Suspending and terminating the VirNet Mediation Advertising Service

These Terms will continue to apply to you until terminated by either you or VirNet Mediation. VirNet Mediation may terminate these Terms (including any additional terms and conditions incorporated herein) or suspend your access to the VirNet Mediation Advertising Service at any time if we believe you have breached any of these Terms, if we stop providing the VirNet Mediation Advertising Service or any material component thereof, or as we believe necessary to comply with applicable law. If you or VirNet Mediation terminate these Terms, or if VirNet Mediation suspends your access to the VirNet Mediation Advertising Service, you agree that VirNet Mediation shall have no liability or responsibility to you, and (except as expressly provided in these Terms) VirNet Mediation will not refund any amounts that you have already paid. You may terminate these Terms at any time, in which case you may not continue accessing or using the VirNet Mediation Advertising Service. To learn how to terminate your VirNet Mediation Advertising account, please use the Customer Support resources on our About Us page.

The following sections shall survive termination: Sections 2 (The VirNet Mediation Advertising Service), 3 (Your Use of the VirNet Mediation Advertising Service) (except as set forth therein), 4 (Content and Intellectual Property Rights), 6 (Problems and Disputes), 7 (About These Terms), as well as any other sections of these Terms that, either explicitly or by their nature, must remain in effect even after termination of these Terms.

Warranty disclaimers

THE VIRNET MEDIATION ADVERTISING SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. FURTHER, VIRNET MEDIATION AND ALL OWNERS OF THE CONTENT DISCLAIM ANY EXPRESS, IMPLIED, AND STATUTORY WARRANTIES REGARDING THE CONTENT, INCLUDING WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER VIRNET MEDIATION ADVERTISING NOR ANY OWNER OF CONTENT WARRANTS THAT THE VIRNET MEDIATION ADVERTISING SERVICE OR CONTENT IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. IN ADDITION, VIRNET MEDIATION MAKES NO REPRESENTATION REGARDING, NOR DOES IT WARRANT OR ASSUME ANY RESPONSIBILITY FOR, ANY THIRD-PARTY APPLICATIONS (OR THE CONTENT THEREOF), USER CONTENT, DEVICES, OR ANY PRODUCT OR SERVICE ADVERTISED, PROMOTED, OR OFFERED BY A THIRD PARTY ON OR THROUGH THE VIRNET MEDIATION ADVERTISING SERVICE OR ANY HYPERLINKED WEBSITE, AND VIRNET MEDIATION IS NOT RESPONSIBLE FOR ANY TRANSACTIONS BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF THE FOREGOING. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM VIRNET MEDIATION SHALL CREATE ANY WARRANTY ON BEHALF OF VIRNET MEDIATION. THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the exclusion and limitations in this section may not apply to you.

Limitation of liability and time for filing a claim

YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE VIRNET MEDIATION ADVERTISING SERVICE IS TO CANCEL YOUR SUBSCRIPTION AND STOP USING THE VIRNET MEDIATION ADVERTISING SERVICE. YOU AGREE THAT VIRNET MEDIATION HAS NO OBLIGATION OR LIABILITY ARISING FROM OR RELATED TO THIRD-PARTY APPLICATIONS OR THE CONTENT THEREOF MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE VIRNET MEDIATION ADVERTISING SERVICE, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD-PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO VIRNET MEDIATION, FOR ANY PROBLEMS OR DISSATISFACTION WITH ANY THIRD-PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL OR STOP USING SUCH THIRD-PARTY APPLICATIONS.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL VIRNET MEDIATION, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OF OR INABILITY TO USE THE VIRNET MEDIATION ADVERTISING SERVICE, DEVICES, THIRD-PARTY APPLICATIONS, OR THIRD-PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER VIRNET MEDIATION HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE VIRNET MEDIATION ADVERTISING SERVICE, THIRD-PARTY APPLICATIONS, OR THIRD-PARTY APPLICATION CONTENT MORE THAN THE GREATER OF (A) THE AMOUNTS PAID BY YOU TO VIRNET MEDIATION DURING THE TWELVE MONTHS PRIOR TO THE FIRST CLAIM; OR (B) $30.00.

For clarification, these Terms do not limit VirNet Mediation’s liability for fraud or fraudulent misrepresentation to the extent that applicable law would prohibit such a limitation.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM ARISING UNDER THESE TERMS MUST BE COMMENCED (BY FILING A DEMAND OR FILING AN INDIVIDUAL ACTION AS SPECIFIED UNDER THE MEDIATION AND ARBITRATION AGREEMENT BELOW) WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.

Third-party rights

You acknowledge and agree that the owners of the Content and certain distributors are intended beneficiaries of these Terms and have the right to enforce these Terms directly against you. Other than as set out in this section, (1) these Terms are not intended to grant rights to anyone except you and VirNet Mediation; and (2) in no event shall these Terms create any third-party beneficiary rights.

