Dispute Resolution Policy
This Dispute Resolution Policy (the “Policy”) is incorporated into the Agent Agreement (the “Agreement”) between AppDirect and Technology Advisor referenced therein. All capitalized terms not defined in this Policy have the meaning assigned to them in the Agreement.
- Dispute Resolution. In the event of any dispute, claim, question or disagreement arising from or relating to the Agreement (including the Service Terms) or the breach thereof, the Parties shall use their best efforts to settle the dispute, claim, question or disagreement. To this effect, the parties shall consult and negotiate with one another in good faith, in an attempt to reach a just and equitable solution, satisfactory to all parties. If informal resolution of the dispute, claim, question or disagreement cannot be reached, disputes that are within the jurisdictional maximum for small claims will be settled in the Small Claims Court in the jurisdiction in which services were primarily performed. With regard to other disputes, AppDirect and Technology Advisor mutually agree to resolve any justiciable disputes between them exclusively through final and binding arbitration instead of a court or jury trial. This agreement to arbitrate is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and shall apply to any and all claims arising out of or relating to the Agreement, the Technology Advisor’s classification as an independent contractor, Technology Advisor’s provision of services to AppDirect, the payments received by Technology Advisor for providing services to AppDirect, the termination of this Agreement, and all other aspects of Technology Advisor’s relationship with AppDirect, past, present or future, whether arising under federal, state or local statutory and/or common law.
- Initiation. If either Party wishes to initiate arbitration, the initiating Party must notify the other Party in writing via certified mail, return receipt requested, within the applicable statute of limitations period. This demand for arbitration must include (a) the name and address of the Party seeking arbitration, (b) a statement of the legal and factual basis of the claim, and (c) a description of the remedy sought. Any demand for arbitration shall be delivered to the address indicated pursuant to the notice terms of the Agreement.
- Process. If the Parties can not otherwise mutually agree upon an arbitrator, any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (the “AAA Rules”), except as follows: (a) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be an attorney with experience in the law underlying the dispute or a retired judge; (b) If the Parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place in the county and state in which the services were primarily performed; (c) Each Party will pay the fees for its own attorneys, subject to any remedies to which that Party may later be entitled under applicable law. However, in all cases where required by law, AppDirect will pay the arbitrator’s and arbitration fees. If under applicable law AppDirect is not required to pay all of the arbitrator’s and/or arbitration fees, such fees will be apportioned between the Parties in accordance with said applicable law, and any disputes in that regard will be resolved by the arbitrator; (d) The arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each Party to prepare that Party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes; (e) Except as provided Section 4 below, the arbitrator may award all remedies to which a Party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The arbitrator shall apply the state or federal substantive law, or both, as is applicable; (f) The arbitrator may hear motions to dismiss and/or motions for summary judgment, and will apply the standards of the Federal Rules of Civil Procedure governing such motions; (g) The arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. Judgment may be entered on the arbitrator’s decision or award in any court having jurisdiction; and (h) The AAA Rules may be found at www.adr.org or by searching for “AAA Commercial Arbitration Rules” using online search engines.
- Class Action Waiver. AppDirect and Technology Advisor mutually agree that by entering into the Agreement, both waive their right to have any dispute brought, heard or arbitrated as a class action, collective action and/or representative action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action. Notwithstanding any other clause contained in the Agreement or the AAA Rules, any claim that all or part of this class action waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (a) the dispute is filed as a class, collective, representative or private attorney general action, and (b) there is a final judicial determination that all or part of the class action waiver is unenforceable, the class, collective, representative and/or private attorney general action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the class action waiver that is enforceable shall be enforced in arbitration. The Agreement does not prevent the filing of charges with a government agency like the Department of Labor, NLRB, or the EEOC or participation in any investigation or proceeding conducted by a government agency.
- Government Agency. Nothing herein is intended to or shall preclude AppDirect or Technology Advisor from filing a complaint and/or charge with any appropriate federal, state or local government agency and/or cooperating with said agency in its investigation. Nonetheless, AppDirect and Technology Advisor acknowledge that to the fullest extent permitted by law they shall not be entitled to receive any private relief, recovery, or monies in connection with any governmental complaint or charge, without regard as to who brought said complaint or charge. All monetary relief will only be available through small claims court or arbitration.
- Enforcement and Review. Either Party may bring an action in a court of competent jurisdiction to compel arbitration under the Agreement, to enforce an arbitration award, or to review an arbitration award. In an action to review an award, the standard of review applied will be the same as that applied by an appellate court reviewing the decision of a trial court sitting without a jury, without any special deference to the arbitrator.
- Waiver of Trial by Jury. AppDirect and Technology Advisor expressly waive trial by jury for all claims covered by the Agreement. All other rights, remedies, exhaustion requirements, statutes of limitation and defenses applicable to claims asserted in a court of law will apply in the arbitration. AppDirect and Technology Advisor agree that arbitration as explained herein provides a fair and adequate mechanism for enforcing the Parties’ statutory rights.
- Independent Contractor. Technology Advisor agrees and acknowledges that entering into this arbitration agreement does not change Technology Advisor’s status as an independent contractor in fact and in law, and that Technology Advisor is not an employee of AppDirect notwithstanding this Policy.
- Severability. This Policy is the full and complete agreement relating to the formal resolution of disputes covered by the Agreement. In the event any portion of this Policy is deemed unenforceable, the remainder of this Policy will be enforceable.