Terms of Service
Acelerate, Inc. Marketplace Terms of Service Last Updated: October 26, 2022 1. Overview. Acelerate, Inc. provides a wholesale online marketplace (the “Services”) connecting restaurants (“Buyers”) with wholesale food suppliers (“Sellers”). You are either a Buyer or a Seller, and these Terms of Service (“Terms”) are a contract governing your use of the Services (including all mobile applications and websites). You must be of legal age to enter into binding contracts and have authority to agree to these Terms on behalf of the entity you represent, and by accessing or using any part of the Services, you agree to become bound by them. Please read these Terms carefully. If you don’t agree to them, you may not use our Services. We reserve the right in our sole discretion to modify these Terms from time to time. We will provide you with notice of any material changes via the Services, email or other similar means. Your continued use of Services after such updates will confirm your acceptance of the changes and the revised Terms. Additionally, our privacy policy is available [here](https://acelerate.io/legal) and provides information about how we may collect, use, share and otherwise process information about you. IMPORTANT NOTE ON ARBITRATION: PLEASE CAREFULLY REVIEW THE ARBITRATION PROVISION IN SECTION 23 BELOW, WHICH REQUIRES YOU TO RESOLVE ANY DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. YOUR AGREEMENT TO THESE TERMS INDICATES YOUR EXPRESS ACKNOWLEDGEMENT AND AGREEMENT THAT YOU HAVE READ AND UNDERSTAND HOW THE ARBITRATION PROVISION WORKS. 1. Account Registration. To access certain features of the Services, you must register to create an account (“Account”). Depending on your intended use of the Services, you may set up an Account for Buyers (a “Buyer Account”) or an Account for Sellers (a “Seller Account”). With a Buyer Account, you are purchasing goods from Sellers, with such purchase facilitated by the Services, for the purpose of resale in connection with your own independent restaurant business. Alternatively, with a Seller Account, you may make available for sale and sell wholesale goods to Buyers, with such sales facilitated by the Services, for use in connection with each Buyer’s own independent restaurant business. Each type of Account gives access to different aspects of the Services. 1. Seller Account. To make available for sale and sell goods through the Services as a Seller, you must submit an application to us for our approval. The application process and Seller Account are both free. The application seeks basic information about you, your company and the goods you intend to make available for sale. If we approve your Account registration, you will be required to submit additional information, including about your business, where to deposit funds from sales of your goods and applicable tax and related documentation. By accepting these Terms and providing the requested information (including any necessary documentation evidencing product compliance and safety, and if you are distributing products on behalf of another party, proof that you have the necessary rights from applicable third party sellers whose products you seek to distribute on the Services) during the application process, you authorize us and our affiliates and payment processors to settle and disburse funds to you and on your behalf, and on behalf of any third party brands whose products you seek to distribute on the Services. You acknowledge that we are only able to accept a limited number of Sellers at any given time, and that we are not obligated to accept you as a Seller. You hereby release us from any liability regarding the Account registration process. 2. Buyer Account. To purchase goods through the Services as a Buyer, you need to establish a Buyer Account, which is free. When you sign up as a Buyer, you will be required to submit customary information such as your first and last name, the name and type of business you operate, email address and other information about your business. Before you make your first purchase as a Buyer, you may be required to provide additional information such as payment method information, reseller ID number and related documentation and any other information that we may require. You acknowledge and agree that by submitting your application to become a Buyer, you authorize us and our designated agents to access your personal and business credit history, including obtaining a consumer credit report, for the purpose of evaluating your eligibility for a line of credit with us. You further understand that credit inquiries may impact your credit score. By submitting payment details in conjunction with registering for a Buyer Account and/or purchasing goods, you agree to pay for the goods purchased and any applicable taxes and other fees that may accrue, and authorize us to charge the payment method with the information you have supplied to us (including via ACH debit), and/or to credit such payment method to make any adjustments if necessary. We reserve the right to correct any errors in pricing. We, and Sellers, have the right to refuse any order. 