THIS GALLERY RENTAL AGREEMENT TERMS AND CONDITIONS constitute a legally binding agreement (the “Agreement”) between you (also referred to herein as “User”) and Web3 Gallery Holding, LLC (“Company”) governing your use of any facilities in any gallery owned or controlled by the Company. BY USING ANY FACILITIES IN ANY GALLERY OWNED OR CONTROLLED BY THE COMPANY, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL OF THE TERMS INCORPORATED HEREIN.
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND THE COMPANY CAN BE BROUGHT (SEE ARBITRATION SECTION BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST THE COMPANY TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING.
By entering into this Agreement and using any facilities in any gallery owned or controlled by the Company you expressly acknowledge that you understand the terms and conditions set forth in this Agreement (including the dispute resolution and arbitration provisions) and accept its terms and conditions. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE ANY FACILITIES IN ANY GALLERY OWNED OR CONTROLLED BY THE COMPANY.
“Gallery” means any gallery or similar venue owned or controlled by the Company.
“Gallery Rental Agreement” means a document in which a User and the Company set forth the business terms of renting space and/or related facilities in a Gallery.
“IP Rights” means the patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.
“NFT” means any blockchain-tracked, non-fungible token, such as those conforming to the ERC-721 standard.
Website” means the www.web3nycgallery.com website and any other successor or future website operated or associated with the Company.
Subject to the terms set forth in this Agreement, the User agrees to rent the space and/or related facilities in the Gallery as set forth in a Gallery Rental Agreement.
Subject to the Company’s review and in its sole discretion, you may display an NFT or your logo in the digital frame you have rented from the Company.
To protect our community and comply with our legal obligations, we reserve the right to take action, with or without advance notice, if we believe you have violated this Agreement. This may include: removing the ability to view certain your NFTs in the Gallery; disabling the ability to use the Gallery in conjunction with buying/selling/transferring NFTs available on blockchains; temporarily or permanently disabling your ability to access the Gallery and/or other actions.
WARNING - USING A DIGITAL FRAME IN THE GALLERY TO DRAIN A USER’S WALLET (OR TO OTHERWISE STEAL FROM A THIRD PARTY), MALICIOUSLY ATTACK A USER, OR DISPLAYING PORNOGRAPHIC IMAGES SHALL RESULT IN THE COMPANY PERMANENTLY TERMINATING YOUR ACCESS TO THE GALLERY AND HAVING THE COMPANY BLACKLIST YOUR WALLET SO THE GUILTY PARTY CANNOT SELL OR TRANSFER ANY NFT IN THE GALLERY.
You agree that you will not violate any law, contract, IP Rights, or other third-party right, and that you are solely responsible for your conduct and content, while accessing or using the Gallery. You also agree that you will not:
• Use any data mining, robot, spider, crawler, scraper, script, browser extension, offline reader, or other automated means or interface not authorized by us to access the Gallery or Website, extract data, or otherwise interfere with or modify the rendering of images in the Gallery or Website pages or functionality.
• Reverse engineer, duplicate, decompile, disassemble, or decode any aspect of the Website or our technology platform, or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any service, area, or code of the Gallery or Website.
• Circumvent or attempt to circumvent any Gallery fee systems associated with the sale of NFTs or any other Company product or service.
• Use the Gallery or Website or data collected from the Gallery or Website for any advertising or direct marketing activity not expressly authorized by the Company;• Use the Gallery or Website for money laundering, terrorist financing, or other illicit finance.
• Use the Gallery or Website from a country sanctioned by the government of the United States or to facilitate transactions involving individuals sanctioned by the government of the United States or located in sanctioned countries.
• Use the Gallery or Website to carry out any financial activities subject to registration or licensing, including but not limited to creating, selling, or buying securities, commodities, options, or debt instruments.
• Use the Gallery or Website to create, sell, or buy NFTs or other items that give owners rights to participate in an ICO or any securities offering, or that are redeemable for securities, commodities, or other financial instruments.
• Use the Gallery or Website to engage in price manipulation, fraud, or other deceptive, misleading, or manipulative activity.
• Use the Gallery or Website to buy, sell, or transfer stolen items, fraudulently obtained items, items taken without authorization, and/or any other illegally obtained items.
• Infringe or violate the IP Rights or any other rights of others.
