TERMS & CONDITIONS
Important. Please read these Terms and Conditions carefully. By proceeding with the transaction to receive a Pod (defined below), you agree to be bound by these Terms and Conditions, including the dispute resolution provisions appearing below that limit your ability to seek relief in court or on a class basis.
Provision of Pods Generally.
Outform, Inc. (“Outform”) provides the machine containing the QR code that you have scanned to begin this transaction (the “Dispenser”). The Dispenser enables you to receive a package containing one or more sample items (each, a “Sample”) provided by the manufacturer or distributor of the item (the “Company”) within a container (each, a “Pod”). In exchange for your provision of certain contact information, including name, email address, phone number and physical address (“Contact Information”) via your mobile device, a Pod containing a Sample will be distributed to you. All Pod distributions are final and non-returnable, except as required by applicable law.
Your Relationship With Outform.
You acknowledge that Outform is merely the provider of the Dispenser and does not at any time collect or receive your Contact Information. The Contact Information is provided directly to the Company.
Responsibility for Contact Information.
You agree that Outform will have no liability to you in any manner, under any law or regulation, including any law relating to data privacy or information security, concerning the collection, storage, transmission, disclosure, processing or other treatment of Contact Information. You agree to hold Outform harmless against any and all claims arising from or relating to the collection, storage, transmission, disclosure, processing or other treatment of Contact Information.
Responsibility for Samples.
You agree that Outform will have no liability to you in any manner for any damage to property, personal injury or death arising from or relating in any way to your receipt and use of a Pod and or the Sample therein, including on the basis of negligence, product liability, breach of warranty, or any other theory. You agree to hold Outform harmless against any and all claims arising from or relating to the receipt or use by you of any Pod or Sample.
Your Warranties and Representations.
You represent and warrant that: (i) you have the legal right and capacity to enter into these Terms and Conditions in your jurisdiction and to comply with these Terms and Conditions or, if you are a minor, your parent or legal guardian has read and agreed to these Terms and Conditions on your behalf; (ii) you hold and will continue to hold all rights necessary to enter into and perform your obligations under these Terms and Conditions; and (iii) by using a Dispenser, you acknowledge and represent that you are authorized to use the mobile telephone associated with your activities and to posses the Sample contained within the Pod dispensed to you.
You also agree that you will be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Dispensers and that you will be responsible for all charges related thereto.
Access to the Dispensers, including, without limitation, the Pods and Samples, are provided on an “as is”, “as available” and “with all faults” basis. To the fullest extent permissible by law, Outform and its employees, managers, members, officers, shareholders, parent company, agents, vendors and contractors (collectively, the “Outform Parties”) make no representations or warranties or endorsements of any kind whatsoever, express or implied, as to: (a) the Dispensers; (b) the materials or items on or provided through the Dispensers, including but not limited to the Pods and Samples; (c) the functions made accessible on or through the Dispensers; or (d) security associated with the transmission of information to or from Outform or via the Dispensers. In addition, the Outform Parties hereby disclaim all warranties, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose, non-infringement, title, custom, trade, quiet enjoyment, system integration and freedom from virus.
The Outform Parties do not represent or warrant that the Dispensers, the Pods, the Samples, or the functions associated therewith will be error-free or uninterrupted; that defects will be corrected; or that the Dispensers, Pods or Samples are free from any harmful components. You acknowledge, by your use of the Dispensers, that your use is at your sole risk. The Outform Parties do not warrant that your use of the Dispensers or items is lawful in any particular jurisdiction, and the Outform Parties specifically disclaim such warranties.
