TERMS AND CONDITIONS
Your access and use of the web sites on which these terms reside (including, without limitation, versions of such websites optimized for mobile) (collectively, the "Site"), and the content and services at this Site are subject to these Terms of Use (or “Terms”), which we may update from time to time.
Please read these Terms carefully before accessing or using this Site. The Site is owned or controlled by Jollyre LLC (or "Jollyre"). By accessing or using this Site in any way, including, without limitation, browsing this Site, using any services, and/or submitting information to Jollyre, you agree to and are bound by the terms, conditions, policies and notices contained in these Terms, including, but not limited to, conducting this transaction electronically, disclaimers of warranties, damage and remedy exclusions and limitations, binding arbitration, a jury trial waiver, and a choice of Maryland law. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court.
The terms "we," "us" and "our" refer to Jollyre and any of our affiliated companies as appropriate to the context. "You" refers to any person accessing or using the Site. You and we are each referred to as “party” and are together referred to as “parties.”
From time to time we may update this Site and these Terms. Your access and use of this Site after we post any changes to these Terms constitutes your agreement to those changes. You agree to review these Terms periodically to ensure that you are familiar with the most recent version. Jollyre may, in its sole discretion, and at any time, discontinue this Site or any part thereof, with or without notice, or may prevent your use of this Site with or without notice to you. You agree that you do not have any rights in this Site and that Jollyre will have no liability to you if this Site is discontinued or your ability to access the Site or any content you may have posted on the Site is terminated.
Jollyre Content
Content on this Site that is provided by Jollyre or its licensors, including certain graphics, photographs, images, screen shots, text, digitally downloadable files, trademarks, logos, product and program names, slogans, and the compilation of the foregoing ("Jollyre Content") is the property of Jollyre and its licensors, and is protected under trademark, copyright, and other intellectual property laws. Nothing contained on this Site should be construed as granting any license or right to download or use any Jollyre Content.
You agree not to download, display or use any Jollyre Content located on the Site for any commercial or non-commercial purpose, in connection with products or services that are not those of Jollyre in any other manner that is likely to cause confusion among consumers, that disparages or discredits Jollyre and/or its licensors, that dilutes the strength of Jollyre's or its licensor's property, or that otherwise infringes Jollyre's or its licensors intellectual property rights. You further agree to in no other way misuse any Jollyre Content that appears on this Site.
Use of the Site and Posting Policy
The following requirements apply to your use of the Site: (a) you will not use any electronic communication feature of the Site for any purpose that is unlawful, tortious, abusive, intrusive on another's privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, or hateful, all as determined by Jollyre in its sole and absolute discretion; (b) you will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights; (c) you will not collect or store personal data about other users; (d) you will not use the Site for any commercial purpose not expressly approved by Jollyre in writing; (e) you will not upload, post, email, or otherwise transmit any advertising or promotional materials or any other form of solicitation or unauthorized communication via the Site; and (f) you will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of the Site or any computer software or hardware or telecommunications equipment.
From time to time on certain areas of our Site you may be able to submit product reviews, questions, written posts/responses, images, and certain other materials ("User Content"). By using these features, you agree that you will not submit or post any content that is unlawful, harmful, tortious, defamatory, libelous, obscene, invasive of the privacy of another person, threatening, harassing, abusive, hateful, racist, infringing, pornographic, violent or otherwise objectionable or inappropriate as determined by Jollyre; that you will not submit or post any content that contains personal information about any individual, violates the privacy/publicity of any other individual or entity, or includes anything that you are under a contractual obligation to keep private or confidential; that you will not impersonate any person or organization, including without limitation, the personnel of Jollyre, or misrepresent an affiliation with another person or organization; and that you will not submit or post any content that contains viruses, corrupted files, or any other similar software or programs that may adversely affect the operation of the Site, or feature of the Site.
