A. Scope and governing law Your participation in the Zertoo Membership and any dispute, claim, or controversy that in any way relates to your Membership (together, "Disputes") are governed by the laws of the State of Florida, without regard to Florida's conflict of laws rules. Any Dispute must be brought within one year after the claim accrues, unless a longer period is required by law.
B. Forum selection for non-arbitrable matters Except as otherwise provided below, the state and federal courts located in Broward County, Florida shall have exclusive jurisdiction and venue over any Dispute that is not subject to arbitration under this Agreement or that a court determines is not arbitrable. You and Zertoo consent to personal jurisdiction in those courts.
C. Pre-arbitration notice and informal resolution Before either party starts an arbitration or court proceeding, the party seeking relief must send a written notice that briefly describes the claim and requested relief. If you are the claimant, send your notice to: Zertoo Ltd., Attn: Legal Department, 160W Camino Real, Mailbox 561, Boca Raton, FL 33432 and by email to hello@zertoo.com. If Zertoo is the claimant, we will send notice to the email address on your account and to your last known mailing address. Within a reasonable time after notice is sent, the parties will meet and confer in good faith, by telephone or videoconference, to attempt to resolve the Dispute informally. If the Dispute is not resolved within sixty days after the notice is sent, either party may commence arbitration or, where permitted below, litigation. Any applicable statute of limitations and any arbitration filing deadlines are tolled during this informal process.
D. Agreement to arbitrate Except as provided in paragraph H below, you and Zertoo agree that all Disputes will be resolved by final, binding, bilateral arbitration. The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules then in effect, including any applicable mass-filing procedures, and the Federal Arbitration Act will govern the interpretation and enforcement of this arbitration agreement. If the AAA is unavailable, the parties will agree on a substitute administrator. If the parties cannot agree, either may ask a court of competent jurisdiction to appoint an administrator pursuant to 9 U.S.C. § 5. Any dispute over which administrator should preside shall be decided only by a court, and any arbitration shall be stayed pending that decision.
E. Location, format, and procedures The seat and legal place of the arbitration is Broward County, Florida. Unless a party timely requests a hearing within ten days after the administering body acknowledges the demand, or unless the arbitrator determines a hearing is necessary, the arbitration will proceed on a documents-only basis, sometimes called a desk arbitration. If a hearing is held, it will take place by telephone or videoconference unless the parties agree otherwise. No party will be required to travel to Florida for a hearing. The arbitrator may decide dispositive motions. Except for desk arbitrations, the Federal Rules of Evidence will govern admissibility.
F. Demands and certifications Any arbitration demand must include: (1) the claimant's name, telephone number, mailing address, username, and email address, (2) a concise statement of the legal claims and the material facts, (3) the relief sought and a good-faith calculation of the amount in controversy, stated in U.S. Dollars, and (4) the claimant's signature. If a party is represented by counsel, counsel must certify that, after a reasonable inquiry, the demand is not presented for an improper purpose, the claims and legal contentions are warranted by existing law or a non-frivolous argument to change the law, and the factual contentions have or are likely to have evidentiary support after reasonable discovery.
G. Arbitrability and sequencing Except for issues reserved to a court in paragraph J below, the arbitrator, not a court, will decide any dispute about the scope, applicability, enforceability, revocability, or validity of this arbitration agreement. Any Disputes that are arbitrable will be arbitrated first, and any non-arbitrable claims will be stayed until the arbitration concludes.
H. Small claims court option Either party may bring an individual claim in a Florida small claims court of competent jurisdiction instead of arbitration, provided the claim remains an individual action and is not removed or appealed to a court of general jurisdiction.
I. Confidentiality To the fullest extent permitted by law, the arbitration proceeding, including filings, disclosures, discovery, hearings, and the award, shall be kept confidential by the parties except to the extent disclosure is reasonably necessary to enforce or challenge the award or as otherwise required by law.
