PLEASE READ THIS SECTION OF THIS AGREEMENT CAREFULLY. IT LIMITS CERTAIN RIGHTS, INCLUDING YOUR RIGHTS TO TRY CLAIMS IN COURT BEFORE A JUDGE OR JURY AND THE RIGHT TO BRING OR PARTICIPATE IN ANY CLASS, COLLECTIVE, OR REPRESENTATIVE CLAIM OR ACTION.
Mandatory Informal Dispute Resolution. If you or KVM Tools have a Claim (defined below), you and KVM Tools agree to make a good faith effort to resolve it informally prior to initiating a formal arbitration proceeding. The party that intends to initiate an arbitration proceeding must first send a notice to the other party that describes the Claim. The notice must include the initiating party’s name and contact information (address, telephone number, and email address) and a detailed description of (1) the nature and basis of the Claim and (2) the nature and basis of the relief sought, with a detailed calculation. Your notice shall be sent by mail to KVM Tools Inc, 16635 Spring Cypress Rd, Suite 2082, Cypress, TX,77429. ATTN: Legal Department.
You must personally sign the notice. KVM Tools notice to you shall be sent to the most recent contact information we have on file for you. If requested by the party that receives the notice, the other party must personally participate in a telephone settlement conference (if a party is represented by counsel, counsel may also participate) to discuss the Claim. If the Claim is not resolved within sixty (60) days after receipt of the notice (which period can be extended by agreement of you and us), you or KVM Tools may commence an arbitration proceeding consistent with the process set forth below. Compliance with and completing this informal dispute resolution process is a condition precedent to filing a demand for arbitration. The statute of limitations and any filing fee deadlines for a formal arbitration proceeding shall be tolled while the parties engage in this informal dispute resolution process. If the sufficiency of a notice or compliance with this informal dispute resolution process is at issue, it may be decided by a court at either party’s election, and any arbitration proceeding shall be stayed pending resolution of the issue. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration.
Agreement to Arbitrate. If we are unable to resolve a Claim through the mandatory informal dispute resolution process, you and KVM Tools agree that, except as set forth below, all Claims between you and us will be resolved entirely through the binding individual arbitration process set forth in this Section. For purposes of this Section, “KVM Tools,” “we,” “our,” and “us” include KVM Tools Inc and its employees, officers, directors, parents, agents, controlling persons, subsidiaries, affiliates, predecessors, acquired entities, successors, and assigns.
Claims. “Claims” subject to this Section include all of the following: (1) claims relating to or arising out of this Agreement or any prior or later versions of this Agreement, as well as any changes to the terms of this Agreement; (2) claims relating to or arising out of any aspect of any relationship between you and us; (3) claims relating to or arising out of your access of, use of, or any transactions through, by, or using the KVM Tools Property, including receipt of any advertising, marketing, or other communications from KVM Tools; and (4) claims relating to the interpretation, scope, applicability, or enforceability of this Agreement or this Section except as set forth in the Mandatory Informal Dispute Resolution, the Public Injunctive Relief Waiver, and the Additional Procedures for Mass Arbitration provisions below. Except as provided below, (1) claims are subject to arbitration whether they are based in contract, tort, federal or state statute, constitution, regulation, or any other legal theory, or whether they seek legal or equitable remedies; (2) all claims are subject to arbitration whether they arose in the past, may currently exist, or may arise in the future; and (3) claims include claims or disputes that arose before the parties entered into this Agreement or after termination of this Agreement.
Claims Not Covered By Arbitration. Claims filed by you or by us in a small claims court are not subject to arbitration, so long as the dispute remains in such court and advances only an individual claim for relief. Claims filed by you or us in court to enjoin infringement or other misuse of intellectual property rights are also not subject to arbitration. The “Class and Representative Action Waiver” and “Public Injunctive Relief Waiver” provisions set forth additional claims not subject to arbitration.
Commencing an Arbitration. Except as set forth in the Additional Procedures for Mass Arbitration provision, unless the parties agree to select a different arbitration administrator, the arbitration shall be administered by the American Arbitration Association (“AAA”) as follows: under AAA’s Commercial Rules for commercial disputes and under AAA’s Consumer Arbitration Rules for consumers with non-commercial disputes, except as modified by this Section. AAA’s rules may be obtained from www.adr.org or 1-800-778-7879 (toll-free). If AAA is for any reason unable to serve and the parties are unable to agree on an alternative arbitration administrator, then a court of competent jurisdiction shall appoint an arbitration administrator. To commence an arbitration proceeding, you or KVM Tools must send a personally signed demand for arbitration that describes (1) the nature and basis of the Claim(s), and (2) the nature and basis of the relief sought, including a detailed calculation, along with a certification that you or we are party to this Section and completed the informal dispute resolution process referenced above. Your notice shall be sent to: KVM Tools Inc, 16635 Spring Cypress Rd, Suite 2082, Cypress, TX 77429, ATTN: Legal Department . KVM Tools notice shall be sent to the most recent contact information we have on file for you. You or KVM Tools must also contact AAA or chosen arbitration administrator and follow its appropriate procedures to commence the arbitration.
Arbitration Procedure. Unless you and we agree otherwise in writing, the arbitration shall be decided by a single, neutral arbitrator, who shall be a retired judge or a lawyer with at least ten years of experience, selected in accordance with the chosen arbitration administrator’s rules.
The arbitrator will decide the Claim or Claims in accordance with the terms of this Agreement and applicable substantive law, including the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), and applicable statutes of limitation. The arbitrator shall honor claims of privilege recognized at law. Except as provided in the “Public Injunctive Relief Waiver” provision below, the arbitrator may award damages or other relief (including injunctive relief) available to the individual claimant under applicable law.
