence an arbitration proceeding.
Step 3: Binding Arbitration
Binding arbitration proceedings will be conducted under the Rules of Commercial Arbitration of the AAA (the "Rules"). A party may withdraw from the dispute by signing an agreement to be bound by the results of the arbitration. A party who withdraws will have no further right to participate in the dispute.
The arbitration panel will consist of one arbitrator. The parties will select one neutral third party AAA arbitrator (the "Arbitrator") with expertise in the area that is in dispute. If an Arbitrator has not been selected within ten (10) business days after receipt by the non-initiating party of the notice of arbitration, then an Arbitrator will be selected by the AAA in accordance with the Commercial Arbitration Rules of the AAA. The arbitration proceeding will be held in San Francisco, California or such other place as agreed by the arbitrator and all of the parties. Any arbitrator who is selected will disclose promptly to the AAA and to both parties any financial or personal interest the arbitrator may have in the result of the arbitration and/or any other prior or current relationship, or expected or discussed future relationship, with the parties or their representatives. The arbitrator will promptly conduct proceedings to resolve the dispute in question pursuant to the then existing Rules. To the extent any provisions of the Rules conflict with any provision of this Section 15, the provisions of this Section 15 will control.
In any final award and/or order, the arbitrator will apportion all the costs (other than attorney's fees which will be borne by the party incurring such fees) incurred in conducting the arbitration in accordance with what the arbitrator deems just and equitable under the circumstances. The parties agree that the results of the arbitration will be binding and non-appealable.
Discovery will not be permitted in such arbitration except as allowed by the Rules, or as otherwise agreed to by all the parties. Notwithstanding, the parties agree to make available to one another and to the arbitrator, for inspection and photocopying, all documents, books, and records, if determined by the arbitration panel to be relevant to the dispute, and by making available to one another and to the arbitration panel personnel directly or indirectly under their control, for testimony during hearings if determined by the arbitration panel to be relevant to the dispute. The parties agree, unless undue hardship exists, to conduct arbitration hearings to the greatest extent possible on consecutive business days and to strictly observe time periods established by the Rules or by the arbitrator for the submission of evidence and of briefs. Unless otherwise agreed to by the parties, a stenographic record of the arbitration proceedings will be made and a transcript thereof will be ordered for each party, with each party paying an equal portion of the total cost of such recording and transcription.
The arbitrator will have all powers of law and equity, which it can lawfully assume, necessary to resolve the issues in dispute including, without limiting the generality of the foregoing, making awards of compensatory damages, issuing both prohibitory and mandatory orders in the nature of injunctions and compelling the production of documents and witnesses for presentation at the arbitration hearings on the merits of the case. The arbitrator will neither have nor exercise any power to act as amiable compositeur or ex aequo et bono; or to award special, indirect, consequential or punitive damages. The decision of the arbitrator will be final and in written form and state the reasons upon which it is based. The parties agree to participate in the arbitration in good faith.
Step 4: Enforcement of Award
Any action or proceeding subsequent to enforce an award rendered by the arbitrator in the dispute will be filed in a court of competent jurisdiction in the same county where the arbitration of the dispute was conducted, and California law will apply in any such subsequent action or proceeding.
12.3 Jury Trial Waiver. You and BabyQuip acknowledge and agree that we are each waiving the right to a trial by jury as to all disputes.
12.4 No Class Actions or Representative Proceedings. You and BabyQuip acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all disputes. Further, unless you and BabyQuip both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding.
12.5 Severability/Unenforceability. In the event that any portion of this Section 12 is deemed illegal or unenforceable, such provision shall be severed and the remainder of this Section 12 shall be given full force and effect. In the event that your agreement to have any unresolved dispute finally settled via binding arbitration is unenforceable, you agree: (a) that the laws of the State of California will govern any dispute arising out of or in connection with these terms, without regard to conflicts of laws provisions, (b) to venue in the federal courts located in San Francisco, California, and to waive any claims based upon improper or inconvenient venue or lack of jurisdiction, and (c) that Sections 12.3 and 12.4 will apply.