26. Binding Individual Arbitration.
a. Purpose.
The term “Dispute” means any dispute, claim, or controversy between Customer and QMAP regarding any services provided, 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 Section (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. If Customer has a Dispute with QMAP or any of QMAP’s officers, directors, employees, attorneys and agents that cannot be resolved through negotiation within the time-frame described in the “Notice of Dispute” clause below, other than those matters listed in the Exclusions from Arbitration clause, Customer and QMAP agree to seek resolution of the Dispute only through arbitration in accordance with the terms of this Section, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
b. Exclusions from Arbitration.
CUSTOMER AND THE COMPANY AGREE THAT ANY CLAIM FILED BY EITHER PARTY IN SMALL CLAIMS COURT AND ANY CLAIM FOR AMOUNTS OWED FOR SERVICES RENDERED ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION.
c. Notice of Dispute.
IF CUSTOMER HAS A DISPUTE WITH THE COMPANY, CUSTOMER MUST SEND WRITTEN NOTICE TO THE COMPANY TO GIVE THE COMPANY THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. Customer agrees to negotiate resolution of the Dispute in good faith for no less than 60 days after Customer provides notice of the Dispute. If the Dispute is not resolved within 60 days from receipt of notice of the Dispute, Customer or QMAP may pursue Customer’s claim in arbitration pursuant to the terms in this Section.
d. Class Action Waiver.
ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION, UNLESS BOTH YOU AND THE COMPANY SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
e. Initiation of Arbitration Proceeding/Selection of Arbitrator.
If Customer or QMAP elects to resolve the Dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association (“AAA”), www.adr.org, or JAMS www.jamsadr.com. The terms of this Section govern in the event they conflict with the rules of the arbitration organization selected by the parties.
f. Arbitration Procedures.
Because the Service provided to Customer by QMAP concerns interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules, and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if a claim does not exceed $75,000 and Customer provided notice to and negotiated in good faith with QMAP as described above, if the arbitrator finds that Customer is the prevailing party in the arbitration, Customer will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to QMAP or Customer. 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 binding and final, 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.
g. Location of Arbitration.
All claims for arbitration shall be submitted to and heard by the office of AAA located in Ada County, Idaho. Should an evidentiary hearing be required by the Arbitrator, such hearing shall be heard in Idaho Falls Idaho.
h. Severability.
If any clause within this Section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section, and the remainder of this Section will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable, and the Dispute will be decided by a court and both parties each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
i. Continuation.
This Section shall survive any termination of this Agreement.