19. DISPUTE RESOLUTION
Please read the following arbitration agreement in this section ("Arbitration Agreement") carefully. It requires Users to arbitrate disputes with THINKWARE and limits the manner in which you can seek relief from us.
a. Applicability of Arbitration Agreement.You agree to the following dispute resolution provisions of this Section 19 with respect to any dispute, claim, or request for relief (“Claim”) arising from or relating in any way to these Terms of Use, the Online Services Privacy Policy, and your access or use of the Online Services (“Dispute”) and any lawsuit, arbitration or other proceeding that may arise out of such Dispute (each an “Action”). For the avoidance of doubt, this Arbitration Agreement is not applicable to Claims arising from or related to the Terms of Purchase , the purchase or use of goods manufactured or sold by THINKWARE, or Claims arising out of subscription, manufacturer’s warranty, or extended warranty agreements on goods manufactured or sold by THINKWARE, even if such goods are purchased using the Online Services. The dispute resolution processes governing these Claims are set forth in the applicable terms and conditions.
The terms of Section 19 apply to all Disputes, even if the actions or relationship giving rise to such Disputes occurred prior to this version of the Terms (or such modification). However, these Dispute Resolution terms do not apply to any Dispute as to which you have personally initiated a lawsuit or arbitration (each, an "Action") prior to agreeing to these Terms. If any modification of the terms of Section 19 is deemed to be unlawful, void or for any reason unenforceable, then the dispute resolution provisions effective at the time of your agreement to these Terms shall govern any dispute or disagreement between you and us.
Each provision of this Section 19 applies to the maximum extent permitted by law.
Covered Disputes. If you live in the United States, any Dispute between the Parties is a Covered Dispute, with the following exceptions: (1) any individual (non-class) claim that can be solely resolved in small claims court, or (2) to the extent you have in any manner violated or threatened to violate our intellectual property rights, our suit to enforce such intellectual property rights including by injunction.
If a Dispute is a Covered Dispute, the Mandatory Dispute Resolution Provisions for U.S. users apply. If there is any dispute between the Parties as to whether a Dispute is a Covered Dispute, that dispute shall be submitted to the Arbitrator (as defined below) for the Arbitrator to determine. If a Covered Dispute qualifies for small claims court, but a Party commences an arbitration proceeding, the other Party may elect instead to have the Covered Dispute resolved in small claims court, and upon written notice of a Party’s election, the Arbitrator will administratively close the arbitration proceeding.
b. Dispute Resolution Provisions Applicable to All Users
I. Time to Sue. Neither Party may bring any Action more than one year after the cause of action has arisen (or if the Action relates to multiple similar events, more than one year from the date the first such event occurred).
II. CLASS ACTION AND JURY WAIVER.THE PARTIES WAIVE THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, MASS ACTION, GROUP ACTION, REPRESENTATIVE ACTION, AND/OR COLLECTIVE ACTION IN ANY DISPUTE. EACH PARTY MAY PROCEED AS TO ANY DISPUTE ONLY IN THAT PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, MASS ACTION, GROUP ACTION, REPRESENTATIVE ACTION, AND/OR COLLECTIVE ACTION.
III. Applicable Law. These Terms and your use of the Online Services are governed by, construed and enforced in accordance with the internal substantive laws of the State of California, United States, regardless of the State’s conflict of laws provisions. However, any question as to whether a Dispute is a Covered Dispute (as defined above) and/or whether a Dispute is subject to the Mandatory Dispute Resolution Provisions for U.S. Users is to be decided by applying the provisions of the Federal Arbitration Act, Title 9 of the U.S. Code ("FAA").
IV. Choice of Venue: For any Action allowed to proceed in court, or to enforce the terms of this Agreement, the Parties agree to exclusive personal jurisdiction and venue in the State courts of the State of California or the United States District Court for the Central District of California.
V. Informal Dispute Resolution Required. Before initiating an Arbitration (as defined above) or any other type of adversary proceeding, the Parties agree to use their best efforts to settle any Dispute or Covered Dispute (as defined above) directly through consultation and good faith negotiations according to the following process (“Informal Dispute Resolution Process”), which shall be a precondition to either Party initiating an Arbitration.
