PLEASE READ THIS ARBITRATION AGREEMENT CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS WE HAVE AGAINST EACH OTHER ARE RESOLVED.
If you’re upset with us, let us know, and hopefully we can resolve your issue. But if we can’t, then these rules will govern any legal dispute involving our Services.
- Agreement. Each Party agrees that any claim or dispute at law or equity that has arisen, or may arise, between the Parties (including any claim or dispute between you and a third-party agent of Traxia) that relates in any way to or arises out of this or previous versions of this the Agreement, your use of or access to the Services, the actions of Traxia or its agents, or any products or services sold or purchased through the Services, will be resolved exclusively through final and binding arbitration, rather than in court, in accordance with the provisions set forth in this Arbitration Agreement; provided, however, that either Party may seek a preliminary injunction or other provisional judicial relief if, in its judgment, such action is necessary to avoid irreparable damage or to preserve the status quo. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- Notice. Prior to initiating any action in arbitration, the initiating Party will give the other Party at least 60 days advanced written notice (the “Notice”) of its intent to file for arbitration. Notices to Traxia shall be sent to Software Group Inc., Attn: Litigation Department, Re: Notice of Dispute, 2120 Forum Boulevard Suite 3, Columbia, MO 65203, with a copy via email to email@example.com. Notices to you will be sent to you through your Account. Notices must detail and provide information regarding the action, including a description of the nature and basis of the claims the party is asserting and the relief sought. If the Parties are unable, in good faith, to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Traxia may initiate arbitration proceedings.
- American Arbitration Rules. This Arbitration Agreement will be governed by the Federal Arbitration Act. You agree that Arbitration shall be governed pursuant to the American Arbitration Association Rules (“Rules”) as modified by this Arbitration Agreement. AAA rules are available at www.adr.org or calling AAA at (800) 778-7879.
- Arbitration Procedures. All arbitration proceedings shall be brought and held in Boone County, Missouri. A single arbitrator (the “Arbitrator”), mutually agreeable to the Parties, shall preside over such proceedings and shall make all decisions with respect to the resolution of the dispute, controversy or claim between the Parties. In the event the Parties are unable to agree on the Arbitrator within fifteen (15) days after either Party has filed for arbitration in accordance herein and with the Rules, they shall select a truly neutral arbitrator in accordance with the rules for the selection of neutral arbitrators, who shall be the “Arbitrator”. The decision of the Arbitrator shall be final and binding on the Parties, and a judgment may be entered in a court of competent jurisdiction in order to enforce the Arbitrator’s award. The Parties shall be entitled to reasonable levels of discovery (as determined by the Arbitrator in his or her sole and absolute discretion) in accordance with the Federal Rules of Civil Procedure. Any settlement offer made by you or Traxia shall not be disclosed to the Arbitrator. The Parties also hereby acknowledge that it is their intent to expedite the resolution of the dispute, controversy or claim in question, and that the Arbitrator shall schedule the timing of the hearing consistent with that intent. During the course of the proceedings, all fees to be paid to the Arbitrator, and all expenses incurred by the Arbitrator in connection with the arbitration, shall be borne equally by the Parties. However, the Arbitrator shall award all costs and fees to the Party prevailing in the Arbitration as part of any award.
- Future Amendments to the Agreement to Arbitrate. Notwithstanding any provision in the Agreement to the contrary, the Parties agree that if Traxia makes any amendment to this Arbitration Agreement (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Traxia prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Arbitration Agreement that have arisen or may arise between you and Traxia. We will notify you of amendments to this Arbitration Agreement by posting the amended terms the Site at least 30 days before the effective date of the amendments and by providing notice by email. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
- Prohibition of Class and Representative Actions and Non-Individualized Relief. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. YOU HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY, TO ASSERT OR PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS ACTION ARBITRATION (EITHER AS A NAMED-PLAINTIFF OR CLASS MEMBER), AND TO ASSERT OR PARTICIPATE IN ANY JOINT OR CONSOLIDATED LAWSUIT OR JOINT OR CONSOLIDATED ARBITRATION OF ANY KIND. UNLESS THE PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Traxia’s right to appeal the court’s decision. All other claims will be arbitrated.
- Judicial Forum for Legal Disputes. Unless the Parties agree otherwise, in the event that this Arbitration Agreement above is found not to apply to you or to a particular claim or dispute, as a result of a decision by the Arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Traxia must be resolved exclusively by a state or federal court located in Boone County, Missouri. The Parties agree to submit to the personal jurisdiction of the courts located within Boone County, Missouri for the purpose of litigating all such claims or disputes.
The terms of this Arbitration Agreement will survive after this agreement terminates or your use of the Site or Services ends. If any portion of this Arbitration Agreement is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Agreement.