PLEASE READ THIS SECTION CAREFULLY. IT REQUIRES THAT YOU AND EQALL® RESOLVE MOST DISPUTES THROUGH BINDING INDIVIDUAL ARBITRATION AND INCLUDES A CLASS ACTION WAIVER, JURY TRIAL WAIVER, AND DELAWARE GOVERNING LAW AND VENUE REQUIREMENTS. THIS AGREEMENT SUPERSEDES ALL PRIOR VERSIONS.
16.1 Application. This Section applies to any dispute, claim, or controversy between you and EQALL® regardless of your country of residence or establishment. All such disputes must be resolved exclusively within the United States through arbitration or, where permitted under this Section, in the state or federal courts located in Delaware. If you reside or are established outside the United States and bring any legal claim against EQALL®, this Section will govern the dispute and will apply to all threshold determinations, including jurisdiction, arbitrability, venue, and applicable law.
16.2 Overview of Dispute Resolution Process. If this Section 16 applies to you, disputes will follow a two-step process:•
16.2.1 Informal negotiation directly with EQALL® (Section 16.3), and, if unresolved,
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16.2.2 Binding arbitration under this Section.
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Both parties may seek resolution in small claims court as an alternative to arbitration.
16.3 Mandatory Pre-Arbitration Dispute Resolution and Notification. At least 30 days before starting arbitration, you and EQALL® agree to send each other a Pre-Dispute Notice and try in good faith to resolve the claim informally.•
Send notices to: EQALL, Inc., Attn: EQALL® Legal Department, 4023 Kennett Pike, Suite 51109, Wilmington, DE 19807, USA.
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EQALL® will send notices to the email address on your account.
Notices must include: date, your name, mailing address, email used for your EQALL® account, your signature, a brief description of the dispute, and the relief sought.
If the dispute is not resolved within 60 days, either party may commence arbitration by filing a written demand and attaching proof of compliance with this requirement.
16.4 Agreement to Arbitrate; Delegation. You and EQALL® agree that any dispute, claim, or controversy arising out of or relating to this Agreement, including their applicability, breach, termination, validity, enforcement, or interpretation, or any use of the EQALL® platform, EQALL® PRO, or related content (collectively, “Disputes”) will be resolved by binding arbitration on an individual basis.
The arbitrator will decide all issues of arbitrability, enforceability, scope, and interpretation, including compliance with notice requirements and allocation of fees.
16.5 Exceptions to Arbitration Agreement. The following may be brought in court:•
i. Intellectual property claims, including trademarks, trade dress, domain names, trade secrets, copyrights and patents;
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ii. Claims seeking emergency injunctive relief;
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iii. Requests for public injunctive relief;
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iv. Vexatious litigation claims.
Requests for public injunctive relief will be stayed pending arbitration of all other claims.
16.6 Arbitration Forum, Rules, and Governing Law. This Arbitration Agreement involves interstate commerce and is governed by the Federal Arbitration Act (FAA).•
Primary administrator: ADR Services, Inc. under ADR's Arbitration Rules.
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If ADR is unavailable, the American Arbitration Association (AAA) Consumer Arbitration Rules apply.
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If neither ADR nor AAA is available, the parties will agree on an alternative or a court will appoint one.
16.7 Hearing Location and Method. All arbitration hearings, regardless of the amount in controversy, shall be conducted in Wilmington, Delaware, unless the parties mutually agree otherwise or the arbitrator orders a different location for compelling reasons. At the arbitrator’s discretion, hearings may be conducted remotely via video conference if appropriate to the circumstances.
16.8 Fees and Costs. Fees and arbitrator compensation are governed by the applicable arbitration provider's rules.
16.9 Improper Purpose Claims. The arbitrator may impose sanctions, including attorneys' fees, if a claim is found to be frivolous, in bad faith, or brought in violation of this Section.
16.10 Arbitrator's Decision. The arbitrator will issue a written decision stating essential findings. Awards may be entered in any court with jurisdiction. Relief may be granted only on an individual basis.
16.11 Jury Trial Waiver. You and EQALL® waive the right to a jury trial for all arbitrable Disputes.
16.12 No Class Actions or Representative Proceedings. To the fullest extent permitted by law, you and EQALL® waive the right to participate in class actions, class arbitrations, private attorney general actions, or any other representative or consolidated proceedings.
16.13 Mass Action Waiver. If 100 or more similar arbitration claims are filed within 180 days, they will be subject to the Mass Action batching process in Section 16.14.
16.14 Mass Action Batching Requirements. Mass Action claims will be grouped in batches of no more than 200 and arbitrated sequentially. Pending claims will be held until prior batches conclude.
16.15 Offers of Judgment. At least 10 days before a hearing, either party may serve a written settlement offer. If rejected and the rejecting party fails to obtain a more favorable award, they must pay the offering party's post-offer costs.
16.16 Severability. If any portion of this Section is unenforceable, the remainder remains in effect, except as stated in Section 16.12.
16.17 Governing Law and Venue for Court Proceedings. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law principles. Any legal action or proceeding arising under this Agreement that is not subject to arbitration under this Section will be brought exclusively in the state or federal courts located in Delaware, and you hereby consent to the personal jurisdiction and venue of these courts.
16.18 Survival. This Section survives termination of this Agreement or your EQALL® account.