15. Arbitration Agreement
THIS ARTICLE 15 OF THIS AGREEMENT CONSTITUTES THE “ARBITRATION AGREEMENT”
Please read this Section 15 carefully. It requires that, unless you are a consumer in Canada residing in the province of Quebec, all claims between you and MonEvasion be resolved through binding arbitration or in small claims court. To the extent permitted by applicable law, this Section 15 prevents you from bringing a class action or similar proceeding in any forum. Arbitration is required if your country of residence enforces arbitration agreements. If you reside in a country other than Canada, the United States, Australia, or New Zealand, and you attempt to file a lawsuit in one of those countries, arbitration is required to resolve the preliminary issue of whether this Section 15 applies to you, as well as all other preliminary determinations, including those regarding venue, arbitrability, the place of the hearing, and the applicable law. If your country of residence does not enforce arbitration agreements, the obligations regarding notice and pre-arbitration dispute resolution, and the prohibition on bringing a class action or representative proceeding described below, shall continue to apply to the extent permitted by law.
a) Scope of the Arbitration Agreement
This arbitration agreement applies, without limitation, to all claims that arose or were filed on or before the effective date of this agreement. You agree that any dispute or claim arising out of or relating in any way to the subject matter of this agreement, your access to or use of the services as a user of the services, any advertising or marketing communications regarding MonEvasion or the services, any product or service sold or distributed in connection with the services you receive as a user of our services, or any aspect of your relationship with MonEvasion or transactions you enter into with MonEvasion as a user of our Services (including, without limitation, claims for contractual or tort liability, statutory claims, and claims for unfair competition), shall be resolved through binding arbitration rather than in court, unless otherwise required by law (for example, for individual claims of sexual assault or sexual harassment arising from the use of the Services by consumers in the United States) or any provision to the contrary in this arbitration agreement. Furthermore, to the extent permitted by applicable law, MonEvasion or you may file a claim in court to seek equitable relief for infringement or other misuse of intellectual property rights (such as rights relating to trademarks, trade dress, domain names, trade secrets, copyrights, and patents). To the extent permitted by applicable law, MonEvasion or you may also request that a court of competent jurisdiction issue a temporary or preliminary injunction on the grounds that, in the absence of such an injunction, the arbitration provided for in this paragraph could be rendered ineffective. The additional exception described below applies only to Client and Service Provider members in the United States, Australia, and New Zealand:
Customers and Service Providers in the United States, Australia, and New Zealand Only
You may file claims in small claims court if your claims are eligible for such a forum. If so, the case must remain in that court and must be treated as an individual action, not as a class action or derivative action.
b) Informal Resolution
MonEvasion and you agree that informal, good-faith efforts to resolve disputes can often lead to quick, cost-effective, and mutually beneficial results. Accordingly, MonEvasion and you agree that, before filing or attempting to file an arbitration claim against the other party, you will meet in person and discuss the matter in good faith, by telephone or videoconference, with a view to informally resolving, in good faith, any claim covered by this arbitration agreement. It is understood, however, that informal dispute resolution conferences must be individualized, and that a separate conference must be held each time a party intends to file an individual arbitration claim; furthermore, in the case of claims filed by multiple individuals, those individuals may not participate in the same informal dispute resolution conference call unless the parties consent. If you are represented by an attorney, your attorney may participate in the conference, but you must also participate fully. The party that filed the claim must notify the other party in writing of its intention to hold an informal dispute resolution conference, which must be held within 60 days of the other party’s receipt of the notice, unless the parties agree to an extension. To notify MonEvasion of your intention to hold an informal dispute resolution conference, please send an email to contact@mon-evasion.com, including your name, the phone number associated with your MonEvasion account (if applicable), the email address associated with your MonEvasion account, and a description of your claim. MonEvasion may send you a request form for an informal dispute resolution conference, which you must complete in full to initiate the informal dispute resolution conference process. Between the date the other party receives the notice and the start of the informal dispute resolution conference, the parties are free to attempt to resolve the claims raised by the party that initiated the process. Participation in an informal dispute resolution conference is a requirement that must be fulfilled before proceeding with arbitration. The statute of limitations and deadlines for payment of filing fees will be suspended while the parties participate in the informal dispute resolution process required by this paragraph.
c) Rules and Venue of Arbitration
Dispute Resolution for Service Providers and Customers Residing in Canada (except those residing in the Province of Quebec)
PLEASE READ THIS SECTION CAREFULLY, AS IT CONTAINS A MANDATORY ARBITRATION CLAUSE AND THEREFORE AFFECTS YOUR RIGHTS AND HOW DISPUTES BETWEEN YOU AND MONEVASION WILL BE RESOLVED.
