Agora Data, Inc. Arbitration Agreement
Agora Data, Inc. (“Agora”, “us”, “we”, or “our”) operates https://www.agoradata.com, https://app.agoradata.com and https://support.agoradata.com (all such websites, individually and collectively, the “Site”).
PLEASE READ THIS CAREFULLY AS IT AFFECTS YOUR RIGHTS:
To expedite resolution of disputes and control related costs, You and Agora agree that any past, present, or future legal or equitable Claims (defined below) will be resolved as follows:
“Agora” means Agora Data, Inc. and its employees, agents, and other representatives, and its subsidiaries, insurers, parent, and affiliates, and each of their respective employees, agents, and other representatives.
“You” means you and all other users of your Agora account or anyone else connected with you or claiming through you.
1. Informal Resolution.
a) We will first try to resolve any Claim informally. Accordingly, neither You nor Agora may start a formal arbitration proceeding for at least 60 days after one of us notifies the other of a Claim in writing, consistent with the Notice and Demand Procedure below.
b) If You intend to file a demand for arbitration pursuant to this Arbitration Agreement, in order to give Agora an opportunity to informally resolve your Claim, You must first send to Agora, by certified mail, a written Notice of Dispute (“Notice”). The Notice should be addressed to Agora Data Arbitration, Attn: Legal Department, 700 W. Arkansas Lane, Suite 150, Arlington TX 76013. The Notice must give Agora sufficient details of the basis for your demand, your proposed resolution thereof, and Your contact information (including name, mailing address, email address, and at least one phone number). If You have retained counsel, Your Notice must state so and provide Your counsel’s contact information (including name, mailing address, email address, and at least one phone number).
c) Any statute of limitations will be tolled (extended) for the time period from the date of mailing of your Notice of Dispute and the date that Agora responds to Your Notice of Dispute.
d) Both You and Agora will cooperate in good faith during the 60-day period to resolve the Claim on business terms without resort to legal action. If Agora and You do not reach an agreement to resolve the Claim within 60 days after the Notice is received, or immediately upon Agora’s denial of Your Claims, You or Agora may commence an arbitration proceeding by filing a Demand for Arbitration (“Demand”). During the arbitration, the amount of any settlement offer made by Agora or You shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Agora is or You are entitled.
2. Formal Resolution.
a) If Agora and You cannot resolve a Claim informally, and if either party wishes to pursue the dispute, then any Claim that either party asserts will be formally resolved under the following agreed procedure and rules.
d) If either party files an arbitration demand, You and Agora agree that both parties will keep all aspects of the arbitration strictly confidential and will not disclose to any other person facts about the arbitration proceedings, documents filed in the proceedings, or award and rulings in the proceedings except where disclosure is required by law (including regulatory reporting, or tax reporting, to any governmental agency or entity) or such disclosure is to the parties’ attorneys, tax advisors, or Your spouse, if You are married. This provision will not preclude either party from moving to vacate or confirm an arbitral award in court, but both parties agree to use best efforts to file an arbitral award or other order under seal in court proceedings.
e) AGORA AND YOU AGREE THAT CLAIMS MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND IN THE NAME OF AN INDIVIDUAL PERSON OR ENTITY AND THAT CLAIMS MUST PROCEED ON AN INDIVIDUAL AND NON-CLASS AND NON-REPRESENTATIVE BASIS. THAT MEANS YOU AND AGORA WAIVE THE RIGHT TO BRING A CLASS ACTION AND CANNOT ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR NON-REPRESENTATIVE MEMBER OF A CLASS. AGORA AND YOU AGREE THAT CLAIMS OF TWO OR MORE PERSONS MAY NOT BE JOINED OR CONSOLIDATED IN THE SAME ARBITRATION UNLESS ARISING FROM THE SAME TRANSACTION. FURTHERMORE, AGORA AND YOU AGREE THAT NEITHER YOU NOR AGORA MAY PURSUE THE CLAIMS IN ARBITRATION AS A CLASS OR COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION. CLAIMS MAY NOT BE PURSUED IN ANY COURT OTHER THAN TO ENFORCE THE ARBITRATOR’S AWARD. THE ARBITRATOR SHALL HAVE THE AUTHORITY TO AWARD RELIEF ONLY ON AN INDIVIDUAL AND NON-CLASS AND NON-REPRESENTATIVE BASIS. ACCORDINGLY, YOU AND AGORA AGREE THAT THE AAA RULES FOR CLASS ACTIONS DO NOT APPLY TO OUR ARBITRATION.
f) You and Agora agree that any arbitration ruling allowing class action arbitration or allowing any claimant to seek relief for other persons in a representative capacity would be contrary to Agora’s and Your intent and would require immediate judicial review of such ruling.
g) Agora and You agree that Your access to or use of the Platform and/or any service offered through it has an effect on interstate commerce. Therefore, Agora and You agree that this Arbitration Agreement shall be construed and interpreted under the Federal Arbitration Act, 9 U.S.C. § 1, et. seq.
