Terms and Conditions

Last revised: October 2019

Please read these Terms and Conditions (the “Terms”) carefully before using the website located at https://www.elitehearingnetwork.com (the “Site”) with respect to Elite Hearing, LLC and its subsidiaries and affiliates (collectively, "we", "us" or "our").

THE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE. By accessing or using the SITE, you acknowledge that you have read and understood and agree to be bound by the Terms. If you do not agree WITH all of the provisions of the Terms, then please cease using the Site immediately and do not access or use the Site. You may not otherwise access or use the Site or agree to the Terms if you are not at least 18 years old.  In addition, OUR Privacy POLICY governs your access to and use of the Site.

The Terms require the use of arbitration (sECTION 12) on an individual basis to resolve disputes, rather than jury trials or class actions, and also limit the remedies available to you in the event of a dispute

1.  SITE USE

1.1  Information.  In order to use certain features of the Site, you may need to provide certain information about yourself.  You represent and warrant that: (a) all information that you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your information, subject to our Privacy Policy.   

1.2  Responsibilities.  You are responsible for maintaining the confidentiality of your information and are fully responsible for all activities that occur in connection with your use of the Site.  You agree to immediately notify us of any actual unauthorized access to or use of or suspected unauthorized access to or use of your information or any other breach of security in connection with your use of the Site.  We cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

2.  Access to the Site

2.1  License.  Subject to the Terms, we grant you a non-transferable, non-exclusive, revocable, limited license to use and access the Site solely for your own personal, noncommercial use.

2.2  Certain Restrictions.  The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site, whether in whole or in part, or any content displayed on the Site; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.  Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to the Terms. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copies thereof.

2.3  Modification.  We reserve the right, at any time, to modify, suspend, or discontinue the Site (in whole or in part) with or without notice to you.  You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.

2.4  No Support or Maintenance.  You acknowledge and agree that we will have no obligation to provide you with any support or maintenance in connection with the Site.

2.5  Ownership.  Excluding any User Content that you may provide (as defined in Section 3.1), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and its content are owned by us or our suppliers.  Neither the Terms (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. We and our suppliers reserve all rights not granted in the Terms.  There are no implied licenses granted under the Terms.

3.  User Content

3.1  User Content.  “User Content” means any and all information and content that a user submits to, or uses with, the Site (e.g., content in the user’s profile or postings).  You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party.  You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (as defined in Section 3.3). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by us. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy.  We are not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice, subject to our Privacy Policy. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.

3.2  License.  You hereby grant (and you represent and warrant that you have the right to grant) to us an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Site.  You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.

3.3  Acceptable Use Policy.  The following terms constitute our “Acceptable Use Policy”:

(a) You agree not to use the Site in any manner: (i) to violate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; (iv) to impersonate or attempt to impersonate any person or any entity or gives the impression that it emanates from or is endorsed by us or any other person or entity, if this is not the case; (v) that is in violation of any applicable local, state, national or international law or regulation, or any obligations or restrictions imposed by any third party; or (vi) to advocate, encourage or assist any third party in doing any of the above.

(b) In addition, you agree not to: (i) upload, transmit, or distribute to or through the Site any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Site to harvest, collect, gather or assemble information or data regarding other users, including email addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site (or to other computer systems or networks connected to or used together with the Site), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Site; (vii) use software or automated agents or scripts to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file); or (viii) advocate, encourage or assist any third party in doing any of the above.  

3.4  Enforcement.  We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of the Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content and/or terminating your rights to use the Site in accordance with Section 8, in each case subject to our Privacy Policy, and/or reporting you to law enforcement authorities.

3.5  Feedback.  If you provide us with any feedback or suggestions regarding the Site (“Feedback”), you hereby assign to us all rights in such Feedback and agree that we shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. We will treat any Feedback you provide to us as non-confidential and non-proprietary.  You agree that you will not submit to us any information or ideas that you consider to be confidential or proprietary.

4.  Indemnification

You agree to indemnify and hold us (and our officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site, (b) your violation of the Terms, (c) your violation of applicable laws or regulations or (d) your User Content.  We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent.   

5.  Third Party Links & Ads; Other Users

5.1  Third Party Links & ADS.  The Site may contain links to third party websites (collectively, “Third Party Links & Ads”).  Such Third Party Links & Ads are not under our control, and we are not responsible for any Third Party Links & Ads.  We provide access to Third Party Links & Ads only as a convenience to you, and do not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Links & Ads.  You use all Third Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices.  You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Links & Ads.

5.2  Other Users.  Each Site user is solely responsible for any and all of its own User Content.  Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others.  We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Site users are solely between you and such users.  You agree that we will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site user, we are under no obligation to become involved.

5.3  Release.  You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, other Site users or any Third Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

6.  Disclaimers

THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.  WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. 