• Display illegal content in the Gallery or on the Website, such as content that may involve child sexual exploitation.
• Display NFTs in the Gallery or on the Website that promote suicide or self-harm, incites hate or violence against others, or doxes another individual.
• Use the Gallery or Website for any illegal or unauthorized purpose, including creating or displaying illegal content, such as content that may involve child sexual exploitation, or encouraging or promoting any activity that violates this Agreement; and
• Use the Gallery or Website in any manner that could interfere with, disrupt, negatively affect or inhibit other Users from fully enjoying the Gallery or Website.
Finally, by using the Gallery or Website, you understand the importance of DYOR – doing your own research. You bear full responsibility for verifying the authenticity, legitimacy, identity, and other details about any NFT, collection, or account that you view or otherwise interact with in conjunction with the Gallery or Website. We make no guarantees or promises about the identity, legitimacy, or authenticity of any NFT, collection, or User of the Gallery or Website. Violation of any of these terms result in the Company permanently terminating your access to the Gallery or Website and having the Company blacklist your wallet so the guilty party cannot sell or transfer any NFT in the Gallery.
Intellectual Property Rights.
You are solely responsible for your use of the Gallery or Website and for any information you provide, including compliance with applicable laws, rules, and regulations, as well as the terms of this Agreement, including the User Conduct requirements outlined above.
By using the Gallery or Website in conjunction with creating, submitting, posting, promoting, or displaying content, or by complying with the Company’s metadata standards in your metadata API responses, you grant us a worldwide, non-exclusive, sublicensable, royalty-free license to use, copy, modify, and display any content, including but not limited to text, materials, images, files, communications, comments, feedback, suggestions, ideas, concepts, questions, data, or otherwise, that you submit or post on or through the Gallery or the Website for our current and future business purposes, including to provide, promote, and improve the Gallery or the Website. This includes any digital file, art, or other material linked to or associated with any NFTs that are displayed in the Gallery or on the Website.
The Company does not claim that submitting, posting, or displaying this content on or through the Gallery or Website gives the Company any ownership of the content. We're not saying we own it. We're just saying we might use it and show it off a bit.
You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any content that you create, submit, post, promote, or display on or through the Gallery or Website. You represent and warrant that such content does not contain material subject to copyright, trademark, publicity rights, or other IP Rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant the Company the license described above, and that the content does not violate any laws.
The Company will take down works in response to Digital Millennium Copyright Act (“DMCA”) takedown notices and/or other intellectual property infringement claims and will terminate a User's access to the Gallery or the Website if the User is determined to be a repeat infringer. If you believe that your content has been copied in a way that constitutes copyright or trademark infringement, or violates your publicity or other IP Rights, please fill out our form here or you may submit written notice to our designated copyright agent at:
Web3 Gallery Holding, LLC
c/o Foulston Siefkin LLP
Attn: Harvey Sorensen
1551 N. Waterfront Parkway, Suite 100
Wichita, Kansas 67206-4466
For us to process your infringement claim regarding content on the Website or in the Gallery, you must be the rightsholder or someone authorized to act on behalf of the rightsholder. We encourage you to use our form to help ensure the requisite information is included in your notice. If you choose to write to us by e-mail or physical mail instead, your notice must include:
• Identification of the copyrighted work(s), trademark, publicity rights, or other intellectual property rights that you claim is being infringed;
• Identification of the allegedly infringing material that is requested to be removed, including a description of the specific location (i.e., URLs) on the Website or in the Gallery of the material claimed to be infringing, so that we may locate the material;• Your contact information – at a minimum, your full legal name (not pseudonym) and email address;
• A declaration that contains all of the following:
√ A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the intellectual property rights owner, its agent, or the law;
√A statement that the information in the notice is accurate;
√ A statement under penalty of perjury that you are authorized to act on behalf of the intellectual property owner of the intellectual property that is allegedly being infringed; and
√ Your physical or electronic signature (of your full legal name).
Please note that we will forward your notice of intellectual property infringement, including your contact information, to the party who will have their content removed so they understand why it is no longer available on the Website or in the Gallery and can also contact you to resolve any dispute.
DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY.