You further understand and agree that you have no ownership rights to any account you may have with us or other access to the Site, your User Content, or other features therein. Jollyre may cancel your account and delete all User Content associated with your account at any time, and without notice, if Jollyre deems that you have violated these Terms, the law, or for any other reason. Jollyre assumes no liability for any information removed from our Site, and reserves the right to permanently restrict access to the Site or a user account. For greater certainty, and without limiting the effect of the foregoing, Jollyre reserves the right, in its sole and absolute discretion, to modify, edit or remove any User Content, or to request a user to modify or edit his or her User Content, if a complaint or notice of allegedly infringing materials is received with respect to the User Content, or for any other reason.
By displaying, publishing, submitting or otherwise posting any User Content on or through the Site, you hereby irrevocably grant to Jollyre a non-exclusive, fully sub-licensable, non-revocable, perpetual, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, broadcast, publish, reproduce, and distribute such User Content in any and all media now known or hereinafter developed without the requirement to make payment to you or to any third party or the need to seek your or any third party permission. Further, you waive all moral rights in and to all User Content that you post, upload or otherwise submit to or through, the Site in favor of Jollyre This license and waiver of rights includes the right to host, index, cache, distribute, and tag any User Content, as well as the right to sublicense User Content to third parties, including other users, for use on other media or platforms known or hereinafter developed, such as for use on mobile phones, or in video, music, software or other computer programs.
You continue to retain all ownership rights you hold in your User Content, and you retain any right to use your User Content in any way you choose, subject to these Terms and the license described herein. You represent and warrant that you own all of the User Content submitted, displayed, published or posted by you on the Site and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any content you submit, and our use thereof does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity.
You agree to indemnify and hold Jollyre, its parents, subsidiaries, officers, employees, and website contractors and each of their officers, employees and agents harmless from any claims, damages and expenses, including reasonable attorneys' fees and costs, related to your violation of these Terms, including the above Posting Policy, or any violations thereof by your dependents or agents, or which arises from the use of any content including User Content that you submitted, posted, or otherwise provided to Jollyre or this Site.
Intellectual Property Infringement Notification
If you are a trademark or copyright owner and you believe that your rights have been violated in any way, please contact us and request the Proprietary form, complete it and submit a signed copy by email to Copyright@Jollyre.com. Our agent information is provided pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2).
Rules for Promotions
Any sweepstakes, contests, or other promotions (collectively, “Promotions”) made available through the Site may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable Official Rules as well as our Privacy Policy. If the Official Rules for a Promotion conflict with these Terms, the Promotion Official Rules will apply.
Accounts, Passwords, and Security
Certain areas of the Site require registration or otherwise ask you to provide information to participate in certain features or access certain content. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of the Site.
If the Site requires you to create an account or otherwise submit information, you must complete the specified process by providing us with current, complete, and accurate information as requested by the applicable registration form. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data, and any loss caused by your failure to do so is your responsibility. During the registration process, you will be asked to enter your name and valid e-mail address and choose a password. It is entirely your responsibility to maintain the confidentiality of your password and account. Additionally, you are entirely responsible for any and all activities that occur under your account. You agree to notify Jollyre immediately of any unauthorized use of your account. You further agree not to email, post, or otherwise disseminate any user ID, password, or other information which provides you access to the Site. Jollyre is not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge, and is not responsible for any delay in shutting down your account after you have reported a breach of security to us.
Use of Credit Card
If you wish to purchase any product or service made available through the Site, you may be asked to supply certain information relevant to your transaction, including without limitation your credit card number, the expiration date of your credit card, your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant us or the third party collecting that information on our behalf the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any transaction.
Terms of Sale
Jollyre currently ships to locations within the 50 United States and Puerto Rico. At this time, Jollyre is unable to ship to any other international locations outside of the United States. To learn more, visit Jollyre’s Return Policy available on the Site. Orders already in the shipping process cannot be modified. Jollyre charges sales tax for merchandise ordered on the Site based on the applicable state sales tax rate of the location to which the order is being shipped. Payment conducted via the PayPal site and using PayPal services are subject to the terms and conditions set by PayPal.
