20. Arbitration Agreement
THIS SECTION 21 OF THIS AGREEMENT CONSTITUTES THE “ARBITRATION AGREEMENT”
Please read this Section 21 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 21 prevents you from bringing a class action or comparable 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 attempt to bring a lawsuit in one of these countries, arbitration is required to resolve the preliminary question of whether this Section 21 applies to you, as well as all other preliminary determinations, including residence, arbitrability, venue, and applicable law. If your country of residence does not enforce arbitration agreements, the pre-arbitration notification and dispute resolution obligations and the prohibition on bringing a class action or representative proceeding described below 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 asserted on or before the effective date of this Agreement. You agree that any dispute or claim arising out of or in any way related 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 that 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, but not limited to, contract or tort claims, statutory claims, and unfair competition claims), will be resolved through binding arbitration, rather than in court, except as otherwise required by law (for example, for individual claims of sexual assault or sexual harassment in connection with the use of the Services by consumers in the United States) or as otherwise provided in this Arbitration Agreement. Furthermore, to the extent permitted by applicable law, MonEvasion or you may bring an action in court to seek equitable relief for infringement or other misuse of intellectual property rights (for example, trademark, trade dress, domain name, trade secret, copyright, and patent rights). To the extent permitted by applicable law, MonEvasion or you may also ask a court of competent jurisdiction to issue a temporary or provisional injunction on the grounds that, without such injunction, the arbitration provided for in this paragraph might be ineffective. The additional exception described below applies only to Customer 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 bring claims in small claims court if your claims qualify. In that event, the matter must remain in that court and be handled as an individual action and not as a class or derivative action.
b) Informal Resolution
MonEvasion and you agree that good faith informal efforts to resolve disputes can often yield prompt, low-cost, and mutually beneficial results. Accordingly, MonEvasion and you agree that before initiating or attempting to initiate an arbitration proceeding against the other, you will meet personally and discuss in good faith, by telephone or videoconference, to informally resolve 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 demand for arbitration, and that in the case of claims brought by multiple individuals, such individuals cannot participate in the same informal telephone dispute resolution conference unless the parties consent. If you are represented by counsel, your counsel may participate in the conference, but you must also fully participate. The party initiating the claim must notify the other party in writing of its intent to hold an informal dispute resolution conference, which must be held within 60 days following receipt of the notice by the other party, unless the parties agree to an extension. To notify MonEvasion of your intent to hold an informal dispute resolution conference, please send an email to contact@mon-evasion.com, stating 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 an informal dispute resolution conference request form, which you must complete in full to initiate the informal dispute resolution conference process. Between the date the notice is received by the other party and the start of the informal dispute resolution conference, the parties will be free to attempt to resolve the claims asserted by the party who initiated the process. Participation in an informal dispute resolution conference is a prerequisite that must be satisfied before starting the arbitration process. The statute of limitations and any filing fee payment deadlines will be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
c) Arbitration Rules and Forum
- 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 in all respects by the arbitration legislation of the province in which you reside and, where applicable, by the Arbitration Rules of the ADR Institute of Canada (adric.ca/case-administration-services/) (the “ADRIC Rules”), except as otherwise expressly provided herein. Before a party initiates an arbitration proceeding, that party must send notice of its intent to seek 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 legal counsel who represented MonEvasion in the informal dispute resolution process or, in the absence of such counsel, by mail to MonEvasion’s Chief Legal Officer at the following address: 2267 Boulevard de Laurentides, suite 200B, Laval, Quebec, H7K 2J3, and to the address contact@mon-evasion.com Demands for arbitration must be filed with the ADR Institute of Canada (“ADRIC”). They must be submitted in accordance with the ADRIC Rules and must include the following elements: A) the name, telephone number, mailing address, and email address of the party demanding arbitration; B) a statement of the legal and factual grounds for the claims; C) a description of the remedy sought and a precise, good-faith calculation of the amount in dispute (fees relating to any request for injunctive relief or attorneys' fees will not be included in calculating the amount in dispute, unless such injunctive relief seeks the payment of a sum of money); and D) the signature of the party demanding arbitration. Your demand for arbitration must also be