1) This release (the “Testimonial Release”) constitutes an agreement between yourself “you” and Mavis Tire Express Services Corp. d/b/a Mavis Discount Tire and Mavis Tires & Brakes governing the submission of Testimonials. THIS TESTIMONIAL RELEASE REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. AS EXPLAINED BELOW, YOU AGREE TO WAIVE YOUR RIGHTS TO PARTICIPATE IN A JURY TRIAL OR A CLASS ACTION PROCEEDING.
2) You give permission to Mavis Tire Express Services Corp. d/b/a Mavis Discount Tire and Mavis Tires & Brakes, its parent, subsidiaries, affiliates, licensees, successors and assigns, and those acting under their authority (collectively, “Mavis” or “we”) to use, and to authorize others to use, your statement and ratings, and to use your name, store location and vehicle information, each as submitted through or in connection with the website www.mavis.com (the “Website”), in connection with that statement and ratings (collectively, the “Testimonial”) forever throughout the world. Mavis may use, copy, exhibit, publish, and distribute the Testimonial, in whole or in part, in print (including packaging), television, radio, film, digital media (including internet, social media, websites, and apps), and in all other media now known or hereafter existing for advertising, marketing, publicity, and promotion of Mavis and its products, services, and locations and all other commercial business purposes. Mavis may modify the Testimonial so long as the original content is not significantly altered or misrepresented.
3) You understand and acknowledge that Mavis (a) will be under no obligation to actually use the Testimonial and (b) has the right to use the Testimonial either with or without your name.
4) You waive the right to inspect or approve any use by Mavis of the Testimonial.
5) You certify that: (a) the Testimonial is true and accurate and reflects your personal experiences and honest beliefs; (b) You made the Testimonial of your own free will; and, (c) You are over the age of 18.
6) You agree that your Testimonial will not include: (a) personal comments about other reviews; (b) profanity, obscenities, or spiteful remarks; (c) phone numbers, mail addresses, or URLs; or, (d) availability, price, or alternative order/shipping information.
7) You acknowledge that you will receive no compensation from Mavis other than any goodwill and publicity that you may receive relating to Mavis’s use of the Testimonial.
8) You hold harmless and release Mavis, its officers, directors, agents, and employees from all claims, demands, and liabilities of any kind arising out of or in connection with Mavis’s use of the Testimonial, including without limitation, claims based upon invasion of privacy, defamation, or right of publicity. You will not make any claim against Mavis for its use of the Testimonial.
9) TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL MAVIS, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS (“MAVIS PARTIES”) BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR TESTIMONIAL, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE MAVIS PARTIES’ SOLE AND ENTIRE MAXIMUM LIABILITY IN CONNECTION WITH YOUR TESTIMONIAL, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL NOT EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS AND SERVICES YOU HAVE ORDERED FROM MAVIS DIRECTLY RELATED TO THE TESTIMONIAL. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
10) Dispute Resolution and Binding Arbitration.
a) Before bringing any dispute or claim, a notice of the dispute must be sent. Should you have a dispute or claim, you should send this notice to us at 358 Saw Mill River Road, Millwood, New York 10546. To be valid, a notice of dispute must contain all of the following information:
Your or our name(s)
Your contact information, including your email address and phone number
You or our signature(s)
A brief description of the nature of your or our dispute (enclose any supporting documents you or we wish to provide)
A brief description of the nature of the relief you or we would like
b) If you and we are unable to resolve the claims described in the notice within forty-five (45) calendar days after the notice is received by you or us, you or we may commence an arbitration proceeding or suit in small claims court. A form for initiating arbitration proceedings is available on the American Arbitration Association's (“AAA”) website at www.adr.org. The notice of dispute requirements is essential in order to give the parties a meaningful chance to resolve disputes informally. You and we agree that if we fail to comply with the notice of dispute requirements, then the arbitrator or the small claims court shall dismiss any claim or dispute initiated in violation of these provisions.
c) YOU AND MAVIS EACH AGREE THAT ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE OR TO YOUR RELATIONSHIP WITH US, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION, RATHER THAN IN COURT.
