Please Read This Policy Carefully. It Affects Your Legal Rights.
This Policy, including the arbitration agreement, class action waiver, and jury waiver set forth below, applies only if you are a natural person residing in the United States, or if you are a legal entity and your principal place of business is located in the United States (each, a “U.S. User” for purposes of the Policy and the Terms). If you are not a U.S. User, this Policy does not apply to you, and any disputes arising out of or relating to the Terms or this Site will be resolved in accordance with the choice of law and venue provisions set forth in the “General” section of the Terms.
This Policy facilitates the prompt and efficient resolution of any dispute between a U.S. User and Company (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Policy (with the exception of the enforceability of the Class Action Waiver clause below)) that may arise between you and Company. Effectively, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as Company’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against Company in the same proceeding.
This Policy provides that— to the maximum extent permitted by applicable law—all disputes between a U.S. User and Company shall be resolved by binding arbitration because acceptance of the Terms constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Policy (and the applicable provisions of the Terms) and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Policy, which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions).
EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS POLICY.
Pre-Arbitration Claim Resolution.
For all disputes, whether pursued in court or arbitration, you must first give Company an opportunity to resolve the dispute by emailing the following information to [email protected]: (1) your name, (2) your address, (3) a written description of your claim, and (4) a description of the specific relief you seek. If Company does not resolve the dispute within 45 days after receiving your notification, then you may pursue your dispute in arbitration. You may pursue your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out.
Notwithstanding the above, you or Company may choose to pursue a dispute in court and not by arbitration if: (a) the dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THE TERMS (the “Opt-Out Deadline”). You may opt-out of this Policy by emailing Company at [email protected] the following information: (1) your name; (2) your address; (3) a clear statement that you do not wish to resolve disputes with Company through arbitration. Your decision to opt-out of this Policy will have no adverse effect on your relationship with Company. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
Arbitration Procedures.
If this Policy applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution), either you or Company may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration, unless the Additional Procedures for Mass Arbitration set forth below are triggered. All issues shall be for the arbitrator to decide, including the scope of this Policy.
For arbitration before AAA, for disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Policy governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.
Because this Site and the Terms (including this Policy) concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award.
The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration.
You or Company may initiate arbitration in either California or the federal judicial district that includes your billing address.
Additional Procedures for Mass Arbitration.
If, at any time, 25 or more claimants (including you) submit demands for arbitration raising similar claims against Company with the same or coordinated counsel or are otherwise coordinated (“Mass Arbitration”), the following additional procedures shall apply. You and Company agree that throughout this process, the parties’ counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Arbitration. You acknowledge and agree that by electing to participate in a Mass Arbitration, the adjudication of your dispute might be delayed and ultimately proceed in court as set forth below. If your dispute is part of a Mass Arbitration, any applicable limitations periods (including statutes of limitations) shall be tolled for your dispute from the time that your dispute is first submitted to AAA or JAMS until your dispute is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration pursuant to this Policy.
Stage One: Counsel for the claimants and counsel for Company shall each select 25 claims per side (50 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. The number of claims to be selected to proceed in Stage One can be increased by agreement of counsel for the parties (and if there are fewer than 50 claims, all shall proceed individually in Stage One). Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. If a case is withdrawn before the issuance of an arbitration award, another claim shall be selected to proceed as part of Stage One. After this initial set of staged proceedings is completed, the parties shall engage in a global mediation session of all remaining claims with a mediator jointly selected by counsel for the parties, and Company will pay the mediator’s fee.
Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Company shall each select 50 claims per side (100 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. The number of claims to be selected to proceed in Stage Two can be increased by agreement of counsel for the parties (and if there are fewer than 100 claims, all shall proceed individually in Stage Two). Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. If a case is withdrawn before the issuance of an arbitration award, another claim shall be selected to proceed as part of Stage Two. After this second set of staged proceedings is completed, the parties shall engage in a global mediation session of all remaining claims with a mediator jointly selected by counsel for the parties, and Company will pay the mediator’s fee.
Upon the completion of the mediation set forth in Stage Two, each remaining claim (if any) that is not settled or not withdrawn shall be opted out of arbitration and may proceed in a court of competent jurisdiction consistent with the remainder of the Terms, including the other provisions of this Policy. Notwithstanding the foregoing, counsel for the parties may mutually agree in writing to proceed with the adjudication of some or all of the remaining claims in individual arbitrations consistent with the process set forth in Stage Two (except claims shall be randomly selected and mediation shall be elective by agreement of counsel) or through another mutually agreeable process. A court of competent jurisdiction shall have the authority to enforce these Additional Procedures for Mass Arbitration, including the power to enjoin the filing or prosecution of arbitrations and the assessment or collection of arbitration fees. You and Company agree that each party values the integrity and efficiency of arbitration and wishes to employ the process for the fair resolution of genuine and sincere disputes between the parties. You and Company acknowledge and agree to act in good faith to ensure the procedures set forth herein are followed.
The Additional Procedures for Mass Arbitration section and each of its requirements are essential parts of this Policy. If, after exhaustion of all appeals, a court of competent jurisdiction decides that the Additional Procedures for Mass Arbitration apply to your dispute and are not enforceable (and any appeals have been exhausted), then your dispute shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of the Terms, including the remaining provisions of this Policy.
Payment of Arbitration Fees and Costs.
So long as you place a request in writing prior to commencement of the arbitration, Company will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator’s hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. You will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with Company as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver.
Except as otherwise provided in this Policy, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and Company specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your dispute in court by opting out of this Policy, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other U.S. User of this Site, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
Jury Waiver.
You understand and agree that by accepting this Policy as incorporated in the Terms, you and Company are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Policy, you and Company might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived. This Jury Waiver applies only to U.S. Users (as defined above).
Severability.
If any clause within this Policy (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Policy whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Policy will be unenforceable and the dispute will be decided by a court.
Continuation.
This Policy shall survive the termination of your account with Company and your discontinued use of this Site. Notwithstanding any provision in the Terms to the contrary, Company agrees that if it makes any change to this Policy (other than a change to the notice address), you may reject any such change and require Company to adhere to the present language in this Policy if a dispute between you and Company arises.