Last modified: November 11, 2020
American Express Company, its subsidiaries and affiliates, including, without limitation, American Express Travel Related Services Company, Inc., (collectively, “American Express”, “we”, “our”, “us”) requires that anyone (“you”, “your”) that accesses and/or uses our: (i) telephone contact centers(s), (ii) website(s), (iii) mobile application(s), or (iv) any other digital or telephonic properties or services, each that provide travel content, products, or services (each, a "Travel Channel") adhere to the following rules (“Terms”). By accessing a Travel Channel, you indicate that you acknowledge and agree to these Terms, and any other terms and conditions provided on/through a Travel Channel or herein, including, without limitation, our Ticket Terms and Conditions and Other Important Notices and Terms of Service, each of which are incorporated herein and form part of these Terms.
1. SERVICE PROVIDERS
Certain content, products, and services available on/through a Travel Channel are provided by third parties, including, without limitation, travel suppliers that may include, without limitation, suppliers of air travel, lodging accommodations, car rental, cruises and tours (“Suppliers”) and other providers rendering services to us for purposes of a Travel Channel, collectively referred to herein as "Service Providers". Certain content, including, without limitation, software, data, and other information that may be found on or provided in conjunction with a Travel Channel may be the copyrighted property of Service Providers and other third parties. You are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works or using any Content available on or through a Site for commercial or public purposes.
In our role as a travel agent and provider of a Travel Channel, we act as an intermediary agent and independent third party between you and the Suppliers; no joint venture, partnership, employment, agency, representative, fiduciary or similar relationship exists between you and us, or any Service Provider, as a result of your use of our travel services, including, without limitation, a Travel Channel. We assist you in finding travel Suppliers and making certain arrangements for travel. We consider various factors in identifying travel Suppliers and recommending specific itineraries. We want you to be aware that certain Suppliers pay us commissions as well as incentives for reaching sales targets or other goals, and from time to time may also provide incentives to our travel consultants. Certain Suppliers may also provide compensation to us for various marketing and administrative services that we perform for them, such as granting them access to our marketing channels, participating in marketing programs, and supporting technology initiatives. In addition, we receive compensation from Suppliers when customers use their American Express® Card. From time to time we may enter into other business relationships with Suppliers and these arrangements, including levels and types of compensation and incentives that we receive, are subject to change. In identifying Suppliers and recommending itineraries, we may consider a number of factors, including, without limitation, Supplier availability and your preferences. The relationships we have with Suppliers may also influence the Suppliers we identify and the itineraries we recommend.
3. USE OF TRAVEL CHANNEL
You may only use a Travel Channel to make legitimate reservations or purchases for you or other persons for whom you are authorized to act, and you shall not use a Travel Channel for any other purposes, including, without limitation, making any speculative, false, fictitious or fraudulent reservation. You shall not: (i) use a Travel Channel or anything contained therein or provided in conjunction therewith for commercial purposes, (ii) use any "robot," "spider", or other automatic device, or a program, algorithm, or methodology having similar processes or functionality, or any manual process to monitor, scrape, copy, or republish any of the webpages, data, or content found on a Travel Channel, (iii) “frame,” “mirror,” or otherwise incorporate any part of a Travel Channel (or anything contained therein or provided in conjunction therewith) into any other website or application, or (iv) use a Travel Channel in violation of, or to violate, any law, rule, or regulation.
You shall not use, nor shall you permit any use of, a Travel Channel in conjunction with any of your activities or by anyone that resides, stays, or is accessing a Travel Channel from a country prohibited under U.S. export and/or Office of Foreign Assets Control regulations, including, without limitation, regulations based upon sanctions, country programs against, or embargoes. For more information regarding these regulations, visit www.treas.gov/ofac. You shall become unauthorized to use a Travel Channel in the event of a breach of these obligations, and you shall indemnify and hold harmless us and Service Providers for any breach of this section.
