13. ARBITRATION CLAUSE AND CLASS ACTION WAIVER.
Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and Landingsite arbitrate disputes against one another.
Dispute Resolution: PLEASE BE AWARE THAT THIS SECTION 13 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND LANDINGSITE HAVE AGAINST EACH OTHER WILL BE RESOLVED. THIS SECTION 13 INCLUDES AN AGREEMENT TO ARBITRATE, WHICH REQUIRES WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND LANDINGSITE BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 13 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER.
13.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Landingsite agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services and any content made available thereon (or your inability to do so), any communications you receive or do not receive, or the Terms, including claims and disputes that arose between us before the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (a) you and Landingsite may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (b) you or Landingsite may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of these Terms.
13.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and Landingsite. If that occurs, Landingsite is committed to working with you to reach a reasonable resolution. You and Landingsite agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Landingsite therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (the “Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”
), which will occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Landingsite that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to [email protected]
or regular mail to our offices located at Landingsite, LLC PO Box 7079 Boulder, CO 80306. The Notice must include: (a) your name, telephone number, mailing address, and e‐mail address associated with your Account (if you have one); (b) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (c) a description of your Dispute.
The Informal Dispute Resolution Conference will be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple Users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement will prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines will be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
13.3 Waiver of Jury Trial. YOU AND LANDINGSITE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Landingsite are instead electing that all Disputes will be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1(Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.4 Waiver of Class and Other Non-Individualized Relief. YOU AND LANDINGSITE AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 13.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this Section 13.4 is intended to, nor will it, affect the terms and conditions under the Section 13.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section 13.4 are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Landingsite agree that that particular claim or request for relief (and only that particular claim or request for relief) will be severed from the arbitration and may be litigated in the state or federal courts located in Denver, Colorado. All other Disputes will be arbitrated or litigated in small claims court. This section does not prevent you or Landingsite from participating in a class-wide settlement of claims.
13.5 Rules and Forum. These Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described in Section 13.2, above, does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Landingsite agree that either party will have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, will be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (a) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the Account username (if applicable) as well as the email address associated with any applicable Account; (b) a statement of the legal claims being asserted and the factual bases of those claims; (c) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (d) a statement certifying completion of the Informal Dispute Resolution process as described above; and (e) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
Unless you and Landingsite otherwise agree, or the Batch Arbitration process discussed in Section 13.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.
You and Landingsite agree that all materials and documents exchanged during the arbitration proceedings must be kept confidential and may not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
13.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Colorado and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days after delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under Section 13.9 (Batch Arbitration) is triggered, JAMS will appoint the arbitrator for each batch.
13.7 Authority of Arbitrator. The arbitrator will have exclusive authority to resolve any Dispute, including, without limitation, any Dispute arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (a) any Dispute arising out of or relating to Section (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of that section is unenforceable, illegal, void or voidable, or that such section has been breached, will be decided by a court of competent jurisdiction and not by an arbitrator; (b) except as expressly contemplated in Section 13.9 (Batch Arbitration), any Dispute about the payment of arbitration fees will be decided only by a court of competent jurisdiction and not by an arbitrator; (c) any Dispute about whether either party has satisfied any condition precedent to arbitration will be decided only by a court of competent jurisdiction and not by an arbitrator; and (d) any Dispute about which version of the Arbitration Agreement applies will be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section13.9 (Batch Arbitration). The arbitrator will have the authority to grant motions dispositive of all or part of any Dispute. 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 award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
13.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Landingsite need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
13.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Landingsite agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Landingsite by or with the assistance of the same law firm, group of law firms, or organizations, JAMS will, within a thirty (30) day period (or as soon as possible thereafter) (a) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (b) appoint one arbitrator for each batch; and (c) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party will advise JAMS, and JAMS will appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such Dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any Disputes promptly. The Administrative Arbitrator’s fees will be paid by Landingsite.
You and Landingsite agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision will in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
13.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: Landingsite, LLC PO Box 7079 Boulder CO, 80306, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
13.11 Invalidity, Expiration. Except as provided in Section 13.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect. You further agree that any Dispute that you have with Landingsite as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
13.12 Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Landingsite makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days after the date such change becomes effective by writing to Landingsite at: Landingsite, LLC PO Box 7079 Boulder CO 80306, your continued use of the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, the provisions of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. Landingsite will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.