Application. You and MonkeyMedia Software agree that these Terms affect interstate commerce and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This section entitled “Mandatory Arbitration and Class Action Waiver for Residents of the United States” is intended to be interpreted broadly and governs any and all disputes between you and MonkeyMedia Software. Any and all disputes may include, but are not limited to (i) claims arising out of or relating to any aspect of the relationship between you and MonkeyMedia Software, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and (iii) claims that may arise after the termination of these Terms. The only disputes excluded from the broad prohibition in this subsection entitled “Application” are the litigation of certain intellectual property and small court claims, as provided in the subsection entitled “Exception” below. 

Initial Dispute Resolution. Most disputes can be resolved without resorting to arbitration. If you have any dispute with us, you agree that you will try to resolve your dispute directly with us before taking any formal action, by contacting us at the address or email address set forth in Section 22 below. When you contact us, you must provide a brief, written description of the dispute and your contact information. If you have an account with us, you must include the email address associated with your account. Except for intellectual property and small claims court claims (see the subsection entitled “Exception” below), you and MonkeyMedia Software agree to use good faith efforts to resolve any dispute, claim, question, or disagreement directly through consultation with each other. You and MonkeyMedia Software agree to engage in good faith discussions before initiating a lawsuit or arbitration and understand that good faith discussions are a precondition of initiating a lawsuit or arbitration. 

Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided in the subsection entitled “Exception” below), as long as the party agrees with the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties' relationship with each other, and/or your use of MonkeyMedia Software shall be finally settled by binding arbitration administered by JAMS in accordance with either (i) the JAMS Streamlined Arbitration Procedure Rules, for claims that do not exceed $250,000; or (ii) the JAMS Comprehensive Arbitration Rules and Procedures, for claims exceeding $250,000. The JAMS rules and procedures just identified shall be those effect at the time the arbitration is initiated (not the Last Modified date of these Terms), excluding any rules or procedures governing or permitting class actions. 

Arbitrator’s Powers. The arbitrator (and not any federal, state, or local court or agency) shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms. Such disputes may include, but are not limited to, any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. 

Filing a Demand. To start an arbitration, you must do all three of the following: (i) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (ii) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, California 94111; and (iii) send one copy of the Demand for Arbitration to us at: MonkeySoft Solutions, Inc., 555 Burrard St 1st Floor Vancouver, BC V7X 1M8 

To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, MonkeyMedia Software will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, MonkeyMedia Software will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise. 

The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in Suffolk County, Massachusetts, United States, and you and MonkeyMedia Software agree to submit to the personal jurisdiction of any federal or state court in Suffolk County, Massachusetts in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. 

Class Action Waiver. YOU AND MonkeyMedia Software AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. This means that you and MonkeyMedia Software expressly waive any rights to file a class action or seek relief on a class basis. 

If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes. 

Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties' agreement to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights. “Intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but does not include privacy or publicity rights. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction. 

30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to at MonkeySoft Solutions, Inc., 555 Burrard St 1st Floor Vancouver, BC V7X 1M8. Your written notice must have the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of (i) January 1, 2020; or (ii) your first date that you used the Platform that contained any versions of the Terms that included this version of the Mandatory Arbitration and Class Action Waiver, whichever is later. Otherwise you shall be bound to arbitrate disputes in accordance with this section entitled “Mandatory Arbitration and Class Action Waiver”. If you opt out of these arbitration provisions, MonkeyMedia Software also will not be bound by them. 

Changes to This Section. MonkeyMedia Software will provide thirty (30) days' notice of any material changes to this section by posting notice on the Platform or informing you via email, and complying with any other applicable legal notice or consent requirements. Amendments will become effective thirty (30) days after they are posted on the Platform or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. 

If a court or arbitrator decides that this subsection (“Changes to this Section”) is not enforceable or valid, then this subsection will be deemed to be severed from the section entitled “Mandatory Arbitration and Class Action Waiver.” If this happens, the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section or similar section in existence after you began using the Platform. 

Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Platform