delivered to MonEvasion’s Chief Legal Officer 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 ADRIC Rules, the arbitration will be heard by a single arbitrator (selected in accordance with the ADRIC Rules), who shall be a lawyer or former judge. The seat of arbitration shall be the capital city of your principal residence province as of the effective date of this Agreement. However, at your request, the arbitration hearing may take place at a location within a 75-kilometer radius of your principal residence as of the effective date of this Agreement. The parties agree that the arbitration may proceed virtually, and the arbitrator may order a virtual arbitration at the request of either party. Except as otherwise provided by applicable law, MonEvasion and you will split equally the filing fees and other comparable administrative costs typically incurred in court proceedings and administrative proceedings. MonEvasion will pay all additional costs uniquely associated with the arbitration, including fees payable for ADRIC and arbitrator services, as well as room rental costs or technical support expenses required to conduct a virtual arbitration. The fee schedule currently in effect under the ADRIC Rules is available at: adric.ca/case-administration-services/. If ADRIC is unavailable for arbitration, the parties will mutually 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 United States law known as the Federal Arbitration Act (the “FAA”). If, for any reason, the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in effect in the state where you live will apply. Before a party initiates an arbitration proceeding, that party must send notice of its intent to seek 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 legal counsel who represented MonEvasion in the informal dispute resolution process or, in the absence of such counsel, by mail to the Chief Legal Officer at the address: 2267 Boulevard de Laurentides, suite 200B, Laval, Quebec, H7K 2J3, Canada, and to the address contact@mon-evasion.com. The following arbitration will be conducted by ADR Services, Inc. under its rules and in accordance with the terms of this Agreement. Upon delivery of the notice certifying that the informal dispute resolution conference has taken place, the party wishing to submit its case to arbitration must file a demand for arbitration with ADR Services, Inc. This demand must set forth A) the name, telephone number, mailing address, and email address of the party demanding arbitration; B) a statement of the legal and factual basis for the arbitration demand; C) a description of the remedies sought and a precise, good-faith calculation of the amount in dispute, expressed in US dollars (fees relating to any request for injunctive relief or attorneys' fees will not be included in calculating the amount in dispute, unless such injunctive relief seeks the payment of a sum of money); and D) the signature of the party demanding arbitration. Disputes are subject to the most current version of the arbitration rules of ADR Services, Inc., 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 specified on the ADR Services, Inc. website, located as of September 20, 2024 at www.adrservices.com/rate-fee-schedule/ (in English only). Specifically, the rates set forth in the Mass Consumer Non-Employment Arbitration Fee Schedule of ADR Services, Inc. apply when twenty (20) or more arbitration demands are filed that involve the same or similar parties, are based on the same or similar claims arising out of identical or substantially identical transactions, incidents, or events, and require the determination of the same or substantially identical questions of law or fact, and where counsel for the parties are the same or acting in coordination. In all other circumstances, the fees set forth in the General Fee Schedule of ADR Services, Inc. will apply, except that MonEvasion will pay the portion of the filing fees (if any) that exceeds the fees applicable to filing a claim in a court of competent jurisdiction in the location of the arbitration. The payment of all filing, administrative, and arbitrator fees will be governed by the rules of ADR Services, Inc. If the arbitrator finds that you cannot afford to pay the filing, administrative, and hearing fees of ADR Services, Inc. and/or other fees, and you cannot obtain a fee waiver from ADR Services, Inc., MonEvasion will pay them for you. 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 serves a settlement offer (within the meaning of an offer of judgment under Federal Rule of Civil Procedure 68 or an equivalent state or local rule), if applicable, and the recovery obtained by the other party is not more favorable than the rejected offer, then the other party must pay the costs, including filing fees, incurred after the offer was made.
If ADR Services, Inc. is unavailable for arbitration, the parties will mutually select another arbitration service provider. If the parties do not agree on the arbitration service provider to administer the arbitration, only a court (and not an arbitrator or arbitration administrator) may resolve the dispute, and the arbitration will be stayed until the court resolves the dispute. You may choose to have the arbitration conducted by telephone, videoconference, or in person in the county where you live or another mutually agreed location. The parties agree that all arbitration proceedings, including all discovery, hearings, and decisions, will be confidential to the fullest extent permitted by applicable law. If, at any time, the arbitrator or arbitration administrator fails to enforce the terms of this Agreement, either party may challenge the arbitration proceeding in court. In that event, the arbitration will be automatically stayed pending a decision on that challenge.
