Terms of Use
Terms of Use
Last Updated: January 11, 2024
IMPORTANT: PLEASE READ THESE TERMS CAREFULLY AS THEY MAY IMPACT YOUR LEGAL RIGHTS IN THE EVENT OF A DISPUTE BETWEEN US. SPECIFICALLY, PLEASE REFER TO PARAGRAPH 19 BELOW, WHICH REQUIRES THAT CERTAIN DISPUTES BE SETTLED THROUGH MANDATORY BINDING ARBITRATION WHICH WILL PRECLUDE YOU FROM LEADING OR PARTICIPATING IN A CLASS ACTION.
The following terms and conditions (the “Terms of Use”) govern your use of the website to which these Terms of Use are linked (the “Website”), which is owned or operated by The American Pavilion (“AmPav,” “We” and “Us”). The term “Website” includes all subdomains of the Website and any content, code, data, services, features or functionality made available from or through the Website.
We may change the Terms of Use from time to time at any time without notice to you, by posting such changes on the Website. Changes in the Terms of Use will be effective when posted and your continued use of the Website and/or the services made available on or through the Website after any changes to the Terms of Use are posted will be considered acceptance of those changes. BY USING THE WEBSITE, YOU ACCEPT AND AGREE TO THESE TERMS OF USE AS APPLIED TO YOUR USE OF THE WEBSITE, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. If you do not agree to these Terms of Use, you may not access or otherwise use the Website.
1. Ownership. As between you and AmPav, AmPav or its licensors own, solely and exclusively, all rights, title and interest in and to the Website, including, without limitation, all the content (including, for example, audio, photographs, illustrations, graphics, other visuals, video, copy, text and software), code, data and materials thereon, the look and feel, design and organization of the Website, and the compilation of the content, code, data and materials on the Website, including but not limited to any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights and other intellectual property and proprietary rights therein. Your use of the Website does not grant you ownership of any content, code, data or materials you may access on or through the Website.
2. Feedback. If you provide AmPav any feedback or suggestions regarding the Website (“Feedback”), including, without limitation, ideas, concepts, know-how or techniques relating to the functionality or design of the Website, you hereby assign to AmPav all rights in the Feedback and agree that AmPav shall have the right to use such Feedback and related information in any manner it deems appropriate. AmPav will treat any Feedback you provide to AmPav, whether through the Website or otherwise, as non-confidential and non-proprietary. You agree that you will not submit to AmPav any feedback that you consider to be confidential or proprietary.
3. Limited License. You may access and view the content on the Website on your computer or other devices and, unless otherwise indicated in these Terms of Use or on the Website, make single copies or prints of such content for your personal, internal use only. Use of the Website and the services offered on or through the Website are only for your personal, non-commercial use.
4. Prohibited Use. Any commercial or promotional distribution, publishing or exploitation of the Website is strictly prohibited unless you have received the express prior written permission from authorized personnel of AmPav. Other than as expressly allowed herein, you may not download, post, display, publish, copy, reproduce, distribute, transmit, modify, perform, broadcast, transfer, create derivative works from, sell or otherwise exploit the Website. You further agree that you may not alter, edit, delete, remove, otherwise change the meaning or appearance of, or repurpose, any of the content, code, data, or other materials on or available through the Website, including, without limitation, the alteration or removal of any trademarks, trade names, logos, service marks, or any other proprietary content or proprietary rights notices. You acknowledge that you do not acquire any ownership rights by accessing or downloading any copyrighted material from or through the Website. If you make other use of the Website, except as otherwise provided above, you may violate copyright and other laws of the United States and/or other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. For web posting, reprint, transcript or licensing requests for AmPav material, please send your request to the following: https://www.ampav.com/contact/
5. Marks. The trademarks, logos, service marks and trade names (collectively the “Marks”) displayed on the Website or on content available through the Website, are registered and unregistered trademarks or service marks of AmPav and third parties. All Marks not owned by AmPav that appear on the Website or on or through the Website’s services, if any, are the property of their respective owners. Nothing contained on the Website should be construed as granting, by implication or otherwise, any license or right to use any Mark displayed on the Website without the written permission of AmPav or the third party that may own the applicable Mark. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks. Your misuse of the Marks displayed on the Website or on or through any of the Website’s services is strictly prohibited.
