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Please read these BabyQuip Affiliate Program Terms (these “Terms”) carefully. They govern our relationship and contain important information about your legal rights, remedies, and obligations. By becoming a BabyQuip Affiliate, you agree to comply with and be bound by these Terms.
ARBITRATION NOTICE: Except for certain types of disputes described in the ARBITRATION section below, you and BabyQuip agree that disputes between you and BabyQuip will be resolved by binding, individual ARBITRATION, and you waive your right to participate in a class action lawsuit or class-wide arbitration. This provision applies to the fullest extent permitted by applicable law and does not apply in any jurisdiction that prohibits resolution by binding arbitration or in any manner not permitted by an applicable jurisdiction’s laws.
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 Affiliate Link (defined below) after changes to these Terms go into effect, you will be deemed to have agreed to those changes. If we make any material changes to these Terms, we will notify you of those changes at least 30 days before they go into effect.
Step 1: Amicable Resolution
In the event of any dispute or disagreement arising out of, relating to or in connection with these Terms or your participation in the BabyQuip Affiliate Program, the parties will use their best efforts to resolve the dispute by good faith negotiation and mutual agreement. If the parties are unable to resolve any dispute through negotiation, the parties will 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 Mediation Process then in effect of JAMS Inc. (“JAMS”) or any successor to JAMS 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 JAMS, 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 JAMS 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 JAMS in accordance with the Mediation Process of JAMS.
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
The following provisions apply to the fullest extent permitted by applicable law, and do not apply in any jurisdiction that prohibits resolution by binding arbitration or in any manner not permitted by an applicable jurisdiction’s laws.
To the extent that any dispute between you and BabyQuip arises from these Terms (other than for Excluded Disputes (defined below)), the arbitration proceedings will be governed by federal arbitration law and by JAMS (defined below) rules.
Both you and BabyQuip waive the right to a trial by jury and the right to bring or resolve any dispute as a class, consolidated, representative, collective, or private attorney general action. Both you and BabyQuip waive the right to participate in a class, consolidated, representative, collective, or private attorney general action related to any dispute that is brought by anyone else. Notwithstanding any provision in the JAMS rules to the contrary, the arbitrator will not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, collective, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding.
Except for disputes (i) relating to the infringement of your or BabyQuip’s intellectual property (such as trademarks, trade dress, copyright and patents); (ii) where BabyQuip is seeking injunctive relief; or (iii) where you are a resident of a country other than the United States and arbitration is not permitted as a dispute resolution mechanism pursuant to your local laws and regulations (collectively the “Excluded Disputes”), you and BabyQuip each agree to finally settle all disputes arising from these Terms only through binding arbitration as detailed below. In arbitration, there is no judge or jury and review is limited. The arbitrator’s decision and award is final and binding, with limited exceptions, and judgment on the award may be entered in any court with jurisdiction. Except for Excluded Disputes, the parties agree that any claim, suit, action, or proceeding arising out of or relating to these Terms will be resolved by binding arbitration before a sole arbitrator under the Streamlined Arbitration Rules & Procedures then in effect of JAMS Inc. (“JAMS”) or any successor to JAMS. In the event JAMS is unwilling or unable to set a hearing date within thirty (30) days of the filing of a “Demand for Arbitration,” then the parties can elect to have the arbitration administered by another mutually agreeable arbitration administration service that will hear the case. If an in-person hearing is required, then it will take place in Santa Fe, New Mexico or – if required by the JAMS rules (or the rules of any alternate arbitration service used by the parties) – in or near your city of residence.
The federal or state law that applies to these Terms will also apply during the arbitration. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other proceedings that involve any claims or controversy of another party, including any class actions or class arbitrations; provided, however, if for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, or for any Excluded Disputes, then the agreement to arbitrate does not apply and the dispute must be brought in a court of competent jurisdiction in Kent County, State of Delaware. In no way limiting the applicability of the Arbitration Schedule of Fees and Costs, subject to you demonstrating that the costs of arbitration will be prohibitive as compared to the costs of litigation, BabyQuip will pay as much of the administrative and arbitrator’s fees charged to you by JAMS (or an alternate arbitration service) as the arbitrator deems necessary to prevent the arbitration from being cost prohibitive to you as compared to litigation. Either party may, notwithstanding this provision, bring qualifying claims in small claims court. In no event will you seek or be entitled to rescission, injunctive or other equitable relief or to enjoin or restrain the operation or exploitation of the Program or any other property of BabyQuip (provided that nothing in these Terms will restrain a California resident’s right (if any) under applicable law to seek public injunctive relief in accordance with this dispute-resolution provision).
You, we, and, if being represented, both of our respective attorney(s) agree to cooperate in good faith to take reasonable measures to reduce the costs and fees of arbitration, so that the process is cost-effective for all parties involved. This may include collaborating with JAMS to decrease JAMS’s fees. In addition, you and we agree that if your or our claims, counterclaims and/or appeals are determined by JAMS, or the arbitrator handling the claim, to have been brought for an improper purpose and/or are frivolous, the costs and expenses (including, without limitation, any and all charges by the arbitrator), and attorneys’ fees incurred by the other party, will be awarded to the other party.
If arbitration of a claim is necessary, the parties agree to the following procedure: Any moving party must personally sign any demand for arbitration and include a description of the claim, a description of the relief that you are seeking, including a detailed calculation of the amount of damages. If you are represented by counsel, your counsel must also personally sign the Demand for Arbitration. The signatures certify (a) under penalty of perjury that the statements made are true and correct, and (b) that the claim is (i) not for an improper purpose, frivolous, to harass the other party and/or brought about to increase the costs of arbitration; (ii) brought in good faith based on real facts and sound legal arguments that are actionable under current law. You can find copies of a Demand for Arbitration at: http://www.jamsadr.com.(“Demand for Arbitration”).
Send the appropriate number of copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS in accordance with JAMS procedures (see https://www.jamsadr.com/ ).
Send one copy of the Demand for Arbitration to the other party at the addresses below:
To BabyQuip: BabyQuip, Inc., Attn: Legal, 3201 Zafarano Drive, Ste C 584-30598, Santa Fe, NM 87507 with a copy to: [email protected].
To You: The Demand for Arbitration will be sent by certified mail to the most recent address BabyQuip has on file for you or otherwise in our records for you.
The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
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 Delaware law will apply in any such subsequent action or proceeding.
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