d) BY ENTERING INTO THIS AGREEMENT, YOU AND MAVIS ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
e) The arbitration will be administered by the AAA in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified herein. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. In the event that the AAA is unavailable to administer the arbitration, another administrator will be selected by the parties or by the court. Any arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or we may elect to have the arbitration conducted based solely on written submissions, unless any party requests an in-person, telephonic, or videoconference hearing or the arbitrator decides that such a hearing is necessary. In cases where an in-person hearing is held, you and/or we may attend by telephone or videoconference, unless the arbitrator requires otherwise. Any settlement offer made by you or us shall not be disclosed to the arbitrator, except in connection with any request by you or us for attorney’s fees and costs.
f) The arbitrator will have exclusive authority to resolve any dispute relating to the arbitrability, enforceability, or scope of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity, although the arbitrator may only award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claims. In the event the arbitrator determines that either the substance of your or our claim or the relief sought was frivolous or brought for an improper purpose, then you or we may seek to recover from us or you, respectively, any fees you or we paid, including attorneys’ fees, to the extent permitted by the AAA’s rules and applicable law. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
g) You or we may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within sixty (60) calendar days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.
h) You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR MAVIS WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE OR CLASS MEMBER. Unless both you and we agree otherwise, the arbitral tribunal or arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal or arbitrator has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
i) The Federal Arbitration Act will govern the interpretation and enforcement of this section. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
j) If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of Section 10(b-i) within thirty (30) calendar days after the date that you agree to this Testimonial Release by sending notice to us at 358 Saw Mill River Road, Millwood, New York 10546. that specifies: Your full legal name, your contact information, including your email address and phone number, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Mavis receives your Opt-Out Notice, the arbitration agreement that appears in Section 10(b-i) will not apply to you or us. The remaining provisions of this Testimonial Release will not be affected by your Opt-Out Notice.
11) Miscellaneous:
a) Interpretation. The conjunction “or” will be understood in its inclusive sense (and/or). The words “such as”, “include”, “includes” and “including” are not limiting and will be deemed to be followed with the phrase “without limitation”. The headings contained in this Testimonial Release are inserted for convenience of reference only and will not affect the meaning or interpretation of this Testimonial Release. The words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Testimonial Release as a whole. References to the Terms of Use means such document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof.
b) Reservation of Rights. We reserve all rights not expressly granted to you in this Testimonial Release. Nothing in this Testimonial Release grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Website. We reserve the right to withdraw or amend the Website, and any service, product, or material we provide on the Website, in our sole discretion without notice.
c) Entire Agreement. This Testimonial Release and the Terms of Use contain the entire agreement of Mavis and you with respect to the Testimonial and supersedes all prior and contemporaneous written and oral understandings, agreements, representations, and warranties with respect to the Testimonial. In the event of any direct conflict between this Testimonial Release and the Terms of Use, the provisions of this Testimonial Release will govern all testimonials.
d) Governing Law. This Testimonial Release and all matters arising out of or relating to this Testimonial Release are governed by and construed in accordance with the laws of New York without giving effect to any conflict of laws provisions of New York that would result in the application of the laws of a different jurisdiction.
e) Assignment. You will not assign any of your rights or delegate any of your obligations under this Testimonial Release without our prior written consent. Any purported assignment or delegation in violation of this Section 11 is null and void. No assignment or delegation relieves you of any of your obligations under this Testimonial Release.
f) No Third-Party Beneficiaries. this Testimonial Release does not and is not intended to confer any rights or remedies upon any person other than you.
g) No Waiver. No waiver by Mavis of any term or condition set out in this Testimonial Release shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Mavis to assert a right or provision under this Testimonial Release shall not constitute a waiver of such right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Mavis.
h) Severability. If any provision of this Testimonial Release is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Testimonial Release will continue in full force and effect.
i) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be sent in writing to 358 Saw Mill River Road, Millwood, New York 10546. Mavis will send Notices for you to the email address, if any, that you have provided to us. If you have any questions about the Website, please contact Mavis at 1-800-757-4291 or in writing at 358 Saw Mill River Road, Millwood, New York 10546.