6. Registration Information. In the course of your use of the Website, you may be asked to register or otherwise provide certain personalized information to Us and/or to create a username and password, either directly through us or through our third party partners (such information referred to hereinafter as “Registration Information”). AmPav’s information collection and use policies with respect to the privacy of such Registration Information are set forth in the Website’s Privacy Policy, which is incorporated herein by reference for all purposes (the “Privacy Policy”). Further, you understand that if you are redirected to a third party website during the registration process (including, without limitation, Swoogo), such third party’s terms and conditions will apply in addition to these Terms of Use. You acknowledge and agree that you are solely responsible for your Registration Information. You represent and warrant that (a) all required Registration Information you submit is truthful, accurate, complete and correct; and (b) you will maintain the accuracy and completeness of such information. You will be responsible for maintaining the confidentiality of your password and user name and for restricting access to your computer and information so others may not access our Website using your Registration Information. We will not be responsible for misuse of your Registration Information by any third party, whether authorized by you or not. You are responsible for all activities that occur under your Registration Information. You agree to immediately notify AmPav of any unauthorized use, or suspected unauthorized use, of your Registration Information or any other breach of security. AmPav cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
7. Eligibility. You must meet any age, geographic or other eligibility requirements specified on the Website to participate in any of the programs or services We offer. By registering for such programs or services, you represent that you comply with applicable restrictions.
8. Submitted Materials. Unless specifically requested, We do not solicit nor do We wish to receive any confidential, secret or proprietary information or other material from you through the Website, by e-mail or in any other way. Any and all comments, information, creative works, demos, ideas, suggestions, concepts, plans, or other materials submitted or sent by you to Us via any medium (including, for example and without limitation, photos, audio, video, messages, text, files or other content which you submit or post to our social media pages or feeds, or send to Us via e-mail or U.S. mail) (“Submitted Materials”) will be deemed not to be confidential or secret, and may be used by Us in any manner consistent with these Terms of Use and the Privacy Policy. By submitting or sending Submitted Materials to Us, you: (i) represent and warrant that the Submitted Materials are original to you, that no other party has any rights thereto, and that any “moral rights” in Submitted Materials have been waived, (ii) that such Submitted Materials comply with these Terms of Use, including, without limitation, Section 9 (Prohibited User Conduct) and (iii) you grant Us and our affiliates a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sublicensable right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and incorporate in other works any Submitted Materials (in whole or part) in any form, media, or technology now known or later developed, for any lawful purpose, including, without limitation, for promotional and/or commercial purposes. We cannot be responsible for maintaining any Submitted Material that you provide to Us, and We may delete or destroy any such Submitted Material at any time. Under no circumstances will AmPav be liable for any inaccuracy or defect in any Submitted Materials.
9. Prohibited User Conduct. You warrant and agree that, while using the Website you shall not: (a) impersonate any person or entity or misrepresent your affiliation with any other person or entity; (b) insert your own or a third party’s advertising, branding or other promotional content into any of the Website’s content, materials or services, or use, redistribute, republish or exploit such content or service for any further commercial or promotional purposes; or (c) attempt to gain unauthorized access to other computer systems through the Website. You shall not: (i) engage in spidering, “screen scraping,” “database scraping,” harvesting of e-mail addresses, wireless addresses or other contact or personal information, or any other automatic means of obtaining lists of users or other information from or through the Website or the services offered on or through the Website, including, without limitation, any information residing on any server or database connected to the Website or the services offered on or through the Website; (ii) obtain or attempt to obtain unauthorized access to computer systems, materials or information through any means; (iii) use the Website in any manner that may interrupt, damage, disable, overburden, or impair the Website or its services, including without limitation, sending mass unsolicited messages or “flooding” servers with requests; (iv) use the Website in violation of AmPav’s or any third party’s intellectual property or other proprietary or legal rights; or (v) use the Website in violation of any applicable law. You further agree that you shall not attempt (or encourage or support anyone else’s attempt) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with the Website, or any content thereof, or make any unauthorized use thereof. You agree that you shall not use the Website in any manner that could damage, disable, overburden, or impair the Website or interfere with any other party’s use and enjoyment of the Website or any of their services. You shall not obtain or attempt to obtain any materials or information through any means not intentionally made publicly available or provided for through the Website.
