PLEASEREAD THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIALIMPACT ON HOW CLAIMS YOU AND MARTSBAY HAVE AGAINST EACH OTHER ARE RESOLVED.
Youand Martsbay agree that any claim or dispute at law or equity that has arisen,or may arise, between you and Martsbay (including any claim or dispute betweenyou and a third-party agent of Martsbay) that relates in any way to or arisesout of this or previous versions of this User Agreement, your use of or accessto the Services, the actions of Martsbay or its agents, or any products or servicessold or purchased through the Services, will be resolved in accordance with theprovisions set forth in this Legal Disputes Section.
A. Applicable Law
Youagree that, except to the extent inconsistent with or preempted by federal law,the laws of the State of Utah, without regard to principles of conflict oflaws, will govern this User Agreement and any claim or dispute that has arisenor may arise between you and Martsbay, except as otherwise stated in this UserAgreement.
B. Agreement to Arbitrate
Youand Martsbay each agree that any and all disputes or claims that have arisen,or may arise, between you and Martsbay (including any disputes or claimsbetween you and a third-party agent of Martsbay) that relate in any way to orarise out of this or previous versions of the User Agreement, your use of oraccess to the Services, the actions of Martsbay or its agents, or any productsor services sold, offered, or purchased through the Services shall be resolvedexclusively through final and binding arbitration, rather than in court.Alternatively, you may assert your claims in small claims court, if your claimsqualify and so long as the matter remains in such court and advances only on anindividual (non-class, non-representative) basis. The Federal Arbitration Actgoverns the interpretation and enforcement of this Agreement to Arbitrate.
YOU AND MARTSBAY AGREE THAT EACH OF US MAY BRING CLAIMSAGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASSMEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERALACTION OR PROCEEDING. UNLESS BOTH YOU AND MARTSBAY AGREE OTHERWISE, THEARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'SCLAIMS, 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, ANDDECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF ANDONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'SINDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludesenforcement of any of this paragraph's limitations as to a particular claim forrelief, then that claim (and only that claim) must be severed from thearbitration and may be brought in court, subject to your and Martsbay's rightto appeal the court's decision. All other claims will be arbitrated.
Arbitrationis more informal than a lawsuit in court. Arbitration uses a neutral arbitratorinstead of a judge or jury, and court review of an arbitration award is verylimited. However, an arbitrator can award the same damages and relief on anindividual basis that a court can award to an individual. An arbitrator shouldapply the terms of the User Agreement as a court would. All issues are for thearbitrator to decide, except that issues relating to arbitrability, the scopeor enforceability of this Agreement to Arbitrate, or the interpretation ofSection 1 of this Agreement to Arbitrate ("Prohibition of Class andRepresentative Actions and Non-Individualized Relief"), shall be for acourt of competent jurisdiction to decide.
Ifyou and Martsbay are unable to resolve the claims described in the Noticewithin 30 days after the Notice is sent, you or Martsbay may initiatearbitration proceedings. A form for initiating arbitration proceedings isavailable on the AAA's site at www.adr.org. In addition to filing this formwith the AAA in accordance with its rules and procedures, the party initiatingthe arbitration must mail a copy of the completed form to the opposing party.You may send a copy to Martsbay at the following address: Martsbay, Inc. c/o CTCorporation System, 1108 E South Union Ave., Midvale, UT 84047. In the event Martsbayinitiates an arbitration against you, it will send a copy of the completed formto the physical address we have on file associated with your Martsbay account.Any settlement offer made by you or Martsbay shall not be disclosed to thearbitrator.
Thearbitration hearing shall be held in the county in which you reside or atanother mutually agreed location. If the value of the relief sought is $10,000or less, you or Martsbay may elect to have the arbitration conducted bytelephone or based solely on written submissions, which election shall bebinding on you and Martsbay subject to the arbitrator's discretion to requirean in-person hearing, if the circumstances warrant. In cases where an in-personhearing is held, you and/or Martsbay may attend by telephone, unless thearbitrator requires otherwise.
Thearbitrator will decide the substance of all claims in accordance withapplicable law, including recognized principles of equity, and will honor allclaims of privilege recognized by law. The arbitrator shall not be bound byrulings in prior arbitrations involving different users, but is bound byrulings in prior arbitrations involving the same Martsbay user to the extentrequired by applicable law. The arbitrator's award shall be final and bindingand judgment on the award rendered by the arbitrator may be entered in anycourt having jurisdiction thereof.
Paymentof all filing, administration and arbitrator fees will be governed by the AAA'srules, unless otherwise stated in this Agreement to Arbitrate. If the value ofthe relief sought is $10,000 or less, at your request, Martsbay will pay allfiling, administration, and arbitrator fees associated with the arbitration.Any request for payment of fees by Martsbay should be submitted by mail to theAAA along with your Demand for Arbitration and Martsbay will make arrangementsto pay all necessary fees directly to the AAA. If (a) you willfully fail tocomply with the Notice of Dispute requirement discussed above, or (b) in theevent the arbitrator determines the claim(s) you assert in the arbitration tobe frivolous, you agree to reimburse Martsbay for all fees associated with thearbitration paid by Martsbay on your behalf that you otherwise would beobligated to pay under the AAA's rules.
Withthe exception of any of the provisions in Section 1 of this Agreement toArbitrate ("Prohibition of Class and Representative Actions andNon-Individualized Relief"), if an arbitrator or court decides that anypart of this Agreement to Arbitrate is invalid or unenforceable, the otherparts of this Agreement to Arbitrate shall still apply.
IF YOU ARE A NEW USER OF OUR SERVICES, YOU CAN CHOOSE TOREJECT THIS AGREEMENT TO ARBITRATE ("OPT-OUT") BY MAILING US AWRITTEN OPT-OUT NOTICE ("OPT-OUT NOTICE"). THE OPT-OUT NOTICE MUST BEPOSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENTFOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO MARTSBAY INC., ATTN:LITIGATION DEPARTMENT, RE: OPT-OUT NOTICE, 583 WEST MARTSBAY WAY, DRAPER, UT84020.
Youmust complete and mail that to us in order to opt out of the Agreement toArbitrate. You must complete the Opt-Out Notice form by providing theinformation called for in the form, including your name, address (includingstreet address, city, state and zip code), and the user ID(s) and emailaddress(es) associated with the Martsbay Service account(s) to which theopt-out applies. You must sign the Opt-Out Notice for it to be effective. Thisprocedure is the only way you can opt out of the Agreement to Arbitrate. If youopt out of the Agreement to Arbitrate, all other parts of this User Agreementand its Legal Disputes Section will continue to apply to you. Opting out ofthis Agreement to Arbitrate has no effect on any previous, other, or futurearbitration agreements that you may have with us.