AS USED HEREIN THE PHRASE “COMPANY PARTIES” MEANS THE COMPANY, NFT PARTNERS, LLC, EACH OF THEIR RESPECTIVE SUBSIDIARIES AND AFFILIATE ENTITIES, AND EACH OF THEIR RESPECTIVE VENDORS, LICENSORS, OFFICERS, DIRECTORS, MEMBERS, AFFILIATES, AGENTS, ATTORNEYS AND EMPLOYEES. THE USE OF ANY FACILITIES RELATED TO THE GALLERY AND ANY NFTs SOLD OR PURCHASED IN THE GALLERY ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION, OR FOR ANY FORM OF DIRECT OR INDIRECT DAMAGES, AND/OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OF ACTION WHATSOEVER RELATED TO ANY NFT, INCLUDING BUT NOT LIMITED TO ANY NFT DISPLAYED, PURCHASED OR SOLD IN THE GALLERY, THE USE OF ANY FACILITIES RELATED TO THE GALLERY OR THE WEBSITE, ANY TECHNOLOGY AND/OR PARTIES RELATED TO THE SALE OF A NFT DISPLAYED IN THE GALLERY, INCLUDING BUT NOT LIMITED TO BLOCKCHAIN, ANY DIGITAL WALLET INCLUDING BUT NOT LIMITED TO A METAMASK WALLET AND/OR OZONE NETWORKS, INC D/B/A OPENSEA OR ANY SIMILAR PLATFORM. YOU AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF A DISCLAIMING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY PARTIES’ TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED TEN PERCENT (10%) OF THE TOTAL SUM PAID DIRECTLY BY YOU TO THE COMPANY FOR THE USE ANY FACILITIES RELATED TO THE GALLERY. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. PLEASE BE AWARE THAT THIS LIMITATION OF LIABILITY PROVISION APPLIES TO KANSAS RESIDENTS (AND RESIDENTS OF ANY OTHER STATES, TERRITORIES, AND/OR JURISDICTION).
NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE APPLICABLE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN SUCH BLOCKCHAIN NETWORK, WHICH WE DO NOT CONTROL. WE DO NOT GUARANTEE THAT WE CAN AFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY NFT. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT ON THE NFT OR ITS UNDERLYING SMART CONTRACT OR BLOCKCHAIN NETWORK. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF THE NFTs, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED CRYPTOCURRENCY WALLET FILES; (IV) UNAUTHORIZED ACCESS; OR (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST BLOCKCHAIN NETWORK UNDERLYING THE NFTs. WE ARE NOT RESPONSIBLE FOR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE NFTS.
Assumption of Risk. You agree as follows:
• To the extent a there is a price or market for a blockchain asset, such markets and prices are extremely volatile, and variations in the price of other digital assets could materially and adversely affect the value of any digital asset(s) you own, such as NFTs, and there is no guarantee NFTs will have or retain any value;
• There are risks associated with using an Internet-native assets (e.g., non-fungible tokens, cryptocurrencies, etc.) including, but not limited to, the risk of hardware, software and Internet connections and/or failures, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your digital “wallet”, and the Company Parties will not be responsible for any of these, however caused;
• The Company Parties do not make any promises or guarantees about the availability of the NFT on the Internet or that they will host the NFT at any specific location and/or for any specific period of time;
• Upgrades to the Ethereum platform, a hard fork in the Ethereum platform, a failure or cessation of Ethereum, or a change in how transactions are confirmed on the Ethereum platform may have unintended, adverse effects on all blockchains using such technologies, including without limitation NFTs;
• the Company Parties do not make any promises or guarantees related to any digital wallet including but not limited to the MetaMask Wallet, Ozone Networks, Inc. d/b/a OpenSea or any similar platform, Blockchain or any other third parties related to the purchase of an NFT displayed in the Gallery and each of their applications and/or services, including but not limited to the continued availability of either and/or the protection and/or storage of any data you provide to those parties
• NFTs are made available solely for entertainment purposes; and
• the Company Parties are not responsible for any transaction between you and a third party (e.g., your transfer of a NFT from a third party on the so-called “secondary market”), and the Company Parties shall have no liability in connection with any such transaction.
ONGOING ACCESS TO THE GALLERY AND THE WEBSITE IS CONTINGENT ON THE COMPANY CONTINUING IN OPERATION. IF THE COMPANY CEASES BUSINES OPERATIONS, ACCESS TO THE GALLERY AND THE WEBSITE WILL TERMINATE.
