You and Samplize agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of the Samplize Terms of Service (including their formation, performance, and breach) or payments by or to Samplize, or that in any way relate to the provision or use of the Services, your relationship with Samplize, or any other dispute with Samplize, shall be resolved exclusively through binding arbitration in accordance with the Mandatory Arbitration and Class Action Waiver (“Dispute Resolution”) provision in Section 18 of the Terms of Service and this Mutual Arbitration Agreement (collectively, the “Arbitration Agreement”). This includes claims that arose, were asserted, or involve facts occurring before the existence of this or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement. This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects, and evidences a transaction involving interstate commerce. You and Samplize expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Arbitration Agreement. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply.

Except as set forth in this Arbitration Agreement, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including, but not limited to any claim that all or any part thereof are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity.

Notwithstanding the parties’ decision to resolve all disputes through arbitration, each party retains the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction; (ii) bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights); and (iii) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this Arbitration Agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action. 

You and Samplize agree to submit to the personal jurisdiction of any federal or state court in New York County, New York, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. mail and hereby waive any and all jurisdictional and venue defenses otherwise available.

Except as set forth in the “Class Action and Collective Relief Waiver” in Section 18(b) of the Terms of Service, if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.

THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT RIGHTS TO A PREHEARING EXCHANGE OF INFORMATION AND APPEALS MAY BE LIMITED IN ARBITRATION. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND SAMPLIZE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW. 

The arbitration will be administered by JAMS and resolved before a single arbitrator. If JAMS is not available to arbitrate, the parties will select an alternative arbitration provider, but in no event shall any arbitration be administered by the American Arbitration Association. Except as modified by this Arbitration Agreement, JAMS will administer the arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000, in each case applying the rules and procedures in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class or representative actions. You can find the JAMS rules and procedures here at this link. The Applicable JAMS rules and procedures are available at https://www.jamsadr.com/adr-rules-procedures/ or by calling JAMS at (800) 352-5267. 

Only after the parties have engaged in a good-faith effort to resolve the dispute in accordance with the “Informal Dispute Resolution Procedure” provision in Section 18(a) of the Terms of Service, and only if those efforts fail, then either party may initiate binding arbitration as the sole means to resolve claims. A party who desires to initiate arbitration must deliver to JAMS and the other party a demand for arbitration which satisfies the following requirements: (1) the name, telephone number, mailing address, and email address of the party seeking arbitration (if you are seeking arbitration, you must provide the email address associated with your Customer Account); (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and a good-faith calculation of the amount in controversy (requests for injunctive relief or attorneys' fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); (4) the party’s original signature; and (5) the party’s portion of the applicable filing fee. If the party seeking arbitration is represented by counsel, the demand for arbitration must also include counsel’s name, firm, telephone number, mailing address, email address, and original signature.

If you are initiating arbitration, hard-copy service of the demand to Samplize shall be made in accordance with JAMS’s rules and procedures to the following address: 3651 FAU Blvd, Suite 200, Boca Raton, Florida 33431, Attn: General Counsel, and a copy of the same shall also be emailed to legal@samplize.com. If Samplize is initiating arbitration, it will serve a copy of the demand to the email address associated with your Customer Account, as well as in hard copy if Samplize has your mailing address.

The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. Where a party is represented by counsel, counsel's signature on the demand for arbitration or any other paper submitted to JAMS or the arbitrator constitutes a certification that such paper complies with the standard set forth in Federal Rule of Civil Procedure 11(b). The arbitrator has the right to impose sanctions in accordance with the JAMS rules and procedures for any claims or submissions the arbitrator determines to violate such standard, as well as for a party’s failure to comply with the “Informal Dispute Resolution Procedure” contemplated by Section 18(a) of the Terms of Service.

3. Arbitration location and procedure.
 

Unless you and Samplize otherwise agree, if you are a resident of the United States the arbitration will be conducted in the county where you reside, and if you are not a resident of the United States, the arbitration shall be conducted in New York, New York, United States of America. If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and Samplize submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.

Subject to the applicable JAMS rules and procedures, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited, cost-efficient nature of the arbitration. The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. If a party timely serves an offer of judgment under Federal Rule of Civil Procedure 68, or any other state-law equivalent, and the judgment that the other party finally obtains is not more favorable than the unaccepted offer, then the other party shall pay the costs, including filing fees, incurred after the offer was made. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Samplize, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).

4. Batch arbitration.
 

To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to JAMS (or another arbitration provider selected in accordance with Section (a) above if JAMS is unavailable) against Samplize within reasonably close proximity, the arbitration provider shall (i) administer the arbitration demands in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch. Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable JAMS rules and procedures for such selection, and the arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with Samplize and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims. This “Batch Arbitration” provision shall in no way be interpreted as authorizing class arbitration of any kind. Samplize does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section (d) of this Agreement. 

5. Arbitrator’s decision.
 

The arbitrator will render an award within the time frame specified in the applicable JAMS rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum's rules, and this Agreement. The arbitrator's award of damages and/or other relief must be consistent with the “Class Action and Collective Relief Waiver” in Section 18(b) and the “Limitation of Liability” in Section 16 of the Terms of Service as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.

Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.

6. Fees.
  

Pursuant to the applicable JAMS Rules and Consumer Arbitration Minimum Standards, you will be required to pay $250 to initiate an arbitration against Samplize. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require Samplize to pay the portion of that fee that exceeds the cost of filing suit. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise. If the arbitrator finds the arbitration to be non-frivolous, Samplize will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. For claims above $75,000, fees and costs will be determined in accordance with applicable JAMS rules. The arbitration rules permit you to recover attorneys’ fees in certain cases.

The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’s Rules where it deems appropriate (including as specified in Section (d) above), provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.

7. Right to opt-out of arbitration.
 

To opt out of arbitration and this Arbitration Agreement, you must notify Samplize in writing no later than 30 days after creating a Customer Account for the first time. Samplize’s updates to the Terms of Service do not provide you with a new opportunity to opt out of arbitration if you agreed to a previous version of the Terms of Service and did not validly opt out of arbitration. Samplize will continue to honor any valid opt outs if you opted out of arbitration in a prior version of the Terms of Service. Your notice must include your full name, mailing address, the email address associated with your Samplize account, a clear statement that you want to opt out of this Arbitration Agreement, and your original signature. The notice cannot be signed by your attorney, agent, or other representative, and you may only opt out on behalf of yourself individually. You must send your opt-out notice by U.S. Postal Service certified mail to 3651 FAU Blvd, Suite 200, Boca Raton, Florida 33431, Attn: General Counsel.

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 have entered into with Samplize or may enter into in the future with Samplize. If you do not timely opt out of this Arbitration Agreement, such action shall constitute mutual acceptance of the terms of this Arbitration Agreement by you and Samplize. 

8. Changes.
 

Samplize will provide 30 days’ notice of any changes to this Arbitration Agreement, but any such changes will not apply to any individual claim(s) of which Samplize already has actual notice. If Samplize changes this Arbitration Agreement after the date you first accepted this Arbitration Agreement (or accepted any subsequent changes to this Arbitration Agreement), you agree that your continued use of the Platform or Services 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may reject any such change by providing Samplize written notice of such rejection by certified mail to: 3651 FAU Blvd, Suite 200, Boca Raton, Florida 33431, Attn: General Counsel or by email from the email address associated with your account to: legal@samplize.com, within 30 days of the date such change became effective, as indicated in the “Effective” date above. To be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. If you reject changes pursuant to this paragraph and were already bound by an existing agreement to arbitrate disputes under a previous version of the Terms, then that existing arbitration agreement shall remain in full force and effect.