Terms and conditions
Last Updated: June 10, 2022
Welcome to Billycart!
1. General Terms
2.1 By accepting these Terms, you affirm that you are (a) at least 18 years old, or the age of majority in your jurisdiction (if higher), and (b) have full power and authority to enter into this Terms on your behalf, and doing so will not violate any other agreement to which you are a party. You further represent that you are not a citizen, resident, or member of any jurisdiction or group that is subject to economic or other applicable sanctions by the United States of America, or where your use of the Services would be illegal or otherwise violate any applicable law. You further represent that your access and use of the Services will fully comply with applicable law, and that you will not access or use the Services to conduct, promote, or otherwise facilitate any illegal or fraudulent activity.
3. Service & Usage
3.1 The Platform provides an interface for you to access the Services once you create a Billycart account. The Services provide you access to a payment solution that enables you to make, arrange, schedule, and otherwise manage payments to merchants on the Platform (the Services). The Company provides only the Platform to access the Services. Payment services, including the movement of funds, are provided by a third party payment processor, not the Company. You will not be charged any fees for using the Services.
3.2 If you wish to use our Services, you may be asked to supply certain information relevant to our Services including but not limited to, your name, your email, a credit or debit card number, the expiration date of your card, or details about your billing address. You represent and warrant that: (i) you have the legal right to use any card(s) or other payment method(s) in connection with any payment made through the Platform; and that (ii) the information you supply to us is true, correct, and complete. The payment information you provide will be collected by a third party payment processor, not the Company, and we will not store any card details in our system. We reserve the right to refuse or cancel your transaction if fraud or an unauthorized or illegal transaction is suspected.
3.3 You may use the Services to authorize or schedule payments to merchants on the Platform, which payments will be executed by a third party payment processor. Although we will try to notify you if your depository institution is unable or unwilling to process any scheduled payment, you agree we are not required to do so and you are still required to make payments in the time and manner required by your agreement with the merchant. The Company has no responsibility or duty regarding the terms of your payment obligation to the merchant. Any disputes regarding any amounts owed to the merchant are between you and the merchant, so you should contact the merchant directly to dispute any invoiced amount.
3.4 For your financial security and to protect your account, it is important that you keep your password and all other account access details strictly confidential and private. You are responsible for the activity that happens through your account, except activity as a result of our negligence or our breach of these Terms. When a transaction occurs using your credentials, we will assume that you authorized such transaction, unless you notify us otherwise. If you believe you did not authorize a particular transaction or that a transaction was incorrectly carried out, please contact your financial institution and the business that received the funds.. It is important that you regularly check your account and your transaction history regularly to ensure you notify us as soon as possible of any unauthorized transactions. We are not responsible for any claim for unauthorized transactions or harm or losses associated with such transactions except for any such transactions that occur after you have notified us in accordance with this subsection and given us a reasonable period of time to request a hold on any further transactions.
3.5 You cannot cancel, reverse, or change any transaction marked as complete or pending. If your payment is not successful, if your payment method has insufficient funds, or if you reverse a payment, you authorize Company, in its sole discretion, either to cancel the transaction or to debit your other payment methods in any amount necessary to complete the transaction. You are responsible for maintaining an adequate balance and/or sufficient credit limits in order to avoid overdraft, non-sufficient funds (NSF), or similar fees charged by your financial institution. We reserve the right to refuse to process, or to cancel or reverse, any payment transaction in our sole discretion, even after funds have been debited from your account with your financial institution, if we suspect the transaction involves (or has a high risk of involvement in) money laundering, terrorist financing, fraud, or any other type of financial crime; in response to a subpoena, court order, or other government order; if we reasonably suspect that the transaction is erroneous; or if Company suspects the transaction relates to a Prohibited Use as set forth below. In such instances, Company will reverse the transaction and we are under no obligation to allow you to reinstate a payment on the same terms as the cancelled transaction.
3.6 In connection with the Services, Company may make certain functionality available to you on the Platform, which functionality may be altered, amended, discontinued, removed or otherwise modified from time to time by Company in its sole discretion.
Company has no presence in the United States.All Services are provided from Australia.
