Except as otherwise provided herein, this Individual Arbitration Agreement requires arbitration of any disputes between you and Company, including its affiliates, owners, members, managers, directors, officers, parent companies, predecessors, successors, and employees (the “Affiliated Parties”) (each, together with, as applicable, each of the Affiliated Parties, a “Party” and collectively, the “Parties”), including without limitation any controversy, claim or dispute of whatever nature arising between the Parties, including but not limited to those arising out of or relating to the Terms, the Site, use of the Site, the Privacy Policy, or the commercial, economic or other relationship of the Parties, whether such claim is based on rights, privileges or interests recognized by or based upon statute, contract, tort, common law or otherwise (“Dispute”). IN ARBITRATION, THERE IS GENERALLY LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT AND THERE IS NO JURY.
Unless the laws of the state or province in which you reside expressly require otherwise, all Disputes shall be submitted for resolution in Houston, Texas and shall be decided by a single arbitration administered by the American Arbitration Association (“AAA”) (www.adr.org). Unless modified by this Agreement, the arbitration will adhere to AAA’s Consumer Arbitration Rules (www.adr.org). The AAA Rules will be provided upon request to General Counsel, 9950 Woodloch Forest Drive, The Woodlands, Texas 77379.
The initial case filing fee is the responsibility of the Party initiating the arbitration. If you commence arbitration, Company will pay the portion of the initial case filing fees you are required to pay that exceeds the amount you would have been required to pay to file in court. Company will pay for the remaining costs imposed by the arbitration provider and each Party is responsible for its own costs and attorney’s fees, except where applicable law would entitle that Party to recover such fees and costs if the dispute were litigated in court.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AGREE THAT EACH PARTY MAY ASSERT A CLAIM OR COUNTERCLAIM IN THAT PARTY’S INDIVIDUAL CAPACITY ONLY (NOT AS A CLASS OR REPRESENTATIVE ACTION) AND YOU EXPRESSLY WAIVE ANY RIGHT YOU MAY HAVE TO PROCEED IN ANY CLASS OR REPRESENTATIVE ACTION. IF A COURT OR ARBITRATOR DECIDES THAT ANY PART OF THIS AGREEMENT CANNOT BE ENFORCED AS TO A PARTICULAR CLAIM FOR RELIEF OR REMEDY (SUCH AS INJUNCTIVE RELIEF), THEN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THAT CLAIM OR REMEDY (AND ONLY THAT CLAIM OR REMEDY) MUST BE BROUGHT IN COURT AND MUST BE STAYED PENDING ARBITRATION OF THE ARBITRABLE CLAIMS AND REMEDIES.
Except as otherwise provided herein, Disputes concerning the validity, application, scope, enforceability, or interpretation of this Individual Arbitration Agreement will be exclusively decided by the arbitrator. This Individual Arbitration Agreement and associated arbitration-related proceedings and conduct, including issues regarding discovery, waiver, estoppel, breach, default, or timing of arbitration-related payments—before, during, or after arbitration—will be governed by the Federal Arbitration Act, 9 U.S.C § 1 et seq., and federal common law, not by any state laws or procedures regarding arbitration. The arbitrator at all times holds the exclusive authority to address challenges to this Individual Arbitration Agreement, including questions of waiver, estoppel, breach, default, or the timing of payments relating to arbitration, or the validity or scope of this Individual Arbitration Agreement.
You and Company agree that the information-sharing (“discovery”) process in the AAA Consumer Rules will be presumed adequate for most claims. The arbitrator has the discretion to authorize additional discovery upon a showing of substantial need and that such additional discovery would not be unduly burdensome and would not unduly delay the arbitration. The Parties also agree that they may have valuable trade secrets and confidential information. The Parties agree to take all necessary steps to protect from public disclosure the Parties’ trade secrets and confidential information in any proceeding pursuant to this Individual Arbitration Agreement.
If one Party files a court action instead of arbitration, all proceedings will be stayed until resolution of any proceedings to compel arbitration, including appeals.