3. Registration Process. During the registration process, you will be required to provide certain information (depending on the type of Account), and you will establish a username and a password. You agree that all information you provide to register for an Account (and/or for any subsequent activity or interaction with us and the Services), including through the use of any interactive features on the Services, is governed by our [Privacy Policy](https://acelerate.io/legal), and you consent to all actions we take with respect to your information or information you provide, consistent with our [Privacy Policy](https://acelerate.io/legal). You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. We reserve the right to temporarily suspend or permanently terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password and you agree that you will not disclose it to any third party. You agree that you are solely responsible for any activities or actions under your Account, whether you authorized them or not. You will immediately notify us of any unauthorized use of your Account. We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms. 2. Rights & Restrictions. Subject to these Terms, we hereby grant you a non-transferable, non-exclusive, revocable, limited license to access the Services at all times in accordance with these Terms. The rights provided to you in these Terms are subject to the following restrictions, for which you expressly agree that you will not, nor will you enable others to: (a) sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Services; (b) change, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) access the Services in order to build a similar or competitive product or service; (d) copy, reproduce, distribute, republish, download, display, post or transmit the Services or any part thereof in any form or by any means unless otherwise permitted herein; (e) trick, defraud or mislead us and other users of the Services, including in order to learn sensitive account information (e.g., user passwords); (f) circumvent, disable or otherwise interfere with the security-related features of the Services; (g) disparage, tarnish or otherwise harm us, other users and/or the Services; (h) use any information obtained from the Services in order to harass, abuse or harm another person; (i) use the Services in violation of, or in a manner otherwise inconsistent with, any applicable laws, rules or regulations; (j) engage in unauthorized framing of, or linking to, the Services; (k) upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses or other material that interferes with any party’s uninterrupted use and enjoyment of the Services or modifies, impairs, disrupts, alters or interferes with the use, features, functions, operation or maintenance of the Services; (l) engage in any automated use of the Services (e.g., using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools); (j) delete the copyright or other proprietary rights notice from any content in the Services; (k) attempt to impersonate another user or person or use the username of another user of the Services; or (l) interfere with, disrupt or create an undue burden on the Services or the networks or services connected to the Services. 3. No Support or Maintenance. Unless otherwise agreed in writing, you agree that we have no obligation to provide you with any support or maintenance in connection with the Services. 4. Product Guidelines. Each Seller using our Services is required to ensure that all goods it makes available for purchase by Buyers comply with Acelerate’s guidelines made available from time to time. You acknowledge and agree to: (i) abide by these Product Guidelines; (ii) comply with all applicable laws, rules and regulations, including food health and safety, labeling, testing, warning, import/export and other consumer protection law requirements; (iii) not infringe upon or misappropriate the intellectual property, publicity or other rights of others; (iv) not provide any false, inaccurate or misleading information about your goods; and (v) ensure that you have all necessary rights, licenses, permissions and consents to offer for sale and sell the products through the Services, including (a) that they are allowed to be sold from your jurisdiction and into the Buyer’s jurisdiction and (b) if you are distributing on behalf of a third party, that you are properly authorized to do so by the applicable third party. You acknowledge and agree that we are not responsible for determining whether you meet the above requirements. Failure to comply with our Product Guidelines may result in the temporary suspension or permanent termination of your Account, in our sole discretion. 5. Refunds & Returns. Returns of Seller goods are subject to the applicable Seller’s policies made available or otherwise accessible via the Services. 6. Community Guidelines. Use of the Services by Buyers and Sellers is subject to Acelerate’s community guidelines made available or otherwise accessible via the Service. 7. Financial Terms. 1. For Sellers. By accepting these Terms, if you are a Seller, you acknowledge and agree to the commissions, fees, calculations and payout details set forth in Section 8(c) below. You agree and authorize us and/or our payment processors to deduct all commissions and fees due and owing from your payout amount, and to settle and transfer funds to your bank account. If you are distributing on behalf of third parties, you acknowledge and agree that you have the power and authority to agree to the foregoing with respect to all third parties whose goods you distribute via the Services. 2. For Buyers. By accepting these Terms, if you are a Buyer, you authorize us to collect payment of charges from you on behalf of Sellers as the applicable Seller’s limited payment collection agent, and payment by you of the charges shall be considered the same as payment made directly by you to the applicable Seller. 3. Our Commission. Unless otherwise agreed by us in writing, we charge Sellers a commission (the “Commission”) as set forth in our Commission Schedule located [here](https://support.acelerate.io/hc/en-us/articles/9814158956695-How-much-does-it-cost-to-sell-on-Acelerate-). Commissions are calculated based on the dollar amount of the order total, excluding shipping costs and other miscellaneous fees. Any goods that a Buyer marks as damaged or missing are deducted from the payout of the order or will be credited through a future invoice (we do not receive a Commission on these items). If you send a replacement for damaged or missing goods, we will pay you for the invoice value of the replacement goods. We may charge certain fees to Buyers for any particular transaction (in addition to, or in lieu of, the Commission we charge to Sellers) as indicated during checkout or as otherwise communicated to the Buyer prior to confirmation of the applicable transaction. 