Despite our best efforts, occasional pricing and other errors may occur on the Site. Access to the Site does not constitute the right to purchase products featured. Jollyre is not responsible for typographical, pricing or other errors. Products and prices of products described on the Site are subject to change at any time without notice. Jollyre reserves the right to revise pricing and other errors and to cancel any order you have placed if there was an error concerning the price or availability of any item you ordered when you placed the order, even if you have received an order confirmation. If your credit card has already been charged for the purchase and your order is cancelled, Jollyre will issue a credit to your credit card account in the amount of the charge. Individual bank policies will dictate when this amount is credited to your account. Jollyre reserves the right to limit quantities of products purchased.
Jollyre undertakes reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors.
A valid Visa, MasterCard, Discover or American Express credit card number is required for payment. Separate charges for shipping and handling will be added to the price of the products ordered. Title to all products and risk of loss or damage will pass to the buyer upon shipment from Jollyre
It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws in regard to the possession, use, and sale of any item purchased from the Site. By placing an order, you represent that the products ordered will be used only in a lawful manner.
Representations and Limitations of Liability
To the extent permitted by the applicable law, Jollyre makes no representations about the reliability of the features of this Site, the Jollyre Content, User Content, or any other Site feature, and disclaims all liability in the event of any service failure. You acknowledge that any reliance on such material or systems will be at your own risk. Jollyre makes no representations regarding the amount of time that any Jollyre Content or User Content will be preserved.
Jollyre does not endorse, verify, evaluate, or guarantee any information provided by users and nothing shall be considered as an endorsement, verification or guarantee of any User Content. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which contain or suggest an endorsement by Jollyre without the prior review and written approval of Jollyre.
THIS SITE IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THIS SITE, OR ANY INFORMATION, CONTENT, MATERIALS OR PRODUCTS (INCLUDING SOFTWARE) THEREIN. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL JOLLYRE LLC (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, SUPPLIERS OR PROGRAMMERS) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (COLLECTIVELY, "DAMAGES") THAT RESULT FROM THE USE OF OR INABILITY TO USE THIS SITE OR ANY PRODUCTS OR SERVICES AVAILABLE THEREON, NOR SHALL JOLLYRE LLC BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND JOLLYRE’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THIS SITE'S RECORDS, PROGRAMS, OR SERVICES. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL JOLLYRE OR ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DAMAGE OF ANY KIND THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SITE, EVEN IF JOLLYRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU DOWNLOAD ALL MATERIAL AT YOUR OWN RISK. IN ADDITION, JOLLYRE WILL NOT BE LIABLE FOR ANY DAMAGE OF ANY KIND THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, ANY THIRD-PARTY WEBSITES AS REFERENCED BELOW, EVEN IF JOLLYRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES; AS A RESULT, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN WHOLE OR IN PART AND THE FOREGOING PARAGRAPH SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF JOLLYRE'S NEGLIGENT, FRAUDULENT, OR RECKLESS ACT(S) OR INTENTIONAL MISCONDUCT.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT NOTICE OF ANY CLAIM MUST BE PROVIDED WITHIN 180 DAYS OR IT IS OTHERWISE WAIVED AND TIME BARRED.
ANY PRODUCTS AND/OR SERVICES DESCRIBED ON THE SITE ARE OFFERED IN JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED FOR SALE. THE INFORMATION ON THE SITE IS NOT AN OFFER OR SOLICITATION TO ANYONE IN ANY JURISDICTION IN WHICH AN OFFER OR SOLICITATION CANNOT LEGALLY BE MADE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE A SOLICITATION.
Third Party Websites
This Site may hyperlink to sites not maintained by or related to Jollyre. Such hyperlinks are provided as a service to users and are not sponsored by or affiliated with this Site or Jollyre, and Jollyre does not endorse and makes no representations or warranties about the content, completeness, or accuracy of those third-party sites. Information you submit at a third-party site accessible from this Site is subject to the terms of that site's privacy policy, and Jollyre has no control over how your information is collected, used, or otherwise handled.
