a. Informal Negotiations. If a dispute of any kind arises, Maxa wants to understand and address User’s concerns quickly and to User’s satisfaction. Please contact Maxa support at firstname.lastname@example.org with any dispute. If Maxa cannot resolve User’s concerns, Maxa agrees to an informal dispute resolution process requiring an attempt to negotiate any dispute (except those “Disputes,” as defined below and expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding.
b. Binding Arbitration. Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, User and Maxa agrees to arbitrate all “Disputes,” defined as any claim, controversy or dispute (whether involving contract, tort, equitable, statutory or any other legal theory) between User and Maxa, including but not limited to any claims relating in any way to this Agreement (including its breach, termination and interpretation), any other aspect of User’s relationship with Maxa, Maxa’s advertising, and any use of Maxa’s Platform or Services. “Disputes” also include any claims that arose before this Agreement and that may arise after termination of this Agreement. Notwithstanding the foregoing, User or Maxa may choose to pursue a claim in court and not by arbitration if User fails to timely pay any amounts due or satisfy any payment obligation owed to Maxa. Maxa may assign User’s account for collection to a collection agency, and the collection agency may pursue in any court of competent jurisdiction any claim that is strictly limited to the collection of past due amounts and any interest or cost of collection permitted by law or this Agreement.
ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND USER IS WAIVING USER’S RIGHTS TO HAVE USER’S CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST MAXA. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) (“AAA”) according to this provision and the applicable arbitration rules. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. A form for initiating arbitration proceedings is available on the AAA's website at www.adr.org. The Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), fully applies. Arbitration hearings will be held in Los Angeles, California or any other location that is mutually agreed upon by User and Maxa. User or Maxa may elect to have the arbitration conducted by telephone, video conference, or based solely on written submissions, which election shall be binding on User and Maxa subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone or video conference by User or by Maxa, unless the arbitrator requires otherwise.
A single arbitrator will be mutually selected by Maxa and User, and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in online commerce or consumer law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If User and Maxa cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon User and Maxa. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Maxa may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within the County of Los Angeles, California, for any monetary amounts that User owes to Maxa (each, an “Action”). User hereby waives any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Maxa in such courts.
User and Maxa agrees and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the FAA shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. USER FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT USER AND MAXA ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT USER IS WAIVING USER’S RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
The arbitration provisions shall not apply to (i) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim seeking emergency injunctive relief based on exigent circumstances (including but not limited to imminent danger or commission of a crime, hacking, or cyber-attack).