4. Seller Payout Schedule. Amounts owed to Sellers will be transferred via ACH to their chosen bank account 30 days from the date the shipment has been scanned by Seller’s shipping provider and is in transit (unless an alternative time period is mutually agreed between us and Seller). It is anticipated that funds will appear within 1 to 2 business days of being processed. We are not responsible for any actions taken by your bank that may result in some or all of the funds not being made available to you. We reserve the right to suspend payouts to your bank account due to pending disputes, excessive chargebacks or refunds and/or other improper or illegal activity. 5. Payment Methods for Buyers. Purchases made by Buyers will be made via ACH debit. To make a purchase, you must link an approved payment method (such as a credit or debit card, but excluding pre-paid cards) with your Buyer Account. Approved payment methods may vary by region. By submitting payment details in conjunction with registering for a Buyer Account and/or purchasing goods, you agree to pay for the goods purchased, and any applicable taxes and other fees that may accrue, and you authorize us and/or our affiliates to charge the payment method with the information you have supplied to us, and/or to credit that payment method to make any adjustments if necessary. We reserve the right to correct any errors in pricing. We will charge your default payment method on file in your Account. If it fails, we reserve the right to charge any other payment method you have included in your Account. 6. Payment Processors. We have contracted with Stripe, Inc. (“Stripe”) for credit card payment processing, fraud alerts and disbursement of funds paid by Buyers to Sellers. You acknowledge and agree that we may share information about you with Stripe in order to complete the applicable transaction. In addition to these Terms, Your use of the Services is subject to Stripe’s TOS located at [https://stripe.com/legal/ connect-account](https://stripe.com/legal/connect-account). 8. Term & Termination. If you breach any of these Terms, we have the right to suspend or disable your Account or terminate these Terms, in our sole discretion and without prior notice to you. In the event we terminate these Terms for your breach, you will remain liable for all amounts due hereunder. We also reserve the right to revoke your access to and use of the Services at any time, with or without cause. You may cancel your Account at any time by sending an email to [[email protected].](mailto:[email protected]) 9. Intellectual Property. 1. Your Right to Use the Services. Using our Services does not give you ownership of any intellectual property rights in or to our Services or the content accessed or available therein, and except for the limited license granted to you above, all rights therein (including all intellectual property rights) belong exclusively to us, our affiliates, and/or our licensors. These Terms do not grant you the right to use any trademarks, branding or logos used in our Services or otherwise without our prior written consent, including in any advertising or publicity or to imply our or any third party endorsement in any way. You may not obscure or alter any legal notices displayed in, along with or in connection with our Services. Additionally, we welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and agree that if you submit any Feedback to us (through any communication channel), you hereby agree that we and our affiliates may freely use all such Feedback (in whole or in part) in connection with our products, business and services without compensation or attribution. 2. Our Rights to Use Your Content. In connection with your use of the Services, you hereby grant to us a worldwide, perpetual, non-exclusive, transferable, sublicensable, royalty-free license to use, view, copy, adapt, modify, distribute, publicly display and publicly perform (through any means necessary) any content you provide on, through or by means of the Services and any of our advertising, marketing, publicity and other initiatives and events. We do not claim any ownership rights in any of the foregoing and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit such content. If you are a Seller, you hereby agree that we may at our option grant a limited, revocable sublicense to Buyers to use your provided content on their website for the sole purpose of promoting or otherwise describing goods purchased from you through the Services in connection with a Buyer’s own products. The license granted in this Section 8 will only last for as long as Seller’s products and content are available through the Services. We may also feature certain Buyers, Sellers, goods and content at the top of their respective category within the Services, on our landing pages, in advertisements, email, social media accounts or in any other channels or media at our discretion. You may opt out of your involvement or inclusion in any of the foregoing by writing to us at [[email protected]](mailto:[email protected]). 