10. Right to Monitor. AmPav reserves the right, but does not have an obligation, to monitor and/or review all Submitted Materials and AmPav is not responsible for any such Submitted Materials. However, AmPav reserves the right at all times to disclose any Submitted Materials as necessary to comply with any law, rule, regulation or government request, or to edit, refuse to post or to remove any Submitted Materials, in whole or in part, that AmPav considers to be, in AmPav’s sole discretion, objectionable or in violation of these Terms of Use, AmPav’s policies or applicable law. If AmPav elects to modify Submitted Materials, AmPav nonetheless assumes no responsibility for the Submitted Materials.
11. Linking to the Website. You are not permitted to link directly to any image hosted on the Website or our services, such as using an “in-line” linking method to cause the image hosted by Us to be displayed on another website. You agree not to download or use images hosted on the Website for any purpose, including, without limitation, posting such images on another site. You agree not to link from any other website to the Website in any manner such that the Website, or any page of the Website, are “framed,” surrounded or obfuscated by any third party content, materials or branding.
12. Third Party Websites. You may be able to access third party websites from the Website, and third party websites may link to the Website (“Linked Sites”). You acknowledge and agree that We have no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through Linked Sites, even if they are owned or run by affiliates of ours. Links to Linked Sites do not constitute an endorsement or sponsorship by Us of such Linked Sites or the information, content, products, services, advertising, code or other materials presented on or through such Linked Sites. The inclusion of any link to such Linked Sites on our Website does not imply AmPav’s endorsement, sponsorship, or recommendation of that site. AmPav disclaims any liability for links (1) from another website to the Website and (2) to another website from the Website. AmPav cannot guarantee the standards of any websites to which links are provided on the Website nor shall AmPav be held responsible for the contents of such sites, or any subsequent links. AmPav does not represent or warrant that the contents of any third party websites are accurate, compliant with state or federal law, or compliant with copyright or other intellectual property laws. Also, AmPav is not responsible for any form of transmission received from any Linked Sites. Any reliance on the contents of a third party website is done at your own risk and you assume all responsibilities and consequences resulting from such reliance.
13. Indemnification. You agree to indemnify, defend and hold AmPav, its affiliates and any of their respective directors, officers, employees, agents, successors and assigns harmless from any and all claims, liabilities, costs and expenses, including attorneys’ fees, arising in any way from (a) your use of the Website, (b) your placement or transmission of Submitted Materials or any other message, content, information, software or other materials through the Website, and/or (c) your breach or violation of any applicable law or regulation or these Terms of Use. AmPav reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with AmPav’s defense of such claim. You agree not to settle any matter without the prior written consent of authorized representatives of AmPav.
14. Copyright Agent. We respect the intellectual property rights of others, and require that the people who use the Website, or the services or features made available on or through the Website, do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to AmPav’s Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
• Your address, telephone number, and email address;
• A description of the copyrighted work that you claim has been infringed;
• A description of where the alleged infringing material is located;
• A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
Agent:
The American Pavilion
11175 Santa Monica Blvd.
Los Angeles, CA 90025 United States
e-mail: legal@pmc.com
Note that the above-referenced contact information is for copyright notices only. No other inquiries will receive a response from the AmPav Copyright Agent.