To the extent permitted by applicable law, this arbitration agreement is governed by the arbitration law of the province in which you reside and, where applicable, by the Arbitration Rules of the Arbitration and Mediation Institute of Canada (adric.ca/case-administration-services/) (the “IAMC Rules”), in all respects, unless otherwise expressly provided herein. Before a party initiates arbitration proceedings, that party must send notice of its intention to proceed to arbitration and certify that an informal dispute resolution conference has taken place, in accordance with paragraph 15.b). If this notice is sent to MonEvasion, it must be sent by email to the attorney who represented MonEvasion during the informal dispute resolution process or, in the absence of such an attorney, by mail to MonEvasion’s General Counsel at the following address: 2267 Boulevard de Laurentides, Suite 200B, Laval, Quebec, H7K 2J3, and to the email address contact@mon-evasion.com. Requests for arbitration must be filed with the Canadian Institute of Arbitration and Mediation (the “CIAM”). They must be submitted in accordance with the IAMC Rules and must include the following: A) the name, phone number, mailing address, and email address of the party requesting arbitration; B) a statement of the legal and factual grounds for the claims; C) a description of the relief sought and a precise, good-faith calculation of the amount in dispute (costs related to any request for injunctive relief or attorneys’ fees will not be included in the calculation of the amount in dispute, unless such injunctive relief is intended to secure payment of a sum of money); and D) the signature of the party requesting arbitration. Your request for arbitration must also be submitted to MonEvasion’s General Counsel at the following address: 2267 Boulevard de Laurentides, Suite 200B, Laval, Quebec, H7K 2J3, Canada, and to contact@mon-evasion.com. Notwithstanding any provision to the contrary in the IAMC Rules, the arbitration shall be heard by a single arbitrator (selected in accordance with the IAMC Rules), who shall be an attorney or a former judge. The seat of the arbitration shall be the capital city of the province where you have your principal residence as of the effective date of this agreement. However, at your request, the arbitration hearing may be held at a location within 75 kilometers of your primary residence as of the effective date of this agreement. The parties agree that the arbitration may be conducted virtually, and the arbitrator may order a virtual arbitration at the request of either party. Unless otherwise provided by applicable law, MonEvasion et vous-même devrez régler à parts égales les droits de dépôt et les autres frais administratifs comparables qui sont généralement engagés dans le cadre de procédures judiciaires et de procédures administratives. MonEvasion and you will be required to split equally the filing fees and other comparable administrative costs that are generally incurred in connection with legal and administrative proceedings. MonEvasion will pay all additional costs associated solely with the arbitration, including fees payable for the services of the IAMC and the arbitrator, as well as room rental costs or technical support costs incurred in conducting a virtual arbitration. The current fee schedule under the IAMC Rules is available at the following address: adric.ca/case-administration-services/. If the IAMC is not available for the arbitration, the parties will jointly select another arbitration service provider.
Dispute Resolution for Service Providers and Customers Residing in the United States
PLEASE READ THIS SECTION CAREFULLY, AS IT CONTAINS A MANDATORY ARBITRATION CLAUSE AND THEREFORE AFFECTS YOUR RIGHTS AND HOW DISPUTES BETWEEN YOU AND MONEVASION WILL BE RESOLVED.