4. App End User License
4.1 Subject to these Terms, we grant you a limited, non-exclusive, and nontransferable license to:
(a) download, install, and use the App for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (the Mobile Device) strictly in accordance with the App’s documentation[./; and
4.2 License restrictions. You shall not:
(a) copy the App, except as expressly permitted by this license;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App or any part thereof;
(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App, including any copy thereof; or
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App, or any features or functionality of the App, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time.
4.3 Reservation of Rights. You acknowledge and agree that the App is provided under license, and not sold, to you. You do not acquire any ownership interest in the App under these Terms, or any other rights thereto other than to use the App in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms. Company reserves and shall retain its entire right, title, and interest in and to the App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms.
4.6 The Services are provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you are responsible for compliance with local laws.
4.7 Updates. Company may from time to time in its sole discretion develop and provide App updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, Updates). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
(a) the App will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App and be subject to these Terms.
5. Intellectual Property
5.1 The Platform and its entire contents, features, and functionality (including all information, content, software, text, displays, images, video, audio, service marks, and the design, selection and arrangement thereof) (the Intellectual Property), are owned by the Company, its licensors or other providers of such material and are protected by local and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. You acknowledge that the Company, its licensors or other providers own the Intellectual Property, and you agree not to use any Intellectual Property without the express prior written consent of the Company, or respective licensor or provider. All rights reserved. The Platform and Services may contain certain licensed materials, and our licensors may protect their rights in the event of any violation of these Terms.
5.2 By submitting feedback, or suggestions (“Feedback”) to the Company through the Platform or other means, you acknowledge and agree that (i) your Feedback does not contain confidential or proprietary information of you or any third party; (ii) we are not under any obligations of confidentiality with respect to the Feedback; (iii) we may freely use, reproduce, distribute, and otherwise utilize the Feedback for any purpose; and (iv) you are not entitled to any compensation of any kind from us. .
6. Prohibited Uses
6.1 You agree not to engage in, or attempt to engage in, any of the following categories of prohibited activity in relation to your access and use of the Platform and Services:
(a) use the Services to conduct electronic spamming or otherwise distribute any unsolicited or unauthorized advertising, promotional or marketing material, junk mail or chain letters;
(b) use the Services to perform illegal, unlawful or immoral activities (including but not limited to money laundering, terrorism financing and fraudulent activities);
(c) activity that seeks to interfere with or compromise the integrity, security, or proper functioning of any computer, server, network, personal device, or other information technology system, including (but not limited to) the deployment of viruses and denial of service attacks;
(d) modify or adapt the whole or any part of the Services or combine or incorporate Services into another other program or application;
(e) engage in any other activities deemed inappropriate by us or which is in contravention of these Terms or any applicable laws; or
(f) provide false, inaccurate, incomplete or misleading information to Company or any of its affiliates or third-party services providers.
7. Links to Other Websites
7.1 These Terms apply only to the Platform and Services. The Platform and Services may contain links to other websites not operated or controlled by the Company. We are not responsible for the content, accuracy or opinions expressed in such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by us.
8.1 Consent to Contract Electronically and to Receive Communications Electronically
. By clicking the “I Accept” button below or by using the Platform, you demonstrate your agreement to contract electronically with Company and to be bound by these Terms, and agree to receive electronically, via the email associated with your account, all notices and disclosures for your account (the Communications) in electronic form. In addition, you hereby agree that you reaffirm your agreement to receive Communications electronically every time you use the Platform. You further agree by these actions that (a) you will conduct the transactions using the Platform electronically; (b) you acknowledge that you have received an electronic copy of these Terms; (c) you confirm your authorization and informed consent to the delivery of electronic Communications to you under these Terms; and (d) you have the ability to receive Communications via email.
8.2 The Company will use various forms of electronic communication in the course of performing its functions. With electronic communication there is a risk of non-receipt, delayed receipt, inadvertent misdirection or interception by third parties. The Company uses virus scanning software to reduce the risk of viruses and similar damaging items being transmitted through emails or electronic storage devices. The Company also expects you to operate such software. However, electronic communication is not totally secure.
8.3 You agree that the Company shall not be held responsible or liable whatsoever for any damage or loss caused by viruses, malicious actors, or any other events or for communications which are corrupted or altered after dispatch. By accessing the Platform and the Services, you also agree that in connection with electronic communication, the Company shall not be liable whatsoever for any damage or loss caused as a result of non-receipt, delayed receipt, inadvertent misdirection or interception by third parties especially in relation to commercially sensitive or confidential material.