Limitation of Liability; Waiver
Under no circumstances will the Outform Parties be liable to you for any indirect, economic, special, incidental or consequential losses or damages that are directly or indirectly related to: (a) a Dispenser; (b) a Pod or Sample; (c) your use of, inability to use, or the performance of a Dispenser, Pod or Sample; (d) any action taken in connection with an investigation by the Outform Parties or law enforcement authorities regarding your use of a Dispenser, Pod or Sample; (e) any action taken in connection with copyright or other rights owners; (g) any errors or omissions in a Dispenser’s technical operation; or (f) any damage that results from events beyond our reasonable control, such as damages to any cellular phone or other equipment or technology including, without limitation, damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line or network failure or any other technical or other malfunction, including, without limitation, damages for lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or computer failure or malfunction, even if foreseeable or even if the Outform Parties have been advised of or should have known of the possibility of such damages, whether in an action of contract, negligence, strict liability or tort (including, without limitation, whether caused in whole or in part by negligence, acts of God, telecommunications failure, or theft or destruction of a Dispenser). In no event will the Outform Parties total liability to you for all damages, losses or causes or action exceed the lesser of the amount we charged you for the transaction or ten United States Dollars ($10.00). You agree that your exclusive remedy for a defective Sample will be as provided by the Company. If you believe you a Sample is defective, you must contact the Company. The limitations set forth in this section will not limit or exclude the Outform Parties’ liability for personal injury or property damage caused by the dispensers or the products purchased via the dispensers, or for the Outform Parties’ gross negligence, fraud or intentional, willful, malicious or reckless misconduct.
You agree that in the event you incur any damages, losses or injuries that arise out of Outform’s acts or omissions, the damages, if any, caused to you are not irreparable or sufficient to entitle you to an injunction preventing any exploitation of any web site, property, product, service, or other materials owned or controlled by the Outform Parties, and you will have no rights to enjoin or restrain the development, production, distribution, advertising, exhibition or exploitation of any web site, property, product, service, or other materials owned or controlled by the Outform Parties.
By using a Dispenser, you understand that you may be waiving rights with respect to claims that are at this time unknown or unsuspected, and in accordance with such waiver, you acknowledge that you have read and understand, and hereby expressly waive, the benefits of section 1542 of the Civil Code Of California, and any similar law of any state or territory, which provides as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
To the fullest extent permitted by applicable law, you agree to defend, indemnify and hold the Outform Parties harmless from and against any and all claims, damages, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys’ fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) your use of the Dispensers, or the receipt of a Pod or Sample; (b) your breach (actual or alleged) or anticipatory breach of these Terms and Conditions; (c) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (d) information or material transmitted through your mobile or other device, even if not submitted by you, that infringes, violates or misappropriates any copyright, trade identity, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person; (e) any misrepresentation made by you; or (f) a Company’s use of your information. You will cooperate as fully required by the Outform Parties in the defense of any claim. The Outform Parties reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of the Outform Parties.
Dispute Resolution; Arbitration
Please read this section carefully because it requires you to arbitrate certain disputes with OutForm and limits the manner in which you can seek relief from OutForm.
(a) Binding Arbitration. Except for disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents, you and Outform agree: (a) to waive your and Outform’s right to have any and all disputes arising from or connected to these Terms and Conditions, the Outform Platforms or the Items (collectively, “Disputes”) resolved in a court; and (b) to waive your and Outform’s right to a jury trial. Instead, you and Outform agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
(b) No Class Arbitrations, Class Actions or Representative Actions. YOU AND OUTFORM AGREE THAT DISPUTES ARE PERSONAL TO YOU AND OUTFORM, AND THAT DISPUTES WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING. YOU AND OUTFORM AGREE THAT A DISPUTE CANNOT BE BROUGHT AS A CLASS OR OTHER TYPE OF REPRESENTATIVE ACTION, WHETHER WITHIN OR OUTSIDE OF ARBITRATION, OR ON BEHALF OF ANY OTHER INDIVIDUAL OR GROUP OF INDIVIDUALS.
(c) Federal Arbitration Act. You and Outform agree that these Terms and Conditions affect interstate commerce and that the enforceability of this Dispute Resolution; Arbitration Section shall be governed by, construed and enforced, both substantively and procedurally, by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”) to the maximum extent permitted by applicable law.
(d) Process. YOU AND OUTFORM AGREE THAT WE WILL NOTIFY EACH OTHER IN WRITING OF ANY DISPUTE WITHIN THIRTY (30) DAYS OF WHEN IT ARISES SO THAT WE CAN ATTEMPT IN GOOD FAITH TO RESOLVE THE DISPUTE INFORMALLY. Notice to Outform shall be sent by certified mail or courier to Outform, Attn: OUTFROM INC , 82 NE 26th Street , Miami FL 33137 Your notice must include: (a) your name and contact information; (b) a description of the nature or basis of the Dispute; and (c) the specific relief that you are seeking. If you and Outform cannot agree to resolve the Dispute within thirty (30) days of Outform receiving your notice, then either you or we may commence an arbitration proceeding or file a claim in court as appropriate pursuant to this this Dispute Resolution; Arbitration Section. YOU AND OUTFORM AGREE THAT ANY ARBITRATION OR CLAIM MUST BE COMMENCED OR FILED WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES; OTHERWISE, YOU AND OUTFORM AGREE THAT THE CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU WILL NO LONGER HAVE THE RIGHT TO ASSERT A CLAIM REGARDING THE DISPUTE). You and Outform agree that (1) any arbitration will occur in Miami, Florida which you may attend either in person or via videoconference or telephone; (2) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and (3) the state or federal courts in Florida will have exclusive jurisdiction over any appeals and the enforcement of an arbitration award and over any Dispute between the parties that is not subject to arbitration; provided, however, that small claims courts in the jurisdiction in which you reside will have jurisdiction over small claims disputes.