This arbitration agreement is governed in all respects by the U.S. Federal Arbitration Act (the “FAA”). If, for any reason, the rules and procedures of the FAA cannot be applied, the state law governing arbitration agreements in effect in the state where you reside will apply. Before a party initiates arbitration proceedings, that party must send notice of its intent to proceed to arbitration and certify that an informal dispute resolution conference has taken place, in accordance with paragraph 15.b). If this notice is sent to MonEvasion, it must be sent by email to the attorney who represented MonEvasion during the informal dispute resolution process or, in the absence of such an attorney, by mail to the General Counsel at the following address: 2267 Boulevard de Laurentides, Suite 200B, Laval, Quebec, H7K 2J3, Canada, and to the email address contact@mon-evasion.com. The following arbitration will be conducted by ADR Services, Inc. pursuant to its rules and in accordance with the terms of this agreement. Upon submission of the notice certifying that the informal dispute resolution conference has taken place, the party wishing to bring its case to arbitration must file a request for arbitration with ADR Services, Inc. This request must include A) the name, telephone number, mailing address, and email address of the party requesting arbitration; B) a statement of the legal and factual basis for the request for arbitration; C) a description of the relief sought and a precise, good-faith calculation of the amount in dispute, expressed in U.S. dollars (costs related to any request for injunctive relief or attorneys’ fees shall not be included in the calculation of the amount in dispute, unless such injunctive relief is intended to secure payment of a sum of money); and D) the signature of the party requesting arbitration. Disputes are subject to the most recent version of the ADR Services, Inc. arbitration rules, as available as of September 20, 2024, at www.adrservices.com/services/arbitration-rules (in English only) or by contacting ADR Services, Inc. by phone at 310 201-0010. The fees applicable to arbitrations administered by ADR Services, Inc. are listed on the ADR Services, Inc. website, which is available as of September 2024 at www.adrservices.com/services/arbitration-rules (in English only) or by contacting ADR Services, Inc. by phone at 310 201-0010. The fees applicable to arbitrations administered by ADR Services, Inc. are listed on the ADR Services, Inc. website, which, as of September 20, 2024, is located at www.adrservices.com/rate-fee-schedule/ (in English only). Specifically, the fees set forth in ADR Services, Inc.’s “Mass Consumer Non-Employment Arbitration Fee Schedule” apply when at least twenty (20) requests for arbitration are filed and those involve the same or similar parties, are based on the same or similar claims arising from transactions, incidents, or events that are identical or substantially identical, and require the resolution of the same or substantially identical issues of law or fact, and the parties’ attorneys are the same or are acting in a coordinated manner. In all other circumstances, the fees set forth in the General Fee Schedule of ADR Services, Inc. shall apply, except that MonEvasion shall pay the portion of the filing fee (if any) that exceeds the fee applicable to filing the claim with a court of competent jurisdiction at the place of arbitration. Payment of all filing, administrative, and arbitration fees will be governed by the rules of ADR Services, Inc. If the arbitrator determines that you cannot afford to pay the filing, administrative, and hearing fees of ADR Services, Inc. and/or other costs, and you are unable to obtain a waiver of such fees from ADR Services, Inc., MonEvasion will pay them on your behalf. If it is determined that a claim or counterclaim violates the standards set forth in Federal Rule of Civil Procedure 11, the other party may recover the amount of its attorneys’ fees, expenses, and costs incurred in defending against the claim or counterclaim. If a party timely submits a settlement offer (as defined by an “offer of judgment” under Federal Rule of Civil Procedure 68 or an equivalent state or local rule), if applicable, and the settlement obtained by the other party is not more favorable than the rejected offer, then the other party shall pay the costs, including filing fees, incurred after the offer was made.
If ADR Services, Inc. is not available to conduct the arbitration, the parties shall mutually agree on another arbitration service provider. If the parties cannot agree on which arbitration service provider will administer the arbitration, only a court (and not an arbitrator or arbitration administrator) may resolve the dispute, and the arbitration will be suspended until the court resolves the dispute. You may decide to conduct the arbitration by telephone, videoconference, or in person in the county where you live or at another location mutually agreed upon. The parties agree that all arbitration proceedings, including all pre-arbitration communications, hearings, and decisions, shall be confidential to the fullest extent permitted by applicable law. If, at any time, the arbitrator or the arbitration administrator fails to enforce the terms of this agreement, either party may challenge the arbitration proceedings in court. In such a case, the arbitration will be automatically suspended pending a decision on that challenge.