WARNING NOT FOR MEDICAL USE

The Site is neither intended for use in the diagnosis, cure, mitigation, treatment or prevention of any condition, nor intended to be a substitute for professional medical care. Information you receive from the Site is intended for informational and educational purposes only, to support general health and wellness. Any information provided through the Site has not been tested with individuals with health conditions and has not been cleared, approved or otherwise evaluated by the U.S. Food and Drug Administration. We (and our officers, employees, and agents) cannot and do not guarantee, the quality, accuracy, completeness, timeliness, integrity, or currency of any such information, or that such information is free from defects or harmful elements or is not objectionable. 

You acknowledge that any information provided by the Site, including any information relating to treatments or treatment regiments, has not been tested with individuals with health conditions and have not been cleared, approved or otherwise evaluated by the U.S. Food and Drug Administration and is not intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of any condition or to be a substitute for professional medical care, and should not be used for such purposes. While the Site may provide you with information about available treatments, names or addresses of nearby professionals or organizations specializing in the applicable health topic, or similar information, neither we (nor any of our officers, employees, and agents) recommend or endorse any specific treatments, professionals, organizations or other information that may be suggested to you through the Site, and neither we (nor any of our officers, employees, and agents) guarantee that the Site or any information provided through the Site will meet your needs or allow you to achieve any particular results. The use of the Site does not create a doctor-patient relationship, and you acknowledge that the Site and any information provided to you through your use thereof are not intended to provide any medical advice, and that we are not authorized to render, or engaged in rendering, any such medical advice.

THE SITE AND THE INFORMATION PROVIDED THROUGH THE SITE ARE NOT A SUBSTITUTE OR REPLACEMENT FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, CURE, MITIGATION, TREATMENT, PREVENTION OR CARE. YOU AGREE TO CONSULT WITH YOUR MEDICAL PROFESSIONAL IF YOU ARE SEEKING PROFESSIONAL MEDICAL ADVICE OR OTHER ASSISTANCE IN THE DIAGNOSIS, CURE, MITIGATION, TREATMENT OR PREVENTION OF ANY DISEASE OR CONDITION. YOU FURTHER AGREE NOT TO DISREGARD OR DELAY SEEKING PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, CURE, MITIGATION, TREATMENT, PREVENTION OR CARE BECAUSE OF ANY INFORMATION PROVIDED THROUGH THE OR ANYTHING YOU LEARN FROM USING THE SITE. RELIANCE ON THE SITE, ANY INFORMATION PROVIDED THROUGH THE SITE OR ANYTHING YOU LEARN FROM USING THE SITE IS SOLELY AT YOUR OWN RISK. THE SITE AND ANY INFORMATION THAT THE SITE PROVIDES WERE DEVELOPED FOR USE IN THE UNITED STATES, AND WE DO NOT MAKE ANY REPRESENTATION CONCERNING THE SITE AND ANY INFORMATION THAT THE SITE PROVIDES WHEN USED OUTSIDE OF THE UNITED STATES, WHERE SUCH SITE AND INFORMATION MAY BE DIFFERENT.

YOU AGREE THAT YOU MUST EVALUATE, AND BEAR ALL RISKS ASSOCIATED WITH, YOUR USE OF SITE AND ANY INFORMATION PROVIDED THROUGH THE SITE, YOU ARE SOLELY RESPONSIBLE FOR ALL LOSSES AND DAMAGES OF ANY KIND INCURRED AS A RESULT OF YOUR INTERACTION WITH THE SITE, AND WE (AND our officers, employees, and agents) DISCLAIM ANY AND ALL LIABILITY IN CONNECTION THEREWITH.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.  SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED TO THE MINIMUM WARRANTY, INCLUDING THE MINIMUM DURATION AND SCOPE OF SUCH WARRANTY, REQUIRED UNDER APPLICABLE LAW. 

 7.  Limitation on Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM. 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF ONE HUNDRED U.S. DOLLARS (US $100). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.  YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY LIMITATION OR EXCLUSION OF LIABILITY OR DAMAGES SET FORTH IN THIS SECTION IS PROHIBITED BY APPLICABLE LAW OR HELD TO BE UNENFORCEABLE, THEN THE ABOVE LIMITATIONS AND EXCLUSIONS ON LIABILITY AND DAMAGES WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN THAT PARTICULAR CIRCUMSTANCE.   

8.  Term and Termination

Subject to this Section, the Terms will remain in full force and effect while you use the Site.  We may suspend or terminate your rights to use the Site at any time for any reason at our sole discretion, including for any use of the Site in violation of the Terms.  Upon termination of your rights under the Terms, your right to access and use the Site will terminate immediately. You understand that any such termination may involve deletion of your information and User Content from our live databases, subject to our Privacy Policy.  We will not have any liability whatsoever to you for any termination of your rights under the Terms. Even after your rights under the Terms are terminated, the following provisions of the Terms will remain in effect: Sections 2.2 through 2.5, Section 3 and Sections 4 through 12.