8.4 Any email communications to or from the Company may be monitored for operational or business reasons and used for lawful purposes at the sole discretion of the Company. By accessing the Platform, you consent to any form of recording and retention of any communication, information, and data exchanged between you and the Company or its representatives or agents.
9. Third-Party Services
9.1 The Company may display, include or make available third-party content (including data, information, applications and other products or services) or provide links to third-party websites or services (Third-Party Services). By accessing the Platform and the Services, you acknowledge and agree that the Company shall not be responsible for any Third-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof.
9.2 The Company does not assume and shall not have any liability or responsibility to you or any other person or entity for any Third-Party Services.
9.3 Third-Party Services and links are provided solely as a convenience. Any access of such services by you is entirely at your own risk and subject to such third parties’ terms and conditions. The Company nor the Third-Party Services providers explicitly or implicitly endorse or approve any Third-Party Service.
10. Term and Termination
10.1 Your obligation to comply with these Terms (except for any Terms that shall survive as indicated in these Terms) shall remain in effect until you or the Company terminate your account or the Company otherwise restricts your access to the Platform or the Services.
10.2 The Company may, in its sole discretion, at any time and for any reason, suspend or terminate your account and/or restrict or prohibit your access to the Platform or the Services with or without prior notice in accordance with these Terms, and do so effective immediately. The Company shall not be liable to you or any third party for the termination, suspension, or restriction of your access to the Platform or the Services, or any claims relating to such termination, suspension, or restriction.
10.3 Any obligations the Company may have under these Terms will terminate immediately, without prior notice from the Company, in the event that you fail to comply with any provision of these Terms.
10.4 You may terminate your account by contacting us at firstname.lastname@example.org Your account will not be terminated, however, until any pending transactions are completed.
10.5 Termination of your account will not limit any of the Company’s rights or remedies at law or in equity in case of breach by you of any of your obligations under the Terms.
11. Warranty Disclaimers; Limitation of Liability
11.1 No Warranties
The platform and service are provided on an “as is” and “as available” basis. To the fullest extent permitted by law, we disclaim any representations, warranties and guarantees of any kind, whether express, implied, or statutory, including (but not limited to) the warranties of merchantability, quality, accuracy, fitness for a particular purpose, title and non-infringement. you acknowledge and agree that your use of the platform and services is at your own risk. We do not represent, warrant or guarantee that access to the platform or services will be continuous, uninterrupted, free from interference, timely, or secure; that the information contained in the platform or services will be accurate, reliable, complete, or current; or that the platform or services will be free from errors, defects, viruses, or other harmful elements. No advice, information, or statement that we make should be treated as creating any warranty or guarantee concerning the platform or services. We do not endorse, guarantee, or assume responsibility for any advertisements, offers, or statements made by third parties concerning the platform or services.
11.2 Consequential Damages Exclusion
Under no circumstances shall we or any of our officers, directors, employees, contractors, agents, affiliates, subsidiaries, liquidity providers, service providers or vendors be liable to you for any indirect, incidental, special, consequential, punitive or exemplary damages, including (but not limited to) damages for loss of profits, goodwill, use, data, or other intangible property, arising out of or relating to any access or use of the platform or services, nor will we be responsible for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access or use of the platform or services or the information contained within them. Neither we nor any of our officers, directors, employees, contractors, agents, affiliates, subsidiaries, liquidity providers, service providers or vendors assume any liability or responsibility for any: (a) errors, mistakes, or inaccuracies of content; (b) personal injury or property damage, of any nature whatsoever, resulting from any access or use of the platform or services;(c) unauthorized access or use of any secure server or database in our control, or the use of any information or data stored therein; (d) interruption or cessation of function related to the platform or services; (e) bugs, viruses, trojan horses, or the like that may be transmitted to or through the platform or services;(f) errors or omissions in, or loss or damage incurred as a result of the use of, any content made available through the platform or services; and (g) the defamatory, offensive, or illegal conduct of any third party.