15. DISCLAIMER OF WARRANTIES.
THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, CONTENT, FUNCTIONS AND MATERIALS PROVIDED THROUGH THE WEBSITE, ARE PROVIDED “AS IS,” “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, PLAYABILITY, DISPLAYABILITY, ACCURACY, PRECISION, CORRECTNESS, THOROUGHNESS, COMPLETENESS OR USEFULNESS OF CONTENT OR INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED. WE DO NOT WARRANT THAT THE WEBSITE OR THE SERVICES, CONTENT, FUNCTIONS OR MATERIALS PROVIDED THROUGH THE WEBSITE WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE WEBSITE OR THE PROVIDED SERVICES WILL MEET USERS’ REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. AMPAV ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR EQUIPMENT ON ACCOUNT OF YOUR ACCESS TO, USE, OR BROWSING OF THE WEBSITE OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO CONTENT, OR AUDIO CONTENT FROM THE WEBSITE. UNDER NO CIRCUMSTANCES SHALL AMPAV BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE WEBSITE, ANY CONTENT POSTED ON OR THROUGH THE WEBSITE, OR CONDUCT OF ANY USERS OF THE WEBSITE, WHETHER ONLINE OR OFF. YOU USE THE WEBSITE AT YOUR OWN RISK. IF YOU ARE DISSATISFIED WITH THE WEBSITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE WEBSITE.
WE TRY TO ENSURE THAT THE INFORMATION POSTED ON THE WEBSITE IS CORRECT AND UP-TO-DATE. WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION PROVIDED ON THE WEBSITE AT ANY TIME AND WITHOUT ANY PRIOR WARNING. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE WEBSITE.
16. LIMITATION OF LIABILITY. IN NO EVENT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL AMPAV, OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS (COLLECTIVELY, THE “PROTECTED ENTITIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OR THE INABILITY TO USE, THE WEBSITE OR ANY CONTENT AVAILABLE THEREON, MATERIALS AND FUNCTIONS RELATED THERETO, YOUR PROVISION OF INFORMATION VIA THE WEBSITE, LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL THE PROTECTED ENTITIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE WEBSITE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS OF USE, OR YOUR USE OF THE WEBSITE EXCEED, IN THE AGGREGATE, THE GREATER OF (A) TWENTY-FIVE US DOLLARS ($25), OR (B) THE AMOUNT, IF ANY, PAID BY YOU TO AMPAV FOR YOUR USE OF THE WEBSITE OR PURCHASE OF ANY PRODUCTS OR SERVICES VIA THE WEBSITE.
17. Applicable Laws. We control and operate the Website from our offices in the United States of America. We do not represent that materials on the Website are appropriate or available for use in other locations. Persons who choose to access the Website from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. These Terms of Use shall be governed by and construed solely and exclusively in accordance with the laws of the State of California, USA without giving effect to any law that would result in the application of the law of another jurisdiction.
18. Termination. AmPav may terminate, change, suspend or discontinue any aspect of the Website or the Website’s services at any time. AmPav may restrict, suspend or terminate your access to the Website and/or its services if We believe you are in breach of our Terms of Use or applicable law, or for any other reason without notice or liability. Without limitation, AmPav may, in its sole discretion and without liability, terminate the Website use privileges of users who are repeat infringers of intellectual property rights.
19. Dispute Resolution: Binding Arbitration Clause and Class Waiver.
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS—INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT (BY REQUIRING YOUR DISPUTE TO BE SUBMITTED TO ARBITRATION) AND LIMITING YOUR RIGHTS TO RESOLVE YOUR DISPUTE AS PART OF A CLASS.
As detailed herein, the Terms of Use mandate that all disputes between you and AmPav be resolved first through an informal dispute resolution process. In the event informal resolution fails, the Terms of Use further mandate that all disputes (except those identified in Section 19.3) be formally resolved through binding arbitration. Binding arbitration means that an arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve such disputes. Consequently, you should read the entirety of Section 19 carefully as it may significantly affect your legal rights.
19.1 Informal Dispute Resolution.
For any and all disputes between you and AmPav, the parties shall use their best efforts to settle informally the dispute, claim, question, or disagreement and to engage in good faith negotiations. Failure to engage in this process could result in the award of fees against you in arbitration.
To initiate informal dispute resolution, the initiating party must first send a written description of the dispute to the other party. For any dispute against AmPav that you initiate, you agree to send to AmPav (a) a written description of the dispute and (b) the email address(es) associated with your account through the following email address: info@ampav.com, with a copy to legal@pmc.com. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought. For any dispute that AmPav initiates, we will send our written description of the dispute to the email address associated with your use of AmPav’s services.
If the parties’ dispute is not resolved within sixty (60) days after receipt of the written description of the dispute by a party, you and AmPav agree to resolve any remaining dispute through the additional dispute resolution provisions set forth below.