4. RESERVATION AND PURCHASE
You acknowledge and agree that additional terms and conditions dictated by applicable Suppliers and/or Service Providers shall apply to your reservation and/or purchase of products and services through a Travel Channel. You shall abide by such terms and conditions, including, without limitation, payment of all amounts when due and compliance with the applicable Service Provider terms, conditions, policies, rules, and restrictions. You understand that any violation of any such Service Provider terms, conditions, policies, rules, or restrictions, including, without limitation, timely payment, may result in: (i) you forfeiting any monies paid for such reservation or purchase, (ii) cancellation of your reservation or purchase, (iii) you being denied access to any flights, hotels, or any other products or services, and (iv) us debiting your account for any costs we incur as a result of such violation. You acknowledge and agree that: (i) Suppliers may change their prices without notice prior to reservation or purchase by you, and (ii) you shall be responsible for all charges, fees, duties, taxes, and assessments arising out of your use of a Travel Channel, including, without limitation, all reservations and purchases you make through a Travel Channel. You acknowledge that some Suppliers may require you to sign a liability waiver or other forms prior to using their services, and you understand that your unwillingness to do so may
result in a cancellation of your reservation(s), being denied access to the Supplier’s services, and forfeiting any monies paid for such reservation(s), in accordance with applicable Supplier terms and conditions. Through a Travel Channel you may make a reservation for a combination of two one-way air tickets instead of a roundtrip air ticket. Unlike roundtrip air tickets, each one-way ticket is subject to its own rules, restrictions, and fees. If one of these flights is affected by an airline change (e.g., cancellation or rescheduling) that causes a you to make changes to the other flight, you acknowledge that you shall be responsible for any fees incurred for making changes to the unaffected flight, including any difference in fare and change/cancellation penalties.
Your reservation/purchase may be non-refundable and non-cancellable. Any cancellation or change, if permitted, is subject to the policies of the Suppliers that you selected. At the time of reservation/purchase, your credit/charge card may be charged the total cost of the Supplier products and services that you selected, including taxes and fees (but excluding any mandatory hotel-imposed charges that may be applicable upon check out from the hotel). You may see separate charges on your credit/charge card statement (from American Express and from the Suppliers you selected). If applicable, certain mandatory hotel-imposed charges are payable to the property upon check-out (e.g., mandatory resort fees); any incidental charges that you make during your stay will be charged to you by the property upon check-out, including but not limited to parking, phone calls, internet access and room service. Some properties have age requirements; please check with the property for more information. Your reservation/purchase includes the products/services that you selected; therefore, if baggage, seat-selection, or similar ancillary items were not included in those products/services, additional Supplier fees may apply. If you purchased a flight, your flight is not confirmed until ticketed. Once ticketed, the name on the ticket cannot be changed and tickets are non-transferable. If permitted, changes to your reservation/purchase are subject to the policies of the Supplier that you selected. If permitted, and you choose to change your reservation/purchase, you may incur a change fee, any difference in the fare attributable to the change, and a US$39 American Express transaction fee (if applicable). If your reservation/purchase is with multiple Suppliers, and if cancellation is permitted by one Supplier and not the other, you will not be refunded for the portion of your trip for which cancellations are not permitted and you will be required to cancel your entire trip. If cancellation is permitted, you may incur a cancellation fee and a US$39 American Express transaction fee (if applicable). The amount of the cancellation fee will depend on the policies of the Supplier that you selected. Upon receipt, you are responsible for promptly reviewing your reservation/purchase confirmation/itinerary for accuracy and immediately notifying us of any errors.
In addition to the foregoing, for reservations/purchases of a cruise: You must have both: (i) a valid government-issued photo ID, such as a driver’s license, and (ii) proof of citizenship, such as a passport. The name on the documents must match the passenger’s name on the reservation. If you do not have the required documents, boarding will be denied. Requirements may vary by Supplier and destination; please contact the Supplier for the requirements of the cruise you selected. If you choose to reserve/purchase an air-inclusive cruise package, you acknowledge that: (i) the cruise line you have selected controls all flight arrangements, including, without limitation, choice of airlines, flight routing, and time schedules, and (ii) your travel documents, including flight itinerary, will be either emailed or mailed to you approximately two to three weeks prior to your departure date. Some air travel may be provided by a public charter; please refer to the operator-participant contract in your travel documents for additional information. The price of air travel may depend factors including, without limitation, date of departure, departure city, ship, cabin level, class of airfare, and availability.
5. AGE AND RESPONSIBILITY
You represent and warrant that: (i) you are of sufficient legal age to use a Travel Channel and to create binding legal obligations for any liability you may incur as a result of the use of a Travel Channel, (ii) you shall supervise all use of a Travel Channel by minors using your name or account, and (iii) all information supplied by you, or using your name or account, in using a Travel Channel is true, complete, and correct. You acknowledge and agree that: (i) you are financially responsible for all uses of a Travel Channel by you and those using your name and/or account, (ii) some Suppliers have age requirements and restrictions for use of their products and services, and you and those traveling with you shall be subject to such requirements and restrictions, and (iii) should you make a reservation and/or purchase for other people, you shall inform those people of all terms, conditions, policies, rules, and restrictions that apply.
