Dispute Resolution and Agreement to Arbitrate on an Individual Basis - By accepting the terms of this Agreement, and to the extent permitted by applicable law, User and Service Provider (collectively, "Parties") agree that any and all past, present and future disputes, claims or causes of action between them arising out of or relating to this Agreement, its formation, the Service or any other dispute between User and Service Provider or any of Service Provider's licensors, distributors, suppliers or agents (including any application store or platform from which the Service is accessed or downloaded), and whether arising prior to or after User’s agreement to this Section, (collectively, "Dispute(s)") will be governed by the procedure outlined below.
- User and Service Provider agree that any arbitration pursuant to this Section shall not proceed as a class, group or representative action.
- "Country of Residence" for purposes of this Section means the country in which User holds citizenship or legal permanent residence, as well as any country from which User regularly accesses and uses the Service. If more than one country meets that definition for User, then User’s country of citizenship or legal permanent residence shall be User’s Country of Residence, and if User has more than one country of citizenship or legal permanent residence, it shall be the country with which User most closely is associated by permanent or most frequent residence.
- If User’s Country of Residence is the United States, this Section (Dispute Resolution and Agreement to Arbitrate on an Individual Basis) shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
- The Parties will seek to resolve the disputes through informal dispute resolution. Before filing a claim against Service Provider, User agrees to try to resolve the Dispute informally by contacting office@innomedia.pro.
- Notwithstanding this agreement to arbitrate Disputes, either User and Service Provider may bring a lawsuit in a court of law asserting causes of action which seek only temporary injunctive relief until an arbitrator can be empaneled and determine whether to continue, modify or terminate such relief, to compel arbitration pursuant to this Section 6 or to enforce any arbitral award issued hereunder. Additionally:
- If User’s Country of Residence is the United Kingdom, Switzerland or in the European Economic Area, notwithstanding this agreement to arbitrate Disputes, either User and Service Provider also may assert claims, if they qualify, trough the Small Claims procedure in District Court in Dubai, UAE, or if a court in User’s Country of Residence would not recognize such a requirement (notwithstanding the provisions of this Section), then in a small claims court or the equivalent in User’s Country of Residence.
- If User’s Country of Residence is not the United States, the United Kingdom, Switzerland or in the European Economic Area, notwithstanding this agreement to arbitrate Disputes, either User and Service Provider may also assert claims, if they qualify, in a small claims court or the equivalent in User’s Country of Residence.
7. The Parties agreed on the following arbitration procedures:
- If User’s Country of Residence is the United States, Parties agree that New Era ADR, Inc. (“New Era") will administer the arbitration under its Virtual Expedited Arbitration Rules and Procedures in effect at the time arbitration is sought ("New Era Rules"). Those rules are available at https://www.neweraadr.com/rules-and- procedures/. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator in accordance with those rules. The arbitrator shall be authorized to award any remedies, including injunctive relief, that would be available to User in an individual lawsuit and that are not waivable under applicable law. If a party seeks injunctive relief that would significantly impact other Service Users as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this clause shall make that determination. If the arbitrator determines a three- person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential.
- If User’s Country of Residence is not the United States, Parties agree that the arbitration will be administered by Riga Permanent Court of Arbitrage, registration number 40003759884, address Burtnieku Street 39, Riga, Latvia, LV-1084 (https://court.lv/ru), according to the rules of the procedure of the court.
8. Arbitration shall proceed individually. Regardless of User’s County of Residence or the rules of a given arbitration forum, Parties agree that the arbitration of any Dispute shall proceed on an individual basis, and neither User nor Service Provider may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a "Collective Arbitration"). Without limiting the generality of the foregoing, a claim to resolve any Dispute against Service Provider will be deemed a Collective Arbitration if:
- two or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and - counsel for the claimants are the same, share fees or coordinate across the arbitrations. "Concurrently" for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
9. To the maximum extent permitted by applicable law, neither User nor Service Provider shall be entitled to consolidate, join or coordinate disputes by or against other individuals or entities, or participate in any collective arbitration (as defined above) or arbitrate or litigate any dispute in a representative capacity, including as a representative member of a class or in a private attorney general capacity. In connection with any dispute (as defined above), any and all such rights are hereby expressly and unconditionally waived. Notwithstanding anything to the contrary set forth in this agreement, in the event all or any portion of the provisions of clauses 6.9 or 6.10 of this Section 6 (Dispute Resolution and Agreement to Arbitrate on an Individual Basis) are found to be invalid or less than fully enforceable, then the entirety of this Section 7 (Dispute Resolution and Agreement to Arbitrate on an Individual Basis) may be deemed void and as having no effect upon either party's election.
10. Except as otherwise required by applicable law or provided in this Section 7, in the event that User has opted out from the agreement to arbitrate or the agreement to arbitrate is otherwise found not to apply to User or User’s claim, Parties agree that any judicial proceeding may only be brought in a court of competent jurisdiction in Dubai, UAE. Both User and Service Provider consent to venue and personal jurisdiction there.