1. DISPUTE RESOLUTION
Certain portions of this Section 1 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Pivotshare, Inc agree that we intend that this Section 1 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 1 can only be amended by mutual agreement.
A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Site, the Site's Content, your Content, these Terms, or any other policies, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Pivotshare, Inc’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 1(D)), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 1(A). Your notice to us must be sent to: Pivotshare, Inc, 3420 Bristol Street, Suite 600 (Attn: Legal Department). For a period of sixty (60) days from the date of receipt of notice from the other party, Pivotshare, Inc and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Pivotshare, Inc to resolve the Dispute or Excluded Dispute on terms with respect to which you and Pivotshare, Inc, in each of our sole discretion, are not comfortable.
B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 1(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND Pivotshare, Inc (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE SERVICE. The Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between Pivotshare, Inc and you regarding these Terms (and any Additional Terms) and the Service. Pivotshare, Inc and you agree, however, that California or federal law shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Pivotshare, Inc regarding these Terms and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to California’s choice of law principles.
A Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Pivotshare, Inc consent to in writing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Pivotshare, Inc to pay a greater portion or all of such fees and costs in order for this Section 1 to be enforceable, then Pivotshare, Inc will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will apply applicable law and the provisions of these Terms and any Additional Terms, will be bound by these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. This arbitration provision shall survive termination of these Terms or the Service.
C. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 1(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
D. Injunctive Relief. The foregoing provisions of this Section 1 will not apply to any legal action taken by Pivotshare, Inc to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site, any Content, your User-Generated Content and/or Pivotshare, Inc’s intellectual property rights (including such Pivotshare, Inc may claim that may be in dispute), Pivotshare, Inc’s operations, and/or Pivotshare, Inc’s products or services.
E. No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. YOU AND Pivotshare, Inc AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 1(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 1(F). Notwithstanding any other provision of this Section 1, any and all issues relating to the scope, interpretation and enforceability of this Section 1(E), including the class action waiver provisions contained herein, are to be decided only by a court of competent jurisdiction, and not by the arbitrator.
F. Federal and State Courts in Orange County, California. Except to the extent that arbitration is required in Section 1(B), and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or Federal court in Orange County, California. Accordingly, you and Pivotshare, Inc consent to the exclusive personal jurisdiction and venue of such courts for such matters.
G. Small Claims Matters Are Excluded From Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section 1(F).