|17.2||Jurisdiction and applicable law for Customers placing their order from within the USA (Dispute Resolution by Binding Arbitration)
|17.2.1||Cleverbridge and the Customer agree to arbitrate all disputes and claims between the two parties (the "Parties"). This contract to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between the Parties, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Claims that arose before this or any prior agreement between the Parties (including, but not limited to, claims relating to advertising);
- Claims that are currently the subject of purported class action litigation in which Customer is not a member of a certified class; and
- Claims that may arise after the termination of any agreement between the Parties.
Notwithstanding the foregoing, either party may bring an individual action in small claims court. Customer agrees that, by accepting these terms and conditions, Customer and Cleverbridge are each waiving the right to a trial by jury or to participate in a class action. The transaction between the Parties evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of the contract entered into by the Parties.
|17.2.2||A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Cleverbridge should be addressed to: Cleverbridge GmbH, Gereonstr. 43-65, 50670 Cologne, Germany, ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Cleverbridge and Customer do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, Customer or Cleverbridge may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Cleverbridge or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Cleverbridge is entitled. Customer may download or copy a form Notice.|
|17.2.3||After Cleverbridge receives notice at the Notice Address that Customer has commenced arbitration, it will promptly reimburse Customer for Customer's payment of the filing fee. If Customer is unable to pay this fee, Cleverbridge will pay it directly upon receiving a written request at the Notice Address. The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these terms and conditions, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. All issues are for the arbitrator to decide, including the scope of this arbitration provision, but the arbitrator is bound by the terms of these terms and conditions. Unless Cleverbridge and Customer agree otherwise, any arbitration hearings will take place in the county (or parish) of Customer's billing address. If Customer's claim is for Ten Thousand U.S Dollars (US$10,000) or less, Cleverbridge agrees that Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If Customer's claim exceeds Ten Thousand U.S Dollars (US$10,000), the right to a hearing will be determined by the AAA Rules. Except as otherwise provided for herein, Cleverbridge will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that the substance of Customer's claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, Customer agrees to reimburse Cleverbridge for all monies previously disbursed by it that are otherwise Customer's obligation to pay under the AAA Rules.|
|17.2.4||If, after finding in Customer's favor in any respect on the merits of Customer's claim, the arbitrator issues Customer an award that is:
- Equal to or less than the greater of (a) Two Thousand U.S. Dollars (US$2,000) or (b) the maximum claim that may be brought in small claims court in the county of the Customer’s billing address, and
- Greater than the value of Cleverbridge's last written settlement offer made before an arbitrator was selected, then Cleverbridge will:
- Pay Customer the greater of (a) Two Thousand U.S. Dollars (US$2,000) or (b) the maximum claim that may be brought in small claims court in the county of Customer's billing address ("the premium") instead of the arbitrator's award; and
- Pay Customer's attorney, if any, twice the amount of attorneys' fees, and reimburse any expenses that Customer's attorney reasonably accrues for investigating, preparing, and pursuing the Customer’s claim in arbitration ("the attorney premium").
If Cleverbridge did not make a written offer to settle the dispute before an arbitrator was selected, Customer and Customer's attorney will be entitled to receive the premium and the attorney premium, respectively, if the arbitrator awards Customer any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the premium and the attorney premium at any time during the proceedings and upon request form either party made within fourteen (14) days of the arbitrator's ruling on the merits.
|17.2.5||The right to attorneys' fees and expenses set forth in Clause 17.2.4 supplements any right to attorneys' fees and expenses Customer may have under applicable law. Thus, if Customer would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding Customer that amount. However, Customer may not recover duplicative awards of attorneys' fees or costs. Although under some laws Cleverbridge may have a right to an award of attorneys' fees and expenses if it prevails in arbitration, Cleverbridge agrees that it will not seek such an award.|
|17.2.6||The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. CUSTOMER AND CLEVERBRIDGE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER'S OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Cleverbridge agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.|
|17.2.7||This contract will be construed in accordance with and governed in all respects by the laws of the State of Illinois, USA, without regard to any conflicts of law principles that would result in application of laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this contract.|