This Agreement and all matters related to it shall be governed by, construed, and enforced in accordance with the laws of the State of Kansas, as they are applied to agreements entered into and to be performed entirely within Kansas and without regard to conflict of law principles, except to the extent that law is inconsistent with or preempted by federal law. Any action related to this Agreement shall be brought in the appropriate state or federal court located in Sedgwick County, Kansas; and you irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in Sedgwick County, Kansas for the adjudication of all claims.
Changes to the Agreement.
The Company may make changes to the terms and conditions of this Agreement from time to time. When the Company makes changes, we will make the updated Agreement available on www.web3nycgallery.com and update the “Last Updated” date at the beginning of this Agreement accordingly. Please check this Agreement periodically for changes. Any changes to the Agreement will apply on the date that they are made and, by way of example, your continued access to or use of the Gallery or the Website after the Agreement have been updated will constitute your binding acceptance of the updates.
Use of any facilities related to the Gallery is open only to individuals who have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein. It is not available to Users who have had their User privileges temporarily or permanently deactivated. You may not allow other persons to use your User credentials, and you agree that you are the sole authorized user. By becoming a User, you represent and warrant that you are at least 18 years old.
You will defend, indemnify, and hold the Company and NFT Partners, LLC, including each of our affiliates, subsidiaries, parents, successors and assigns, and each of our respective members, managers, officers, directors, employees, agents, or shareholders, as well as the Company Parties, harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including attorneys’ fees) relating to or arising out of your purchase, sale or possession of any NFT, and your use of the Gallery or any facility related to the Gallery and the Website, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit in the course of using the Gallery or Website, communications seeking the Company’s consent to activities or otherwise, infringe or otherwise violate the IP Rights or other rights of any third party; and/or (4) any other activities in connection with the purchase of an NFT or use of the Gallery, any facilities related to the Gallery or the Website. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
DISPUTE RESOLUTION, ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
(a) Agreement to Binding Arbitration Between You and the Company.
YOU AND THE COMPANY MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with the Company ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and the Company, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND THE COMPANY. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to the purchase of any NFT displayed in the Gallery, the use of the Gallery or Website, this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), payments made by you or any payments made or allegedly owed to you, any promotions or offers made by the Company, any city, county, state or federal trade secrets, unfair competition, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability, or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND THE COMPANY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
(b) Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND THE COMPANY MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND THE COMPANY BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST THE COMPANY, WHICH ARE ADDRESSED SEPARATELY IN OTHER SECTIONs.
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or 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 claims.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability, or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable with respect to any Claim or any particular remedy for a Claim (such as a request for public injunctive relief), then that Claim or particular remedy (and only that Claim or particular remedy) shall be severed from any remaining claims and/or remedies and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims or remedies to the fullest extent possible.
(c) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding. The parties may select a different arbitration administrator upon mutual written agreement.
As part of the arbitration, both you and the Company will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or 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 claims.
The case shall be heard by one arbitrator, who shall be an executive with a company in the entertainment event production industry. The arbitrator will decide the substance of all claims in accordance with applicable law and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users but is bound by rulings in prior arbitrations involving the same User to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
(d) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modification: The arbitrator in his award shall allocate all arbitration fees in his sole discretion and shall have the power to charge reasonable attorney fees of the successful party to the losing party.
(e) Location and Manner of Arbitration.
Unless you and the Company agree otherwise, any arbitration hearings between the Company and a User will take place in the county of your billing address. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. Your right to a hearing will be determined by the AAA Rules.
(f) Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction. Where these claims are brought in a court of competent jurisdiction, the Company will not require arbitration of those claims. The Company’s agreement not to require arbitration of these claims does not waive the enforceability of any other provision of this Arbitration Agreement, or of the enforceability of this Arbitration Agreement as to any other dispute, claim, or controversy.
Nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Provision, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In addition to the severability provisions in subsections (b) and (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed, and the remainder of the Arbitration Agreement shall be given full force and effect.
(h) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and the Company may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and the Company. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties.
If you have any questions or concerns, including if you need to access this Agreement in an alternative format, we encourage you to contact us via e-mail at firstname.lastname@example.org.