Arbitration agreement (Terms §25)

25. Governing Law; Dispute Resolution

25.1 Governing Law. This Agreement, and any Dispute, is governed by the laws of the State of Delaware, without regard to its conflict-of-laws principles. The U.N. Convention on Contracts for the International Sale of Goods does not apply. Nothing in this §25.1 deprives Customer of the protection of any mandatory consumer-protection law of Customer's home jurisdiction that cannot be waived by agreement, including the state-specific terms in §26.

25.2 Informal Resolution; Notice of Dispute. Before initiating arbitration or any court action, the party raising a Dispute shall send a written Notice of Dispute to the other party describing the claim, the relief sought, and the claimant's contact information. Notice to Olynx must be sent to legal@olynxai.com. The parties shall negotiate in good faith for at least sixty (60) days after the Notice of Dispute is received before commencing arbitration or litigation. The applicable statute of limitations is tolled during this period.

25.3 Binding Arbitration; Delegation; Federal Arbitration Act.
(a) Agreement to Arbitrate. Except for the carve-outs in §25.3(b), any Dispute that is not resolved under §25.2 shall be resolved exclusively by final and binding individual arbitration administered by JAMS under its Comprehensive Arbitration Rules and, where applicable, its Consumer Minimum Standards, then in effect. The Federal Arbitration Act, 9 U.S.C. §§1 et seq. ("FAA"), governs the interpretation and enforcement of this §25.3.
(b) Carve-Outs. The following are excluded from arbitration: (i) either party may bring an individual action in a small-claims court of competent jurisdiction for any claim within that court's jurisdictional limit; (ii) either party may seek temporary, preliminary, or permanent injunctive or other equitable relief in a court of competent jurisdiction to prevent actual or threatened infringement, misappropriation, or violation of intellectual-property rights, confidentiality obligations, or §17; and (iii) claims for public injunctive relief under California Business & Professions Code §§17200 et seq., §§17500 et seq., or California Civil Code §§1750 et seq. (the "McGill carve-out") are excluded from arbitration.
(c) Delegation. The arbitrator, and not any court, has exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, scope, or formation of this §25, except that a court (and not the arbitrator) shall decide (i) the enforceability of the Class and Representative Action Waiver in §25.4 and (ii) the Mass-Filing procedures in §25.5.
(d) Seat; Hearing Location. The legal seat of the arbitration is San Francisco, California. The hearing, if any, shall take place, at Customer's election, (i) by videoconference, (ii) in the JAMS resolution center nearest to Customer's principal place of business, or (iii) in San Francisco. Documents-only arbitration is available for any claim under $25,000.
(e) Arbitrator; Procedure. A single arbitrator shall be selected under the JAMS Rules. The arbitrator may award any individual remedy that a court could award under applicable law.
(f) Fees and Costs. Olynx shall pay all JAMS filing, administrative, and arbitrator fees in excess of the amount Customer would have paid as a court filing fee in the federal district where Customer's principal place of business is located, for any claim of $75,000 or less. For claims of $10,000 or less brought by a Customer whose principal place of business is in California, Olynx shall pay 100% of all JAMS fees.
(g) Opt-Out. Customer may opt out of this §25.3 (and §25.4 and §25.5) by sending a signed written notice stating intent to opt out, Customer's name, the email address associated with the Account, and the effective date of acceptance of these Terms, to legal@olynxai.com within thirty (30) days after first accepting these Terms. Opting out shall not be a basis for Olynx to refuse, suspend, or terminate the Services.

25.4 Class and Representative Action Waiver.
(a) Individual Basis Only. EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THAT PARTY'S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, COORDINATED, PRIVATE-ATTORNEY-GENERAL, OR OTHER REPRESENTATIVE PROCEEDING. The arbitrator may not consolidate or join the claims of more than one person and may not preside over any form of representative or class proceeding.
(b) PAGA Carve-Out. To the extent Customer or any of Customer's personnel asserts a representative claim under the California Private Attorneys General Act of 2004, the individual PAGA claim shall be resolved in arbitration on an individual basis under §25.3, and any non-individual or representative PAGA claim is stayed pending the arbitrator's resolution of the individual PAGA claim, consistent with Viking River Cruises v. Moriana and Adolph v. Uber Technologies.
(c) Non-Severability Backstop. The Class and Representative Action Waiver in this §25.4 is a material and non-severable part of the parties' agreement to arbitrate. If a court determines that the Class and Representative Action Waiver is unenforceable as to any claim, claimant, or class of claimants, or that class, collective, or representative arbitration is to be permitted notwithstanding §25.4(a), then as to that claim, claimant, or class of claimants, §25.3 and §25.5 are null and void in their entirety, and the affected claims shall instead proceed exclusively in court under §25.6.

25.5 Mass-Filing Procedures.
(a) Definition. A "Mass Filing" exists where twenty-five (25) or more arbitration demands of substantially similar nature are filed against Olynx by or with the coordination of the same law firm, group of law firms, or organized claimant-recruitment effort within any 180-day period.
(b) Bellwether Process. Mass-Filing claims shall not be filed or administered individually on a rolling basis. Instead, the parties and claimants' counsel shall meet and confer to select an initial set of sixteen (16) bellwether arbitrations (eight selected by claimants' counsel and eight selected by Olynx) to proceed first. All remaining Mass-Filing claims are stayed, and all applicable statutes of limitations are tolled, until the bellwether arbitrations conclude.
(c) Post-Bellwether Resolution. Within sixty (60) days after the final bellwether award, the parties and claimants' counsel shall participate in a global mediation administered by JAMS. If global mediation does not resolve the remaining claims, the parties shall select an additional sixteen (16) bellwether arbitrations and the process repeats.
(d) Fees During Stay. No JAMS fees are owed by either party as to any stayed Mass-Filing claim during the stay.
(e) Severability of Mass-Filing Procedures. If any portion of this §25.5 is held unenforceable as to a specific claim or claimant, the unenforceable portion shall be reformed or severed; the remainder of §25.5 and §25.3 shall remain in full force. This §25.5 is severable from §25.4.

25.6 Court Forum; Venue; Jury and Class Waiver in Court. For any Dispute or portion of a Dispute that is excluded from, or held non-arbitrable under, §25.3 through §25.5, the parties consent to the exclusive personal jurisdiction and venue of (i) the United States District Court for the District of Delaware or (ii) if subject-matter jurisdiction is unavailable in federal court, the state courts of the State of Delaware sitting in New Castle County. Public-injunctive-relief claims preserved under the McGill carve-out in §25.3(b)(iii) may, at the claimant's election, instead be brought in a court of competent jurisdiction located in the California county of Customer's principal place of business. EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES.