PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.
a.
Arbitration. Vessel and you agree to arbitrate all Disputes. A “
Dispute” shall be interpreted broadly to include any claim or controversy arising out of or relating in any way whatsoever to the following: (i) the relationship between you and Vessel; (ii) the advertising, marketing, sale, condition, or performance of the Services; and (iii) the Terms. A Dispute shall also encompass any claim or controversy that arose before the Terms or after their termination. THIS ARBITRATION IS MANDATORY AND NOT PERMISSIVE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT YOU AND VESSEL ARE EACH (A) WAIVING THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION AND (B) WAIVING THE RIGHT TO A TRIAL BY JURY. The Federal Arbitration Act shall govern the interpretation and enforcement of this arbitration provision.
b.
Notice of Disputes. If either you or Vessel intends to seek arbitration for a Dispute, that party must provide the other with written notice. The notice to Vessel should be sent to the address set forth in Section 13(j). Vessel will send notice to you at the email or mailing addresses associated with your Account, or as a notification through the Mobile App. Your notice to Vessel must (a) include your name, mailing address, and email address; (b) describe the Dispute; and (c) state the relief you are requesting. If you and Vessel cannot reach an agreement to resolve the Dispute within 60 days after the notice is received, either you or Vessel may commence arbitration.
c.
Arbitration Procedures.
The arbitration will be conducted by the American Arbitration Association (“
AAA”) under its rules. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administrative, and arbitrator fees will be governed by the AAA's rules. Vessel will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines that the claims are frivolous. Likewise, Vessel will not seek attorneys' fees and costs in arbitration unless the arbitrator determines that the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you reside or at another mutually agreed-upon location. A single, neutral arbitrator will hear the arbitration. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions upon which the award is based. All issues are for the arbitrator to decide. The arbitrator may consider, but is not bound by, rulings in other arbitrations between Vessel and its users. The arbitrator can award the same damages and relief to individuals that a court can award. Judgment on the award may be entered by any court having jurisdiction.
d.
No Class Arbitration/Waiver of Jury Trial. The arbitrator may grant declaratory or injunctive relief only to the individual party seeking such relief and only to the extent necessary to address that party’s specific claim. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND VESSEL AGREE THAT EACH OF YOU MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY ALLEGED GROUP LITIGATION OR PRIVATE ATTORNEY GENERAL PROCEEDING. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND VESSEL AGREE TO WAIVE YOUR RIGHT TO A JURY TRIAL.
e.
30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this Section 11, you must notify Vessel in writing within 30 days of the date you first accept these Terms (unless a longer period is required by applicable law). This notification must include: (a) your name, (b) your Account email address, (c) your mailing address, and (d) a statement indicating that you do not wish to resolve disputes with Vessel through arbitration. Your written notification must be mailed to Vessel at the address set forth in Section 13(j). Subject to Section 11(f) below, if you do not notify Vessel in accordance with this Section 11(e), you agree to be bound by the arbitration and group litigation waiver provisions of these Terms, including those in any Terms revised after your initial acceptance date. This notification impacts these Terms only and will not affect the other arbitration agreements between you and Vessel.
f.
Future Changes to the Arbitration Provision. If Vessel makes any changes to the Dispute Resolution and Arbitration Section of these Terms (except for changes to the address where Vessel will receive notices of dispute, opt-out notices, or rejections of future changes to the Dispute Resolution and Arbitration/Class Action Waiver/Jury Trial Waiver Section), you may reject any such change by sending Vessel written notice within 30 days of the change to the address set forth in Section 13(j). It is unnecessary to send Vessel a rejection of a future change to the Dispute Resolution and Arbitration/Class Action Waiver/Jury Trial Waiver Section of these Terms if you have properly opted out of the arbitration and group litigation waiver provisions in this Section 11 within the first 30 days after you initially accepted these Terms. If you have not properly opted out of the arbitration and group litigation waiver provisions in this Section 11, by rejecting a future change, you agree that you will arbitrate any dispute between you and Vessel in accordance with the terms of this arbitration provision, as modified by any changes you did not reject.
g.
Exceptions. This arbitration agreement does not prevent either you or Vessel from (i) filing an individual action in small claims court or (ii) seeking injunctive or other equitable relief to protect your or its intellectual property rights, or to prevent loss or damage to its Services (in the case of Vessel) in any court with appropriate jurisdiction.
[HWH1]NTD: The AAA Consumer Rules require that consumers are given certain due process rights, so it’s typical for the company that is mandating arbitration to make certain accommodations, such as paying the costs for small claims. Here, Vessel is agreeing to (1) pay the arbitration fees for claims under $10k and (2) not seek attorneys’ fees; provided, in either case, the claims are not frivolous.
