Mutual Arbitration Agreement
Informal Negotiations: To expedite resolution and reduce the cost of any dispute, controversy or claim, past, present, or future, between you and Nickson, including without limitation any dispute or claim related to or arising out of this Agreement and any dispute or claim against Nickson or its affiliates, employees, officers, or representatives ("Dispute"), you and Nickson may attempt to negotiate any Dispute informally (the "Informal Negotiations") before initiating any arbitration or court proceeding. Such Informal Negotiations will commence upon written notice. Your address for any notices under this section is your email address and/or physical address that you have provided to Nickson. Nickson's address for such notices is: email@example.com and/or by mail to 148 Riveredge Drive., Suite 120, Attn: Nickson Legal Department, Dallas, TX 75207.
Arbitration: If a Dispute is not resolved through Informal Negotiations, you and Nickson agree to resolve any and all Disputes (except those Disputes expressly excluded below) through confidential, final and binding arbitration ("Arbitration Agreement"). This Arbitration Agreement shall be governed by the Federal Arbitration Act and evidences a transaction involving commerce. The arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the "AAA Rules") of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website (www.adr.org). Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If you are unable to pay such costs, Nickson will pay all arbitration fees and expenses. Each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the "Class Action Waiver" described in Section d below.
Excluded Disputes: You and Nickson agree that the following Disputes are excluded from this Arbitration Agreement: (i) any Dispute seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (ii) individual claims in small claims court; (iii) any claim that an applicable federal statute expressly states cannot be arbitrated; and (iv) any claim for injunctive relief.
WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION: YOU AND NICKSON AGREE TO BRING ANY DISPUTE IN ARBITRATION ON AN INDIVIDUAL BASIS ONLY, AND NOT AS A CLASS OR COLLECTIVE ACTION. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT, HEARD OR ARBITRATED AS A CLASS OR COLLECTIVE ACTION ("CLASS ACTION WAIVER"). REGARDLESS OF ANYTHING ELSE IN THIS ARBITRATION AGREEMENT AND/OR THE APPLICABLE AAA RULES OR AAA CONSUMER RULES, THE INTERPRETATION, APPLICABILITY, ENFORCEABILITY OR FORMATION OF THE CLASS ACTION WAIVER MAY ONLY BE DETERMINED BY A COURT AND NOT AN ARBITRATOR.
Rules and Standards Governing Arbitration Proceeding: a party who wishes to arbitrate a dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator shall apply the statute of limitations that would have applied if the Dispute had been brought in court. The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct adequate civil discovery and present witnesses and evidence as needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The location of the arbitration proceeding shall take place in the city or county where NICKSON service was provided (or was supposed to have been provided), unless each party agrees otherwise. A court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator's decision/award. Except as otherwise required by law and you agree to keep confidential and not disclose to third parties (other than your attorneys, accountants and financial advisors who need to know such information and who agree to be bound by the confidentiality terms hereunder) the existence of the Dispute, the arbitration, any information or documents obtained in connection with the arbitration process, and the resolution of any Dispute (including the quantum of any award arising therefrom); provided, however, that, to the extent that any arbitral award needs to be submitted to a court by you for entering judgment thereon in accordance with the provisions hereunder, you may submit the quantum of such award to the court but shall not include any information relating to the matters that were arbitrated.
Severability: You and Nickson agree that if any portion of this section entitled "Mutual Arbitration Agreement" is found illegal or unenforceable, that portion will be severed and the remainder of this section will be given full force and effect.