6. DISCLAIMER REGARDING SUPPLIERS
SUPPLIERS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OR AGENTS OF US. WE ACT SOLELY AS A SALES AGENT FOR SUPPLIERS AND ARE NOT LIABLE FOR, INCLUDING, WITHOUT LIMITATION, THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, OR NEGLIGENCE OF ANY SUCH SUPPLIERS OR FOR ANY PERSONAL INJURY, DEATH, PROPERTY DAMAGE, LOSS, ACCIDENT, DELAY, IRREGULARITY, OR ANY OTHER DAMAGES OR EXPENSES RESULTING THEREFROM, WHETHER DIRECTLY OR INDIRECTLY. WE SHALL HAVE NO LIABILITY AND WILL MAKE NO REFUND IN THE EVENT OF ANY DELAY, CANCELLATION, OVERBOOKING, SCHEDULE CHANGE, cessation of operations, LABOR DISPUTE, STRIKE, ACTS OF GOVERNMENT, ACTS OF WAR, TERRORISM, DISEASE, QUARANTINE, WEATHER OR OTHER FORCE MAJEURE EVENT OR OTHER CAUSE BEYOND OUR DIRECT CONTROL (EXCEPT WHERE REQUIRED UNDER APPLICABLE CONSUMER PROTECTION LAW). WE HAVE NO RESPONSIBILITY FOR ANY ADDITIONAL EXPENSE, OMISSIONS, DELAYS, OR RE-ROUTING CAUSED BY ANY ACTS OR OMISSIONS OF ANY SUPPLIER OR GOVERNMENTAL AUTHORITY. THE FACT THAT WE INCLUDE OR OFFER ANY PRODUCT OR SERVICE ON/THROUGH A TRAVEL CHANNEL DOES NOT MEAN WE ARE ENDORSING OR RECOMMENDING SUCH PRODUCT OR SERVICE. ANY AND ALL CLAIMS REGARDING ANY PRODUCTS AND SERVICES OFFERED THROUGH A TRAVEL CHANNEL ARE LIMITED TO CLAIMS AGAINST THE SUPPLIER OF SUCH PRODUCTS AND SERVICE. WE HEREBY DISCLAIMS ANY LIABILITY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION LIABILITY FOR ANY DIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OUR INDIRECT DAMAGES, IN CONNECTION WITH PRODUCTS OR SERVICES PROVIDED BY ANY SUPPLIER THROUGH A TRAVEL CHANNEL, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR ANY ACT, ERROR, OMISSION, INJURY, DEATH, PROPERTY DAMAGE, LOSS, ACCIDENT, DELAY, IRREGULARITY OR ANY OTHER DAMAGES OR EXPENSES WHICH MAY BE INCURRED THROUGH THE FAULT, NEGLIGENCE, OR OTHERWISE, OF SUCH SUPPLIERS AND YOU HEREBY EXONERATE US FROM ANY LIABILITY WITH RESPECT TO THE SAME.
7. TRAVEL TO CERTAIN DESTINATIONS
Travel to certain destinations may involve more risk than travel to other destinations; therefore, we strongly recommend that you review current government-issued travel advisories, warnings, requirements, restrictions, and public health directives prior to making a reservation and prior to traveling. You acknowledge and agree that you assume all risks imposed by travel and that any information provided by us, Service Providers, or these Terms shall not replace your own judicious risk assessment, based on your personal circumstances, and that of prudent health, safety, and security considerations. You acknowledge and agree that you are responsible for determining and obtaining proper documents for travel, for both domestic and international destinations, complying with all entry/exit and other governmental travel requirements or restrictions applicable to/from/within your destinations of travel, and comply with all Supplier requirements for travel, including, without limitation, completion of health forms and provision of COVID-19 test results. For more information, please visit: https://travel.state.gov/content/travel/en/international-travel.html, www.tsa.gov, www.dot.gov, www.faa.gov, www.cdc.gov, www.treas.gov/ofac, and www.customs.gov. If traveling domestically within the U.S. during the COVID-19 public health emergency (or similar health emergency), we recommend that you check, before booking, with state or local public health authorities at your intended destination to learn of any travel requirements or restrictions.
You acknowledge that some countries may require aircraft cabin insecticide treatment for in-bound foreign flights. A list of such countries is available at https://www.dot.gov/airconsumer/spray.
Due to frequent changes we cannot guarantee the accuracy of any information provided on/through a Travel Channel, including, without limitation, provided by our travel consultants or any government or third-party websites we may reference, and we expressly disclaim any and all liability for inaccurate or incomplete information contained on such sites or provided by us.
BY OFFERING FOR SALE TRAVEL TO PARTICULAR DESTINATIONS, NEITHER WE NOR ANY SERVICE PROVIDER REPRESENTS OR WARRANTS THAT TRAVEL TO SUCH DESTINATIONS IS SAFE, ADVISABLE, OR WITHOUT RISK, AND NEITHER WE NOR ANY SERVICE PROVIDER IS LIABLE FOR ANY DAMAGES OR LOSSES THAT MAY RESULT FROM TRAVEL TO SUCH DESTINATIONS.
Cuba travel: By traveling to Cuba, you are attesting that you are a U.S. citizen or U.S. resident and your travel to Cuba is authorized under the Cuban Assets Control Regulations and falls within one of the approved categories. For more information on each of the categories, please see Part 515.560 of the Cuban Assets Control Regulations at http://www.ecfr.gov. Additional information can be found at https://www.treasury.gov/resource-center/sanctions/Programs/Pages/cuba.aspx. You acknowledge that travel for traditional tourist activities is prohibited, and you are expected to maintain a full schedule of activities related to your category of travel. If providing any insurance benefit would violate U.S. economic or trade sanctions, then the policy will be void.
8. NO WARRANTIES
TO THE EXTENT PERMITTED BY LAW, AND WITHOUT LIMITING THE GENERALITY OF ANY DISCLAIMERS SET FORTH IN OUR TERMS OF SERVICE, WE AND SERVICE PROVIDERS MAKE NO WARRANTY OF ANY KIND REGARDING A TRAVEL CHANNEL AND ANYTHING PROVIDED ON OR THROUGH A TRAVEL CHANNEL, ALL OF WHICH ARE PROVIDED ON AN "AS IS" BASIS. WE AND SERVICE PROVIDERS DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF ANY OF THE CONTENT, DATA, OR INFORMATION FOUND ON/THROUGH A TRAVEL CHANNEL (MUCH OF WHICH IS PROVIDED BY SERVICE PROVIDERS), AND WE AND SERVICE PROVIDER EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. NEITHER WE NOR ANY SERVICE PROVIDER WARRANTS THAT A TRAVEL CHANNEL, ITS SERVERS, OR ANY E-MAIL SENT FROM US OR ANY SERVICE PROVIDER ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. SUCH WARRANTIES GIVE YOU SPECIFIC RIGHTS WHICH MAY VARY FROM STATE TO STATE.
9. LIMITATION OF LIABILITY
WITHOUT LIMITING THE GENERALITY OF ANY LIMITATION OF LIABILITY SET FORTH IN OUR TERMS OF SERVICE, WE AND SERVICE PROVIDERS ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF A TRAVEL CHANNEL OR YOUR DOWNLOADING OF ANY MATERIALS, INCLUDING, WITHOUT LIMITATION, DATA, TEXT, IMAGES, VIDEO, OR AUDIO FROM A TRAVEL CHANNEL. IN NO EVENT SHALL WE OR ANY SERVICE PROVIDER BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH (A) ANY USE OF A TRAVEL CHANNEL OR CONTENT FOUND HEREIN, (B) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OF OR INABILITY TO USE ANY COMPONENT OF A TRAVEL CHANNEL FOR RESERVATIONS OR TICKETING), OR (C) THE PERFORMANCE OR NON-PERFORMANCE BY US OR ANY SERVICE PROVIDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO SUCH PARTIES OR ANY OTHER PARTY. SOME STATES DO NOT ALLOW SUCH LIMITATION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU.
If, notwithstanding the foregoing, we or any Service Provider should be found liable for any loss or damage that arises out of or is in any way connected with any of the above or any access to or uses of a Travel Channel or its content, the liability of each of us and Service Providers shall in no event exceed, in the aggregate, the greater of: (i) the transaction fees assessed for your transactions through a Travel Channel, or (ii) US$100.00. In our sole discretion, in addition to any other rights or remedies available to us and without any liability whatsoever, we may, at any time and without notice to you, terminate or restrict your access to and/or use of any component of a Travel Channel.