Indemnification

You agree to indemnify and hold VirNet Mediation harmless from and against all damages, losses, and expenses of any kind (including reasonable attorneys’ fees and costs) arising out of or related to: (1) your breach of any of these Terms (including any additional VirNet Mediation terms and conditions incorporated herein); (2) any User Content you post or otherwise contribute; (3) any activity in which you engage on or through the VirNet Mediation Advertising Service; and (4) your violation of any law or the rights of a third party.

Governing law, jurisdiction, and jury trial waiver

These Terms and any dispute, claim, and/or controversy that in any way relates to or arises in connection with these Terms or your relationship with VirNet Mediation as a user of the VirNet Mediation Advertising Service (“Dispute“) are governed by and shall be construed in accordance with the laws of the state of Idaho, except to the extent preempted by or inconsistent with federal law. Further, you and VirNet Mediation agree to the exclusive jurisdiction of the federal or state courts located in Boise, Idaho, to resolve any Dispute that is not subject to mandatory mediation or arbitration under the Mediation and Arbitration Agreement below, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.

To the fullest extent permitted by applicable law, the parties agree to waive any right to a jury trial.

MEDIATION AND ARBITRATION AGREEMENT

This Mediation and Arbitration Agreement section sets forth the terms and conditions pursuant to which Disputes between you and VirNet Mediation will be resolved through individual mediation or arbitration (“Mediation and Arbitration Agreement“).

Dispute resolution, mediation, and arbitration

Subject to the exceptions set forth in the “Exceptions to mediation and arbitration” section below, you and VirNet Mediation agree that any Dispute between you and VirNet Mediation (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of these Terms) will be determined by agreement through mediation or binding individual (not class) arbitration. In mediation, the parties will determine the outcome of the dispute through the negotiation and production of a final mediation agreement between the parties. In arbitration, the arbitrator has the authority to rule on all issues except that a court has exclusive authority to: (1) decide arbitrability, as well as scope, validity, and enforceability of this Mediation and Arbitration Agreement; (2) decide whether you and VirNet Mediation have complied with the pre-arbitration filing requirements (including the requirements described in the “Pre-arbitration notice of dispute and informal resolution period” section below); (3) enforce the prohibition on class or representative actions; (4) enforce the provisions regarding mass arbitrations; and (5) enjoin an arbitration from proceeding if it does not comply with this Mediation and Arbitration Agreement. THERE IS NO JUDGE OR JURY IN MEDIATION OR ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. The arbitrator can award the same damages and relief as a court (including attorneys’ fees and costs where allowable under applicable law), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of these Terms.

Prior to engaging in arbitration, the parties agree to pursue mediation in good faith for a reasonable period of time, no less than two hours, or until the dispute between them has been successfully resolved. The parties will both share in the cost of mediation equally. The parties will agree on a neutral, third-party mediator. In the event that the parties are unable to agree on a mediator, the parties will produce a list of three mediators, and will eliminate one mediator from the list until only one mediator is left. The party to begin the elimination process will be selected randomly by lot. In the event mediation is unsuccessful, the parties may then proceed to arbitration under this section.

Exceptions to mediation and arbitration

You and VirNet Mediation both agree that any Dispute relating to any actual or alleged infringement of your or VirNet Mediation’s intellectual property rights shall be brought in the state district courts or federal courts of Boise, Idaho, and that nothing in this Mediation and Arbitration Agreement will be deemed to waive, preclude, or otherwise limit either of your or VirNet Mediation’s rights, at any time, to elect to have an individual action heard in: (1) a U.S. small claims court (so long as the action is litigated exclusively in small claims court and is not removed or appealed to a court of general jurisdiction); or (2) a court of law, in accordance with the jurisdiction and venue described in the “Governing law, jurisdiction, and jury trial waiver” section above, seeking only temporary or preliminary individualized injunctive relief, pending a final ruling from the arbitrator. In addition, this Mediation and Arbitration Agreement does not stop you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).

No class or representative proceedings and class action waiver

YOU AND VIRNET MEDIATION AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER IN ARBITRATION OR LITIGATION ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION. Unless both you and VirNet Mediation agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief or request for relief (such as a request for public injunctive relief) and all appeals have been exhausted or the decision is otherwise final, then the parties agree that such a claim or request for relief shall be decided by a court only after all other claims and requests for relief are arbitrated.

