A. Governing Law
These Terms and Conditions and all matters arising out of or otherwise relating to these Terms and Conditions shall be governed by the laws of the State of Arizona, excluding its conflict of law provisions. Notwithstanding the foregoing, however, all issues relating to arbitrability or the enforcement of the Agreement to arbitrate contained herein are to be governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and the federal common law of arbitration. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms and Conditions. The parties hereby submit to the personal jurisdiction of the state and federal courts of the State of Arizona. Exclusive venue for any litigation permitted under this Agreement shall be with the state and federal courts located in Maricopa County, Arizona.
B. Rights to Injunctive Relief
Both parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party’s breach, and that an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.
All Disputes (including any dispute relating to the arbitrability of this Agreement or any provision of this Agreement or any other dispute relating to arbitration) which cannot be amicably settled by the parties, must be submitted to arbitration before and in accordance with the arbitration rules of the American Arbitration Association (AAA) in accordance with its commercial arbitration rules then in effect, modified as set forth in this section. The term “Dispute” means any controversy or claim arising out of or relating to the Site or the Services or this Agreement, or any breach thereof, including any claim that this Agreement, or any part of this Agreement is invalid, illegal or otherwise voidable or void.
The dispute shall be submitted to and a decision rendered by a single arbitrator who is (a) agreeable to both parties, or (b) if agreement cannot be reached within 21 days of initiation of the proceedings, chosen pursuant to AAA rules. All proceedings and correspondence shall be conducted in the English language.
The arbitration process shall be as follows. A reasonable period shall be allowed for discovery, limited as to scope, nature, period, response time, as may be agreed upon by the parties. Within thirty (30) days of the close of the discovery period or such other time period as agreed to by the parties and arbitrator, the arbitrator shall hold an oral hearing in Phoenix Arizona, or such other place agreed to by the parties. The Arbitrator shall order that the parties submit to the Arbitrator, at least 10 days prior to the oral hearing a joint prehearing statement containing: a brief statement of the nature of the claims and defenses; any stipulated facts; a list of exhibits, and any objections to the admissibility of any such exhibit; the identity of each witness who provide testimony and whether the testimony will be oral or by written submission, as well as the subject matter of that witnesses’ testimony, its content, and its relevance to the issues in the arbitration; and an estimate as to the length of time that will be required for the arbitration hearing. No witness or exhibit shall be used at the oral hearing, or otherwise considered, other than those listed in the prehearing statement and exchanged, except for good cause shown or upon written agreement of the parties. No objection to an exhibit shall be entertained unless stated in the prehearing statement and exchanged, except for good cause shown or upon written agreement of the parties. Each party shall have the right to cross-examine any witness called by the other party (oral or written submission). The Arbitrator shall compel attendance of each such witness for cross-examination at the hearing, unless otherwise agreed by the party. Either party and/or the arbitrator can by written notice at least five (5) working days in advance of the hearing require attendance at the hearing of any individual having personal knowledge of facts pertinent to the dispute. The hearing shall in general, be governed by the U.S. Federal Rules of Civil Procedure and Federal Rules of Evidence, except that the signed written statements submitted by the parties shall be used in lieu of direct testimony. Any time period may be shortened or extended by agreement of the parties.
Unless agreed upon by the parties and the arbitrator, the arbitrator shall immediately upon the end of the hearing consider the evidence and shall work continuously and exclusively on the matter until a decision is rendered. However, the arbitrator may reconvene the hearing for further questioning of individuals if deemed necessary. The Arbitrator shall have the power to award any remedy provided under the applicable laws. The Arbitrator shall award to the prevailing party in the arbitration all arbitration costs and legal costs actually incurred in connection with the arbitration including but not limited to, the arbitrator’s fees, attorneys’ fees and costs, witness fees, transcription fees, etc. and sales and use taxes thereon, if any..
At the request of any party, a written arbitration order and/or award shall be issued, judgment on which may be entered in any Court of competent jurisdiction. Judgment upon an arbitration award may be entered in any court having competent jurisdiction and will be binding, final and non-appealable.
In the event that these modifications are in conflict with the rules then in effect of the AAA, these modifications shall take precedence.
The provisions of this Arbitration Section must be construed as independent of any other covenant or provision of this Agreement; provided that if a court of competent jurisdiction or arbitrator determines that any such provisions are unlawful in any way, such court or arbitrator is to modify or interpret such provisions to the minimum extent necessary to have them comply with the law.
This arbitration provision is self-executing and will remain in full force and effect after the expiration or termination of this Agreement. In the event either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party by default or otherwise notwithstanding said failure to appear.
The parties each acknowledge and agree that it is the intent of the parties that arbitration and litigation between the parties will be of the parties’ individual claims, and that none of their respective claims may be arbitrated or litigated on a class-wide basis.
Notwithstanding this section, judicial proceedings may be brought without need for prior arbitration by HomeVault Property Management with respect to claims relating to its trademarks, service marks, copyrights, or other intellectual property rights, or requests for temporary restraining orders, preliminary injunctions or other procedures in a court of competent jurisdiction to obtain interim relief when deemed necessary by such court to preserve the status quo or prevent irreparable injury pending resolution by arbitration of the actual dispute between the parties.
D. Time Limitations on Actions
The parties hereby agree that no action (whether for arbitration, damages, injunctive, equitable or other relief, including rescission) will be maintained by any party to enforce any liability or obligation of the other party, whether arising from this Agreement or otherwise, or any other Dispute, unless brought before the expiration of the earlier of one year from the occurrence of the facts giving rise to such claims or within 90 days from either the actual discovery of the facts giving rise to such claims or from the date on which the party should have, in the exercise of reasonable diligence, discovered such facts. This provision shall not apply to actions by HomeVault Property Management to enforce Intellectual Property rights.
The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective permitted assignees, successors, executors, and administrators, as the case may be. Neither these Terms and Conditions nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by you.
If for any reason a court of competent jurisdiction or an arbitrator finds any provision of these Terms and Conditions, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of these Terms and Conditions will continue in full force and effect.
G. Attorney’s Fees
In the event of any litigation arising out of this agreement, the prevailing party shall be entitled to attorney’s fees, including attorney’s fees incurred on appeal.
H. No Waiver
No waiver by HomeVault Property Management shall be deemed a waiver of any subsequent default of the same provision of these Terms and Conditions.
All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of these Terms and Conditions.
J. Complete Agreement
HomeVault Property Management reserves the right to change any of the provisions listed herein and you agree to review these Terms and Conditions each time you visit a Site. In the event of a change to these Terms that substantially limits your rights hereunder, HomeVault Property Management will provide you with written notice prior to such changes taking effect. Your continued use of a Site following HomeVault Property Management’ posting of any changes to these Terms and Conditions constitutes your acceptance to such changes. Unless accepted by HomeVault Property Management in writing, these Terms and Conditions may not be amended by you.