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DFS LMS Terms of Use
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<br />January 29, 2021
<br />WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT
<br />REVIEW OF AN ARBITRATION AWARD IS LIMITED.
<br />The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-
<br />applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules
<br />are available at http://www.adr.org/. The arbitrator will, among other things, have the power to rule on his or
<br />her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration
<br />agreement or to the arbitrability of any Claims. Payment of all filing, administration and arbitrator fees shall be
<br />governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single
<br />independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, depending
<br />upon your location, in accordance with the following: (a) if your pertinent place of business is in the U.S, legal
<br />action shall be commenced in federal court with jurisdiction applicable to, or state court located in, either
<br />Snohomish County, Washington or the location of your principal place of business; or (b) if your pertinent
<br />place of business is outside the U.S., the dispute shall be submitted to and finally resolved by
<br />arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC”). The number of
<br />arbitrators shall be one, selected in accordance with the ICC rules, unless the amount in dispute exceeds the
<br />equivalent of U.S. $5,000,000, in which event it shall be three. When three arbitrators are involved, each
<br />party shall appoint one arbitrator, and those two shall appoint the third within 30 days, who shall be the
<br />Chairman. The seat, or legal place, of arbitration, shall be London, England. The arbitration shall be
<br />conducted in English. In reaching their decision, the arbitrators shall give full force and effect to the intent
<br />of the parties as expressed in this TOU, and if a solution is not found in the Agreement, shall apply the
<br />governing law of this TOU. The decision of the arbitrator(s) shall be final and binding upon both parties,
<br />and neither party shall seek recourse to a law court or other authority to appeal for revisions of the decision.
<br />The decision of the arbitrator on all matters relating to the Claim shall be final and binding. Judgment on the
<br />arbitral award may be entered in any court of competent jurisdiction.
<br />WE EACH AGREE THAT ALL CLAIMS AND DISPUTES INVOLVING THE PARTIES SHALL BE
<br />RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR
<br />REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS AND EXPRESSLY WAIVE ANY
<br />RIGHT TO HAVE A CLAIM DETERMINED OR RESOLVED ON A CLASS, COLLECTIVE, CONSOLIDATED OR
<br />REPRESENTATIVE BASIS. IF FOR ANY REASON THE PROVISIONS OF THE PRECEDING SENTENCE ARE
<br />HELD TO BE INVALID OR UNENFORCEABLE IN A CASE IN WHICH CLASS, COLLECTIVE, CONSOLIDATED
<br />OR REPRESENTATIVE CLAIMS HAVE BEEN ASSERTED, THE PROVISIONS OF THIS SECTION 19
<br />REQUIRING BINDING ARBITRATION SHALL LIKEWISE BE UNENFORCEABLE AND NULL AND VOID. IF FOR
<br />ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY
<br />RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF
<br />COMPETENT JURISDICTION IN EVERETT, WASHINGTON. YOU HEREBY SUBMIT TO THE
<br />PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE
<br />GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY
<br />SUCH CLAIM.
<br />Notwithstanding anything to the contrary, you and DFS may seek injunctive relief and any
<br />other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights,
<br />whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration
<br />procedures set forth in this Section 19.
<br />If the arbitration agreement in this Section 19 does not apply to a given Claim, you agree that any
<br />litigation of that Claim (whether in small claims court or otherwise) shall be subject to the exclusive
<br />jurisdiction and will be interpreted and construed in accordance with the laws of (a) the State of
<br />Washington if your invoiced place of business is in the U.S., Canada or Mexico; or (b) England and Wales if
<br />your invoiced place of business is outside the U.S., Canada or Mexico in either case without giving effect to
<br />any choice of law rules that would cause the application of laws of any other jurisdiction.
<br />If DFS implements any material change to this Section 19, such change shall not apply to any Claim
<br />for which you provided written notice to DFS before the implementation of the change
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