- North and South America. If You reside in North or South America, You are contracting with HTC America, Inc. and the following terms in this Section 27(a) shall apply:
AGREEMENT TO ARBITRATE DISPUTES
IF YOU reside IN NORTH OR SOUTH AMERICA PLEASE READ THIS SECTION 27(A) CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH HTC AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM HTC.
Binding Arbitration. If You use reside in North or South America, then, except for disputes in which either party seeks to bring an individual action in small claims court, You and HTC agree (i) to waive Your and HTC’s respective rights to have any and all disputes or claims arising from or related to these Terms of Use or the use or performance of the Store, any Product(s) available within, or any Paid Points, or Reward Points (collectively, “Disputes”) resolved in a court, and (ii) to waive Your and HTC’s respective rights to a jury trial. Instead, You and HTC agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
No Class Arbitrations, Class Actions or Representative Actions. You and HTC agree that any Dispute arising out of or related to these Terms of Use, is personal to You and HTC and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action, or any other type of representative proceeding. You and HTC agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, You and HTC agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
Notice; Informal Dispute Resolution. You and HTC agree that each party will notify the other party in writing of any arbitrable or small claims Dispute not less than thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to HTC shall be sent to HTC Arbitration Program Administrator, 308 Occidental Avenue South, Suite 300, Seattle, WA 98104. Your notice must include (a) Your name, postal address, telephone number, the email address You use or used for Your HTC Account or, if different, an email address at which You can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that You are seeking. Our notice to You will be sent electronically to the email address You use or used for Your HTC Account, where available, and will include (a) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that we are seeking. If You and HTC cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either You or HTC may, as appropriate and in accordance with these Terms of Use, commence an arbitration proceeding or, to the extent specifically provided for above, file a claim in small claims court.
Process. You and HTC agree that the arbitration shall be according to the American Arbitration Association Commercial Arbitration Rules applicable to consumer disputes (the “AAA Rules”), except insofar as those rules would be inconsistent with any part of these Terms of Use, including without limitation the agreement to arbitrate. For claims of $5,000 or less, You may decide whether You would prefer to have the arbitration decided based only on documents submitted to the arbitrator, or by a hearing in person or by phone. The arbitration shall be held in King County, Washington and the state and federal courts located in King County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the U.S. county of Your residence if the Dispute meets the requirements to be heard in small claims court.
Authority of Arbitrator. As limited by the Federal Arbitration Act, these Terms of Use and the applicable AAA rules, the arbitrator will have the authority to grant any remedy that would otherwise be available in court, provided that the arbitrator’s award may not exceed, in form or amount, the relief that a United States District Court could order under these Terms of Use; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms of Use. Notwithstanding the AAA Rules, any decisions concerning arbitrability of a particular dispute, including but not limited to whether a class arbitration is permitted by these Terms of Use, shall be resolved by a proper court in King County, Washington, rather than an arbitrator. Any dispute concerning the enforceability of this agreement to arbitrate, or any part thereof, shall also be resolved by a proper court in King County, Washington, rather than an arbitrator.
Rules of AAA. The rules of AAA and additional information about AAA are available on the AAA website (https://www.adr.org/aaa/faces/aoe/gc/consumer). By not opting out of this agreement to arbitrate as specified below, You either (a) acknowledge and agree that You have read and understand the AAA Rules, or (b) waive Your opportunity to read the AAA Rules and any claim that the AAA Rules are unfair or should not apply for any reason.
Applicability of Agreement to Arbitrate. IF THE PROHIBITION ON CLASS ARBITRATIONS SET FORTH ABOVE IS DEEMED TO BE UNENFORCEABLE, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.
RIGHT TO OPT OUT: This agreement to arbitrate disputes will apply unless You notify HTC in writing postmarked no later than 30 calendar days of first use the Store that You reject the agreement to arbitrate. You must include in Your notice of opt-out (a) Your name and address; (b) the date on which You first used the Store. You must send Your written notice to HTC Arbitration Program Administrator, 308 Occidental Avenue South, Suite 300, Seattle, WA 98104. No other form of notice will be effective to opt out of this agreement to arbitrate. If You opt out of the agreement to arbitrate, the other terms in these Terms of Use will still apply to You.
GENERAL PROVISIONS
1. Waiver of Jury Trial: IF A DISPUTE BETWEEN YOU AND HTC PROCEEDS IN COURT RATHER THAN OR IN ADDITION TO IN ARBITRATION, YOU AND HTC UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTER CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OF USE.
2. Governing Law: The Federal Arbitration Act (the “FAA”) applies to the agreement to arbitrate. Except as preempted by FAA, the law of the State of Washington, without reference to its choice of laws principles, shall govern these Terms of Use. Notwithstanding the foregoing, the laws of Your state of residence in the U.S.A., (or if You live outside of the U.S.A. but within North or South America, the law of the country where You live), will apply to any tort claims and/or any claims under any consumer protection statutes.
3. Severability: Except as specifically provided above, if any provision of these Terms of Use are held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the enforceability of the remainder of these Terms of Use.
- Europe, Middle East, and Africa. If You reside in Europe, the Middle East or Africa, You are contracting with HTC Europe Co., Ltd. and the laws of England and Wales governs the interpretation of these Terms of Use and apply to claims for breach of them, regardless of conflict of laws principles. All other claims, including claims under consumer protection laws, unfair competition laws, and in tort will be governed by the laws of the country where You live. You irrevocably agree to the exclusive jurisdiction and venue of the courts in London, England and Wales for any disputes arising out of or in connection with these Terms of Use. If applicable law prevents jurisdiction and venue in London England, then to the maximum extent permitted by applicable law You irrevocably agree that for any disputes arising out of or relating to these Terms of Use exclusive jurisdiction and venue will be in the courts in the largest city in Your country within 200 miles of where You live.
- Australia, New Zealand, and Asia (except for the Middle East). If You reside in Australia, New Zealand, or Asia (except for the Middle East), You are contracting with HTC Corporation and the laws of Taiwan govern the interpretation of these Terms of Use and apply to claims for breach of them, regardless of conflict of laws principles. All other claims, including claims under consumer protection laws, unfair competition laws, and in tort will be governed by the laws of the country where You live. You irrevocably designate the Taipei District Court as the court of first instance having jurisdiction over any disputes arising out of or in connection with these Terms of Use. If applicable law prevents the designation of the Taipei District Court as the court of first instance, then to the maximum extent permitted by applicable law You irrevocably agree that for any disputes arising out of or relating to these Terms of Use exclusive jurisdiction and venue will be in the courts in the largest city in Your country within 200 miles of where You live.