10. TRANSMISSION OF PERSONAL DATA
You acknowledge and agree that by providing us with any personal information through a Travel Channel, you consent to the transmission of such personal information over international borders as necessary for processing in accordance with our standard business practices and applicable law and regulations. We may also share your personal information with Service Providers to process or complete transactions that you have requested. For more information regarding how we treat your personal information, please view our Privacy Statement.
If you are not an existing American Express personal card customer: You have received a copy of the American Express Privacy Notice and, if you so choose, you will retrieve any future copies of the American Express Privacy Notice electronically on the American Express Privacy Center.
To the extent permitted by law, you shall defend and indemnify us and any Service Providers, and each of our respective parents, subsidiaries, affiliates and each of our officers, directors, employees, and agents from and against any and all claims, damages, losses, liabilities, causes of action, or demands (including reasonable legal and accounting fees) brought by third parties as a result of, caused by, related to or arising out of your access to and/or use of a Travel Channel.
12. PROGRAM TERMS
The following terms and conditions may be applicable to your reservation or purchase through a Travel Channel and are incorporated herein and form part of these Terms, as applicable:
Fine Hotels + Resorts®
The Hotel Collection
International Airline Program
Cruise Privileges Program
Platinum Destination Vacations
Membership Rewards® Pay with Points
13. RECOVERY FUND FOR CONSUMERS DAMAGED BY SELLERS OF TRAVEL
Our seller of travel registration numbers are California CST#1022318 and Washington UBI#600-469-694.
California: Upon cancellation of the transportation or travel services, where the passenger is not at fault and has not cancelled in violation of any terms and conditions previously clearly and conspicuously disclosed and agreed to by the passenger, all sums paid to the seller of travel for services not provided will be promptly reimbursed to the passenger. This provision does not apply where the seller of travel has remitted the payment from customer to another registered wholesale seller of travel or a carrier, without obtaining a refund and such other provider fails to provide the agreed-upon transportation or service. In this situation, the initial seller of travel must provide the passenger with a written statement accompanied by bank records establishing the disbursement of the customer payment, and if disbursed to a registered wholesaler of travel, proof of current registration of that wholesaler.
This transaction is covered by the California Travel Consumer Restitution Fund (TCRF) if the seller of travel was registered and participating in the TCRF at the time of sale and the passenger is located in California at the time of payment. Eligible passengers may file a claim with TCRF if the passenger is owed a refund of more than US$50 for transportation or
travel services which the seller of travel failed to forward to a proper provider or such money was not refunded to you when required. The maximum amount which may be paid by the TCRF to any one passenger is the total amount paid on behalf of the passenger to the seller of travel, not to exceed US$15,000. A claim must be submitted to the TCRF within 12 months after the scheduled completion date of the travel. A claim must include sufficient documentation to prove your claim and a US$35 processing fee. Claimants must agree to waive their right to other civil remedies against a registered participating seller of travel for matters arising out of a sale for which you file a TCRF claim. You may request a claim form by writing to Travel Consumer Restitution Corporation; P.O. Box 6001, Larkspur, CA 94977-6001, or by visiting TCRC's website at www.tcrcinfo.org.
Washington State: If transportation or other services are canceled by the seller of travel, all sums paid to the seller of travel for services not performed in accordance with the contract between the seller of travel and the purchaser will be refunded within 30 days of receiving the funds from the vendor with whom the services were arranged, or if the funds were not sent to the vendor, the funds shall be returned within 14 days after cancellation by the seller of travel to the purchaser unless the purchaser requests the seller of travel to apply the money to another travel product and/or date.
14. ONLINE TRAVEL AGENCY
Online travel agency Service Providers include Expedia, Inc. (“OTA”), which is a business organized and operating in the United States that has been selected by us to provide you with the ability to search for and book certain travel services. Payment for reservations/purchases made through OTA shall be made to OTA, if OTA is the merchant of record, or to the applicable Supplier, if the Supplier is the merchant of record. The OTA's seller of travel registration numbers are: *California: 2029030-50; Florida: ST-31901; Hawaii: TAR-5461; Iowa: 601; Washington: 601975803. *Registration as a seller of travel does not constitute approval by the State of California. California law requires certain sellers of travel to have a trust account or bond. OTA has a bond issued by Fidelity and Deposit Company of Maryland in the amount of US$50,000. OTA is not a participant in the TCRF.
