Vanilla — Arbitration Agreement

PLEASE READ THESE TERMS CAREFULLY AND BE AWARE THAT UNLESS YOU OPT OUT WITHIN THIRTY (30) DAYS OF AGREEING TO THESE TERMS (AS SET FORTH IN SECTION 2 BELOW), (1) ALL DISPUTES BETWEEN YOU AND US, WITH LIMITED EXCEPTIONS, WILL BE RESOLVED BY BINDING AND FINAL ARBITRATION; (2) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (3) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL. The foregoing may not apply if You reside in certain jurisdictions, including the UK and the EU.

1. Resolution by Arbitration

1.1 Subject to the terms of this agreement to arbitrate ("Arbitration Agreement"), You and Cooley agree that any and all disagreements, controversies, disputes, or claims between You and Cooley that arise out of or relate in any way to Your use of or access to the Services or Cooley's applicable site, the Agreement (of which this Arbitration Agreement forms a part), including prior versions of the Agreement, or any communications You receive from Cooley in connection with the foregoing (each, a "Dispute") will be resolved by binding arbitration. This Arbitration Agreement is intended to be broadly interpreted and applies to, for example, Disputes brought under any legal theory or that arose before You first accepted any version of the Agreement containing an arbitration provision as well as claims that may arise after the termination of the Agreement. Capitalized terms used but not defined in this Arbitration Agreement shall have the meanings ascribed to them in the Terms.

1.2 By entering into this Arbitration Agreement, ALL PARTIES ARE WAIVING THEIR RESPECTIVE RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

1.3 This Arbitration Agreement does not preclude any party from (1) bringing claims in small claims court if such claims qualify and remain in small claims court; or (2) seeking equitable relief in a court of appropriate jurisdiction for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) or to stop unauthorized use or abuse of the Services.

1.4 If You reside in the UK or the EU, however, any claim or dispute arising out of or in connection with this Arbitration Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts of England and Wales.

2. Opt Out

2.1 You have the right to opt out of this Arbitration Agreement. If You do not wish to be bound by this Arbitration Agreement, You must send written notice to Cooley within thirty (30) days of first accepting any version of the Agreement containing an Arbitration Agreement. You must send this notice to OGC-Notices@cooley.com and must include:

(a) Your name and address;
(b) the email address You used to set up Your Cooley account for the Services (if You have one); and
(c) an unequivocal statement that You want to opt out of this Arbitration Agreement.

2.2 If You opt out of this Arbitration Agreement, all other parts of the Agreement will continue to apply to You. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements You may currently have, or may enter in the future, with us.

3. Informal Dispute Resolution

3.1 Before initiating any proceeding according to the terms of this Arbitration Agreement, as a condition precedent to doing so, You and Cooley agree to try first to resolve Disputes informally by contacting the other party in writing (the "Notice of Dispute"). If the Dispute is not resolved within 45 days after submission of the Notice of Dispute, You or Cooley may commence arbitration or, in the limited circumstances expressly described in this Arbitration Agreement, an alternative legal proceeding. Any applicable statute of limitations and any filing fee deadlines shall be tolled while the parties engage in this informal Dispute resolution process.

3.2 Notice of Dispute to Cooley should be sent by email to OGC-Notices@cooley.com or regular mail to our registered agent: Office of the General Counsel, Cooley LLP, 3 Embarcadero Ctr, 20th Floor, San Francisco, CA 94111, USA. The Notice must include: (1) Your name, telephone number, mailing address, email address associated with Your Account (if You have one); (2) the name, telephone number, mailing address and email address of Your counsel, if any; and (3) a description of Your Dispute, including the specific relief sought. Cooley will send Notice of Dispute, including a description of the Dispute, to Your email address or regular address on file. It is Your responsibility to ensure Your email and regular address are correct and remain up to date. The Notice of Dispute must be signed by the party initiating the Dispute.

3.3 The informal Dispute resolution process initiated under Section 3.1 will be individualized such that each Dispute is handled separately each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree. The parties may engage in informal communications to resolve the initiating party's Dispute.

4. Arbitration Rules and Forum

4.1 The Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings initiated hereunder shall be governed by the Federal Arbitration Act (the "FAA"), 9 U.S.C. § 1 et seq., including the procedures governing Batch Arbitration.

4.2 You and Cooley agree that JAMS will administer the arbitration in accordance with the JAMS Comprehensive Arbitration Rules & Procedures, or, by mutual agreement of the parties after the arbitration is initiated, the JAMS Streamlined Arbitration Rules & Procedures (collectively, "JAMS Rules"), as modified by this Arbitration Agreement, in effect at the time of arbitration, except as supplemented, where applicable, by the JAMS Mass Arbitration Procedures and Guidelines (the "JAMS Mass Arbitration Procedures") (all sets of rules are currently available at www.jamsadr.org or by calling JAMS at 1-800-352-5267), and as modified by this Arbitration Agreement. The JAMS Rules and/or JAMS Mass Arbitration Procedures shall govern the payment of arbitration fees. The parties shall bear their own attorneys' fees and costs unless the arbitrator finds that the Dispute was frivolous and/or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

5. Arbitration

5.1 A party who wishes to initiate arbitration under this Arbitration Agreement must provide the other party with a request for arbitration (the "Request"). The Request must include: (1) the name, telephone number, mailing address, e-mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the informal Dispute resolution process as described in Section 3, above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. Any Request You send to Cooley should be sent by email to OGC-Notices@cooley.com or regular mail to our registered agent: Office of the General Counsel, Cooley LLP, 3 Embarcadero Ctr, 20th Floor, San Francisco, CA 94111, USA. Cooley will provide a Request to Your email address or regular address on file. It is Your responsibility to keep Your contact information up to date. If the party requesting arbitration is represented by counsel, the Request shall also include counsel's name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery ("Counsel's Certification").

