Please read the following arbitration agreement (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Optix and limits the manner in which you can seek relief from us.
1. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, the App, and/or the Service, to any products sold or distributed through the Website, the App, and/or the Service, or to any aspect of your relationship with Optix, will be resolved by binding arbitration, rather than in court, except that (i) you may assert claims in small claims court if your claims qualify; and (ii) you or Optix may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
2. Pre-Arbitration Dispute Resolution. Optix is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org . If such efforts prove unsuccessful, 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 Optix should be sent to ShareDesk Global, Inc. dba Optix at 612 – 55 Water Street, Vancouver, British Columbia, V6B 1A1, Canada with a copy to email@example.com . The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Optix and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Optix may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Optix or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Optix is entitled.
3. Arbitration Rules and Forum. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under USD $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing, and/or other fees and cannot obtain a waiver from JAMS, Optix will pay them for you. In addition, Optix will reimburse all such JAMS’s filing, administrative, hearing, and/or other fees for claims totaling less than USD $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. If the parties are unable to agree on a location, the determination will be made by JAMS. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
4. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Optix. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms of Service (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
5. Waiver of Jury Trial. YOU AND OPTIX HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Optix are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
6. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the Provincial or Federal Courts located in the Province of British Columbia. All other claims shall be arbitrated.
7. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: 612 – 55 Water Street, Vancouver, British Columbia, V6B 1A1, Canada, within 30 days after first becoming subject to this Arbitration Agreement and by email to Optix at firstname.lastname@example.org . Your notice must include your name and address, your Optix username (if any), the email address you used to set up your Optix account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of the Terms of Service will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
8. Severability. Except as provided in Section 7, if any part or parts of this Arbitration Agreement (other than Section 6 above titled “Waiver of Class or Other Non-Individualized Relief”) are found under the law to be invalid or unenforceable, the parties agree to replace such part or parts with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable part or parts, and this Arbitration Agreement will be enforceable as so modified. If any of the provisions of Section 6 above titled “Waiver of Class or Other Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
9. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Optix.
10. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Optix makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Optix at the following address: 612 – 55 Water Street, Vancouver, British Columbia, V6B 1A1, Canada. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted the Terms of Service (or accepted any subsequent changes to the Terms of Service).
11. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.