If the arbitral award includes an injunction or monetary damages exceeding $100,000, either party may appeal such damages to an arbitration panel. The notice of appeal must be in writing and served on the other party within fourteen (14) days of the date on which the award became final. ADR Services will administer the appeal in accordance with the JAMS Optional Arbitration Appeal Procedures, as available as of September 20, 2024, at www.jamsadr.com/appeal/ (in English only).
Dispute Resolution for Service Providers and Clients Residing in France
PLEASE READ THIS SECTION CAREFULLY, AS IT CONTAINS A MANDATORY ARBITRATION CLAUSE AND THEREFORE AFFECTS YOUR RIGHTS AND HOW DISPUTES BETWEEN YOU AND MONEVASION WILL BE RESOLVED.
Regardless of your place of residence, if you bring a claim against MonEvasion in Canada, the section above titled “Dispute Resolution for Service Providers and Customers Residing in Canada” will govern that dispute.
General Claims Regarding the Services. If you reside in France, any dispute regarding these Terms, the Agreement, or any other claim must be addressed to MonEvasion at contact@mon-evasion.com.
Dispute Resolution. If a dispute arises between the Parties, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. We encourage you to contact us directly at contact@mon-evasion.com to reach a resolution, providing your first and last name, phone number, email address, mailing address, and a description of the nature of your complaint. If you reside in France, you may opt for a consumer mediation procedure. We are not required to accept mediation, and, if mediation is pursued, each Party is free to accept or reject the resolution proposed by the mediator. You must first file a complaint with MonEvasion before referring the matter to the mediator.
Governing Law and Jurisdiction for Disputes. If you reside in France, French law governs these Terms and the Contract, as well as any dispute or claim you may have against MonEvasion, and you may choose to bring an action before the French courts.
Dispute Resolution for Service Providers and Customers Residing in England, Switzerland, and a Member State of the European Union
PLEASE READ THIS SECTION CAREFULLY. IT CONCERNS YOUR RIGHTS AND WILL HAVE A SIGNIFICANT IMPACT ON HOW CLAIMS THAT THE PARTIES HAVE AGAINST EACH OTHER WILL BE RESOLVED.
Regardless of where you live, if you file a lawsuit against MonEvasion in Canada, the section above titled “Dispute Resolution for Service Providers and Customers Residing in Canada” will govern that dispute.
Dispute Resolution
If a dispute arises between the Parties, our goal is to provide you with a neutral and cost-effective way to resolve it quickly. We therefore encourage you to contact us directly at this address: contact@mon-evasion.com. We will consider all reasonable requests to resolve the dispute through methods other than litigation, such as mediation or arbitration.
Governing Law and Forum for Disputes
If you reside in the United Kingdom, the laws of England and Wales govern these Terms, the Agreement, and any dispute or claim you may have against MonEvasion. Furthermore, MonEvasion and you agree to submit to the non-exclusive jurisdiction of the English courts. If you reside in Switzerland, Swiss law governs these Terms, the Agreement, and any dispute or claim you may have against MonEvasion. If you reside in Australia, Australian law governs these Terms, the Agreement, and any dispute or claim you may have against MonEvasion. If you reside in a member country of the European Union, the laws of the country in which you reside govern these Terms, the Agreement, and any dispute or claim you may have against MonEvasion.
Dispute Resolution for Service Providers and Customers Residing in Other Countries Around the World
PLEASE READ THIS SECTION CAREFULLY. IT CONCERNS YOUR RIGHTS AND WILL HAVE A SIGNIFICANT IMPACT ON HOW CLAIMS THAT THE PARTIES HAVE AGAINST EACH OTHER WILL BE RESOLVED.
Regardless of where you live, if you file a lawsuit against MonEvasion in Canada, the section above titled “Dispute Resolution for Service Providers and Customers Residing in Canada” will govern that dispute.
Dispute Resolution
If a dispute arises between the Parties, our goal is to provide you with a neutral and cost-effective way to resolve it quickly. We therefore encourage you to contact us directly at this address: contact@mon-evasion.com. We will consider all reasonable requests to resolve the dispute through methods other than litigation, such as mediation or arbitration.