1) If you have a Dispute or Covered Dispute with us, you must send an individualized, written notice describing the Dispute or Covered Dispute to us to THINKWARE Auto GmbH, Attn: Friedrich-Ebert-Anlage 36, 60325 Frankfurt am Main, Germany. If we have a Covered Dispute with you, we will send a written notice to you using the contact information we have for you.
2) Promptly following receipt of such notice, we will personally meet, via telephone or videoconference, in a good-faith effort to confer with each other and try to resolve informally any Dispute or Covered Dispute covered by this Agreement.
3) If you are represented by counsel, your counsel may participate in the conference as well, but you agree to fully participate in the conference personally. Likewise, if we are represented by counsel, our counsel may participate in the conference as well, but we agree to have a company representative fully participate in the conference.
4) The statute of limitations and any filing fee deadlines shall be tolled while the Parties engage in the Informal Dispute Resolution Process required by this paragraph.
5) If the Dispute or Covered Dispute is not resolved within 60 days of the opposing Party receiving the notice, then either you or we may proceed in accordance with the below Mandatory Dispute Resolution Provisions.
6) Failure to complete the Informal Dispute Resolution Process is grounds for dismissal of any Arbitration, described below.
7) If a Party brings an Arbitration as described below without following the Informal Dispute Resolution Process, it is grounds for dismissal, and such Party is required to pay any reasonable costs and fees of the other Party.
c. Mandatory Dispute Resolution Provisions for EU. Users
I. Agreement to Arbitrate Covered Disputes. Any Covered Dispute that the Parties cannot resolve through the Informal Dispute Resolution Process (as defined above) must be brought on an individual basis and will be resolved exclusively by final and binding arbitration (“Arbitration”) before an arbitrator mutually selected by the Parties (the “Arbitrator”). The Arbitrator must have experience with the subject matter of the Dispute, and be a former federal or state court judge, unless the Parties mutually agree otherwise Parties will meet and confer in good faith to select an arbitrator. For purposes of this Section, good-faith meet-and-confer efforts require that each party propose at least three arbitrators who meet the qualifications described in these Terms. If, after 60 days of good faith meet and confer efforts, the Parties are unable to agree on an arbitrator, either Party may petition the State courts of the State of California or the United States District Court for the Central District of California to appoint an arbitrator meeting the requirements herein from the arbitrators proposed by the Parties.
II. Rules Selection. The Arbitration shall be administered pursuant to JAMS’ Streamlined Arbitration Rules and Procedures or other comparable rules to which the parties agree. The selection of JAMS rules does not mean that JAMS will administer the Arbitration or appoint the Arbitrator.
III. Conduct of Arbitration. The Arbitration shall be conducted via electronic or telephonic means. If the Party seeking Arbitration fails to appear at the administrative conference regardless of whether such Party's counsel attends, the Arbitrator will administratively close the Arbitration proceeding without prejudice, unless such Party shows good cause as to why they were not able to attend the conference.
IV. Arbitration Costs. If the Arbitrator finds that the costs and fees of an Arbitration you initiate will be prohibitive for you as compared to the costs of litigation, we will pay as much of your filing, arbitrator, and hearing fees in the Arbitration as the Arbitrator deems necessary to prevent the Arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith. If we initiate an Arbitration against you, we will pay all costs associated with the Arbitration (other than your attorneys’ fees and expenses unless permitted to be recovered under the arbitration rules or applicable law).
V. No Opt Out Rights. You do not have the right to opt out of the Dispute Resolution section. Rather, your sole remedy if you do not accept these Terms of Use (including this Dispute Resolution section) is to stop using the Online Services and to terminate your account.
VI. THINKWARE’s Right To Terminate Mandatory Dispute Resolution Program. At any time, THINKWARE may terminate its agreement to Section 19.c. That termination will not affect any Action that has already been initiated.
VII. Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with THINKWARE.