The arbitrator will take reasonable steps to protect proprietary or confidential information. Any arbitration hearing shall take place in the county in which you reside, unless the parties agree in writing to a different location or the arbitrator so orders. If all Claims are for $10,000 or less, you 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 in accordance with the arbitration administrator’s rules. You and a KVM Tools representative shall personally appear (with counsel if you and we are represented) at an initial telephone conference with a case manager before an arbitrator is appointed and at a hearing should one be scheduled by the arbitrator.
At your or our request, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s award shall be final and binding except that any party may appeal any award relating to a Claim for more than $100,000 or for injunctive relief to a three-arbitrator panel appointed by the arbitration administrator, which will reconsider de novo any aspect of the appealed award. The panel’s decision will be final and binding. In either event, you or we may seek to have the award vacated or confirmed and entered as a judgment in any court having jurisdiction.
Arbitration Costs. Payment of all filing, administration, and arbitrator fees will be governed by the applicable AAA rules as set forth above or, if a different arbitration administrator is selected, its rules. If you are a consumer with a non-commercial dispute, we will pay any filing, administration, or arbitrator fees the arbitration administrator requires you to pay if, in a writing signed by you: (1) you claim to be unable to afford it; and (2) you demonstrate that you sought, but were unable to obtain, a waiver of that fee from the arbitration administrator. To the extent allowed by applicable law and our agreements, the arbitrator may award arbitration costs and attorneys’ fees to the prevailing party.
Jury Waiver and Limitation of Rights. You and we agree that, by agreeing to arbitrate any Claims, the parties are each waiving the right to a trial by jury or a trial before a judge in court (except for matters that may be taken to a court pursuant to this Section). You and we acknowledge that arbitration will limit our legal rights, including the right to participate in a class action, the right to a jury trial, the right to conduct full discovery, and the right to appeal.
Class Action and Representative Action Waiver. You and we agree that each may bring Claims against the other only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless mutually agreed to by you and us, the claims of two or more persons may not be joined, consolidated, or otherwise brought together in the same arbitration. The arbitrator shall have no authority to conduct any class, private attorney general or other representative proceeding. This provision does not apply to requests for public injunctive relief, which are addressed in the Public Injunctive Relief Waiver provision below.
Public Injunctive Relief Waiver. Neither you nor we will have the right to seek public injunctive relief as a remedy for any Claim against one another (a “Public Injunctive Relief Request”) in arbitration, if such a waiver is permitted by the FAA. If such a waiver is deemed unenforceable, you and we agree that the Public Injunctive Relief Request shall be severed from any other Claims and/or remedies you have. The Public Injunctive Relief Request must be adjudicated by a court after all your other Claims to be decided in arbitration under this Section are resolved in arbitration. The validity, enforceability, and effect of this provision shall be determined exclusively by a court, and not by any arbitration administrator or arbitrator.
Additional Procedures for Mass Arbitration. If twenty-five (25) or more similar claims of consumers with non-commercial disputes are asserted against KVM Tools by the same or coordinated counsel or are otherwise coordinated (and your Claim is one such claim), you understand and agree that the resolution of your Claim might be delayed. You also agree to the following process and application of the AAA Multiple Consumer Case Filing Fee Schedule and Supplementary Rules.
Counsel for the claimants and counsel for KVM Tools shall each select fifteen (15) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of the initial bellwether process.
If the parties are unable to resolve the remaining cases after the conclusion of the initial thirty (30) proceedings, the parties shall participate in a global mediation session before a retired judge, and opposing council shall pay the mediator’s fee. If the parties are unable to resolve the remaining matters in mediation at this time, each side shall select twenty (20) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. (If there are fewer than forty (40) claims remaining, all shall proceed.) The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of this staged process.
If the parties are unable to resolve the remaining cases after the conclusion of the forty (40) proceedings, the parties shall participate in another global mediation session before a retired judge, and opposing council shall pay the mediator’s fee. If the parties are unable to resolve the remaining matters in mediation at this time, this staged process shall continue with one hundred (100) cases proceeding at one time that are selected randomly or by the AAA in staged sets, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. Between staged sets of proceedings, KVM Tools agrees to participate in a global mediation session should your counsel request it in an effort to resolve all remaining claims.
A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator unless the parties agree otherwise. The statute of limitations and any filing fee deadlines shall be tolled for Claims subject to this provision from the time the first cases are selected for the initial bellwether process until the time your case is selected, withdrawn, or otherwise resolved. A court of competent jurisdiction shall have the authority to enforce this paragraph by enjoining the mass filing or prosecution of arbitration demands against KVM Tools. Should a court of competent jurisdiction decline to enjoin this provision, you and we agree that your and our counsel shall engage in good faith discussions with the assistance of an arbitrator to devise and implement procedures that ensure that arbitration remains efficient and cost-effective for all parties. Either party may engage with the AAA to address reductions in arbitration fees.
Governing Law. Notwithstanding any other section in this Agreement to the contrary, you and we agree that you and we are participating in transactions that involve interstate commerce and that this Section and any resulting arbitration are governed by the FAA. Notwithstanding any section in this Agreement to the contrary, to the extent state law applies, the laws of Texas without regard to conflicts of law principles shall apply. No state statute pertaining to arbitration shall apply.
Severability. Notwithstanding any section in this Agreement to the contrary, if any provision of this Section, except for the Class Action and Representative Action Waiver provision above, is deemed invalid or unenforceable for any reason, it shall not invalidate the remaining portions of this Section. However, if the Class Action and Representative Action Waiver provision is deemed invalid or unenforceable in whole or in part, then this entire Section shall be deemed invalid and unenforceable.