Governing Law and Forum for Disputes
If you reside in a country other than Canada, the United States, Australia, the United Kingdom, Switzerland, France, or a country of the European Union, the laws of the Province of Canada govern these Terms, the Agreement, and any dispute or claim you may have against MonEvasion.
d) Powers of the Arbitrator
The arbitrator, and not any court or federal, state, provincial, or local agency, has exclusive authority to resolve any dispute concerning the interpretation, applicability, or formation of this arbitration agreement, including, without limitation, any claim that all or part of this arbitration agreement is void or voidable, to the extent permitted by applicable law, except as provided in paragraph 15.f) below (Waiver of Class, Consolidated, and Derivative Actions; and Waiver of Injunctive Relief), the enforceability of which may be determined only by a court. All disputes concerning the payment of the arbitrator’s fees or the arbitration body’s costs, including when such payments are due and the remedies for non-payment, shall be resolved exclusively by an arbitrator and not by a court or an arbitration administrator. The arbitration will determine your rights and responsibilities and those of MonEvasion, if any. Except as expressly agreed in paragraph 15.g) of this agreement, the arbitration proceedings will not be consolidated with any other cases or proceedings involving the same parties or other parties. The arbitrator may issue orders (including third-party subpoenas, to the extent permitted by law) allowing the parties to engage in communications or pre-arbitration depositions to the extent necessary to enable each party to prepare its claims and/or defense, while bearing in mind that arbitration is intended to be a swift and efficient means of resolving disputes. For example, the arbitrator may prohibit the examination of current or former members of senior management of either party if the arbitrator is not provided with evidence that such person possesses exclusive and personal knowledge of the information that is the subject of the pre-arbitration examination and that less costly methods of pre-arbitration examination have been exhausted. The arbitrator shall have the authority to grant motions to dismiss all or part of a claim or dispute; to award, on an individual basis, monetary damages; and to grant an individual any non-monetary relief provided for by applicable laws, the rules of the arbitration service provider, and this agreement (including this arbitration agreement). The arbitrator shall issue a written decision setting forth the essential findings and conclusions on which the award (or the decision not to render an award) is based, including the calculation of the damages awarded. The award shall be binding only on the parties and shall have no preclusive effect in any other arbitration or proceeding involving another party. The arbitrator must follow applicable laws. With respect to awarding remedies on an individual basis, the arbitrator has the same authority as a judge in a court of law. The arbitrator’s decision is final and binding on both MonEvasion and you.
e) Waiver of the Right to a Jury Trial
TO THE EXTENT PERMITTED BY APPLICABLE LAW, MONEVASION AND YOU WAIVE ANY CONSTITUTIONAL OR STATUTORY RIGHT TO BRING A LAWSUIT AND TO HAVE A TRIAL BY JUDGE OR JURY.
Instead, MonEvasion and you agree to resolve all disputes through arbitration, subject to the provisions of paragraph 15.a) above. There is no judge or jury in arbitration, and judicial review of an arbitral award is limited.
f) Waiver of Class, Consolidated, and Derivative Actions, and Waiver of Injunctive Relief (Members in Canada, the United States, and New Zealand Only)
THIS PARAGRAPH 15.f) DOES NOT APPLY TO CONSUMERS IN AUSTRALIA. EXCEPT AS EXPRESSLY SET FORTH IN PARAGRAPH 15.g) OF THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, MONEVASION AND YOU AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS COVERED BY THIS ARBITRATION AGREEMENT THROUGH A CLASS ACTION OR AS A MEMBER OF A CLASS ACTION. ALL CLAIMS AND DISPUTES COVERED BY THIS ARBITRATION AGREEMENT MUST BE RESOLVED INDIVIDUALLY THROUGH ARBITRATION AND NOT AS PART OF A CLASS ACTION OR DERIVATIVE ACTION, EXCEPT AS SET FORTH IN PARAGRAPH 15.g). CLAIMS BY MULTIPLE CUSTOMERS OR USERS MAY NOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER, EXCEPT AS SET FORTH IN SECTION 15.g). CLAIMS BY MULTIPLE CUSTOMERS OR USERS MAY NOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER, EXCEPT AS SET FORTH IN PARAGRAPH 15.g). In any case where 1) the dispute is brought as part of a class action or derivative action, and 2) a competent civil court determines that all or part of the waiver of class, consolidated, and derivative actions is unenforceable, the class, consolidated, or derivative action must be litigated in a competent civil court, but the enforceable portion of the waiver of class, consolidated, and derivative actions must be enforced through arbitration. The court’s consideration of any part of such a dispute shall be stayed until the arbitration is concluded. Notwithstanding any other provision of this Agreement, any claim that any part or all of the waivers described in paragraph 15.f) is unenforceable, excessive, void, or voidable may be decided only by a court of competent jurisdiction and not by an arbitrator. This provision does not prevent either MonEvasion or you from resolving disputes through a class action or derivative action.