J. Relief, award, and court involvement The arbitrator must apply applicable law and has the same authority to award on an individual basis any relief that a court could award, including damages and, where authorized by law, injunctive or declaratory relief. The award shall bind only the parties to the arbitration and shall have no preclusive effect in proceedings involving non-parties. Either party may seek provisional or emergency relief in a Florida court of competent jurisdiction. The arbitral award is judicially enforceable, and judgment on the award may be entered in any court with jurisdiction. The arbitrator may specify a reasonable period for satisfaction of the final award. No party shall seek confirmation of the award until that period expires. If at any time the arbitrator or the administrator fails to enforce this arbitration agreement as written, either party may ask a court to enjoin the arbitration, and the arbitration will be stayed pending the court's ruling.
K. Fees and costs AAA's fee schedules, including any mass-filing or bellwether provisions, will apply. In cases not subject to a mass-filing schedule, Zertoo will pay any administrator or arbitrator fees that exceed the filing fee for a court of competent jurisdiction in Broward County, Florida. If the arbitrator finds that you cannot afford the applicable AAA fees and you cannot obtain a fee waiver from the administrator, Zertoo will pay those fees for you. Any dispute about the allocation or payment of arbitration fees that cannot be resolved by the administrator shall be decided only by a court of competent jurisdiction, and the arbitration will be stayed while that issue is decided. If a party serves a written offer of judgment that the opposing party does not obtain a more favorable award than, the opposing party shall pay the post-offer costs incurred after the offer was made. If the arbitrator finds that a claim or defense was brought for harassment or is frivolous, the arbitrator may award the other party its reasonable attorneys' fees, costs, and expenses.
L. Class and representative action waiver You and Zertoo agree that each may bring claims against the other only in your or its individual capacity, not as a plaintiff or class member in any purported class, collective, consolidated, private attorney general, or representative proceeding. The arbitrator has no authority to conduct any such proceeding or to consolidate claims of multiple individuals. To the extent applicable law prohibits a waiver of public-injunctive-relief claims, any request for public injunctive relief shall be decided by the arbitrator on an individual basis.
M. Opt-out right You may opt out of this agreement to arbitrate by sending a written opt-out notice to Zertoo Ltd., Attn: Legal Department, 160W Camino Real, Mailbox 561, Boca Raton, FL 33432 and to hello@zertoo.com within thirty days after the date you first accept this Agreement. If you opt out, the remaining terms of this section, including the class-action waiver and Florida forum selection for non-arbitrable claims, will still apply.
N. Severability and survival If a court determines that the class and representative action waiver in paragraph L is unenforceable as to a particular claim, then the agreement to arbitrate shall be null and void as to that claim, and the claim shall proceed in the courts identified in paragraph B. If any other part of this section is found invalid or unenforceable, the remainder shall remain in full force and effect. This section survives termination of your Membership and any end of the relationship between you and Zertoo. Unless expressly stated otherwise in this Agreement, if any part of this arbitration provision is held to be invalid, unenforceable, or unlawful for any reason: (1) that specific provision will be removed from this arbitration agreement; (2) the remainder of the arbitration agreement will continue in full force and effect; and (3) removing the invalid or unlawful provision will not affect the enforceability of the rest of the arbitration agreement or prevent either party from compelling arbitration of any remaining claims on an individual basis. If any claim, cause of action, or remedy is severed under this paragraph, then you and Zertoo agree that all other arbitrable claims, causes of action, or remedies will proceed before the arbitrator, and the non-arbitrable claim will be placed on hold until arbitration is completed. If a court issues a final determination that applicable law prohibits enforcement of the class action waiver as it applies to a particular claim, cause of action, or requested remedy, that specific claim, cause of action, or remedy will be separated out and may be brought in court. However, the class action waiver will still be applied and enforced in arbitration with respect to all other claims, causes of action, or remedies that remain arbitrable, to the fullest extent permitted by law.
