2. Arbitration Generally
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE CUSTOMER AND PROVIDERTO AGREE TO RESOLVE CERTAIN DISPUTES VIA BINDING INDIVIDUAL ARBITRATION.
All claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to Provider Services, that cannot be resolved in small claims court, will be resolved by binding arbitration, except that Customer and Provider are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents.
i. Arbitration Rules
The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution agreement. Arbitration will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Consumer Arbitration Rules, available at the AAA website (www.adr.org), or by calling the AAA at 1-800-778-7879. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $25,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $25,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
ii. Additional Rules for Non-appearance Arbitration
If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
iii. Arbitration Fees
If Customer chooses to arbitrate with Provider, arbitration fees and arbitrator compensation will be governed by the AAA Rules. Notwithstanding the foregoing, each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law.
iv. Authority of the Arbitrator
The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of Customer and Provider. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and the Terms and Conditions. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon Customer and Provider.
v. Waiver of Jury Trial in Favor of Arbitration
CUSTOMER ANDPROVIDER WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. Customer and Provider are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between Customer and Provider over whether to vacate or enforce an arbitration award, CUSTOMER AND PROVIDER WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
vi. Waiver of Class or Consolidated Actions
ALL CLAIMS AND DISPUTES MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither Customer nor Provider are entitled to arbitration.
3. Exclusive Venue
To the extent that these Terms allow Customer or Provider to initiate litigation in a court, both Customer and Provider agree that all claims and disputes (whether contract, tort, or otherwise), including statutory claims and disputes, arising out of or relating to the Terms or the use of the Services will be litigated exclusively in the State of New York.