Any dispute, claim, or controversy arising out of or relating in any way to these Terms; the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate; or your use of the Site, including products purchased or Service rendered through the Site, shall be determined by binding arbitration in New York. By agreeing to these Terms, you understand and accept that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Facet are each waiving the right to a trial by jury or to participate in a class action. Moreover, you agree that this arbitration provision shall survive termination of these Terms and any other contractual relationship between you and Facet.
If you desire to assert a claim against Facet and elect to seek arbitration, you must first send to Facet, by certified mail, a written notice of your claim (“Notice”). The Notice to Facet should be addressed to: 27 E 28th Street, 12th Fl, New York, NY 10016 (“Notice Address”). If Facet desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you.
A Notice, whether sent by you or by Facet, must (a) describe the nature and basis of the claim or dispute, and (b) set forth the specific relief sought (“Demand”). If Facet and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Facet may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by Facet or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org.
If you are required to pay a filing fee, after Facet receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than $10,000 (USD). The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively the “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and relevant forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address.
The arbitrator is bound by these Terms. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms and this provision. Unless Facet and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator.
If your claim is for $10,000 (USD) or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000 (USD), the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of Facet’s last written settlement offer made before an arbitrator was selected, or if Facet did not make a settlement offer before an arbitrator was selected, then Facet will pay you the amount of the award or $1,000 (USD), whichever is greater.
Except as expressly set forth herein, the payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys' fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
If this arbitration provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void, and the remaining provisions of these Terms shall remain in full force and effect. Exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for New Castle County, Delaware.
18. CLASS ACTION WAIVER
YOU AND FACET AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. Notwithstanding any provision in the AAA Rules to the contrary, any arbitrator that oversees a dispute between you and Facet shall have no authority to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the disputes of different persons into one proceeding, unless you and Facet agree otherwise. The arbitrator may award declaratory or injunctive relief but only in favor of the individual party seeking relief and to the extent necessary to provide relief warranted by that party’s individual claim. Notwithstanding the arbitration provision set forth above, if this provision regarding waiver of class, collective, representative, and private attorney general claims is found to be void or otherwise unenforceable, any such class, collective, representative, or private attorney general claims must be heard and determined through an appropriate court proceeding in any court of competent jurisdiction in New York, and not in arbitration.
19. THIRD PARTY RIGHTS
Unless expressly stated in these Terms, nothing herein is intended to confer any rights or remedies on any persons other than you, Facet, KMG, and our affiliates. Moreover, nothing in these Terms is intended to relieve or discharge the obligations or liability of any third persons to you, Facet, KMG, or our affiliates, nor shall any provision give any third parties any right of subrogation or action against you, Facet, KMG, and our affiliates.
You may not assign, transfer, or delegate these Terms or any part thereof without Facet’s express written consent. Facet may freely transfer, assign, or delegate all or any part of these Terms, and any rights or duties hereunder or thereunder. These Terms will be binding upon and inure to the benefit of the heirs, successors, and permitted assignees of the parties.
21. FORCE MAJEURE
22. MISCELLANEOUS TERMS
These Terms and other Facet documents cited herein constitute the entire agreement between you and Facet and govern your use of the Services, superseding any prior agreements between you and Facet relating to your use of the Services. If any provision of these Terms is held to be invalid by any law, rule, order, or regulation of any government or by the final determination of any state or federal court, such invalidity shall not affect the enforceability of any other provision of the Terms. The failure of Facet to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision.
23. CONTACT US
If you have any questions about these Terms, please write to or call us at:
Thirty Madison, Inc. d/b/a Facet
27 E 28th Street, 12th Fl
New York, NY 10016
Telephone: (855) 658-8855
Although Facet will in most circumstances be able to receive your communications, Facet does not guarantee that it will receive such communications timely and accurately and shall not be legally obligated to read, act on, or respond to any such email or other information. Be aware that your email communications to Facet may not be secure and will not be treated as confidential.