12. ARBITRATION AGREEMENT. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND IMPACTS THE WAY THAT YOU AND WE BRING CLAIMS AGAINST EACH OTHER AND HOW THOSE CLAIMS ARE DECIDED.
12.1 DISPUTE RESOLUTION.
YOU AND WE AGREE THAT ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE INTERPRETATION, APPLICABILITY, ENFORCEABILITY, OR FORMATION OF THESE TERMS OF USE OR YOUR USE OF THE OFFERINGS AND/OR CONTENT WILL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE BROADLY INTERPRETED AND INCLUDES ANY DISPUTE, CLAIM, OR CONTROVERSY BETWEEN YOU AND ASO REGARDING ANY ASPECT OF YOUR RELATIONSHIP WITH US OR ANY CONDUCT OR FAILURE TO ACT ON OUR PART, INCLUDING CLAIMS BASED ON BREACH OF CONTRACT, TORT (FOR EXAMPLE, A NEGLIGENCE CLAIM), VIOLATION OF LAW OR ANY CLAIMS BASED ON ANY OTHER THEORY, AND INCLUDING THOSE BASED ON EVENTS THAT OCCURRED PRIOR TO THE DATE OF THIS AGREEMENT, WITH THE FOLLOWING EXCEPTIONS:
- You may assert claims in your local small claims court if its rules permit it;
- Any claim regarding the validity, protection or enforcement of a party’s intellectual property rights (such as its patent, copyright, trademark, trade secret, or moral rights, but not including its privacy or publicity rights) must be brought in court; and
- In the event this agreement to arbitrate is for any reason held to be unenforceable, any dispute or claim against us (except for small-claims court actions) may be commenced only in a federal or state court located in Denver, Colorado, and we both consent to the jurisdiction of and venue in those courts for such purposes. We both also consent to the jurisdiction of and venue in those courts for purposes of any claim regarding the validity, protection or enforcement of a party’s intellectual property rights (excluding its privacy or publicity rights). You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
This agreement to arbitrate is governed by the Federal Arbitration Act, including its procedural provisions, in all respects.
12.2 PROHIBITION OF CLASS ACTIONS AND NON-INDIVIDUALIZED RELIEF.
ANY ARBITRATION WILL BE CONDUCTED BY THE PARTIES IN THEIR INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF, AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). If this specific provision is found to be unenforceable, then all of Section 12, other than subsection 12.8, will be null and void and neither of us will be entitled to arbitrate our dispute.
12.3 ARBITRATION RULES.
The arbitration will be administered by the American Arbitration Association (“AAA”) and will be governed by AAA’s Consumer Arbitration Rules (“AAA Rules”), as modified by this Agreement. The AAA Rules may be accessed at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity, and must enforce the same limitations stated in this Agreement as a court would. The arbitrator will issue an award decision in writing but will not provide an explanation for the award unless you or ASO requests one. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
12.4 DEMAND FOR ARBITRATION.
A party who intends to arbitrate (“Claimant”) must first send to the other party (“Respondent”) a written notice, entitled “Demand for Arbitration” (“Demand”). The Demand must: (1) briefly explain the dispute; (2) provide the Claimant’s name and address; the address of the Claimant’s representative (if the Claimant has one), and the Respondent’s name and address (for ASO, see below); (3) specify the amount of money in dispute, if applicable; (4) if the Claimant is requesting an in-person hearing, identify the requested location for the hearing; and (5) include a statement of what the Claimant wants. The Claimant must send one copy of the Demand to AAA at the same time the Claimant sends it to the Respondent. When sending a copy of the Demand to AAA, the Claimant must also include a copy of this arbitration agreement and any amendments to it (see Section 12.7) and the then current filing fee required by the AAA. The Demand must be sent to the AAA at the following address:
American Arbitration Association
Case Filing Services
1101 Laurel Oak Road, Suite 100
Voorhees, NJ 08043
Alternatively, the Demand may be filed with the AAA online using: AAA WebFile: https://www.adr.org. Any Demand to ASO should be addressed to: terms@airbornsnowobservatories.com.
ASO’s Address:
Airborne Snow Observatories
P.O. Box 1644
Mammoth Lakes, CA 93546
12.5 FILING, ADMINISTRATION AND ARBITRATOR FEES.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Section 12. Each party will bear its own fees in connection with the arbitration, including the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence at any arbitration hearing.
12.6 OPT-OUT PROCEDURE.
IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISIONS IN THIS SECTION 12, YOU MUST NOTIFY ASO IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT FOR THE FIRST TIME. YOU MAY OPT OUT BY MAILING A WRITTEN NOTICE TO ASO AT THE ADDRESS SET FORTH IN SUBSECTION 12.4. YOUR WRITTEN NOTIFICATION TO ASO MUST INCLUDE YOUR NAME, MAILING ADDRESS, E-MAIL ADDRESS, and PHONE NUMBER, AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH ASO THROUGH ARBITRATION. IF YOU OPT OUT OF THE ARBITRATION PROVISIONS IN THIS SECTION 12, ALL OTHER PROVISIONS OF THIS AGREEMENT WILL CONTINUE TO APPLY, INCLUDING SECTION 12.8, BELOW.
12.7 AMENDMENT TO ARBITRATION PROVISIONS.
Notwithstanding any provision in this Agreement to the contrary, you and we agree that if we make any amendment to the arbitration provisions in this Section 12 in the future (other than an amendment to any notice address or site link provided herein), that amendment shall not apply to any claim that was filed in a legal proceeding against ASO prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims that have arisen or may arise between you and ASO. We will notify you of amendments to the arbitration provisions of this Section 12 by posting the amended terms on https://airbornesnowobservatories.com/terms, and/or by providing notice to you by email, at least 30 days before the effective date of the amendments. If you do not agree to the amended terms, you may immediately cease all use of the Offerings, and you will not be bound by the amended terms.
12.8 JURY TRIAL AND CLASS ACTION WAIVER.
IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND ASO EACH UNCONDITIONALLY WAIVE ANY RIGHT TO A JURY TRIAL. THIS MEANS THAT ANY CLAIM WOULD BE DECIDED BY A JUDGE, NOT A JURY. FURTHER, WITH RESPECT TO ANY CLAIM THAT PROCEEDS IN A COURT, YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING.