g) Lot Arbitration
To the extent permitted by applicable law and for the purpose of resolving disputes more effectively, if an arbitration service provider selected in accordance with the rules described above receives, within a single 30-day period, at least 100 similar arbitration requests filed against MonEvasion by the same law firm or the same organization, or with the assistance or participation of the same law firm or the same organization: A) the parties must cooperate to group the arbitration requests into random batches of no more than 100 requests (and if, after this grouping into batches, fewer than 100 arbitration requests remain, a final batch will be created with these remaining requests); and B) the claimant’s counsel must organize the requests into batches and submit them to the arbitration service provider in the format required by the latter; C) the arbitration service provider must treat each batch as if it were a single arbitration, with a single set of filing and administrative fees and a single arbitrator assigned per batch; and D) The arbitration service provider must send a set of informational documents for each batch and will organize an arbitration management conference for each batch. You agree to cooperate in good faith with MonEvasion and the arbitration service provider to ensure that this batch-based approach to settlement and fees is implemented. Disputes regarding the applicability of this batch arbitration process shall be resolved through a single consolidated arbitration proceeding involving all affected parties and adjudicated by a single arbitrator, subject to the requirements of this paragraph 15.g). Notwithstanding any provision to the contrary in this agreement, batch arbitration proceedings shall take place in Montreal, Canada, or, if the parties prefer, via videoconference. The parties may also agree that the arbitration shall be based solely on written submissions.
h) Opt-Out
Updates made by MonEvasion to these terms and conditions do not provide a new opportunity to opt out of the arbitration agreement for consumers or users who had consented to a previous version of MonEvasion’s terms and conditions and who had not properly opted out of the arbitration agreement. MonEvasion will continue to honor opt-outs by customers or users who duly opted out of the arbitration agreement under a previous version of these Terms. If you are a customer or user creating a MonEvasion account for the first time on or after the effective date of these Terms, you may opt out of this arbitration agreement. In that case, neither you nor MonEvasion may compel the other party to proceed to arbitration under this arbitration agreement. To opt out, you must notify MonEvasion in writing no later than 30 days after the time you first become subject to this arbitration agreement. Your notice must include your name, address, MonEvasion username (if applicable), the email address you are currently using to access your MonEvasion account (if you have one), and an UNEQUIVOCAL statement of your desire to withdraw from this arbitration agreement. You must send your notice of withdrawal to contact@mon-evasion.com. If you opt out of this arbitration agreement, all other parts of this agreement will continue to apply to you. Opting out of this arbitration agreement has no effect on any other arbitration agreements you may have entered into with us or may enter into with us in the future.
i) Survival
This arbitration agreement shall remain in effect even after the termination of your relationship with MonEvasion.
f) Modification
Notwithstanding any provision to the contrary in this agreement, we agree that if MonEvasion makes a material change to this arbitration agreement, such change will not apply to individual claims for which you have already provided notice to MonEvasion.
j) Entire Agreement and Severability
This arbitration agreement constitutes the entire agreement regarding the official resolution of disputes covered by this arbitration agreement. If any part of this arbitration agreement is held to be unenforceable, the remainder of this arbitration agreement shall remain enforceable.
