17. Arbitration and Waiver of Trial by Jury.
User and Umergency agree that any dispute, claim or controversy arising out of or relating to this Terms of Service or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site, Services or Application (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. User acknowledges and agrees that User and Umergency are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.
Further, unless both User and Umergency otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/si.asp?id=3477 and a separate form for California residents at www.adr.org/si.asp?id=3485.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Unless User and Umergency otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted 6 solely on the basis of documents User and Umergency submit to the arbitrator, unless User or Umergency requests a hearing or the arbitrator determines that a hearing is necessary. If a claim
exceeds $10,000, any right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of this Terms of Service, including but not limited to, any limitation of liability as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If User prevails in arbitration User will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Umergency will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
User’s responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if User’s claim for damages does not exceed $75,000, Umergency will pay all such fees unless the arbitrator finds that either the substance of User’s claim or the relief sought in User’s Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Modification” section above, if Umergency changes this “Dispute Resolution” section after the date User first accepted these Terms (or accepted any subsequent changes to these Terms), User may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Umergency’s email to User notifying User of such change. By rejecting any change, User is agreeing that User will arbitrate any Dispute between User and Umergency in accordance with the provisions of this “Dispute Resolution” section as of the date User first accepted this Terms of Service (or accepted any subsequent changes to this Terms of Service).