We and/or Service Providers may, at any time, modify: (i) a Travel Channel, including eliminating or discontinuing any content on or feature of a Travel Channel, (ii) any fees or charges for use of a Travel Channel, and (iii) these Terms. Your continued use of a Travel Channel shall be conditioned upon the terms and conditions in force at the time of your use.
If any part of these Terms is found to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired. Our failure or delay in enforcing any provision of these Terms does not waive our right to enforce the same or any other provision(s) in the future.
The parties to these Terms agree that to the extent that any party used an American Express Card to pay, in whole or in part, tentatively or otherwise, for the products and/or services provided for pursuant to this Terms, any and all disputes, claims, or controversies arising out of or related to these Terms ("Claims") shall be subject to the dispute resolution section set forth in the Cardmember Agreement for the aforementioned Card used. To the extent no American Express Card was used, in whole or in part, tentatively or otherwise, for the products and/or services provided for pursuant to these Terms, resolution of any Claims shall be subject to the terms and conditions set for in the remainder of this Section and the other portions of these Terms, as applicable.
You or we may elect to resolve any Claim arising from these Terms by individual, binding arbitration administered by the AAA or JAMS, as selected by the party electing arbitration. If arbitration is chosen by any party, neither you nor we will have the right to litigate that Claim in court or have a jury trial on that Claim. Further, you and we will not have the right to participate in a representative capacity or as a member of any class pertaining to any Claim subject to arbitration. Any arbitration hearing that you attend shall take place in New York, New York unless the parties agree to an alternate venue.
Claims may not be joined or consolidated unless you and we agree in writing.
The arbitrator shall have the power and authority to award any relief that would have been available in court, including equitable relief (e.g., injunction, specific performance) and, cumulative with all other remedies, shall grant specific performance whenever possible. The arbitrator shall have no power or authority to alter these Terms or any of its separate provisions, including this section, nor to determine any matter or make any award except as provided in this section. Either you or we may seek equitable relief in aid of arbitration prior to arbitration on the merits to preserve the status quo pending completion of such process. This section shall be enforced by any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, including legal fees, to be paid by the party against whom enforcement is ordered.
Injunctive relief sought solely to enforce the confidentiality or intellectual property rights arising under these Terms is not subject to the requirements of this section.
This section is made pursuant to a transaction involving interstate commerce and is governed by the Federal Arbitration Act. The arbitrator shall apply New York law and applicable statutes of limitations and shall honor claims of privilege recognized by law. The arbitrator shall apply the rules of the arbitration organization selected, as applicable to matters relating to evidence and discovery, not the federal or any state rules of civil procedure or rules of evidence. At the timely request of a party, the arbitrator shall provide a written and reasoned opinion explaining his/her award. The arbitrator’s decision shall be final and binding, except for any rights of appeal provided by the FAA. If a Claim is for US$100,000 or more, or includes a request for injunctive relief, (a) you and we shall be entitled to reasonable document and deposition discovery, including (x) reasonable discovery of electronically stored information, as approved by the arbitrator, who shall consider, inter alia, whether the discovery sought from one party is proportional to the discovery received by the other party, and (y) no less than five depositions per party; and (b) within sixty (60) days of the initial award either party can file a notice of appeal to a three-arbitrator panel administered by the selected arbitration organization, which shall reconsider de novo any aspect requested of that award and whose decision shall be final and binding. If more than sixty (60) days after the written arbitration decision is issued the losing party fails to satisfy or comply with an award or file a notice of appeal, if applicable, the prevailing party shall have the right to seek judicial confirmation of the award in any state or federal court where you or assets are located.
The arbitration proceeding and all testimony, filings, documents, and any information relating to or presented during the proceedings shall be deemed to be confidential information not to be disclosed to any other party. All offers, promises, conduct, and statements, whether written or oral, made in the course of the Claim resolution, negotiations, mediations, arbitration, and proceedings to confirm arbitration awards by either party, its agents, employees, experts, or attorneys, or by the mediator or arbitrator, including any arbitration award or judgment related thereto, are confidential, privileged, and inadmissible for any purpose, including impeachment or estoppel, in any other litigation or proceeding involving any of the parties or non-parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation, mediation, or arbitration.
Both parties will share equally the costs of any arbitration proceedings; however, each party shall be solely responsible for its own attorney’s fees and other related costs.