1. WARRANTY DISCLAIMER. WE PROVIDE OUR SERVICES “AS IS” AND “AS AVAILABLE.” OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS, WE DO NOT MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES, WHETHER ABOUT THE SPECIFIC FUNCTIONS OF THE SERVICES, THEIR RELIABILITY, QUALITY, AVAILABILITY OR ABILITY TO MEET YOUR SPECIFIC NEEDS OR OTHERWISE, OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTIES TO BE DISCLAIMED. SUBJECT TO THOSE RULES (WHERE APPLICABLE), AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED. 2. LIMITATIONS OF LIABILITY. WE WILL NOT BE RESPONSIBLE FOR LOST PROFITS, LOST REVENUES, LOSS OR CORRUPTION OF DATA, FINANCIAL LOSSES, OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES. OUR TOTAL LIABILITY FOR ANY CLAIMS UNDER THESE TERMS OR IN RELATION TO THE SERVICES, INCLUDING FOR ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED (WHERE APPLICABLE), IS LIMITED TO THE GREATER OF US$100 AND THE AMOUNT YOU HAVE PAID (IF YOU ARE A BUYER) OR RECEIVED (IF YOU ARE A SELLER) IN THE PAST 12 MONTHS. IN ALL CASES, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE. YOU HEREBY WAIVE ANY AND ALL CLAIMS FOR DAMAGES OR LIABILITY BEYOND THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE, INCLUDING THOSE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY AND/OR ANY OTHER GROUNDS, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR FOR CERTAIN BEHAVIORS (SUCH AS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), SO SOME OF THE ABOVE PROVISIONS MAY NOT APPLY TO YOU IN ANY GIVEN SITUATION. THE PROVISIONS IN THIS SECTION APPLY TO THE MAXIMUM EXTENT ALLOWED BY LAW. 3. Seller-Specific Representations and Warranties. If you are a Seller, you acknowledge and agree that you are solely responsible for all goods that you make available for sale through the Services and all content associated with those goods (e.g., imagery or related content). Accordingly, you represent and warrant that: (i) you are either the sole and exclusive owner of all goods and content that you make available through the Services or you have all rights, authorizations, licenses, consents and releases necessary to grant to us the rights as contemplated under these Terms (including all rights, licenses, consents and releases from applicable third parties if you are a distributor); and (ii) neither the goods, content nor your posting, uploading, publication, submission or transmittal of such goods or content or the use by us or a Buyer on, through or by means of the Services or social media platforms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or contain inaccurate, misleading, libelous, misleading or otherwise unlawful, abusive, harassing or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Services, or result in the violation of any applicable law or regulation (including with respect to food safety). You are solely responsible for any goods and content you provide and its accuracy. We take no responsibility and assume no liability, and you hereby release us from any such liability related to any of the foregoing posted or made available by you. 4. Indemnity. You agree to defend, indemnify, and hold us, and our parent, subsidiaries, affiliates, partners, successors, and assigns, and each of our and their respective owners, members, officers, directors, employees, agents, representatives, contractors, subcontractors, licensors, service providers and third party content providers, harmless from any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable legal and accounting fees) made by any third party due to or arising out of your violation of these Terms, any law or the rights of any third party or your use of the Services generally. 5. Product Liability Insurance. All Sellers are required to maintain, at their own cost and expense, general commercial liability insurance, product liability insurance and any other necessary insurance coverage with respect to its goods made available for sale on the Services in such amounts as are reasonable and customary for companies of comparable size and activities. You agree to provide proof of such insurance coverage and other relevant information as we may request from time to time. 6. Links to Third-Party Websites. The Services may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible or liable for: (a) the availability or accuracy of such websites or resources; or (b) the content, products or services on or available from such websites or resources. Links to such websites or resources do not imply our endorsement of such websites or resources or the content, products or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products, or services on or available from such websites or resources. Also, Apple Inc. and Google, Inc. will be a third party beneficiary to these Terms if you access the Services using applications developed for Apple iOS or Android, respectively. These third party beneficiaries are not parties to these Terms and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these applications or devices is subject to terms set forth in their respective terms of service and privacy policies. 7. Text Messages & Telephone Calls. We and those acting on our behalf may contact you by telephone or text message (including through use of an automatic telephone dialing system) at the phone numbers you have provided to us. These messages may include operational messages about your use of the Services. You understand that you are not required to consent to communications as a condition of purchasing any property, goods or services. You may opt out of receiving telephone calls or text messages from us at any time, either by texting the word “STOP” in response to a text message received from us using the mobile device that is receiving the messages. You may continue to receive text messages for a short period while we process your request, and you may also receive text messages confirming the receipt of your opt-out request. Opting out of receiving operational text messages may impact the functionality of the Services. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. 