Pre-arbitration notice of dispute and informal resolution period

A party who intends to seek arbitration must first send a written notice of the Dispute (“Notice“) to the other. Notices to VirNet Mediation must be sent by email to mediation@virtualmediation.org, and Notices to you must be sent to the email address associated with your VirNet Mediation Advertising account. All Notices must: (1) be personally signed by the party sending the Notice; (2) provide the relevant user’s name, email address associated with the user’s VirNet Mediation Advertising account, and VirNet Mediation Advertising username; (3) describe with specificity the nature and basis of the Dispute; and (4) set forth the alleged damage and harm suffered and the specific relief sought with a calculation for it.

After a Notice containing all of the information required above is received, the parties agree to engage in mediation in good faith for a period of sixty (60) days in an effort to resolve the Dispute (this time period may be extended by agreement of the parties) (“Informal Resolution Period“), pursuant to the Dispute Resolution, Mediation, and Arbitration section above. The party receiving the Notice may request a telephone or video settlement conference during the Informal Resolution Period in an effort to facilitate resolution of the Dispute (“Informal Settlement Conference“). The Informal Settlement Conference, if any, will take place at a mutually agreeable time, which can be after the sixty (60) day Informal Resolution Period if needed to accommodate the parties’ schedules. During the Informal Settlement Conference, you and a VirNet Mediation representative must both personally participate in a good-faith effort to resolve the Dispute without the need to proceed with arbitration. Any counsel representing the parties also may participate. Personal participation in an Informal Settlement Conference will not be required if both you and VirNet Mediation agree in writing.

The Notice, Informal Resolution Period, and Informal Settlement Conference are intended to give the parties a meaningful opportunity to resolve Disputes informally. If any aspect of this “Pre-arbitration notice of dispute and informal resolution period” section has not been met, the parties agree that a court can enjoin the filing or prosecution of an arbitration and, unless prohibited by law, the arbitration administrator shall not accept or administer an arbitration nor demand fees in connection with such an arbitration. Notwithstanding the foregoing, a party retains the right to raise non-compliance with the requirements of this section and seek appropriate relief in arbitration.

Any applicable statute of limitations or contractual limitations period will be tolled for any claims and requests for relief set forth in a Notice from the date that either you or VirNet Mediation sends the other a fully complete Notice until: (1) thirty (30) days after completion of the Informal Resolution Period, if no Informal Settlement Conference is held; or (2) thirty (30) days after completion of the Informal Settlement Conference if an Informal Settlement Conference is held (“Tolling Period“).

Neither you nor VirNet Mediation may commence an arbitration proceeding until after the Tolling Period has ended.

Arbitration rules and fees

Either you or VirNet Mediation may start arbitration proceedings. Any arbitration between you and VirNet Mediation will be administered by National Arbitration and Mediation (“NAM”) in accordance with their rules applicable to the nature of the Dispute, including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings (“NAM Rules“), as modified by this Mediation and Arbitration Agreement. You and VirNet Mediation agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this Mediation and Arbitration Agreement (despite the choice of law provision above). The NAM Rules, as well as instructions on how to file a demand for arbitration (“Demand“) with NAM, appear at www.namadr.com/resources/rules-fees-forms/. The Demand must attach the relevant Notice and be personally signed by the party initiating the arbitration (and their counsel, if represented).

If NAM is unavailable, unwilling, or otherwise unable to administer an arbitration in accordance with this Arbitration Agreement, then another administrator that will do so will be selected by agreement of the parties. If the parties cannot agree, then they will jointly petition a court to appoint an administrator that will do so. To start an arbitration, the claimant shall send a copy of the Demand to NAM and the other party. If you initiate arbitration, you shall serve the Demand on VirNet Mediation via email at mediation@virtualmediation.org and to VirNet Mediation’s registered agent at 967 E. Parkcenter Blvd., PMB 190, Boise, ID 83706. If VirNet Mediation initiates arbitration, VirNet Mediation shall serve the Demand on you at the email address associated with your VirNet Mediation Advertising account. The claimant must certify in the Demand that the requirements set forth in the “Pre-arbitration notice of dispute and informal resolution period” section above have been met, and must attach a copy of the Notice to the Demand.

Each party retains the right to request a hearing in arbitration from the arbitrator. Any arbitration hearings will be conducted by phone or videoconference to the extent possible, but if the arbitrator determines that a hearing should be conducted in person, the locale for such hearing shall be in the county or parish where you reside or at another agreed upon locale.

As in court, any counsel participating in an arbitration certifies that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including a certification that the claim or the relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions available under the NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law against all appropriate represented parties and counsel.

VirNet Mediation will pay all filing, administration, case-management, hearing, and arbitrator fees (“Arbitration Fees“) if it initiates an arbitration. If you choose to file an arbitration proceeding, the allocation and payment of Arbitration Fees will be governed by the NAM Rules, unless a different allocation is required by court order or for this Mediation and Arbitration Agreement to be enforced. You and VirNet Mediation agree that arbitration should be cost effective for all parties. Either party may engage with the arbitration administrator around fee reductions and deferred payments.

Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may consider rulings in other arbitrations involving different users, but an arbitrator’s ruling will not be binding in any proceeding involving different users. The arbitrator may make rulings and resolve any disagreements as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits. An arbitration award that has been satisfied may not be filed or entered in court.

Mass arbitration

If you elect to have your claim addressed as part of a mass arbitration (defined below), you agree to the additional procedures set forth below.

If twenty-five (25) or more claimants submit Notices or attempt to file Demands raising similar claims, are represented by the same or coordinated counsel (regardless of whether the Notices or Demands are submitted simultaneously), and the parties cannot resolve the cases during the Informal Resolution Period, all of the cases must be resolved in arbitration through staged sets of proceedings. You agree to this process even though it may delay the arbitration of your case.

If these mass filing procedures apply to your case, the Tolling Period for your claims will be extended until your case is selected to proceed as part of a staged proceeding, withdrawn, opted out of arbitration (as set forth below), or otherwise resolved.

First Stage: In the first stage, counsel for the parties shall each select twenty-five (25) cases per side (50 cases total) to be filed in arbitration and to proceed individually in accordance with this Mediation and Arbitration Agreement, with each case assigned to a separate and different arbitrator (unless the parties agree otherwise). In the meantime, any remaining cases shall not be filed or deemed filed in arbitration, nor shall any Arbitration Fees be assessed in connection with those cases unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After the first stage is completed, the parties shall engage in a global, non-binding, and confidential mediation of all remaining cases with a retired federal or state court judge, and VirNet Mediation and shall pay the mediator’s fee.

Second Stage: If the parties are unable to resolve the remaining cases after the mediation, the parties shall repeat the same process except that fifty (50) cases shall be selected per side (100 cases total) to proceed individually in accordance with this Mediation and Arbitration Agreement, with each case assigned to a separate and different arbitrator (unless the parties agree otherwise). After the second stage is completed, the parties will again engage in a global, non-binding, and confidential mediation of all remaining cases with a retired federal or state court judge, with the mediator’s fee paid for by VirNet Mediation.

If the parties are unable to resolve any remaining cases after a second global mediation session:

Option One: You and VirNet Mediation may, separately or by agreement, opt out of arbitration and elect to have your case heard in a court of competent jurisdiction consistent with these Terms. You may opt out of arbitration by providing an individual, personally signed notice of your intention to opt out of arbitration to VirNet Mediation via email at mediation@virtualmediation.org within thirty (30) days after the conclusion of the second global mediation session. VirNet Mediation may opt your case out of arbitration by sending an individual, signed notice of its intention to opt out of arbitration to your counsel via email no more than thirty (30) days following the expiration of your thirty (30) day opt-out period. Counsel for the parties may agree to adjust these deadlines.

OR

Option Two: If neither you nor VirNet Mediation elects to have your case heard in court consistent with Option One, then you agree that your case will be resolved through continuing staged proceedings as set forth below. Assuming the number of remaining cases exceeds two hundred (200), then two hundred (200) cases shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining cases is fewer than two hundred (200), then all of those cases shall be filed and proceed in individual arbitrations. No more than five (5) cases within any set of two hundred (200) cases may be assigned to the same arbitrator to proceed individually, unless the parties agree otherwise in writing. Any remaining cases shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those cases unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process.

Throughout the staged process above, the arbitrators for the cases are encouraged to resolve the cases within one hundred twenty (120) days of appointment or as swiftly as possible thereafter, consistent with fairness to the parties. If any case selected for a staged set of proceedings is withdrawn prior to the arbitrator’s award (and without the consent of the other party), another case shall be selected to proceed individually in arbitration consistent with the process set forth above.

A court of competent jurisdiction will have the authority to enforce this “Mass arbitration” section and, if necessary, to enjoin the filing or prosecution of arbitrations or the assessment or collection of Arbitration Fees. This “Mass arbitration” section is intended to be severable from the rest of this Mediation and Arbitration Agreement. If a court decides that the staging process set forth in this “Mass arbitration” section is not enforceable (and after exhaustion of all appeals), then all cases may be filed in arbitration, but the payment of Arbitration Fees will be assessed as the arbitrations advance and arbitrators are appointed, rather than when the arbitrations are initiated.

Enforceability

If in the process of arbitrating or litigating a Dispute this Mediation and Arbitration Agreement is invalidated in whole, the parties agree that they may seek to resolve the Dispute in a U.S. small claims court or in the federal or state courts of Boise, Idaho, consistent with the “Governing law, jurisdiction, and jury trial waiver” section above. To the fullest extent permitted by applicable law, each party may bring a Dispute against the other party only in an individual capacity and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding. Notwithstanding the foregoing, either party may participate in a class-wide settlement.