All Parties retain the right to seek relief in a small claims court for disputes or claims within that court’s jurisdiction.
Bellwether Arbitration Procedures: Notwithstanding any provision of the AAA Rules or AAA’s Mass Arbitration Supplementary Rules, these bellwether procedures shall be used when more than 10 arbitration cases pending at the same time present substantially similar or overlapping allegations of fact or law. Notwithstanding anything to the contrary provided herein, a court of competent jurisdiction, and not AAA or an arbitrator, shall resolve any dispute over whether these bellwether procedures apply to any group of claims.
The Parties recognize and agree that a large number of arbitration cases with similar allegations will impose excessive transaction costs regardless of the cases’ merit or lack of merit. The Parties also recognize and agree that it is logistically difficult or impossible to arbitrate simultaneously large numbers of substantially similar cases. The Parties therefore agree to use bellwether litigation procedures similar to those that courts use in mass-tort cases, based on the judiciary’s experience that, after one or a few cases are tried to verdict, most or all of the other cases settle or otherwise resolve themselves.
The Parties thus agree that, to the maximum extent permitted by law, no more than 10 cases/arbitrations will be active at any one time. All remaining cases will be stayed, with the statute of limitations tolled. The Parties understand and agree that if these bellwether arbitration procedures apply, then adjudication of the Dispute may be delayed. Unless the Dispute resolves in advance, the arbitrator(s) shall render their final and binding decision in any Dispute subject to these bellwether procedures within 180 days of the initial pre-hearing conference.
As soon as one of the original active cases is resolved (by decision, settlement, or otherwise), a stayed arbitration shall replace it on the list of 10 active cases/arbitrations. Except as provided below, cases shall be placed on or moved to the active list in the order in which demands for arbitration are first received. Until a case is on or is moved to the list of 10 active cases, the sum any Party paid to initiate a case shall be refunded, and no Party shall have any obligation to pay any AAA or arbitrator fees.
If You claim exceptional hardship from any delay pursuant to this bellwether procedure, You may petition Company to waive the 10-case limit for that case. If Company does not agree, You may petition AAA to place the case/arbitration on the list of 10 active cases, on the ground that delay will impose exceptional hardship. If AAA finds exceptional hardship and grants the petition, AAA shall (based on its determination of relative hardship) remove one other case from the list of 10 active cases/arbitrations and place it at the head of the list of stayed cases. Under no circumstances shall AAA place more than 10 cases/arbitrations into active status. If more than 10 hardship applications are granted, AAA shall determine which 10 cases/arbitrations shall proceed first, based on its determination of relative hardship.
You may opt out of the arbitration obligations of this Agreement within 30 days after you sign it by sending a letter to: General Counsel, 9950 Woodloch Forest Drive, The Woodlands, Texas 77379, stating your name, and intent to opt out. Opting out of this Agreement has no effect on your or Company’s arbitration or other obligations arising out of any other agreement or contract.
Notwithstanding anything to the contrary in the Terms, any amendment by Company to this Individual Arbitration Agreement shall take effect only upon your express agreement to such amendment. You may indicate agreement to such proposed amendment by following the instructions accompanying the proposed amendment. Company may terminate your account if you do not agree to a proposed amendment to the Individual Arbitration Agreement within thirty (30) days after notice of the amendment is provided. Any such amendment shall apply to all claims or other Disputes brought by the Parties on or after the effective date of the amendment, regardless of the date of occurrence or accrual of any facts underlying such claims or Disputes.
This Individual Arbitration Agreement will survive termination of the Terms.
CLASS ACTION WAIVER:
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AGREE THAT EACH PARTY MAY ASSERT A CLAIM OR COUNTERCLAIM IN THAT PARTY’S INDIVIDUAL CAPACITY ONLY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, MASS, OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION SUCH PROCEEDINGS BROUGHT IN FEDERAL OR STATE COURT.
