27. Dispute Resolution and Agreement to Arbitrate on an Individual Basis
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT MAY REQUIRE YOU AND COMPANY TO ARBITRATE CERTAIN DISPUTES AND CLAIMS ON AN INDIVIDUAL BASIS AND LIMITS THE MANNER IN WHICH YOU AND COMPANY CAN SEEK RELIEF FROM EACH OTHER.
By agreeing to these Terms, and to the extent permitted by applicable law, you and Company agree that any and all past, present and future disputes, claims or causes of action between you and Company arising out of or relating to these Terms, the App, the formation of these Terms or any other dispute between you and Company or any of Company’s licensors, distributors, suppliers or agents (including any Platform Provider), and whether arising prior to or after your agreement to this Section, (collectively, “Dispute(s)“) will be governed by the procedure outlined below. You and Company further agree that any arbitration pursuant to this Section shall not proceed as a class, group or representative action.
“Country of Residence” for purposes of this Section means the country in which you hold citizenship or legal permanent residence, as well as any country from which you regularly access and use the App. If more than one country meets that definition for you, then your country of citizenship or legal permanent residence shall be your Country of Residence, and if you have more than one country of citizenship or legal permanent residence, it shall be the country with which you most closely are associated by permanent or most frequent residence.
27.1 Informal Dispute Resolution. The 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 [email protected]. If a dispute is not resolved within 30 days after the email noting the Dispute is sent, you or Company may initiate an arbitration proceeding as described below.
27.2 We Both Agree To Arbitrate. By agreeing to these Terms, and to the extent permitted by applicable law, you and Company each and both agree to resolve any Disputes – including any Dispute concerning the enforceability, validity, scope or severability of this agreement to arbitrate – through final and binding arbitration as discussed herein.
27.3 Opt-out of Agreement to Arbitrate. You may decline this agreement to arbitrate by contacting [email protected] within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement. By opting out of the agreement to arbitrate, you will not be precluded from using the App, but you and Company will not permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.
27.4 Exceptions to Agreement to Arbitrate.
27.4.1 If your Country of Residence is the United Kingdom, Switzerland or in the European Economic Area, notwithstanding your and Company’s agreement to arbitrate Disputes, either you or the Company also may assert claims, if they qualify, through the small claims process in the courts of your Country of Residence.
27.4.2 If your Country of Residence is not the United States, the United Kingdom, Switzerland or in the European Economic Area, notwithstanding your and Company’s agreement to arbitrate Disputes, either you or the Company also may assert claims, if they qualify, through the Small Claims Court in Tel Aviv-Jaffa, Israel, or if a court in your Country of Residence would not recognize such a requirement (notwithstanding the provisions of this Section), then in a small claims court or the equivalent in your Country of Residence.
27.5 Arbitration Procedures and Fees.
27.5.1 If your Country of Residence is the United States, 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. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator in accordance with those rules. The arbitration proceeding and any award shall be confidential. You and Company further agree that, unless and only to the extent prohibited under AAA Rules, the arbitration will be held in New York, New York, or, at your election, will be conducted telephonically or via other remote electronic means. The AAA Rules will govern payment of all arbitration fees. If your Country of Residence is the United States, this Section (Dispute Resolution and Agreement to Arbitrate on an Individual Basis) shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement. The arbitrator 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 Section 27.5.1, if a party seeks injunctive relief that would significantly impact other 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.
27.5.2 If your Country of Residence is not the United States, you and Company agree that the Center of Arbitration and Dispute Resolution (www.israelcourts.co.il) (“CADR“) will administer the arbitration, which shall be conducted in accordance with its rules in effect at the time arbitration is sought, and in accordance with the Israeli Arbitration Law, 5728-1968, as amended. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator in accordance with those rules. The arbitration proceeding and any award shall be confidential. You and Company further agree that the arbitration will be held in English in Tel Aviv-Jaffa, Israel, or, if you so elect, all proceedings can be conducted telephonically or via other remote electronic means. The CADR rules will govern payment of all arbitration fees.
27.6 Arbitration Shall Proceed Individually. Regardless of your Country of Residence or the rules of a given arbitration forum, 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.
27.7 Class Action and Collective Arbitration Waiver. 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 PARTICIPATE IN ANY COLLECTIVE ARBITRATION (AS DEFINED ABOVE) 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. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN THE EVENT ALL OR ANY PORTION OF SUBSECTIONS 27.6 OR 27.7 OF THIS SECTION (DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS) ARE FOUND TO BE INVALID OR LESS THAN FULLY ENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION (DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS) MAY BE DEEMED VOID AND AS HAVING NO EFFECT UPON EITHER PARTY’S ELECTION.
27.8 Jury Trial Waiver. WITHOUT PREJUDICE TO AND NOTWITHSTANDING ANY PROVISION OF THE TERMS TO THE CONTRARY, AND IN THE EVENT YOU HAVE OPTED OUT OF ARBITRATION OR THE AGREEMENT TO ARBITRATE IS DETERMINED TO BE UNENFORCEABLE OR INAPPLICABLE TO YOU, YOU AND WE EACH VOLUNTARILY WAIVE THE RIGHT TO TRIAL BY JURY IN RESOLVING ANY DISPUTE.