A good faith engagement in informal dispute resolution shall be and is a prerequisite and condition precedent to either party initiating a lawsuit or arbitration. The parties agree that any applicable statute of limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.
19.2 Binding Arbitration
After the parties have engaged in a good-faith effort to resolve their dispute(s) in accordance with the Informal Dispute Resolution process (Section 19.1), and only if those efforts fail, then either party may initiate arbitration as set forth in this Section.
If you determine to initiate arbitration, a copy of the arbitration demand must be emailed to legal@pmc.com. If AmPav is initiating arbitration, it will serve a copy of the demand to the email address associated with your use of AmPav’s services.
(a) Mutual Arbitration Agreement
Except as set forth in Section 19.3 below, you and AmPav agree that all claims, disputes, or disagreements that may arise out of or relating to the interpretation, applicability, enforceability, formation, or performance of these Terms of Use— including but not limited to any claim that all or any part of these terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment, non-payment, or timing of any administrative or arbitrator fees—shall be resolved exclusively through binding arbitration in accordance with this Section 19.2 (collectively, the “Arbitration Agreement”). The arbitrator shall be empowered under this Arbitration Agreement to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the arbitration provider’s rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with this Section 19.2.
This Arbitration Agreement is intended to be interpreted broadly, and it applies to claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice opt-out provisions set forth in Sections 19.4 and 19.5.
This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects and evidences a transaction involving interstate commerce. You and AmPav 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 Section 19.2(c) below, 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.
(b) WAIVER OF RIGHTS INCLUDING JURY TRIAL
THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT RIGHTS TO DISCOVERY AND APPEALS MAY BE LIMITED IN ARBITRATION. THE PARTIES FURTHER UNDERSTAND THAT THE COSTS OF ARBITRATION COULD EXCEED THE COST OF LITIGATION IN SOME INSTANCES.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT BY AGREEING TO THESE TERMS AND ARBITRATION AGREEMENT, YOU AND AMPAV ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
(c) CLASS ARBITRATION AND COLLECTIVE RELIEF WAIVER.
YOU AND AMPAV ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, AND EXCEPT AS OTHERWISE SET OUT IN THIS SECTION 19.2(c) AND SECTION 19.2(e)(vi) BELOW, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER CONSOLIDATED ACTION, AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM; NOTWITHSTANDING THIS ACKNOWLEDGEMENT AND AGREEMENT, ANY ARBITRATION INVOLVING YOU MAY PROCEED ON A CONSOLIDATED BASIS IF AND ONLY IF AMPAV PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.
If there is a final judicial determination that applicable law precludes enforcement of this Paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
If there is a final judicial determination that either the Class Arbitration and Collective Relief Waiver in this Section, or that the provisions in this Section 19.2 are not enforceable as to a particular claim or request for relief, then the parties agree that that particular claim or request for relief may proceed in court as provided herein, but shall be severed and stayed pending arbitration of the remaining claims. This provision does not prevent you or AmPav from participating in a class-wide settlement of claims.
(d) Arbitration Location.
If you are a resident of the United States, arbitration will take place in the county where you reside. For residents in Canada (and anywhere else outside the United States), arbitration shall be initiated in the City of Los Angeles, State of California, United States of America, unless you and AmPav otherwise agree or unless the designated arbitrator determines that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue.
For any arbitration conducted in the City of Los Angeles, State of California, United States of America, You and AmPav agree to submit to the personal jurisdiction of any federal or state court in Los Angeles, California, 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. or certified mail and hereby waive any and all jurisdictional and venue defenses otherwise available.
(e) The Arbitration Rules.
(i) The Provider.
The arbitration will be administered by National Arbitration and Mediation (“NAM”) and resolved before a single arbitrator. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider.
Except as modified by this “Dispute Resolution” provision, NAM will administer the arbitration in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at http://www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at commercial@namadr.com.
You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you further agree that 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 NAM does not constitute a default, waiver, or breach of this Section 19 while such challenge remains pending before NAM 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.
(ii) Arbitration Demand Must Contain Sufficient Information.
Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based, and must include proof that the claimant is party to this Arbitration Agreement and to these Terms of Use. The arbitrator and/or NAM may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11), including for any claim filed on behalf of a claimant who is not a party to this Arbitration Agreement or to these Terms of Use.
(iii) Arbitration Conducted on Papers in Some Circumstances.
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 that you and AmPav 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.
(iv) Dispositive Motions.
Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.
(v) Batching.
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 or claims, 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 NAM (or another arbitration provider selected in accordance with Section 19.2(e)(i) if NAM is unavailable) against AmPav within reasonably close temporal proximity (“Mass Filing”), the parties agree (A) to administer the Mass Filing 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) with only one batch filed, processed, and adjudicated at a time; (B) to designate one arbitrator for each batch; (C) to accept applicable fees, including any related fee reduction determined by NAM (or another arbitration provider selected in accordance with 19.2(e)(i) if NAM is unavailable) in its discretion; (D) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed, and adjudicated; (E) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by AmPav and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (F) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. If your demand for arbitration is included in the Mass Filing, any statute of limitation applicable to your claims will remain tolled until your demand for arbitration is decided, withdrawn, or settled.
Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and shall be subject to any rights to strike an arbitrator provided under applicable state law if the rights granted by law exceed those provided for in the NAM rules, and the arbitrator will determine the location where the proceedings will be conducted.
You agree to cooperate in good faith with AmPav 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 combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. For example, if the number of cases filed makes batches of 100 cases too small for the prompt resolution of all filed claims, you and we agree that NAM may increase or decrease the batch size, or transfer a case between batches in the reasoned discretion of the NAM procedural arbitrator. Any and all disagreements between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a NAM procedural arbitrator.
This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind.
(vi) No Class or Consolidated Arbitration Absent Written Consent.
Unless AmPav otherwise consents in writing, which it may do on a case-by-case basis, AmPav 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 Section 19.2(c) and this Section 19.2(e)(vi).
(vii) Arbitration Award.
The arbitrator will render an award within the time frame specified in the applicable NAM 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 Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with Section 19.2(c) above, and also must be consistent with the terms of the “Limitation of Liability” section of these Terms of Use 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.
19.3 Exceptions to Arbitration
Notwithstanding the parties’ agreement to resolve all disputes through binding arbitration as set forth in Section 19.2:
(a) IP Disputes.
Either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, shall be exclusively brought in the state and federal courts located in the City of Los Angeles, California.
(b) Small Claims Court and Statutes of Limitation.
Either party may elect to have disputes or claims resolved in a small claims court regardless of what forum the filing party initially chose, provided the disputes or claims are within the scope of that court’s jurisdiction.
Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be in fact be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed (and any applicable statute of limitations tolled) pending the outcome of such action.
(c) Jurisdiction/Service of Process.
For any dispute not subject to arbitration under this Section 19, you and AmPav agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Los Angeles, California. You further agree to accept service of process by U.S. or certified mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
19.4 30-Day Right to Opt Out.
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice, signed by you, of your decision to opt-out to the following address: privacydirector@pmc.com. The notice must be sent within 30 days of your first use of the Services, otherwise, you shall be bound to arbitrate disputes in accordance with the terms of Section 19.2. If you opt-out of the arbitration provisions, AmPav will not be bound by them either.
If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If AmPav changes this “Dispute Resolution” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Services 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may opt out of the Arbitration Agreement by providing notice within 30 days of the change, as described in this Section 19.4.
AmPav will continue to honor any valid opt outs if you opted out of arbitration in a prior version of the Terms pursuant to the requirements set forth in that version. If you do not timely opt out of this Arbitration Agreement, such action shall constitute mutual acceptance of the terms of these “Dispute Resolution” provisions by you and AmPav.
19.5 Changes to this Section.
AmPav will provide 30 days’ notice of the date of any material changes to this Section 19. Changes will become effective on the 30th day and apply to all claims not yet filed. If you continue to use the Services after the 30th day, you agree that any unfiled claims of which AmPav does not have actual notice are subject to the revised clause.
20. Miscellaneous. These Terms of Use (including the Privacy Policy) constitute the entire agreement between you and Us regarding the use of the Website. Our failure to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision. If any provision of the Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Use remain in full force and effect.
