XV. Dispute Resolution and Binding Arbitration
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BASTYON MOBI.
15.1 YOU AND BASTYON MOBI ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT AS FURTHER SET FORTH BELOW IN THIS SECTION 15) OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
15.2 EXCEPT AS OTHERWISE PROVIDED BELOW, ANY AND ALL CLAIMS, DISPUTES, OR CONTROVERSIES (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING, WITHOUT LIMITATION, STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE, AND EQUITABLE CLAIMS) BETWEEN YOU AND BASTYON MOBI, ARISING FROM OR RELATING IN ANY WAY TO, AMONG OTHER THINGS, (I) THE WEBSITE; (II) THESE TERMS & CONDITIONS OF USE AND PRIOR VERSIONS OF THESE TERMS & CONDITIONS OF USE, OR THE EXISTENCE, BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION, SCOPE, WAIVER, OR VALIDITY THEREOF; OR (III) YOUR RELATIONSHIP WITH BASTYON MOBI (COLLECTIVELY, THE “COVERED DISPUTES”), WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION, REGARDLESS OF WHETHER THE COVERED DISPUTE OCCURRED OR ACCRUED BEFORE OR AFTER THE DATE YOU AGREED TO THESE TERMS & CONDITIONS OF USE.
15.3 Notwithstanding any choice of law or other provision in these Terms & Conditions of Use, this agreement to arbitrate evidences a transaction involving interstate commerce and the FAA will govern its interpretation, enforcement, and proceedings pursuant thereto. It is the intent of the parties to be bound by the provisions of the FAA for all purposes, that the applicable arbitration provider’s rules shall preempt all state laws to the fullest extent permitted by law, and that the agreement to arbitrate be broadly interpreted.
15.4 This agreement to arbitrate applies (i) whether your dispute is with Bastyon Mobi, its subsidiaries, affiliates, or parent company, or any suppliers or service providers involved with the Website or Bastyon Mobi’s products and services, and their officers, directors, employees, agents, assigns, predecessors, and successors; and (ii) regardless of the legal theory on which you base your claim (such as breach of warranty, breach of contract, negligence, etc.). This agreement to arbitrate will also be binding upon, and shall include any claims brought by, any other third parties, including, without limitation, your spouse, heirs, third-party beneficiaries, successors, and assigns, where their underlying claims arise out of or relate to a Covered Dispute.
15.5 For Covered Disputes specifically relating to these Terms & Conditions of Use or the Website, this agreement to arbitrate supersedes any terms regarding dispute resolution in any other agreement between you and Bastyon Mobi and contains the whole agreement between you and Bastyon Mobi with respect to any such disputes or claims.
15.6 The arbitration shall be conducted by a single arbitrator and will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures applicable to consumer disputes, and in accordance with the Expedited Procedures in those Rules, unless the parties agree to JAMS’ Streamlined Arbitration Rules and Procedures (collectively, the “JAMS Rules”), except as modified by this Article XV. The JAMS Rules are available online at www.jamsadr.com.
15.7 For disputes arising in a jurisdiction where JAMS cannot or will not administer the arbitration, the parties shall be required to meet and confer to select a neutral arbitration provider. Such an arbitration provider shall have operations in the state in which the dispute arises. If the parties are unable to mutually agree upon an arbitration provider, then either party may invoke 9 U.S.C. § 5 to request that a court of competent jurisdiction appoint an arbitration provider with operations in the state in which the dispute arises. Any arbitration provider appointed by a court under 9 U.S.C. § 5 shall conduct arbitration solely on an individualized basis as set forth herein. Once the parties mutually agree upon a neutral arbitration provider, or an arbitrator provider is appointed under 9 U.S.C. § 5, the ensuing arbitration shall commence pursuant to the rules of the designated arbitration provider, except as otherwise designated herein. Once an arbitration provider is agreed upon or appointed, an arbitrator shall be appointed. The arbitrator will be either (i) a retired judge, or (ii) an attorney licensed to practice law in the state where the arbitration is conducted with experience in the law underlying the dispute. The arbitrator will be selected by the parties from the applicable arbitration provider’s roster of arbitrators. If the parties are unable to agree upon an arbitrator after a good faith meet and confer effort, then the applicable arbitration provider will appoint the arbitrator in accordance with its rules.
15.8 We each agree that, as a condition precedent to initiating any arbitration or other legal proceedings, the parties shall make a good faith effort to resolve any Covered Dispute. In the event that the parties are unable to resolve any Covered Dispute within a reasonable period (which, in any event, shall not exceed sixty (60) days), you or Bastyon Mobi may initiate an arbitration proceeding by (i) sending a written notice (entitled, and referred to herein as a, “Demand for Arbitration”) to the other party by mail; AND (ii) sending an electronic copy of the Demand for Arbitration to office@bastyon.mobi (if the Demand for Arbitration is from you) or to any email address that you provide to us when registering a Bastyon Mobi account or purchasing Bastyon Mobi product(s) or that you otherwise publish through the Website (if the Demand for Arbitration is from Bastyon Mobi). Any Demand for Arbitration that you send to Bastyon Mobi should be delivered to: Bastyon Mobi, 30 N Gould St #40014, Sheridan WY 82801, USA.
