This Arbitration Agreement includes an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of this agreement by following the opt-out procedure described in Section 11. Unless otherwise noted, defined terms in this Arbitration Agreement have the meanings given to them in the HostingCHS Terms of Service. HostingCHS may modify this Arbitration Agreement at any time with appropriate notice.
1. Informal Process First. You agree that, in the event of any dispute between you and HostingCHS, you will first contact us and make a sustained, good-faith effort to resolve the dispute before resorting to arbitration under these Terms.
2. Binding Arbitration. Any dispute or claim that remains unresolved after the informal dispute resolution described in Section 1, except for disputes related to infringement of our intellectual property rights or your access to or use of the Service in violation of these Terms (a "Claim") or Claims seeking more than $10,000 in damages, will be resolved by binding arbitration, rather than in court, provided that you may assert Claims in small claims court located in Suffolk County, Massachusetts, if your Claims qualify.
3. No Judge or Jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow these Terms as a court would.
4. Arbitrator and Rules. The arbitration will be conducted before a single neutral arbitrator, whose decision will be final and binding. The arbitration proceedings will be governed by the AAA Commercial Arbitration Rules, the Consumer Due Process Protocol, and the Supplementary Procedures for Resolution of Consumer-Related Disputes. These rules can be found on the AAA website at www.adr.org. In the event of a conflict between the commercial arbitration rules and this Arbitration Agreement, this Agreement will govern, and the parties will appoint an alternate arbitrator.
5. Initiate Arbitration. A party intending to seek arbitration must first send written notice to the HostingCHS Legal Department of its intent to arbitrate (“Notice”). The Notice to HostingCHS must be sent by any of the following means: (i) email to legal@hostingchs.com ; or (ii) send the Notice by certified mail using the U.S. Postal Service to:
HostingCHS , Attention: Legal Department, 8 Cleveland St, Brentwood, NY 11717, USA,
MA 01803. The Notice must (x) describe the nature and basis of the claim or dispute; and (y) set forth the specific relief sought. If we do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or HostingCHS may commence an arbitration proceeding.
6. Minutes Format. The arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions.
7. Fees. If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA Consumer Arbitration Rules. Unless the arbitrator determines the arbitration was frivolous or conducted for an improper purpose, we will pay all other AAA and arbitrator fees and expenses. HostingCHS will pay any fees greater than the filing fees of a small claims court in your home jurisdiction.
8. Individually; Jury Trial Waiver. To the fullest extent permitted by applicable law, you and HostingCHS agree that any proceedings to resolve a Claim will be conducted solely in the respective party's individual capacity and not as a plaintiff or class member in any purported class, consolidated, multiple plaintiff, or representative action ("Class Action"). If for any reason a Claim proceeds in court rather than in arbitration, you and HostingCHS each waive any right to a jury trial. You and HostingCHS expressly waive any ability to maintain any class action in any forum. If the Claim is subject to arbitration, the arbitrator will have no authority to combine or aggregate similar claims, conduct any Class Action, or issue an award to any person or entity not a party to the arbitration. Any claim that all or any part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. You further agree that the arbitrator may not consolidate more than one person's claims or proceedings, and may not otherwise preside over any form of a representative or class proceeding, and that if this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. 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.
9. Application. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The United Nations Conventions on Contracts for the International Sale of Goods shall not apply.
10 Invalidity. If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or unenforceable, you and HostingCHS agree to the exclusive jurisdiction of the federal and state courts located in Boston, Massachusetts, and you and HostingCHS agree to submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any applicable dispute or claim.
11. Opting Out. If you do not wish to arbitrate disputes with us and you are an individual, you may opt out of this arbitration agreement by emailing legal@hostingchs.com within thirty (30) days of accessing or using the Service.
12. Confidentiality. The parties shall maintain the confidential nature of the arbitration proceedings and any award, including the hearing, except as necessary to prepare for or conduct the arbitration hearing on the merits, or as necessary in connection with a judicial application for a preliminary injunction, a judicial challenge to an award or its enforcement, or unless otherwise required by law or court decision.