Jurisdiction
The Site is controlled and operated by Jollyre from within the United States and is not intended to subject Jollyre to the laws or jurisdiction of any country other than that of the United States. We may limit the availability of the Site, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion. These Terms will be governed by and construed in accordance with the laws of the state of New Mexico, USA without regard to conflicts of laws principles. Unless you and Jollyre agree otherwise, to the fullest extent permitted by applicable law, the state and federal courts of Howard County, Maryland will have exclusive jurisdiction over any disputes (except for disputes brought in small claims court) that are not subject to arbitration or over any action involving the applicability or enforceability of the dispute resolution provision or any of its parts. You and Jollyre consent to the jurisdiction of those courts and waive any objections as to personal jurisdiction or as to the laying of venue in such courts based on inconvenient forum or any other basis or any right to seek to transfer or change venue of any such action to another court.
Dispute Resolution Including Binding Arbitration
For purposes of this Dispute Resolution section, references to “Jollyre” or “we” include our past, present, and future parents, subsidiaries, affiliates, and related entities, as well as Jollyre’s and all of those entities’ officers, agents, employees, licensors, predecessors in interest, successors, and assigns. To the fullest extent permitted by applicable law, you and Jollyre agree to arbitrate any dispute, controversy or claim arising out of or relating to the Site, access or use of the Site, these Terms and/or the Privacy Policy, and/or your relationship with Jollyre, except for claims related to bodily injury or death (“Dispute”). Dispute includes but is not limited to: (a) claims that arose before the existence of these or any prior Terms (including, but not limited to, claims related to advertising); (b) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (c) claims that may arise after the termination of these Terms. Dispute shall be interpreted broadly. Notwithstanding the foregoing, you or Jollyre may elect to have a claim heard in small claims court, so long as the case qualifies for that court and proceeds on an individual (non-class, non-representative) basis and remains in that court and is not removed or appealed to a court of general jurisdiction. You and we agree that these Terms reflect a transaction in interstate commerce and thus, the Federal Arbitration Act governs the interpretation and enforceability of these arbitration provisions. These arbitration provisions shall survive termination of these Terms.
Step One: Mandatory Informal Dispute Resolution Process
Jollyre is committed to resolving any issues that may arise between you and us through customer service. In the unlikely event that a Dispute cannot be resolved through customer service, you and we agree to engage in good faith in this mandatory informal dispute resolution process for sixty (60) days (which can be extended by the parties) before you or we may initiate an arbitration or a small claims court proceeding. To start this process, you or we must send the other party a written notice that must include all of the following information: (a) the claimant’s name, address, phone number, and email address; (b) a detailed description of the nature and basis of the claims, including information about any underlying transaction; (c) a detailed description of the nature and basis of the relief sought including any damages sought (and a calculation for them); and (d) the personal signature of the claimant (“Notice”). If a notice is incomplete, you and we agree that this process will not commence until all the required information is provided. If you send us a Notice, you will send it to us at Jollyre LLC, 500 4th St NW Suite 102 PMB 2698, Albuquerque, NM 87102, Attn: Office of General Counsel. If we send you a Notice, we will send it to the contact information we have on file for you. The party sending the Notice must give the other party sixty (60) days after receipt of the Notice (with all required information) to investigate and seek to resolve the claim. If the party receiving the Notice makes a request for an individualized settlement discussion by phone call or video during this period, you and we agree to personally participate (with counsel, if represented). This discussion may take place, if necessary, after the sixty (60) day period has ended. Any applicable limitations period (including statute of limitations) will be tolled from the time a Notice is received through completion of this process. An arbitration proceeding may not be commenced until after the Mandatory Informal Dispute Resolution Process has ended. All of the provisions of the Mandatory Informal Dispute Resolution Process are essential so that you and Jollyre have a meaningful chance to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction can enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by applicable law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with such an arbitration. If the arbitration is pending, it must be administratively terminated without prejudice.
Step Two: Individual Arbitration
(a) Arbitration Procedures
The arbitration will be governed by applicable rules of National Arbitration & Mediation (including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) (“NAM Rules”), as modified by these arbitration provisions, and will be administered by NAM. (If NAM is unavailable or unwilling to do so, the arbitration will be administered by American Arbitration Association (“AAA”) under its applicable Consumer Arbitration Rules (including the Supplementary Rules) (“AAA Rules”) as modified by these arbitration provisions.) (If the AAA is unavailable or unwilling to do so, then an arbitration provider shall be selected by the parties that will do so, or if the parties are unable to agree on an alternative administrator, by the court pursuant to 9 U.S.C. § 5.) The NAM Rules are available at www.NAMADR.org, by calling NAM at 1-800-358-2550. The AAA Rules are available at www.adr.org.