If the arbitration award includes an injunction or monetary relief exceeding $100,000, either party may appeal that relief to an arbitration panel. The notice of appeal must be in writing and delivered to the other party within fourteen (14) days following the date the award became final. ADR Services will administer the appeal in accordance with the JAMS Optional Arbitration Appeal Procedures, available as of September 20, 2024 at www.jamsadr.com/appeal/ (in English only).
- Dispute Resolution for Service Providers and Customers 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 where you reside, if you bring an action against MonEvasion in Canada, the section above titled “Dispute Resolution for Service Providers and Customers Residing in Canada” will govern such dispute.
General Claims Regarding the Services. If you reside in France, any dispute concerning 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 to agree on a solution at contact@mon-evasion.com 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 in the event of recourse to mediation, each Party is free to accept or reject the solution proposed by the mediator. You must first submit a claim to MonEvasion before contacting the mediator.
Governing Law and Forum for Disputes. If you reside in France, French laws govern these Terms and the Agreement, as well as any dispute or claim you have against MonEvasion, and you may choose to initiate an action before French courts.
Dispute Resolution for Service Providers and Customers Residing in England, Switzerland, and European Union Member Countries
PLEASE READ THIS SECTION CAREFULLY. IT CONCERNS YOUR RIGHTS AND WILL HAVE A SIGNIFICANT IMPACT ON HOW CLAIMS THE PARTIES HAVE AGAINST EACH OTHER WILL BE RESOLVED.
Regardless of where you reside, if you bring an action against MonEvasion in Canada, the section above titled “Dispute Resolution for Service Providers and Customers Residing in Canada” will govern such dispute.
Dispute Resolution
If a dispute arises between the Parties, our goal is to provide you with a neutral and cost-effective means 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 alternative methods to 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 might have against MonEvasion. In addition, MonEvasion and you agree to submit to the non-exclusive jurisdiction of the English courts. If you reside in Switzerland, Swiss laws govern these Terms, the Agreement, and any dispute or claim you might have against MonEvasion. If you reside in Australia, Australian laws govern these Terms, the Agreement, and any dispute or claim you might have against MonEvasion. If you reside in a European Union member country, the laws of the country in which you reside govern these Terms, the Agreement, and any dispute or claim you might have against MonEvasion.
- Dispute Resolution for Service Providers and Customers Residing in the Rest of the World
PLEASE READ THIS SECTION CAREFULLY. IT CONCERNS YOUR RIGHTS AND WILL HAVE A SIGNIFICANT IMPACT ON HOW CLAIMS THE PARTIES HAVE AGAINST EACH OTHER WILL BE RESOLVED.
Regardless of where you reside, if you bring an action against MonEvasion in Canada, the section above titled “Dispute Resolution for Service Providers and Customers Residing in Canada” will govern such dispute.
- Dispute Resolution
If a dispute arises between the Parties, our goal is to provide you with a neutral and cost-effective means 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 alternative methods to 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 European Union country, the laws of the State/province of Canada govern these Terms, the Agreement, and any dispute or claim you might have against MonEvasion.
d) Powers of the Arbitrator
It is the arbitrator, and not any federal, state, provincial, or local court or agency, who has exclusive authority to resolve any dispute regarding the interpretation, applicability, or formation of this Arbitration Agreement, including, but not limited to, any claim that all or part of this Arbitration Agreement is void or voidable, to the extent permitted by applicable law, except with respect to paragraph 15.f) below (Waiver of Class, Consolidated, and Derivative Actions; and Waiver of Public Injunctive Relief), the enforceability of which can only be determined by a court. All disputes regarding the payment of arbitrator fees or arbitration provider costs, including the timing of such payments and remedies for non-payment, shall be decided exclusively by an arbitrator and not by a court or arbitration administrator. The arbitration will determine your rights and liabilities, if any, and those of MonEvasion. Except as expressly agreed in paragraph 15.g) of this Agreement, the arbitration proceeding will not be consolidated with any other matters or proceedings involving the same or other parties. The arbitrator may issue orders (including subpoenas to third parties, to the extent permitted by law) allowing the parties to conduct discovery to the extent necessary to enable each party to prepare its claims and/or defense, keeping in mind that arbitration is designed to be a fast and efficient method of resolving disputes. For example, the arbitrator may prohibit the deposition of current or former senior executives of either party unless provided with evidence that such person possesses exclusive and personal knowledge of the information sought in discovery and that less expensive discovery methods have been exhausted. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute; to award monetary damages on an individual basis; and to grant an individual any non-monetary relief available under applicable law, the arbitration service provider's rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written decision setting forth the essential findings and conclusions upon which the award (or decision not to render an award) is based, including the calculation of any damages awarded. The award will be binding only on the parties and will have no preclusive effect in any other arbitration or proceeding involving another party. The arbitrator must follow applicable law. With respect to awarding individual relief, the arbitrator has the same authority as a judge in a court of law. The arbitrator's decision is final and binding on MonEvasion and you.