15.9 All issues in dispute are for the arbitrator to decide. Except as otherwise specifically provided in Section 12.13 below, the arbitrator will have exclusive authority to resolve any dispute relating to the scope, arbitrability, and/or enforceability of this agreement to arbitrate, whether a dispute can be arbitrated, or the interpretation of this agreement to arbitrate, including any unconscionability challenge or any other challenge to the effect that these arbitration provisions or these Terms & Conditions of Use are void, voidable, or otherwise invalid. The arbitrator shall, in accordance with the JAMS Rules, allow for the discovery or exchange of non-privileged information relevant to the dispute, and shall enter orders as appropriate in order to protect the parties’ trade secrets or confidential information. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator is not bound by decisions reached in separate arbitrations, and the arbitrator’s decision shall be binding only upon the parties to the arbitration that are the subject of the decision. The arbitrator shall award reasonable costs incurred in the arbitration to the prevailing party in accordance with the law(s) of the state in which arbitration is held.
15.10 Payment of all filing, administration, and arbitrator fees will be governed by the JAMS Rules unless otherwise stated in this agreement to arbitrate. If the value of the relief sought is $5,000 or less, Bastyon Mobi will pay all filing, administration, and arbitrator fees associated with the arbitration. If the value of the relief sought is more than $5,000 and you are able to demonstrate that the cost of accessing arbitration will be prohibitive as compared to the cost of accessing a court for purposes of pursuing litigation on an individual basis, Bastyon Mobi will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the cost of accessing arbitration from being prohibitive. If the arbitrator decides that either the substance of your claim or the remedy you asked for is frivolous or brought for an improper purpose, the parties will use the JAMS Rules to determine whether you or Bastyon Mobi is responsible for the filing, administrative, and arbitrator fees.
15.11 The foregoing notwithstanding, if a party’s claim is within the jurisdiction of a small claims court, either party may choose to take the claim to that court instead of arbitration as follows: (i) a party may take its claim to small claims court without first sending a Demand for Arbitration to the other party; (ii) a party that receives a Demand for Arbitration can, within thirty (30) calendar days after its receipt of the Demand for Arbitration (the “Forum Determination Period”), send written notice (in the manner prescribed in Section 15.8 above) to the opposing party that it wants the case decided by a small claims court; (iii) after the expiration of the Forum Determination Period and after a case is filed with JAMS, but before the issuance of a Commencement Letter (as such term is defined in the JAMS Rules), a party can send written notice (in the manner prescribed in Section 15.8 above) to the opposing party and JAMS that it wants the case decided by a small claims court (after receiving this notice, JAMS will administratively close the case); and (iv) after the expiration of the Forum Determination Period, after a case is filed with JAMS, and after the issuance of a Commencement Letter, the parties may mutually agree in writing that the arbitration case should be closed and the dispute decided in small claims court. The small-claims court proceeding will be limited solely to your individual dispute or controversy and will not be consolidated with any other action or conducted on a class-wide, representative, or class-action basis. Neither party may file a case with jams (for a claim that is within the jurisdiction of a small claims court) until after the expiration of the Forum Determination Period.
15.12 The forgoing notwithstanding, you or Bastyon Mobi may file suit in court to address an intellectual property rights infringement claim (as set forth in Section 14.1 above).
15.13 You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR BASTYON MOBI WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER USERS OF THE WEBSITE IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, IN A REPRESENATIVE CAPACITY, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of you, the individual party seeking relief, and only to the extent necessary to provide relief that is warranted by your individual claim, and not any remedy that affects other users of the Website or third parties. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. If a court decides that applicable law precludes enforcement of any of the limitations set forth in this Section 15.13 as to a particular claim for relief or remedy (such as declaratory or injunctive relief), then that claim or remedy (and only that claim or remedy) must be severed from the arbitration and must be brought in the state or federal courts, while the remaining claims and remedies (such as individual damages or restitution) will still be resolved through binding arbitration.
15.14 You can choose to reject the agreement to arbitrate (“opt out”) by mailing us a written opt-out notice (“Opt-Out Notice”). The Opt-Out Notice must be postmarked no later than thirty (30) days after the date you accept these Terms & Conditions of Use. You must mail the Opt-Out Notice to Bastyon Mobi at the following address: Bastyon Mobi, 30 N Gould St # 40014, Sheridan WY 82801, USA. Your Opt-Out Notice must include a statement that you intend to opt out of the arbitration agreement in the Bastyon Mobi Website Terms & Conditions of Use, together with your name, address (including street number and address, city, state, and zip code), phone number, and any email address that you used in connection with registering a Bastyon Mobi account or purchasing Bastyon Mobi product(s) or that you otherwise used through the Website. You must sign the Opt-Out Notice in order for it to be effective. This procedure is the only way to opt out of the agreement to arbitrate. If you opt out of this agreement to arbitrate, all other parts of the Terms & Conditions of Use will continue to apply. Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements you may have with us.
15.15 Subject to the provisions of Section 15.13 above, if any provision of this agreement to arbitrate is found unenforceable, that provision will be severed and the balance of this agreement to arbitrate will remain in full force and effect. Severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the agreement to arbitrate or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the agreement to arbitrate. To the extent any claims must proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
15.16 Subject to the provisions of Section 15.13 above, (i) the substance of any disputes where public injunctive relief is available shall be decided by the arbitrator; and (ii) only if the claimant succeeds on its claim permitting the remedy of public injunction may such claimant request that a court of competent jurisdiction enter an injunction in conformity with the arbitral award.
