GENERALLY. In the interest of resolving disputes between you and Airwrx in the most expedient and cost effective manner, you and Airwrx agree that every dispute arising in connection with the Terms of Service (the “Terms”) will be resolved by binding arbitration in accordance with the terms of these Dispute Resolution and Arbitration Terms (“Dispute Resolution Terms”). These Dispute Resolution Terms form part of, and are incorporated by reference into, the Terms. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Terms. YOU UNDERSTAND AND AGREE THAT, BY AGREEING TO THE TERMS, YOU AND AIRWRX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION IN ACCORDANCE WITH THESE DISPUTE
Despite the terms of these Dispute Resolution Terms, we both agree that nothing in the Terms (including these Dispute Resolution Terms) will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and Airwrx will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "ICDR Rules, and AAA") of the International Center for Dispute Resolution Canada ("ICDR") and American Arbitration Association ("AAA"), as modified by these Dispute Resolution Terms, and will be administered by the ICDR/AAA. The ICDR/AAA Rules and filing forms are available online at www.adr.org, by calling the ICDR at +1.212.484.4181, or by contacting Airwrx.
Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice"). Airwrx's address for Notice is: Airwrx, Inc., 2270 Holder Place, London, Ontario NV5 3Z9. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Airwrx may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Airwrx must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, AirWrx will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by AirWrx in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
If you commence arbitration in accordance with these Dispute Resolution Terms, Airwrx will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the ICDR/AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in the province of Ontario, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the ICDR Rules in the province (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the ICDR/AAA Rules. In that case, you agree to reimburse Airwrx for all monies previously disbursed by it that are otherwise your obligation to pay under the ICDR/AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
NO CLASS ACTIONS
YOU AND AIRWRX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Further, unless both you and AirWrx agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications. If AirWrx makes any future change to these Dispute Resolution Terms (other than a change to AirWrx's address for Notice), you may reject the change by sending us written notice within 30 days of the change to AirWrx's address for Notice, in which case your account with AirWrx will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
Enforceability. If the “No Class Actions” clause is found to be unenforceable or if the entirety of these Dispute Resolution Terms are found to be unenforceable, then the entirety of these Dispute Resolution Terms will be null and void (except for the “Governing Law” clause below) and, in that case, the parties agree that the exclusive jurisdiction and venue described under “Governing Law” below will govern any action arising out of or related to the Terms.
Governing Law. The Terms are governed by the laws of the Province of Ontario without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under the Terms, you and AirWrx agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Ontario, for the purpose of litigating any dispute. We operate the Service from our offices in Ontario, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.