THE FOLLOWING DISPUTE RESOLUTION MECHANISM APPLIES TO YOU IF YOU RESIDE IN, ARE LOCATED IN, ARE A CITIZEN OF A EUROPEAN UNION MEMBER STATE, OR ARE LOCATED ANYWHERE OTHER THAN THE UNITED STATES OF AMERICA:
Any dispute arising from or in connection with this EULA shall be referred to the exclusive jurisdiction of the Courts of Santa Clara, California, USA, to the permissible extent allowed by the consumer laws of your normal place of residence.
THE FOLLOWING DISPUTE RESOLUTION MECHANISM APPLIES TO YOU IF YOU ARE A RESIDENT OR CITIZEN OF, OR LOCATED IN, THE UNITED STATES OF AMERICA WHEN PURCHASING TPT DU:
This provision governs the prompt and efficient resolution of any Disputes that may arise between you and Top PC Tools. Arbitration is a technique for the resolution of disputes outside the courts, in which persons or entities waive their rights to file a lawsuit or proceed in court and use a trial jury, and instead use a neutral third person or party (the “arbitrator”) resulting in a binding decision. As detailed below, you have the right to opt out of this Provision, in which case you would retain your rights to bring your disputes in court, either before a judge or jury.
Please review this Provision carefully. It allows for all Disputes between you and Top PC Tools (as defined below for the purposes of this Provision) to be resolved by binding arbitration. Arbitration displaces the right to go to court. Without this arbitration agreement, you could otherwise have a right or opportunity to bring a claim in court before a judge or jury, and/or participate or be represented, in a case filed in court by others (including but not limited to class actions). Except as provided otherwise, your entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. A court review of an arbitration award is limited, and there is no judge or jury in arbitration. The arbitrator must adhere to this agreement, and may award damages and equitable relief as found in a court, including attorneys' fees.
For the purpose of this Provision, “Top PC Tools” means Top PC Tools and its affiliate companies, including but not limited to parent and subsidiary companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Top PC Tools regarding any and all aspects of your relationship with Top PC Tools, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.
YOU AND Top PC Tools AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution.
For all Disputes, whether pursued in court or through arbitration, you must first give Top PC Tools an opportunity to resolve the Dispute. You must commence this process by mailing a written notification to Top PC Tools, Attn: Resolutions. That written notification must include the following: (1) your name, (2) your address, (3) a written description of your Dispute, and (4) a description of the specific relief you seek. If Top PC Tools does not resolve the Dispute within 45 days after receiving your written notification, you may pursue your Dispute in arbitration. You may only pursue your Dispute in a court as described under the circumstances below.
Exclusions from Arbitration, Right to Opt Out.
Notwithstanding the above, you or Top PC Tools Software LLP may choose to pursue a Dispute in court and not by arbitration if
(a) the Dispute qualifies, where it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS
FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by sending an email to Top PC Tools Software LLP,
Opt-Out Dept at email@example.com
Your email must include the following: (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes through arbitration with
Top PC Tools. Opting out of this Provision will have no adverse effect on your relationship with Top PC Tools.
Any opt-out request received after the Opt-Out Deadline will not be valid and you must then pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”), arbitration proceedings may be initiated by either you or Top PC Tools. The arbitration will be conducted in accordance with the American Arbitration Association's (“AAA”) Commercial Arbitration Rules (“Commercial Rules”) and, when deemed appropriate by the arbitration forum or arbitrator, the AAA's Supplementary Procedures for Consumer-Related Disputes (“Consumer Procedures”), or the appropriate rules of any alternative arbitration forum selected by you and Top PC Tools. The arbitration will be conducted before a single arbitrator and shall be conducted as an individual arbitration, and in no event shall be commenced as a class arbitration. The arbitrator will decide all issues, including the scope of this Provision.
The AAA rules are available from the AAA, which can be contacted by mail at 1633 Broadway, Floor 10, New York, New York 10019, by telephone at (800) 778-7879, or through its website at www.adr.org
. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
This EULA and the Licensed Software concerns interstate commerce, therefore the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. The arbitrator will, however, apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of you and Top PC Tools, and both you and Top PC Tools shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive or declaratory relief in an appropriate court of law.
The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement. In making any award, the arbitrator will be restricted by the Limitation of Liability provisions in these License Terms (EULA). The arbitrator shall not have the power to award any punitive [or consequential] damages.
Location of Arbitration.
You or Top PC Tools may initiate arbitration in either Santa Clara, California or the federal judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution. In the event that you select the federal judicial district that includes the address you provide in your written notification of Pre-Arbitration Claim Resolution, Top PC Tools may transfer the arbitration to Santa Clara, California in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs.
Top PC Tools will pay all arbitration filing fees and arbitrator's costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Top PC Tools as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney's fees and costs as determined by the arbitrator.
Waiver of Class Action.
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Top PC Tools specifically agree to do so following initiation of the arbitration.
If you choose to pursue your Dispute in court by opting out of this Provision, as specified above in section
“Exclusions from Arbitration, Right to Opt Out
this Class Action Waiver will not apply to you.
Neither you, nor any other user of the Licensed Software can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
YOU AND Top PC Tools HERETO IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect.
Review by Arbitrator.
Any dispute regarding this Provision, including the enforceability of this Provision or the arbitrability of any Dispute as provided in this Provision, shall be for the arbitrator to determine.
This Provision “DISPUTE RESOLUTION” shall survive the termination of your use of the Licensed Software and any related Top PC Tools websites or services.