11.3 Limitations on Liability
Under no circumstances shall we or any of our officers, directors, employees, contractors, agents, affiliates, subsidiaries, liquidity providers, service providers or vendors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses, or costs in an amount exceeding the amount you paid to us in exchange for access to and use of the platform or services, or $100 USD, whichever is greater. this limitation of liability applies regardless of whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, and even if we have been advised of the possibility of such liability. Some jurisdictions do not allow the exclusion of certain warranties or guarantees or the limitation or exclusion of certain liabilities and damages. Accordingly, some of the disclaimers, exclusions and limitations set forth in these terms may not apply to you. This limitation of liability shall apply to the fullest extent permitted by law.
12. Indemnification and Release
12.1 You hereby agree to indemnify, defend, hold harmless and release us and our officers, directors, employees, contractors, agents, affiliates, and subsidiaries from and against all claims, damages, obligations, losses, liabilities, costs, and expenses arising from: (a) your access to or use of the platform and services; (b) your violation of any term or condition of these terms, the right of any third party, or any other applicable law, rule, or regulation; and (c) any other party’s access and use of the platform or services with your assistance or using any device or account that you own or control. You expressly agree that you assume all risks in connection with your access and use of the platform and services and of any third parties. You further expressly waive and release us from any and all liability, claims, causes of action, or damages arising from or in any way relating to your use of the platform and services. If you are a California resident, you waive the benefits and protections of California civil code § 1542, which provides: " [a] general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favour at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” With respect to claims for which you must indemnify us, we reserve the right to exercise sole control over the defence, at your expense, of any claim subject to indemnification under this section. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and us, if any.
13.1 It is agreed between you and the Company that neither party shall, at any time, disclose to any other person and shall treat as confidential, any information relating to the business, finances or other matters of the other party, which such party has obtained as a result of its relationship with the other party under these Terms, save where the information is or was:
(a) already known to the recipient from a source other than the other party without any obligation of confidentiality;
(b) in the public domain or becomes public knowledge otherwise than as a result of the unauthorized or improper conduct of the disclosing party;
(c) disclosed as required by any law or order of any court, tribunal or judicial equivalent, or pursuant to any direction, request or requirement (whether or not having the force of law) of any central bank, governmental, supervisory or other regulatory agency or taxation authority (provided that, if legally permissible, the recipient will promptly inform the other party of any such order, direction, request or requirement prior to disclosing any information);
(d) disclosed for business purposes to affiliates, professional advisors, service providers or agents, engaged by one of the parties, who receive the same under a duty of confidentiality;
(e) made available by a third party who is/was entitled to divulge such information and who is not under any obligation of confidentiality in respect of such information to the other party; or
(f) disclosed with the consent of the other party (including any consents contained under these Terms).
13.2 The parties shall ensure that any confidential information provided to the other party in relation to any principals, affiliates, Beneficial Owners, Members, Directors, Officers, employees and agents (Subject Persons) of the disclosing party is provided with the consent of the relevant Subject Persons, which the disclosing party will be responsible for obtaining.
13.3 Nothing in these Terms shall prevent the disclosure of information by a party:
(a) to its auditors, insurers, legal, tax, or other professional advisers in the proper performance of its duties under these Terms;
(b) pursuant to any right or obligation to or by which such party may be entitled or bound to disclose information or under compulsion of law or pursuant to the requirements of competent regulatory or other authorities; or
(c) where the information is in the public domain otherwise than due to a breach of this Clause 13.
13.4 Neither party shall do or commit any act, matter or thing which would or might prejudice or bring into disrepute in any manner the business or reputation of the other party or any director or partner of the other party.
14.1 You acknowledge and agree that the Company may, in its sole discretion, at any time and from time to time change, alter, adapt, add or remove portions of these Terms, and, if the Company does so, the Company will give notice by making available on the Platform the updated version of the Terms and making clear the date on which such Terms come into effect. The current version of these Terms is available at any time on request. Your continued use of the Platform and the Services following any such change shall be deemed to constitute your acceptance of those changes and you acknowledge and agree to be bound by the current version of these Terms at all times and that unless stated in the current version of these Terms all previous versions shall be superseded by the current version.
15.1 These Terms, and any rights and obligations and licenses granted hereunder, are limited, revocable, non-exclusive and personal to you and therefore may not be transferred, assigned or delegated by you to any third party without our written consent, but may be transferred, assigned or delegated by us without notice and restriction, including without limitation to any entity affiliated with Company, or to any successor in interest of any business associated with the Services. Any attempted transfer or assignment in violation hereof shall be null and void.