You may obtain a form to initiate arbitration at: https://www.namadr.com/content/uploads/2020/09/Comprehensive-Demand-for-Arb-revised-9.18.19.pdf or by contacting NAM (If the arbitration is being administered by the AAA or another administrator, the relevant form is made available through them.) You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Informal Pre-Dispute Resolution Process requirements referenced in Step One and that they are a party to the arbitration agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).
All issues are for the arbitrator to decide, except as otherwise expressly provided herein and except as to issues relating to the scope and enforceability of the arbitration provisions or whether a dispute can or must be brought in arbitration (including whether a dispute is subject to these arbitration provisions or a previous arbitration agreement between you and Jollyre), which are for a court of competent jurisdiction to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different consumers.
Unless we and you agree otherwise, or the applicable NAM Rules (or the AAA Rules) dictate otherwise, any arbitration hearings will take place at a location reasonably convenient to you, such as the county (or parish) where you reside, or at such other location as may be mutually agreed upon by both Jollyre and you. If a hearing takes place, you and Jollyre agree to personally attend (with counsel, if represented). At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s decision is binding only between you and Jollyre and will not have any preclusive effect in another arbitration or proceeding that involves a different party. The arbitrator shall apply the cost-shifting provisions of Federal Rule of Civil Procedure 68 after entry of an award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
As in court, you and Jollyre agree that any counsel representing you or Jollyre in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the NAM Rules (or the AAA Rules), Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in these arbitration provisions, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys’ fees and costs, in accordance with applicable law. Unless otherwise provided by applicable law, the parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
(b) Arbitration Fees
The payment of arbitration fees (the administrative fees imposed by the arbitration administrator, including filing, arbitrator, and hearing fees) will be governed by the NAM Rules (or the AAA Rules). Notwithstanding the foregoing, Jollyre will pay any arbitration fees that arbitrator rules are necessary to ensure arbitration is not cost prohibitive as compared to court unless the arbitrator determines that your claim is frivolous, brought for an improper purpose, or brought in bad faith. You and we agree that the arbitration should be cost-effective for all parties and that any party may engage with NAM (or the AAA) to address the reduction or deferral of fees.
(c) Requirement of Individualized Relief
The arbitrator may award declaratory or 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. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief; class, representative, and private attorney general claims; and consolidation are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), then the parties agree such a claim or request for relief shall be decided by a court of competent jurisdiction, after all other arbitrable claims and requests for relief are arbitrated.
(d) Mass Filings
If 25 or more claimants submit Notices or seek to file arbitrations raising similar claims and are represented by the same or coordinated counsel or are otherwise coordinated (whether such cases are pursued simultaneously or not), all the cases must be resolved in staged proceedings. You agree to this process even though it may delay the arbitration of your claim. In the first stage, claimants’ counsel and Jollyre will each select 25 cases (50 cases total) to be filed in arbitration and resolved individually by different arbitrators. If there are fewer than 50 cases, all will be filed in arbitration. In the meantime, no other cases may be filed or proceed in arbitration, and NAM (or the AAA) must not assess or demand payment of fees for the remaining cases or administer or accept them. The arbitrators are encouraged to resolve the cases within 120 days of appointment or as swiftly as possible thereafter, consistent with fairness to the parties. After the first stage is completed, the parties will engage in a single mediation in connection with all remaining claims, and Jollyre will pay the mediation fee. If the parties cannot agree how to resolve the remaining claims after mediation, they will repeat the process of selecting and filing 50 cases to be resolved individually by different arbitrators, followed by a single mediation.