(e) Authority of Arbitrator. As limited by the FAA, these Terms and Conditions and the applicable JAMS rules, the arbitrator will have (i) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute and (ii) the authority to grant any remedy that would otherwise be available in court. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
(f) Rules of JAMS. The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms and Conditions, 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.
(g) Severability. If any provision of this Section is held invalid or unenforceable, it will be so held to the minimum extent required by law and all other provisions will remain valid and enforceable. Further, the waivers set forth in subsection (b) of this Dispute Resolution; Arbitration Section are severable from the other provisions of these Terms and Conditions and will remain valid and enforceable except as prohibited by applicable law.
(h) Changes/Opt-Out. You can terminate this agreement to arbitrate within 30 days of first becoming subject to this arbitration provision by providing Outform with written notice to: Outform, Attn: OUTFROM INC , 82 NE 26th Street , Miami FL 33137 In order to be effective, the notice must include your full name, be received by Outform at the required address within 30 days of first becoming subject to this arbitration provision and clearly indicate your intent to terminate this agreement to arbitrate. Your choice to terminate this agreement to arbitrate will not affect any other provision of these Terms and Conditions.
Notwithstanding the modification-related provisions in these Terms and Conditions, if we revise the dispute resolution provisions of these Terms and Conditions, you may reject any such change within thirty (30) days of the date such change becomes effective by providing Outform with written notice to: Outform Outform, Attn: OUTFROM INC , 82 NE 26th Street , Miami FL 33137 .In order to be effective, the notice must include your full name, be received by Outform at the required address within 30 days of the date such change becomes effective and clearly indicate your intent to reject changes to this Dispute Resolution; Arbitration Section. By rejecting changes, you are agreeing to resolve disputes in accordance with the last version of the Terms and Conditions you accepted. Your choice to reject changes will not affect any other provision of these Terms and Conditions.
Governing Law and Venue
These Terms and Conditions are governed by and construed in accordance with the laws of the state of Delaware and applicable United States law, without giving effect to any conflict of laws principles. You agree that any action at law or in equity arising out of or relating to the disputes or any action arising out of or relating to disputes brought by a person who properly opts out of the agreement to arbitrate (in accordance with these terms and conditions) shall be filed only in the state and federal courts located in Delaware (except for small claims disputes, which may be filed in small claims courts in the jurisdiction in which you reside), and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of such disputes.
The failure of Outform to act with respect to a breach of these Terms and Conditions by you or others does not constitute a waiver and will not limit Outform rights with respect to such breach or any subsequent breaches. No waiver by Outform of any of these Terms and Conditions will be of any force or effect unless made in writing and signed by a duly authorized office of Outform. Neither the course of conduct between the parties nor trade practice will act to modify these Terms and Conditions. Outform may assign its rights and duties under these Terms and Conditions to any party at any time without any notice to you. These Terms and Conditions may not be assigned by you without Outform’s prior written consent. If any provision of these Terms and Conditions will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and Conditions and will not affect the validity and enforceability of any remaining provisions. The Section titles are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these Terms and Conditions will not be construed against Outform by virtue of Outform having drafted them.
Outform will not be liable to you or be deemed to be in breach of its obligations under these Terms and Conditions for any delay or failure in performance caused by acts beyond Outform’s reasonable control, including, without limitation, acts of God, war, terrorism, accidents, fires, floods, strikes, labor disputes, shortages or delays in obtaining supplies or service, materials, labor, or transportation, interruption of utility services or the Internet, acts of any unit of government or any governmental agency, or any similar or dissimilar cause.