YOU AND WE (AND OUR AFFILIATES AND SUBSIDIARIES, DEFINED BELOW) AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING.
PLEASE READ THIS AGREEMENT CAREFULLY, AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS—including the right to maintain a court action, the right to a jury trial, the right to participate in any form of class or representative claim, the right to statutorily imposed limitations periods, the right to engage in certain discovery, the right to certain remedies and forms of relief, and the right to court review of any award—which may not be available in arbitration.
To the fullest extent permitted by law, you and VTech agree to arbitrate all disputes between you and VTech and/or its affiliates, except disputes relating to the enforcement of VTech’s, its affiliates, subsidiaries, or its licensors’ intellectual property rights. ‘Dispute’ should be interpreted as broadly as possible, and includes, but is not limited to, any dispute, action or other controversy between you and us regarding, relating to, arising out of, or concerning the VTech Content, or these Terms and use of the Site, in contract, tort, warranty, statute or regulation or other legal or equitable basis. ‘Dispute’ also includes any threshold issues or challenges to arbitrability, including but not limited to disputes regarding the applicability, enforceability, interpretation, and scope of this agreement.
Most of our customers’ concerns can be resolved by calling Customer Service at (800) 595-9511. In the event Customer Service is unable to resolve a complaint to your satisfaction, this section explains how any Disputes (as defined below) are resolved through arbitration.
Choice of Law: This agreement evidences a transaction involving interstate commerce, and the parties agree that the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”) governs this agreement, its interpretation, enforcement, and any proceedings under it. To the extent the FAA does not apply, this agreement is governed by the laws of the State of Oregon, U.S.A., without giving effect to any conflict of laws principles.
Venue: If you are a resident of the United States, arbitration will take place at any reasonable location convenient for you if you initiate the arbitration. If you do not choose a location, the arbitration will be held in Oregon, U.S.A. For residents outside the United States, arbitration shall be initiated in Hong Kong Special Administrative Region of the People’s Republic of China, and you and VTech agree to submit to the personal jurisdiction of the federal or state courts located there, in order to compel arbitration, stay proceedings pending arbitration or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
Informal Negotiation: Any party who intends to seek arbitration must first provide to the other party a written notice of the Dispute (‘Notice’), describing the facts and circumstances of the Dispute and the specific relief sought, and including any supporting documentation. The Notice must be mailed via certified or registered mail to: VTech Communications, Inc., 9020 SW Washington Square Rd., Suite 555, Tigard, OR 97223, Attention: Legal/Arbitration Notice or to you at any billing and/or shipping address in your online account or other known address. If we are unable to reach an agreement through informal negotiation to resolve the Dispute within 60 days after the Notice is received, either party may commence arbitration.
Procedures: If you and VTech do not resolve a dispute by informal negotiation, the dispute shall be settled by binding arbitration before a neutral arbitrator whose decision will be final except to the extent the award may be subject to challenge (e.g., vacation, modification, etc.) under the FAA. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow these terms of use as a court would. The arbitrator’s award is binding and may be entered in any court of competent jurisdiction. Any arbitration under these terms and conditions shall be administered by the American Arbitration Association (‘AAA’), and pursuant to the then applicable AAA Consumer Arbitration Rules and Mediation Procedures and, when applicable, the AAA Mass Arbitration Supplementary Rules. You can obtain copies of the AAA Rules at AAA’s website (www.adr.org) or by calling 800-778-7879.
No class actions or consolidation of Disputes: To the fullest extent permitted by applicable law, and except as provided below with respect to Special Procedures for Mass Filings, we agree that any Dispute resolution proceeding will be conducted only on an individual basis and not in a class, consolidated, collective, private attorney general, or representative action, and you further agree that you will not be a member of any putative or actual class in a class action brought by anyone else, nor will you sell, assign, or transfer any Dispute. Except as provided below with respect to Special Procedures for Mass Filings, unless we both agree in writing, the arbitrator may not consolidate other persons’ claims with yours or ours, and may not otherwise preside over any form of a representative, multi-claimant or class arbitration proceeding. The arbitrator may not award declaratory or injunctive relief, order us to pay any monies, or take any actions with respect to persons other than you, and only to the extent necessary to provide relief warranted by that your individual dispute, unless we explicitly consent in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order.
Special Procedures for Mass Filings: You and VTech agree that, in the event that there are twenty-five (25) or more individual requests for arbitration of a similar nature filed against VTech within an approximately thirty (30) day period (or otherwise in close proximity), AAA will administer all such similarly situated arbitration demands on a collective basis as a single, consolidated arbitration (subject to a single set of fees, proceeding schedule, and, if required, hearing) before a single arbitrator in accordance with the requirements outlined elsewhere in this section, provided that – in the event that the arbitrator deems it impracticable or inequitable to administer all such claims collectively in a single arbitration – (s)he may group demands for arbitration into groups of not fewer than twenty-five (25) matters, plus a remainder group as needed (or as otherwise deemed by the arbitrator to be practicable, equitable, and in best keeping with the spirit of this provision) and arbitrate each group of matters as a single, consolidated arbitration (either structure a “Batch Arbitration”).
You and VTech agree (1) to work with AAA in good faith to facilitate the resolution of disputes on a Batch Arbitration basis and (2) that requests for arbitration are of a “similar nature” if they arise out of the same event, agreement, or factual scenario and raise the same or similar legal issues and seek the same or similar relief. Disagreements over the applicability of this Batch Arbitration Process will be settled in a single, consolidated arbitration proceeding that includes all affected parties and is resolved by a single arbitrator subject to the requirements of this section.
These Special Procedures for Mass Filings and Batch Arbitration provision and process shall in no way be interpreted as authorizing a class or collective arbitration or action of any kind, or any suit or arbitration involving joint or consolidated claims, under any circumstances other than those expressly set forth in this section.
Enforceability: If any portion of this Agreement to Arbitrate and Waive Class Claims is found to be void or unenforceable as to a particular claim, then that claim (and only that claim) shall be resolved in the United States District Court for the District of Oregon, rather than in arbitration; if there is no federal jurisdiction, the case shall be resolved in state courts located in Multnomah County, Oregon.
Survival after termination: This Agreement to Arbitrate and Waive Class Claims will survive after the terms of use terminate or your use of the Site ends. Any cause of action or claim you may have with respect to the Site must be commenced within one year after the claim or cause of action arises or be barred forever, or to the fullest extent permissible by applicable law. Notwithstanding the other provisions in this section, if we have a reasonable basis to believe that you have in any manner violated or threatened to violate any of our intellectual property rights, we may bring suit in state courts located in Multnomah County, Oregon or, if brought in a federal district court, United States District Court for the District of Oregon, rather than through arbitration. You agree that you will submit to the jurisdiction of the state and federal courts located in Multnomah County, Oregon.