If any claims remain after the second stage, the process will be repeated until all claims are resolved, with four differences. First, a total of 100 cases (or more by agreement of the parties’ counsel) may be filed in the third and later stages. Second, the cases will be randomly selected. Third, arbitrators who decided cases in the first two stages may be appointed in later stages if different arbitrators are not available. Fourth, mediation is optional at the election of counsel for the claimants. Between stages, counsel will meet and confer regarding ways to improve the efficiency of the staged proceedings, including whether to increase the number of cases filed in each stage to ensure that arbitration remains efficient and cost-effective for all parties.
Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Mandatory Informal Pre-Dispute Resolution Process is initiated, so long as the notice provided complies with all of the requirements for a Notice, until your claim is selected to proceed as part of a staged process or is settled, withdrawn, or is otherwise resolved. A court of competent jurisdiction will have the authority to enforce this Mass Filings provision, including by enjoining the mass filing, the prosecution or administration of arbitrations, or the assessment or collection of arbitration fees.
This Mass Filings provision and each of its requirements are intended to be severable from the rest of these arbitration provisions. If, after exhaustion of all appeals, a court decides that the staging process in this subsection is not enforceable, then the cases may be filed in arbitration and the payment of NAM (or the AAA) arbitration fees will be assessed as the arbitrations advance and arbitrators are appointed rather than when the arbitrations are initiated.
(e) Opt Out of Changes
Notwithstanding any provision to the contrary, if Jollyre makes any future change to these arbitration provisions (other than a change to our notice address), you may reject any such change by sending written notice to Jollyre at Jollyre LLC, 500 4th St NW Suite 102 PMB 2698, Albuquerque,NM 87102
Attn: Office of General Counsel, within 30 days of notice of the change. You must provide your name, address, phone number, and email address in such notice. Such an opt-out notice must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to reject the change to the arbitration provisions. This is not an opt out of arbitration altogether.
(f) Severability
If any portion of these arbitration provisions is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible. The remainder of the arbitration provisions shall continue to be enforceable and valid according to the terms contained herein.
Class Action Waiver and Jury Trial Waiver
You and Jollyre agree that, to the fullest extent permitted by applicable law, each party may bring claims (whether in court or in arbitration) against the other 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. This means that you and Jollyre may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. This also means that you and Jollyre may not participate in any class, collective, consolidated, private attorney general, or representative proceeding brought by any third party. Notwithstanding the foregoing, you or Jollyre may participate in a class-wide settlement.
To the fullest extent permitted by applicable law, you and Jollyre also agree to waive any right to a trial by jury.
Miscellaneous
Both you and Jollyre acknowledge and agree that no partnership is formed and neither of you nor Jollyre has the power or the authority to obligate or bind the other.
On certain areas of our Site, you may be given the ability to provide us with personally identifiable information. Please read our Privacy Policy for more information about our information collection and use practices.
The failure of Jollyre to comply with these Terms because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state, or local governmental authorities or for any other reason beyond the reasonable control of Jollyre, shall not be deemed a breach of these Terms.
If Jollyre fails to act with respect to your breach or anyone else's breach on any occasion, Jollyre is not waiving its right to act with respect to future or similar breaches.
Except as specifically provided herein, if any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
These Terms constitute a binding agreement between you and Jollyre, and are accepted by you upon your access, use of the Site or your account. These Terms constitute the entire agreement between you and Jollyre regarding the access or use of the Site and your account. By accessing or using the Site you represent that you are capable of entering into a binding agreement, and that you agree to be bound by these Terms.
If you breach any provision of these Terms or our Privacy Policy, you may no longer use the Site. We may, in our sole discretion, change, suspend or terminate, temporarily or permanently, the Site or any part thereof or any of its features at any time, for any reason, without any notice or liability to you or any other entity. If these Terms or your permission to use the Site is terminated by us for any reason, the agreement formed by your acceptance of these Terms will nevertheless continue to apply and be binding upon you in respect of your prior use of the Site and anything relating to or arising from such use. If you are dissatisfied with the Site or with these Terms or Privacy Policy, then your sole and exclusive remedy is to discontinue accessing or using the Site. The Jollyre Content, Representations, and Limitations of Liability, Indemnity Jurisdiction and Miscellaneous provisions in this agreement shall survive any termination of this agreement.