PLEASE READ THIS SECTION CAREFULLY. IT REQUIRES MOST DISPUTES TO BE RESOLVED BY BINDING INDIVIDUAL ARBITRATION RATHER THAN IN COURT, AND WAIVES YOUR RIGHT TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS ACTION. YOU MAY OPT OUT WITHIN 30 DAYS — SEE (g).
(a) Informal resolution first. Before starting an arbitration or a lawsuit, you agree to try to resolve the dispute informally: send a written notice to legal@filesaurus.com describing the dispute and the relief you want, and give us 60 days to respond. We will do the same before bringing a claim against you. This step is a condition of starting a proceeding, and it pauses any applicable limitation period while it runs.
(b) Agreement to arbitrate. If the dispute is not resolved, you and Kerry Ngan agree that any dispute, claim or controversy arising out of or relating to these Terms or the Service — including its formation, breach, termination, enforceability, and this arbitration agreement itself — will be settled by binding individual arbitration administered by the American Arbitration Association (AAA) under its rules then in effect (its consumer rules, where you are a consumer), and judgment on the award may be entered in any court of competent jurisdiction. The Federal Arbitration Act governs the interpretation and enforcement of this section. Questions about the validity, enforceability or scope of the waiver in (c) — including whether a dispute may proceed on a class, collective, consolidated or representative basis — are for a court to decide, not the arbitrator. Hearings, if any, will be held in King County, Washington, or by videoconference or telephone at your election, or the arbitrator may decide on written submissions.
(c) Class-action and jury-trial waiver. YOU AND KERRY NGAN EACH WAIVE THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO BRING OR PARTICIPATE IN ANY CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION — IN COURT AND IN ARBITRATION ALIKE. The arbitrator may award relief only in favour of the individual party seeking it, and only to the extent necessary to provide relief on that party’s own claims. The arbitrator has no authority to hear a dispute as a class, collective, consolidated or representative proceeding, or to consolidate the claims of more than one person, and nothing in these Terms may be read as agreeing to arbitration on any of those bases.
This waiver cannot be modified or rewritten, and it does not fall away with the rest of this section. If a court holds it unenforceable as to a particular claim or a particular request for relief, then as to that claim or request only the agreement to arbitrate in (b) does not apply and the matter is heard in court under §20; every other claim between you and us stays in individual arbitration, and the jury-trial waiver above continues to apply so far as the law allows. Class, collective, consolidated or representative arbitration will not proceed in any circumstances.
(d) Exceptions. Either party may bring an individual claim in small-claims court if it qualifies, and either party may seek injunctive or other equitable relief in court to stop infringement or misuse of intellectual property or a breach of confidentiality. Nothing here prevents you from reporting a matter to a government agency.
(e) Coordinated or mass filings. If 25 or more claims of a substantially similar kind are brought against us by or with the help of the same lawyer or coordinating group within a 90-day period, those claims are administered in batches rather than one at a time. The administrator’s rules for multiple case filings apply where it applies them, and in any event:
- claims are grouped in the order filed into batches of up to 50, with a smaller final batch if needed;
- each batch is a single arbitration before one arbitrator, with one set of filing and administrative fees for the batch, which we pay under (f);
- batches are heard in sequence, and once the first two are decided both sides will try to resolve the remaining claims — through mediation if either side asks for it — before the next batch begins; and
- while a claim waits its turn, every limitation period that applies to it, including the one year in (h), is paused. Waiting costs you nothing.
You may leave this process at any point and bring your claim on its own in small-claims court under (d). If this subsection (e) is held unenforceable, the claims simply proceed individually and the rest of this section stands.
(f) Costs. The administrator’s rules govern filing and arbitrator fees. Where you are a consumer, we will pay the portion of those fees that exceeds what it would cost you to file the same claim in court, and each party otherwise bears its own legal fees unless the arbitrator awards them under applicable law.
(g) Your right to opt out. You may reject this arbitration agreement by emailing legal@filesaurus.com with the subject “Arbitration Opt-Out”, and your name and the email address on your account, within 30 days of first accepting these Terms. Opting out affects nothing else in these Terms, and we will not close your account or treat you differently for doing it.
(h) One-year limitation. To the extent permitted by law, any claim arising out of or relating to these Terms or the Service must be brought within one (1) year after it arises, or it is permanently barred.
(i) If you are outside the United States. Where mandatory local law gives you the right to bring proceedings in your own country’s courts, or prohibits an arbitration agreement of this kind, this section does not deprive you of that right. Consumers in the EEA and the UK may also use the courts of their place of residence.