h) You acknowledge and agree that You voluntarily and knowingly entered into this Arbitration Agreement and chose to use the Platform and/or the services offered through it rather than companies that offer similar services and who may not have an arbitration agreement.
j) Notwithstanding any other provision of the AAA Rules, You and Agora agree that Claims submitted to arbitration shall be decided in a single arbitration held in Dallas, Texas before a single arbitrator who must be on the AAA National Roster of Commercial Arbitrators and selected in accordance with the AAA Rules. The arbitrator must also be a retired Texas state court or Texas federal court judge or magistrate judge. The arbitrator shall have the authority to award the same damages and all other relief that a court can award. The arbitrator’s decision is final and binding on all parties and may be enforced in a court of competent jurisdiction.
k) Arbitrator’s Authority. The arbitrator shall issue a written decision sufficient to explain the essential findings and conclusions on which the award is based (a reasoned decision). The arbitrator has the authority to make rulings and resolve all disputes concerning Claims, and the rights of the Parties (if any) to the payment and reimbursement of arbitration and attorneys’ fees, costs, expenses, and the Alternative Payment and the Attorney Premium described above. The arbitrator has the authority to award any form of individual relief that a court would have the authority to award, including equitable relief, and other relief available under applicable law. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including all issues of arbitrability such as the scope and enforceability of the Arbitration Agreement.
l) Statute of Limitations. The arbitrator shall apply the statute of limitations prescribed by Texas state law to all Claims as though such Claims were brought in a court of competent jurisdiction in Texas, subject to the tolling provision above.
m) Arbitration Fees. Except as otherwise provided in this Agreement, Agora will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the Notice Procedure above. Current filing fees are available at www.adr.org. If, however, the arbitrator finds that either the substance of Your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, You agree to reimburse Agora for all monies previously disbursed by it that are otherwise Your obligation to pay under the AAA Rules.
n) Attorneys’ Fees and Costs. The right to attorneys’ fees and expenses provided under this Agreement is in addition to any right to attorneys’ fees You or Agora may have under applicable law. However, You may not recover duplicative awards of attorneys’ fees or costs. Although under some laws Agora may have a right to an award of attorneys’ fees and expenses if it prevails in arbitration, Agora agrees that it will not seek such an award.
o) If a court allows any litigation of a dispute to go forward notwithstanding this arbitration agreement (which demonstrates the parties’ intent to arbitrate all claims), Agora and You agree to waive the right to a trial by jury with respect to that litigation, and the judge will be the finder of fact. Nothing in this provision will constitute a waiver of either party’s right to appeal any refusal of such court to compel arbitration.
3. Your Right to Opt-Out of Arbitration Agreement.
a) If you do not wish to be bound by this Arbitration Agreement, You must timely notify Agora by sending an email to: email@example.com and providing the following information in Your email: (1) Your name; (2) Your address; (3) Your phone number; and (4) a clear statement that You wish to opt out of this Arbitration Agreement. To be effective, the opt-out notice must be emailed no later than 30 days after the date You become bound by the Arbitration Agreement. Please note that You will continue to be bound by any prior arbitration agreement You did not opt-out of and any other arbitration agreement that otherwise governs Your relationship with Agora.
b) If Agora makes any future change to this Arbitration Agreement, You may reject any such change by sending us written notice in accordance with the foregoing paragraph no later than 30 days after the date Agora makes such change to the Arbitration Agreement. By rejecting any future change, You are agreeing that You will arbitrate any Claims between You and Agora in accordance with the language of the most recent version of the Arbitration Agreement to which you did not timely opt out.
A court of competent jurisdiction may sever any portion of Section 2 that it finds to be unenforceable, except for the prohibitions on class, representative, and private attorney general arbitration. In the event that any of the covenants, agreements, terms or provisions contained in this Arbitration Agreement shall be invalid, illegal or unenforceable in any respect, the validity of the remaining covenants, agreements, terms or provisions contained herein shall be in no way affected, prejudiced or disturbed thereby.
5. Who Can Enforce this Arbitration Agreement.
This Agreement may be enforced by You and Agora in the event of a dispute between You and one of Agora or its Affiliates.
7. Choice of Law.
All Claims shall be governed by the federal laws of the United States and the laws of the State of Texas without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws.
8. Choice of Venue for Non-Arbitrable Claims.
For any claims that are not subject to arbitration (i.e., claims for which You have timely opted out of arbitration pursuant to Section 3 of this Arbitration Agreement and claims relating to Your alleged violations of Agora’s intellectual property rights, including, but not limited to, copyright infringement, patent infringement, trademark infringement, or misappropriation of Agora’s confidential information or trade secrets), You and Agora agree that such non-arbitrable claims must be resolved exclusively in the U.S. District Court for the Northern District of Texas (Dallas Division) or a state court located in Dallas County, Texas. You agree to submit to the personal jurisdiction of either of these courts for the purpose of litigating any such non-arbitrable claim.
The headings used in this Arbitration Agreement are for convenience and reference only and are not intended to define or limit the scope of any provisions.