e) Jury Trial Waiver
TO THE EXTENT PERMITTED BY APPLICABLE LAW, MONEVASION AND YOU WAIVE ANY CONSTITUTIONAL OR STATUTORY RIGHT TO SUE IN COURT AND HAVE A TRIAL BEFORE A JUDGE OR JURY.
Instead, MonEvasion and you elect to resolve all disputes through arbitration, subject to paragraph 15.a) above. There is no judge or jury in arbitration, and judicial review of an arbitration award is limited.
f) Waiver of Class, Consolidated, and Derivative Actions, and Waiver of Public 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 AGREED 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 ON A CLASS OR DERIVATIVE BASIS. ALL CLAIMS AND DISPUTES COVERED BY THIS ARBITRATION AGREEMENT MUST BE DECIDED INDIVIDUALLY THROUGH ARBITRATION AND NOT ON A CLASS OR DERIVATIVE BASIS, EXCEPT AS STATED IN PARAGRAPH 15.g). CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER, EXCEPT AS STATED IN PARAGRAPH 15.g). In all cases where 1) the dispute is brought as a class or derivative action, and 2) a court of competent civil jurisdiction finds that all or part of the waiver of class, consolidated, and derivative actions is unenforceable, the class, consolidated, or derivative action must be litigated before a court of competent civil jurisdiction, but the portion of the waiver of class, consolidated, and derivative actions that can be enforced must be enforced in arbitration. Court proceedings for a portion of such dispute will be stayed pending the conclusion of the arbitration. Notwithstanding any other provision of this Agreement, any claim that all or part of the waivers described in paragraph 15.f) are unenforceable, unconscionable, void, or voidable may only be determined by a court of competent jurisdiction and not by an arbitrator. Nothing in this provision prevents MonEvasion or you from settling disputes as part of a class or derivative settlement.
g) Batch Arbitration
To the extent permitted by applicable law and for the purpose of resolving disputes more efficiently, 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 demands asserted against MonEvasion by the same law firm or organization, or with the assistance or participation of the same law firm or organization: A) the parties shall cooperate to group the arbitration demands into random batches of no more than 100 demands (and if, after such batching, fewer than 100 arbitration demands remain, a final batch will be created with those remaining demands); and B) counsel for the claimant party must organize the demands into batches and submit them to the arbitration service provider in the format required by the provider; C) the arbitration service provider must process 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 disclosure documents for each batch and hold an arbitration management conference for each batch. You agree to cooperate in good faith with MonEvasion and the arbitration service provider to implement this batching approach with respect to resolution and fees. Disputes regarding the applicability of this batch arbitration process will be resolved in a single consolidated arbitration proceeding involving all affected parties and resolved 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 will take place in Montreal, Canada, or, if the parties prefer, by videoconference. The parties may also agree that the arbitration proceed solely based on written submissions.
h) Opt-Out
Updates made by MonEvasion to these terms do not afford a new opportunity to opt out of the arbitration agreement for consumers or users who had agreed to a previous version of MonEvasion's terms and had not duly opted out of the arbitration agreement. MonEvasion will continue to honor opt-outs from customers or users who duly opted out of the arbitration agreement under a previous version of the 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 can compel the other to arbitrate under this Arbitration Agreement. To opt out, you must notify MonEvasion in writing no later than 30 days after the date you first become subject to this Arbitration Agreement. Your notice must include your name, address, MonEvasion username (if applicable), the email address you currently use to access your MonEvasion account (if you have one), and an UNEQUIVOCAL statement of your wish to opt out of this Arbitration Agreement. You must send your opt-out notice 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 will survive the termination of your relationship with MonEvasion.
f) Modification
Notwithstanding any provision to the contrary in this Agreement, we agree that if MonEvasion makes any material change to this Arbitration Agreement, it will not apply to any 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 formal 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.
