PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.

 

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 THE TERMS OF THESE CONDITIONS OF USE AS A COURT WOULD.

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• General

Arbitration is a manner of resolving a “Claim” without filing a lawsuit. “Claim” means any dispute between you, Korvato, or any involved third party relating to your account, your use of the Site, your relationship with Korvato, these Terms, or the Privacy Policy. This includes any and all claims that relate in any way to your use or attempted use of the products or services, and any act or omission by Korvato, or any third party related to your use or attempted use of the products or services. You, Korvato, or any involved third party may pursue a Claim. Korvato agrees to final and binding confidential arbitration should it have any Claims against you. Likewise, you agree to final and binding confidential arbitration should you have any Claims against Korvato. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to final and binding confidential arbitration. This arbitration provision sets forth the terms and conditions of our agreement to final and binding confidential arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.

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• Exceptions

Notwithstanding the foregoing, and as an exception to final and binding confidential arbitration, you and Korvato both retain the right to pursue, in small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis, including overdue account matters within the small claims court’s jurisdiction. Korvato will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is and remains pending in that court. The following claims shall not be subject to final and binding arbitration and must be adjudicated only in the state or federal courts located in Florida: (i) an action by Korvato relating to the infringement or validity of our proprietary rights, including without limitation, trademarks, service marks, trade dress, copyrights, trade secrets, or patents; or (ii) an action by Korvato for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief, against you for breach or threatened breach of this Agreement. You expressly agree to refrain from bringing or joining any claims that are excluded from final and binding arbitration pursuant to this subsection “b” in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration. Small claims matters may be filed in any small claims court with personal and subject matter jurisdiction over the parties. For all other matters excluded from final and binding arbitration by this subsection “b,” the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Miami-Dade County, Florida, and forever waive any challenge to said courts’ jurisdiction and venue.

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• Required Pre-Dispute Procedures

We acknowledge and agree that before initiating any Claim against the other, we agree to first contact the other with a written description of the dispute, which shall include all relevant documents and information, and the proposed resolution. You may send the written description of any dispute you have with us by U.S. Mail to Korvato, Attn: Legal Department, 800 Brickell Avenue, Suite 500, Miami, FL 33131. Korvato will contact you by letter at the billing address you provided to us or at the email address you provided to us. You agree to negotiate with Korvato or its designated representative in good faith about your problem or dispute. If for some reason the dispute is not resolved within 60 days after receipt of the written dispute, we agree to the dispute resolution provisions below. Notwithstanding the foregoing or any other term of this arbitration agreement, we will have the right to seek injunctive or other equitable relief in state or federal court located in Miami-Dade County, Florida to enforce these Terms or prevent an infringement of a third party’s rights or our intellectual property rights, as stated in subsection “b” above. You hereby expressly consent to, and forever waive any challenge to, the exclusive personal jurisdiction and venue of said courts in such actions. 

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• Commencing Arbitration

You and Korvato agree to commence any arbitration proceeding within 1 year after the Claim arises (the 1 year period includes the required pre-dispute procedures set forth above) and that any arbitration proceeding commenced after 1 year shall be forever barred. 

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• Arbitration Location

If the amount in controversy is $500 or less, then the arbitration may be conducted by telephone or by written submissions. Otherwise, the arbitration shall be conducted in Miami-Dade County, Florida unless Korvato otherwise agrees to arbitrate in another forum requested by you. 

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• Organization, Rules and the Arbitrator

We each agree that any and all Claims other than those exempted under subsection “b” above shall be submitted to final and binding confidential arbitration before a single arbitrator of the American Arbitration Association (“AAA”). Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA, and providing a copy to the other party, within the time period set forth in subsection “d” above. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with Rules of the AAA. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration. The AAA’S Rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms, the Privacy Policy, and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether any dispute is arbitrable. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or Korvato. 

 

• Fees

Payment of all filing, administration and arbitrator fees will be governed by the AAA’s Rules. We will reimburse the fees charged by the arbitrator for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.

 

• Governing Law and Award

The arbitrator shall follow the substantive law of the State of Florida without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the FAA. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. 

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• Enforceability

This provision survives termination of your account or relationship with Korvato, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., un-enforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect. 

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• Miscellaneous

Failure or any delay in enforcing this arbitration provision in connection with any particular Claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims except all Claims must be brought within the 1 year limitation period set forth above. This provision is the entire arbitration agreement between you and Korvato and shall not be modified except in writing by Korvato. 

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• Amendments

Korvato reserves the right to amend this arbitration provision at any time. Your continued use of the Site, purchase of a product or service on or through the Site, or use or attempted use of a Korvato product or service, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, Korvato will provide you notice and an opportunity to opt-out. Your continued use of the Site, purchase of a product or service on or through the Site, or use or attempted use of a Korvato product or service, is affirmation of your consent to such material changes.

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YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU PURCHASE, USE, OR ATTEMPT TO USE A PRODUCT OR SERVICE PURCHASED ON OR THROUGH THE SITE (WHICHEVER COMES FIRST) BY WRITING TO US AT KORVATO, ATTN: LEGAL DEPARTMENT, PO BOX 554, ASHLAND, OR 97520. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY PRODUCT OR SERVICE YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE THE PRODUCT OR SERVICE. IF MORE THAN THIRTY (30) DAYS HAVE PASSED, YOU ARE NOT ELIGIBLE TO OPT OUT OF THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING ARBITRATION AS SET FORTH IN THIS AGREEMENT. SHOULD EITHER PARTY FILE AN ACTION CONTRARY TO THIS PROVISION, THE OTHER PARTY MAY RECOVER ATTORNEY’S FEES AND COSTS UP TO $1,000.00.