9.  COPYRIGHT POLICY

Iif you believe that any content on the Site infringes upon your copyright, you may submit a notification pursuant to the Digital Millennium Copyright Act by providing our Designated Agent as set forth below with the following information in writing under 17 U.S.C. 512(c)(3): 

(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

(b) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site are covered by a single notification, a representative list of such works on the Site;

(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;

(d) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, email address;

(e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and

(f) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Written notification of claimed infringement must be submitted to the following Designated Agent:

By postal mail: Elite Hearing, LLC, Attn: Legal Department, 150 S. 5th St., Suite 2300, Minneapolis, MN 55402.

Telephone number: (800) 234-9314 or (763) 268-4103.

Email address: legal-NorthAmerica@amplifon.com.

10. General

 

10.1  Changes.  We may revise and update the Terms from time to time in our sole discretion. All changes are effective immediately when we post them the Site. Your continued use of the Site following the posting and/or communicating of such revised Terms means that you accept and agree to the changes.

 

10.2  Export.  The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from us, or any products utilizing such data, in violation of the export laws or regulations of the United States.

 

10.3  Electronic Communications.  The communications between you and us use electronic means, whether you use the Site or send us emails, or whether we post notices on the Site or communicate with you via email. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.

 

10.4  Entire Terms. The Terms constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of the Terms shall not operate as a waiver of such right or provision. The Section titles in the Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”.  If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.  Your relationship to us is that of an independent contractor, and neither party is an agent or partner of the other. The Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.  We may freely assign the Terms. The terms and conditions set forth in the Terms shall be binding upon assignees.

 

10.5  Copyright/Trademark Information.  Copyright © 2019 Elite Hearing, LLC. All rights reserved.  All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

10.6  Information or Complaints. 

(a)  If you have a question or complaint regarding the Site, please feel free to contact us by email at legal-NorthAmerica@amplifon.com, by postal mail at Elite Hearing, LLC, Attn: Legal Department, 150 S. 5th St., Suite 2300, Minneapolis, MN 55402 or by telephone at (800) 234-9314 or (763) 268-4103.

(b)  California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 United States, or by telephone at (916) 445-1254 or (800) 952-5210.

11. Governing Law

By using the Site, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of Minnesota, without regard to principles of conflict of laws, will govern the Terms and any dispute of any sort that might arise between you and us.

12.  Dispute Resolution

Please read this Arbitration Agreement carefully.  It is part of your contract with us and affects your rights.  It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

12.1  Applicability of Arbitration Agreement.  All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by us that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement.  Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and us, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.  

12.2  Notice Requirement and Informal Dispute Resolution.  Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief.  A Notice to us should be sent to: Elite Hearing, LLC, Attn: Legal Department, 150 S. 5th St., Suite 2300, Minneapolis, MN 55402. After the Notice is received, you and we may attempt to resolve the claim or dispute informally.  If you and we do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding.  The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

12.3  Arbitration Rules.  Arbitration shall be initiated through the American Arbitration Association (“AAA”), which is an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this Section.  If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms.  The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879.  The arbitration shall be conducted by a single, neutral arbitrator.  Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief.  For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise.  If you reside outside of the United States, the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that we made to you prior to the initiation of arbitration, we will pay you the greater of the award or Two Thousand Five Hundred U.S. Dollars (US $2,500.00).  Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

12.4  Additional Rules for Non-Appearance Based Arbitration.  If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration.  The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

12.5  Time Limits.  If you or we pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.

12.6  Authority of Arbitrator.  If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and us, and the dispute will not be consolidated with any other matters or joined with any other cases or parties.  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 AAA Rules, and the Terms.  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 has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us. 

12.7  Waiver of Jury Trial.  THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement.  Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and US in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge, AND AGREE THAT SUCH LITIGATION SHALL BE BROUGHT ONLY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA OR, IF FEDERAL JURISDICTION IS NOT AVAILABLE, IN THE Hennepin County District Court in Minnesota. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT THERETO.

12.8  Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  

12.9  Confidentiality.  All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law.  This Section 12.9 shall not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

12.10  Severability.  If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, 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.

12.11  Right to Waive.  Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted.  Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

12.12  Survival of ARBITRATION Agreement.  This Arbitration Agreement will survive the termination of your relationship with us.  

12.13  Small Claims Court.  Notwithstanding the foregoing, either you or we may bring an individual action in small claims court.

12.14  Emergency Equitable Relief.  Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration.  A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

12.15  Claims Not Subject to Arbitration.  Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.

12.16  Courts.  In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of Hennepin County District Court in Minnesota or the United States District Court for the District of Minnesota, for such purpose.