Privacy Policy

Individual Arbitration as Sole Remedy for Dispute Resolution

Any dispute, claim or controversy arising out of or relating to this Privacy Policy or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by final and binding individual (not class, representative, nor collective) arbitration in San Diego, California before one arbitrator. The language to be used in the arbitral proceedings will be English. The arbitration shall be administered by the Office of Judicial Arbitration and Mediation Service (“JAMS”) pursuant to its Comprehensive Arbitration Rules and Procedures or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. JAMS’s rules governing the arbitration may be obtained from JAMS’s website, which currently is www.jamsadr.com. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

If you are not a resident of the United States, then any dispute, controversy or claim arising out of or relating to this Privacy Policy, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by final and binding individual arbitration in accordance with the JAMS International Arbitration Rules. The Tribunal will consist of one arbitrator. The place of arbitration will be San Diego, California. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

Negotiation in Advance of Arbitration

1. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Privacy Policy promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Privacy Policy. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place.
2. Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of executives described above (“First Meeting”). Such closure shall not preclude continuing or later negotiations, if desired. 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, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
3. At no time prior to the First Meeting shall either side initiate an arbitration or litigation related to this Privacy Policy except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of Paragraph 1 above.

Requirements for Modification or Revocation

This agreement to arbitrate shall survive the termination of Collective42’s relationship with you. It can only be revoked or modified by a writing executed by Collective42 and you that specifically states an intent to revoke or modify this agreement to arbitrate.

Claims Covered by Arbitration Clause

Collective42 and you mutually consent to the resolution by final and binding arbitration of all claims or controversies (collectively, the “Claims”) that Collective42 may have against you or you may have against Collective42 or against its past, present, or future predecessors, successors, assigns, affiliates, parent and subsidiary companies, and joint ventures, and their respective past, present, or future officers, directors, employees, stockholders, representatives, managers, members, partners, agents, advisors, insurers, and indemnities (collectively referred to as the “Collective42 Parties”), relating to, resulting from, or in any way arising out of your relationship with Collective42. The Claims include, but are not limited to claims for penalties, fines, claims for breach of any contract (express or implied); tort claims (including, but not limited to, those relating to reputation); claims for violation of trade secret, proprietary, or confidential information laws; claims for unfair business practices; and claims for violation of any public policy, federal, state, international, or other governmental law, statute, regulation, or ordinance.

Required Notice of Claims and Statute of Limitations

Collective42 may initiate arbitration by serving or mailing a written notice to you at the last known address. you may initiate arbitration by serving or mailing a written notice to Collective42. The written notice must specify with reasonable particularity the claims asserted against the other party. Notice of any claim sought to be arbitrated must be served within the limitations period established by applicable federal or state law. After demand for arbitration has been made by serving written notice, the party demanding arbitration shall file a demand for arbitration with the Office of Judicial Arbitration and Mediation Service (“JAMS”) located in San Diego, California.

Selection of Arbitrator

Within 30 days after the commencement of arbitration, Collective42 shall select one person from the JAMS panel to act as arbitrator. The arbitrator shall serve as a neutral, independent and impartial arbitrator.

Confidentiality

The parties shall maintain the confidential nature of the arbitration proceeding and the award, if any, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.

Dispositive Motions

In any arbitration arising out of or related to this Agreement:

1. Any party wishing to make a dispositive motion shall first submit a brief letter (not exceeding five pages) explaining why the motion has merit and why it would speed the proceeding and make it more cost effective. The other side shall have a brief period within which to respond.
2. Based on the letters, the arbitrator will decide whether to proceed with more comprehensive briefing and argument on the proposed motion.
3. If the arbitrator decides to go forward with the motion, he/she will place page limits on the briefs and set an accelerated schedule for the disposition of the motion.
4. Under ordinary circumstances, the pendency of such a motion will not serve to stay any aspect of the arbitration or adjourn any pending deadlines.

Document Requests

In any arbitration arising out of or related to this Agreement, requests for documents:

1. Shall be limited to documents which are directly relevant to significant issues in the case or to the case’s outcome;
2. Shall be restricted in terms of time frame, subject matter and persons or entities to which the requests pertain; and
3. Shall not include broad phraseology such as “all documents directly or indirectly related to.”

E-Discovery

In any arbitration arising out of or related to this Agreement:

1. There shall be production of electronic documents only from sources used in the ordinary course of business. Absent a showing of compelling need, no such documents are required to be produced from backup servers, tapes or other media.
2. Absent a showing of compelling need, the production of electronic documents shall normally be made on the basis of generally available technology in a searchable format which is usable by the party receiving the e-documents and convenient and economical for the producing party. Absent a showing of compelling need, the parties need not produce metadata, with the exception of header fields for email correspondence.
3. The description of custodians from whom electronic documents may be collected shall be narrowly tailored to include only those individuals whose electronic documents may reasonably be expected to contain evidence that is material to the dispute.
4. Where the costs and burdens of e-discovery are disproportionate to the nature of the dispute or to the amount in controversy, or to the relevance of the materials requested, the arbitrator will either deny such requests or order disclosure on condition that the requesting party advance the reasonable cost of production to the other side, subject to the allocation of costs in the final award.

Interrogatories and Requests to Admit

In any arbitration arising out of or related to this Agreement, there shall be no interrogatories or requests to admit.

Depositions

In any arbitration arising out of or related to this Agreement:

1. Each side may take three (3) discovery depositions.
2. Each side’s depositions are to consume no more than a total of fifteen (15) hours.
3. The total period for the taking of depositions shall not exceed six (6) weeks.

Governing Law and Arbitrator Authority

1. Except as otherwise provided herein, this Privacy Policy and the rights of the Parties hereunder shall be governed by and construed in accordance with the laws of the state of California, exclusive of conflict or choice of law rules.
2. The Parties acknowledge that this Privacy Policy evidences a transaction involving interstate or international commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Privacy Policy shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitrator shall apply the substantive laws (and the law of remedies, if applicable) of the state of California, federal law, or international law, as applicable to the claim(s) asserted.
3. The arbitrator shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Privacy Policy, including, but not limited to, any claim that all or any part of this Privacy Policy is void or voidable and issues of arbitrability of any matter herein.
4. The arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages.

Arbitration Decision

The arbitrator’s decision shall be final and binding and shall not be subject to appeal. The arbitrator shall issue a written arbitration decision revealing the essential findings and conclusions upon which the decision and/or award is based. Any decision or award made by the arbitrator shall be enforceable by a court of competent jurisdiction. The parties irrevocably stipulate to the confidential nature of the arbitral award and proceedings and further stipulate that the award and any papers of the proceedings shall only be filed with a court of competent jurisdiction under confidential seal and only to enforce an arbitral award or decision.

Application for Emergency Injunctive and/or Other Equitable Relief.

JAMS Comprehensive Rules shall apply for the appointment of an Emergency Arbitrator to address and decide a request for emergency relief.