8. Copyright Policy. We respect the intellectual property of others and ask that our users do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination of users of our Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent: - your physical or electronic signature; - identification of the copyrighted work(s) that you claim to have been infringed; - identification of the material on our Services that you claim is infringing and that you request us to remove; - sufficient information to permit us to locate such material; - your address, telephone number, and e-mail address; - a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and - a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement. 1. Accessing our Services. Using our Services (whether from a computer or mobile device) will require various levels of data network access. You will need to obtain it on your own, subject to your mobile network's data and messaging rates and fees. You may need to acquire and update compatible hardware or devices to use and update the Services. We cannot guarantee that the Services, or any portion thereof, will function on any particular hardware or device. Lastly, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. 2. Export Control. You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Services nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. 3. Miscellaneous. These Terms will be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law provisions. The exclusive jurisdiction and venue of any action or court proceeding permitted under these Terms will be the state and federal courts located in Los Angele County, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You may not assign them (or any of your rights or obligations hereunder), in whole or in part, without our prior written approval. We may freely assign these Terms. Any purported assignment in violation of this paragraph is void. No joint venture, partnership, employment or agency relationship exists between you and us as a result of these Terms or your use of our Services. If any provision of these Terms is held to be invalid or unenforceable, that provision shall be enforced to the maximum extent permissible (if any) and the remaining provisions shall remain in full force and effect. Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless we acknowledge and agree to it in writing, and it is not a waiver of our right to do so later. Force majeure events may prevent us from providing the Services, and we will have no liability for those circumstances. Note that when we say “include” or “including” throughout these Terms, we really mean “including, but not limited to” but do this for ease of reading. Provisions that by their nature are intended to survive the termination of these Terms or your use of the Services will survive. These Terms also expressly supersede any prior agreements or arrangements we may have with you. You may of course stop using our Services at any time, and we may terminate these Terms or your use of any Services, or generally cease offering or deny access to any portion of the Services, at any time in our sole discretion. If we believe there has been a violation of these Terms, we have the right to investigate and notify law enforcement if we deem necessary. As part of any investigation, we cooperate with law enforcement and will take whatever legal action we deem appropriate under the circumstances. 4. Notices. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given: (a) by us via email (in each case to the primary account email address that you provide); or (b) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. If you have any questions about these Terms, please contact us at [[email protected]](mailto:[email protected]). 5. DISPUTE RESOLUTION – ARBITRATION 6. PLEASE READ THIS ARBITRATION PROVISION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS. 1. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration, except that we each retain the right to: (i) bring an individual action in small claims court; (ii) the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights; (iii) pursue an enforcement action through the applicable federal, state or local agency if that action is available; and (iv) seek injunctive relief in a court of law in aid of arbitration. YOU ACKNOWLEDGE AND AGREE THAT WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless we both otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms. 2. Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. We each agree that the Federal Arbitration Act applies and will govern the interpretation and enforcement of this Arbitration Agreement. Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an experienced (15+ years practicing) attorney licensed to practice law in the state of California. Arbitration Location and Procedure. Unless we both otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed US$10,000, then the arbitration will be conducted solely on the basis of documents we each submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds US$10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties. 3. Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent, to the extent permitted by law, with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. 4. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. If applicable arbitration rules or laws require us to pay a greater portion or all of such fees and costs in order for this Dispute Resolution provision to be enforceable, then we will have the right to elect to pay the fees and costs and proceed to arbitration. 5. Changes. Notwithstanding the provisions of the “Modification” section above, if we change this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to [[email protected]](mailto:[email protected])) within 30 days after the change became effective, as indicated in the “Last Updated” date above or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between us in accordance with the arbitration provisions of this “Dispute Resolution” section (however entitled) as of the date you first accepted these Terms or accepted any subsequent changes to these Terms.