5.2 You and Cooley agree that at least fourteen (14) days before the date set for an arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms. If the offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover any post-offer costs to which they otherwise would be entitled and shall pay the offering party's costs from the time of the offer.

5.3 All issues are for the arbitrator to decide, including issues related to the scope and enforceability of this Arbitration Agreement and the arbitrability of Disputes, except that only a court of competent jurisdiction may decide issues concerning the validity, enforceability, interpretation, and breach of Section 5.8, below.

5.4 The arbitration will be conducted in San Francisco, California, unless the parties agree to another location or the Batch Arbitration process is triggered per Section 5.9, below.

5.5 The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with its applicable Rules, provided that if the Batch Arbitration process under Section 5.9 is triggered, the arbitral forum, without soliciting input or feedback from any party, will appoint the arbitrator for each batch, subject to Your right to object to that appointment.

5.6 The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of You and Cooley. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the applicable JAMS Rules, and the Agreement (including the Arbitration Agreement). The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator shall issue a final, binding written award, which may be entered in any court having jurisdiction. If a final decision, not subject to any further appeal or recourse, determines that this Arbitration Agreement is invalid or unenforceable as to any particular claim or request for relief (such as a request for public injunctive relief), You and Cooley agree that only that particular claim or request for relief shall be severed from the arbitration and may be decided by a court of competent jurisdiction and not by an arbitrator. The parties agree that any claims or requests for relief that are severed from an arbitration may not proceed in litigation and shall be stayed until all Disputes between the parties that remain in arbitration are finally resolved.

5.7 To the fullest extent permitted by applicable law, You and Cooley agree that all materials and documents exchanged during the arbitration will be kept confidential and shall not be shared with anyone except the parties' attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

5.8 You and Cooley agree that, by entering into this Arbitration Agreement, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 5.9.

5.9 To increase the efficiency of administration and resolution of arbitrations, You and Cooley agree that, in the event there are twenty-five (25) or more individual Requests of a substantially similar nature (i.e., Requests that arise out of or relate to the same or similar facts and raise the same or similar legal issues and seek the same relief) filed against Cooley by or with the assistance of the same law firm, group of law firms, or organizations, within a reasonably proximate period of time, for example, a ninety (90) day period, the applicable arbitral forum shall (1) administer the arbitration demands in batches of 100 Requests per batch (or, if between twenty-five (25) and ninety-nine (99) individual Requests are filed, a single batch of all those Requests, and, to the extent there are fewer than 100 Requests remaining after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award, which will provide for any and all relief to which the arbitrator determines each individual party is entitled ("Batch Arbitration"). JAMS shall administer all batches concurrently, to the extent possible. If there is any dispute about the applicability of these Batch Arbitration procedures, JAMS shall appoint a single administrative arbitrator to determine the applicability of the Batch Arbitration process ("Administrative Arbitrator"). The Administrative Arbitrator's fees shall be paid by Cooley. In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. You and Cooley agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing or creating a class, collective, and/or representative arbitration or action of any kind, except as expressly set forth in this provision, and nothing about the Batch Arbitration process will preclude any party from participating in any arbitration administered according to that process.

5.10 You and Cooley agree that any Dispute subject to arbitration under this Arbitration Agreement not resolved informally must be filed in arbitration within one (1) year after the cause of action accrues; otherwise, such cause of action is permanently barred.

6. Severability

Except as provided in Section 5.8, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

7. Modifications

7.1 The parties agree that Cooley retains the right to make changes to this Arbitration Agreement in the future. Any such changes will be posted on the applicable Cooley site for the Services and You should check for updates regularly. You may reject any such change within thirty (30) days of such change becoming effective by writing Cooley at the following address: Office of the General Counsel, Cooley LLP, 3 Embarcadero Ctr, 20th Floor, San Francisco, CA 94111, USA. Your continued use of the applicable Cooley site and/or Services, including the acceptance of products and services offered on such Site following the posting of changes to this Arbitration Agreement, constitutes Your acceptance of any such changes.

7.2 Changes to this Arbitration Agreement do not provide You with a new opportunity to opt out of the Arbitration Agreement if You have previously agreed to a version of this Agreement and did not validly opt out of arbitration. By rejecting a future change, You remain bound to arbitrate any Dispute in accordance with the terms of this Arbitration Agreement, as modified by any changes to the Arbitration Agreement You did not reject. Cooley will continue to honor any valid opt outs to a prior version of the Arbitration Agreement, and You do not need to submit a rejection of future changes to this Arbitration Agreement if You properly opted out per the requirements in Section 2, above.

8. Governing Law

Except as expressly set forth in this Arbitration Agreement and the Terms, any action arising under or related thereto will be governed and interpreted by and under the laws of the State of California without giving effect to any principles that provide for the application of the law of another jurisdiction.