i.
Informal Resolution. If You have an issue with the services, You agree to reach out to us before initiating a lawsuit or arbitration. This requires sending Arcana a written description of the dispute (including Your name, what You’re complaining about, and how You’d like to resolve it) along with the email address or phone number associated with Your Arcana account to disputes@arcanalabs.ai. If the dispute is not resolved within sixty (60) days after receipt of the written notice, You and Arcana agree to resolve any remaining dispute through the further dispute resolution provisions below. You must engage in this informal resolution process before starting any formal dispute resolution. Applicable statutes of limitations and due dates for arbitration filing fees or other deadlines will be tolled while the parties attempt informal resolution. If You reside in the European Union, You may also be entitled to submit Your complaint to the European Commission’s Online Dispute Resolution (ODR) Platform. ODR allows EU consumers to resolve disputes related to the online purchases of goods and services without going to court.
ii.
Governing Law and Jurisdiction. The Federal Arbitration Act, federal arbitration law, and California law will apply to these terms and any disputes related to these terms or our services, regardless of conflict of laws rules. Any of these disputes that are not subject to arbitration will be resolved exclusively in the state or federal courts in Los Angeles County, California, and You and Arcana both consent to venue and personal jurisdiction in these courts. If You are a consumer residing in the European Union, this clause and these terms in general do not affect any mandatory consumer rights You may have under Your local law, and all disputes arising in connection with the services and/or these terms shall be submitted to the exclusive jurisdiction of the court of Amsterdam, the Netherlands or, if You are a consumer, to a court closer to Your domicile if in an EU Member State.
iii.
Agreement to Arbitrate. IF YOU’RE A U.S. RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS. PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT:
⦁ You and Arcana agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. Except for the circumstances described below, and only after the parties have engaged in a good-faith, but unsuccessful, effort to resolve the dispute in accordance with the “Informal Resolution” process (above), You and Arcana agree to resolve any dispute, disagreement, or claim relating to these terms or our services through final and binding arbitration in Los Angeles County where You reside. This includes claims that arose, were asserted, or involve facts occurring before the existence of this arbitration agreement or any prior agreement as well as claims that may arise after the termination of this arbitration agreement, in accordance with the notice and “Opt-out” provisions set forth below.
iv.
Arbitration rules. The arbitration will be conducted by a single arbitrator, governed by these terms and the American Arbitration Association Rules, excluding any rules or procedures governing or permitting class or representative actions (the “AAA Rules”), available at https://www.adr.org/active-rules. These terms will govern if there’s a conflict between these terms and the AAA Rules. To begin the arbitration proceeding, either party must submit a written Demand for Arbitration (available at www.adr.org) with the AAA and provide a copy to the other party as specified in the AAA Rules. To provide notice to Arcana, please send an email with the subject line “Arbitration Demand” to disputes@arcanalabs.ai. If the amount in controversy does not exceed $10,000, and You do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents You and Arcana submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.
v.
Arbitration Costs. AAA sets forth fees for its services, which are available at https://www.adrservices.com/rate-fee-schedule/. If Arcana is the party initiating an arbitration against You, Arcana will pay all costs associated with the arbitration, including the entire filing fee. If You initiate an arbitration against Arcana, You will be responsible for the first $100 toward the nonrefundable Initial Filing Fee, unless the arbitrator determines that You are unable to pay, in which case Arcana will pay the entire filing fee. For cases seeking less than $75K, Arcana will pay the remainder of the Initial Filing Fee and both parties’ Administrative fees (unless the arbitrator finds Your claims, defenses, or other fee-generating activity to be conducted for an improper purpose or frivolous (under the standard set forth in Federal Rule of Civil Procedure 11). For cases seeking more than $75K, fees and costs will be determined in accordance with AAA Rules. In all arbitrations, unless otherwise required by law or the AAA Rules, You’re responsible for all other additional arbitration costs incurred, including attorney’s fees and expert witness costs. The parties agree that AAA has discretion to modify the amount or timing of any administrative or arbitration fees due under AAA’s Rules where it deems appropriate, provided that such modification does not increase the costs to You, and You waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by AAA does not constitute a default, waiver, or breach of this Section while such challenge remains pending before AAA, the arbitrator, and/or a court of competent jurisdiction.
vi.
Offer of Judgment. At least 14 days before the date set for an arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms. If the offer made by the offering party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party will not recover its post-offer costs and will pay the offering party’s costs from the time of the offer.
vii.