16.1 Any notices to be given and any correspondence or communications to be delivered or forwarded pursuant to these Terms shall be sufficiently served, delivered or forwarded if sent by email, prepaid airmail or by fax and shall be deemed to be given (in the case of email and fax at 10.00 a.m. on the next business day in the place of receipt following dispatch) or (in the case of the post 10 business days after the dispatch thereof) and shall be sent:
(a) in the case of the Company, to its address The Annex, Level 10, 12 Creek Street, Brisbane QLD 4000 or by e-mail to email@example.com.
(b) in the case of you, to the email address or such contact details at the time of registration on the Platform;
(c) to such other correspondence address, fax number or email address or for the attention of such other person as may from time to time be notified by one party to the other party by notice given in accordance with the provisions of these Terms; and
(d) in the absence of any address specified or notified pursuant to (b) and (c) above, to such other address as the Company in its sole and absolute discretion considers appropriate.
17. Applicable Law
17.1 You agree that the laws of Queensland, Australia, without regard to principles of conflict of laws, will govern these Terms and any claim or dispute that has arisen or may arise between you and the Company. Any arbitration conducted pursuant to these Terms shall be governed by the U.S. Federal Arbitration Act.
18. Entire Agreement
18.1 These Terms constitute the entire agreement between the parties relating to its subject matter and supersedes and extinguishes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter.
18.2 However, the Terms are in addition to any other agreements that relate to other subject matter. To the extent there is any contradiction between the Terms and any other agreement, the conditions of those agreements control, but exclusively with respect to the contradictory terms.
19.1 If any provision in these Terms is determined to be illegal, void, invalid, or unenforceable under the laws of any jurisdiction:
(a) such illegal, void, invalid, or unenforceable provision shall be deemed to be severable from any other provision of these Terms and shall be treated as having been severed from these Terms in the relevant jurisdiction (and only in the relevant jurisdiction) but the legality, validity, and enforceability of the remainder of these Terms shall not be affected;
(b) the legality, validity, and enforceability of the whole of these Terms in any other jurisdiction shall not be affected; and
(c) the parties shall negotiate in good faith to agree the terms of a mutually acceptable and satisfactory alternative provision in place of the provision so severed.
20. Force Majeure
20.1 No party shall be responsible for any failure to perform its duties under this these Terms if such failure is caused by, or directly or indirectly due to, war, enemy action, the act or regulation of any government or other competent authority, riot, civil commotion, rebellion, storm, tempest, accident, pandemic, endemic, fire, lock-out, strike or other cause whether similar or not beyond the control of the relevant party, provided that the relevant party shall use all reasonable efforts to minimize the effects of the same.
21. Pre-dispute Arbitration; Waiver of Class Action
21.1 Arbitration Agreement
21.2. These Terms contains a mandatory individual arbitration agreement that requires the use of arbitration on an individual basis to resolve disputes, rather than aggregate arbitration, jury trials or class actions. You hereby waive and agree to waive your rights to bring claims against us under these Terms as part of a class action and your right to a jury trial for such claims.
21.3 Dispute Resolution by Binding Arbitration
21.4. Please read this “dispute resolution by binding arbitration” provision very carefully. it limits your rights in the event of a dispute between you and company, subject to the terms and opt-out option set forth below.
You and Company agree that any and all past, present and future disputes, claims, or causes of action arising out of or relating to your use of the Platform, the Services,, these Terms, or any other controversies or disputes between you and Company (including, without limitation, disputes regarding the effectiveness, scope, validity or enforceability of this agreement to arbitrate) (collectively, Dispute(s)), shall be determined by arbitration, unless you opt out as provided below. You and Company further agree that any arbitration pursuant to this Section shall not proceed as a class, group or representative action. The award of the arbitrator may be entered in any court having jurisdiction.
Company wants to address your concerns without the need for a formal legal dispute. Before filing a claim against Company, you agree to try to resolve the Dispute informally by contacting Company at firstname.lastname@example.org to notify Company of the actual or potential Dispute. Similarly, Company will undertake reasonable efforts to contact you to notify you of any actual or potential dispute at the email address that you provided to us to resolve any claim we may possess informally before taking any formal action. The party that provides the notice of the actual or potential Dispute (the Notifying Party) will include in that notice (a Notice of Dispute) the Notifying Party’s contact information for any communications relating to such Dispute (including the Notifying Party’s legal counsel if it is represented by counsel in connection with such Dispute), and sufficient details regarding such Dispute to enable the other party (the Notified Party) to understand the basis of and evaluate the concerns raised. If the Notified Party responds within ten (10) business days after receiving the Notice of Dispute that it is ready and willing to engage in good faith discussions in an effort to resolve the Dispute informally, then each party shall promptly participate in such discussions in good faith.
If, notwithstanding the Notifying Party’s compliance with all of its obligations under the preceding paragraph, a Dispute is not resolved within 30 days after the Notice of Dispute is sent (or if the Notified Party fails to respond to the Notice of Dispute within ten (10) business days), the Notifying Party may initiate an arbitration proceeding as described below. If either party purports to initiate arbitration without first providing a Notice of Dispute and otherwise complying with all of its obligations under the preceding paragraph, then, notwithstanding any other provision of these Terms, the arbitrator(s) will promptly dismiss the claim with prejudice and will award the other party all of its costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred in connection with such Dispute.
We both agree to arbitrate (unless you opt out as described below). You and Company each agree to resolve any Disputes that are not resolved informally as described above through final and binding arbitration as discussed herein.
If you do not wish to be subject to this agreement to arbitrate, you may opt out of this arbitration provision by sending a written notice to Company at email@example.com within thirty (30) days of first accepting these Terms. You must date the written notice, and include your first and last name, address, and a clear statement that you do not wish to resolve disputes with Company through arbitration. If no written notice is submitted by the 30-day deadline, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute. By opting out of the agreement to arbitrate, you will not be precluded from using the Platform or Services, but you and Company will not permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.
You and Company agree that the American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes in effect at the time arbitration is sought (“AAA Rules”). Those rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available to you in an individual lawsuit and that are not waivable under applicable law. Notwithstanding any language to the contrary in this paragraph, if a party seeks injunctive relief that would significantly impact other Company users as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential.
You and Company further agree that the arbitration will be held in the English language in New York, New York, or, if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If Company elects arbitration, Company shall pay all of the AAA filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the AAA Rules, or in accordance with countervailing law if contrary to the AAA Rules. However, if the value of the relief sought is $10,000 or less, at your request, Company will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator(s) finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the AAA Rules. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided herein or required by law. This agreement to arbitrate shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in these Terms.
You and Company agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor Company may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a Collective Arbitration). Without limiting the generality of the foregoing, a claim to resolve any Dispute against Company will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
To the maximum extent permitted by applicable law, neither you nor company shall be entitled to consolidate, join or coordinate disputes by or against other individuals or entities, or arbitrate or litigate any dispute in a representative capacity, including as a representative member of a class or in a private attorney general capacity. In connection with any dispute (as defined above), any and all such rights are hereby expressly and unconditionally waived. Without limiting the foregoing, any challenge to the validity of this paragraph shall be determined exclusively by the arbitrator.
Except as otherwise required by Applicable Law or provided in these Terms, in the event that the agreement to arbitrate is found not to apply to you or your Dispute, you and Company agree that any judicial proceeding may only be brought in a court of competent jurisdiction in New York, United States. Both you and Company consent to venue and personal jurisdiction there solely for the limited purpose of the judicial proceeding, provided that either party may bring any action to enforce its intellectual property rights or confirm an arbitral award in any court having jurisdiction.
This agreement to arbitrate shall survive the termination or expiration of these Terms. With the exception of the provisions of this agreement to arbitrate that prohibit Collective Arbitration, if a court decides that any part of this agreement to arbitrate is invalid or unenforceable, then the remaining portions of this agreement to arbitrate shall nevertheless remain valid and in force. In the event that a court finds the prohibition of Collective Arbitration to be invalid or unenforceable, then the entirety of this agreement to arbitrate shall be deemed void (but no provisions of these Terms unrelated to arbitration shall be void), and any remaining Dispute must be litigated in court pursuant to the preceding paragraph
The statute of limitations, statute of repose, non-claim statute or any other time bar that would be applicable to any claim filed in a court of competent jurisdiction shall be applicable to any claim filed in arbitration.