Arbitration Decision. The decision of the arbitrator will be in writing and binding on You and Arcana, and judgment to enforce the decision may be entered by any court of competent jurisdiction. You and Arcana agree that dispositive motions will be allowed in the arbitration. Except as explicitly set forth in this arbitration section, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these terms of service, including, but not limited to any claim that all or any part of these terms of service are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of AAA or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator must follow these terms and can award the same damages and relief as a court. The arbitrator has the right to impose sanctions in accordance with the AAA Rules and procedures for any frivolous claims, improper claims, or submissions the arbitrator determines have not been filed in good faith, as well as for a party's failure to comply with this Section or claims filed on behalf of a claimant who is not party to this agreement. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
viii.
Mass Filings. If, at any time, 30 or more similar demands for arbitration are asserted against Arcana or related parties by the same or coordinated counsel or entities (“Mass Filing”), these additional rules will apply:
⦁ If You or Your counsel file a demand for arbitration that fits within the definition of Mass Filing, You agree that Your demand for arbitration will be subject to the additional protocols set forth in this mass filing subsection.
⦁ Bellwether proceedings are encouraged by courts and arbitration administrators when there are multiple disputes involving similar claims against the same or related parties. You and Arcana agree to jointly ask the arbitrator to agree to the following procedures: The arbitrator will randomly assign sequential numbers to each of the claims included in a Mass Filing, after which the claims numbered 1-10 will be designated the “Initial Test Cases” and will proceed to arbitration. The Parties agree to decide on a single arbitrator for all Initial Test Cases and to consolidate the cases for pre-hearing procedures and the pre-hearing conference. Unless the claims are resolved in advance or the schedule is extended, the arbitrator will render final awards for the Initial Test Cases within 120 days of the initial pre-hearing conference. If fewer than 5 Initial Test Cases resolve without a final decision of the arbitrator because they are resolved in advance, cases will be selected in batches of 10 and will proceed to arbitration until at least 5 have been resolved by a final arbitrator decision. The arbitrator’s decisions for the Initial Test Cases shall be in writing and shall contain the essential findings and conclusions of fact and law upon which the arbitrator based the decision.
⦁ The results of the Initial Test Cases resolved by a final arbitrator decision will then be given to a mediator who will try to facilitate a resolution of the remaining cases. After the results are provided to the mediator, the mediator and the parties will have 90 days (the “Mediation Period”) to agree on a resolution or substantive methodology for resolving the outstanding cases. If the parties are unable to resolve the outstanding claims during the Mediation Period, either Party may choose to opt out of the arbitration process and proceed in court with its remaining claims. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. Opt out of arbitration under this section shall not be construed as opt out of the section titled “Class Waiver” below.
⦁ Absent notice of an opt-out, the arbitrations will proceed in the order determined by the sequential numbers assigned to claims in the Mass Filing.
⦁ If Your demand for arbitration is included in the Mass Filing, any statute of limitations applicable to Your claims will remain tolled until Your demand for arbitration is decided, withdrawn, or is settled.
ix.
Other Remedies. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. In some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND ARCANA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW. You may, in arbitration, seek any and all remedies otherwise available to You pursuant to Your state’s law.
x.
Opt-out. You can decline this agreement to arbitrate by emailing an opt-out notice to arbitration-opt-out@arcanalabs.ai within 30 days of the Effective Date or when You first register Your Arcana account, whichever is later, otherwise You shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If You opt out of these arbitration provisions, Arcana also will not be bound by them.
xi.
Exceptions. You or Arcana may still pursue claims, if they qualify, in small claims court in Los Angeles County, California, or any U.S. county where You live or work. The small claims court, and not any arbitrator or AAA, shall have the exclusive authority to resolve disputes regarding whether a dispute is properly within the jurisdiction of a small claims court. Additionally, disputes concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of our services will not be subject to arbitration. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed (and any applicable statute of limitations tolled) pending the outcome of such action.
xii.
Class Waiver. IF YOU’RE A U.S. RESIDENT, EXCEPT AS PROVIDED HEREIN, YOU AND ARCANA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, UNLESS ARCANA PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING. If this specific paragraph is found unenforceable, then the “Agreement to Arbitrate” section will be null and void. If there is a final judicial determination that applicable law precludes enforcement of this paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies. This subsection does not prevent You or Arcana from participating in a class-wide settlement of claims.
xiii.
Changes to this Dispute Section: Arcana will provide 30 days’ notice of the date of any material changes to this clause. Changes will become effective on the 30th day and apply to all claims not yet filed. If You continue to use the site after the 30th day, You agree that any unfiled claims of which Arcana does not have actual notice are subject to the revised clause. If You reject any such changes by opting out of the arbitration agreement, You may exercise Your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the arbitration agreement will not apply to claims not yet filed. If Arcana changes this “Dispute Resolution” section after the date You first accepted this agreement (or accepted any subsequent changes to this agreement), You agree that Your continued use of the Arcana product(s) or services 30 days after such change will be deemed acceptance of those changes. If You do not agree to such change, You may opt out by providing notice as described in this section.
