Terms of SERVICE
Effective Date: February 1, 2026
Spy Dialer (“Company”, “our”, “us” or “we”) grants you access to our sites,
such as spydialer.com (the “Websites”)
conditioned on your acceptance of these terms (“Terms of Service”).
PLEASE READ
THESE TERMS OF SERVICE CAREFULLY. These Terms of Service constitute a legally
binding agreement BETWEEN you and us, and BY USING THE WEBSITES, YOU AGREE TO
BE BOUND AND ABIDE BY THESE TERMS OF SERVICE AS IT RELATES TO THE USE OF THE
WEBSITES. you represent and warrant that you are at least 18 years of age and HAVE
legal competence to enter into this agreement. IF YOU DO NOT AGREE TO THESE TERMS
OF SERVICE, YOU MUST CEASE USING THE WEBSITES IMMEDIATELY.
1. BINDING ARBITRATION
By accepting these
Terms of Service, as detailed below, YOU AGREE TO RESOLVE ANY DISPUTE IN ANY
WAY ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE WEBSITES
THROUGH BINDING ARBITRATION AND TO WAIVE YOUR RIGHTS TO PARTICIPATE IN A CLASS
ACTION LAWSUIT. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT
(INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under
these Terms of Service (except for matters that may be taken to small claims
court and as further described below). Your rights will be determined by a
NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY, and YOUR CLAIMS CANNOT BE BROUGHT
AS A CLASS ACTION. Please review the section of these Terms of Service titled “LEGAL DISPUTES AND ARBITRATION” for the details regarding your agreement to
arbitrate any disputes with us.
2. MODIFICATIONS TO THESE TERMS OF SERVICE
We reserve the
right, in our sole discretion, to modify these Terms of Service at any time
without notice to you. We will post all modifications to these Terms of Service
on the Websites, and they will become effective immediately upon being posted
to the Websites. Your continued use of the Websites following the posting of
such modifications constitutes your acceptance of them. Therefore, you should
check the Effective Date of these Terms of Service each time that you visit the
Websites and review any modifications made since the last time that you visited
them.
3. PRIVACY POLICY
We will treat all
personal information that you choose to provide to us through the Websites in
accordance with our privacy policy located at spydialer.com/privacy (the “Privacy
Policy”). By using the Websites, you consent to the privacy practices set forth
in the Privacy Policy.
4. MODIFICATIONS TO THE WEBSITES
We may terminate,
change, suspend, or discontinue the Websites and/or any aspects of the Websites
at any time without notice to you.
5. INTELLECTUAL PROPERTY AND PROPRIETARY
MATERIALS
The technology and information
provided on the Websites are owned by or licensed to Company and protected by the
United States and international intellectual property laws. Company and its
licensors retain all intellectual property rights and proprietary rights to
that information and technology (“Proprietary Materials”). The trademarks,
service marks, trade names, and logos appearing on this site are trademarks of Company
and or its affiliates or licensors.
The entire content of the Websites is
protected by copyright and other intellectual property rights. Unless permitted
under these Terms of Service, no part of the Websites may be reproduced,
duplicated, copied, downloaded, stored, further transmitted, disseminated,
transferred, or otherwise exploited, either manually or by automated means
using bots, spiders, or web scraping tools, without Company’s prior written
consent.
Unless explicitly
stated herein, nothing in these Terms of Service shall be construed as
conferring any license to intellectual property rights, whether by estoppel,
implication, or otherwise.
6. INFORMATION AVAILABLE THROUGH THIRD-PARTY WEBSITES
OR SOURCES
The Websites may
include links to other websites, content, or services beyond the control or
verification of Company (collectively, “Unverified Content”). This information may
be made available to users through the Websites.
We do not review
or evaluate Unverified Content. We do not evaluate each piece of information
provided, and we make no guarantees to our users about the accuracy, legitimacy,
or legality of any information or how recently any information was collected or
updated. As a user of the Websites, you agree that there are no warranties or
guarantees regarding the information provided. Further, you agree that your reliance
on the information available through the Websites is at your own risk.
7. RESTRICTIONS
You agree that you
will not yourself or through any third party: (i) use the Websites in a manner
that violates applicable laws, including, without limitation, the Controlling
the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”), the
Telephone Consumer Protection Act (“TCPA”), and any similar federal, state, or
local laws, or the rights of third parties, including, without limitation,
intellectual property laws and third-party rights with respect thereto; (ii)
engage in any conduct that restricts or inhibits anyone’s use or enjoyment of
the Websites or which may harm us or other users of the Websites; (iii) violate
the security of the Websites, including by using any device, software or
routine that interferes with the proper functioning of the Websites, accessing
or attempting to access any systems or servers on which the Websites are
hosted, modifying or altering the Websites in any way or forging headers,
misrepresenting your identity or otherwise manipulating identifiers to deceive
others; (iv) use automated communication tools to dial, text, call, or
otherwise exploit any contact information or personally identifiable
information found on the Websites; (v) use automated data extraction tools or
manual processes to extract Proprietary Materials from the Websites; (vi) use the
Websites in order to determine consumer eligibility for any purpose covered by
the Fair Credit Reporting Act (15 U.S.C. § 1681b) (the “FCRA”), Federal Trade
Commission or court interpretations of the FCRA, or similar state statutes (as
further described herein); (vii) except as otherwise explicitly provided on
certain Proprietary Materials that you may access through the Websites, remove,
conceal or alter any identification, copyright or other proprietary rights
notices or labels on the Websites or Proprietary Materials; (viii) use the
Websites in a manner intended to stalk, threaten, intimidate, or otherwise
harass any person, or that may reasonably be expected to cause emotional
distress or physical harm to any person; (ix) use the Websites to seek
information about minors, celebrities, or public figures; (x) use the Websites
to promote, facilitate, or provide instructional information about illegal
activities, or to advocate, promote, or incite physical harm or injury against
any individual or group; or (xi) sell, resell, lease, license, sub-license,
distribute, or otherwise commercialize any information obtained from the
Websites without our prior written consent.
You further agree
that you will not use the Websites or any information acquired from the Websites
to evaluate a consumer’s eligibility for credit or insurance to be used
primarily for personal, family, or household purposes, to evaluate a person’s
eligibility for employment or volunteering purposes, to evaluate a person’s
eligibility for a government license or benefit, to evaluate a person for
renting a dwelling property, or for any other purpose specified in the FCRA.
8. THIRD-PARTY WEBSITES
We may include
links on the Websites to third-party websites that we do not control or operate
(each, a “Third-Party Website”). We are not responsible for any information,
content, advertising, products, services, or other materials on any Third-Party
Website, and the presence of such links does not constitute our endorsement,
approval, or sponsorship of any Third-Party Website. If you choose to link to
any Third-Party Website, you are doing so at your own risk, and you will be
subject to the Terms of Service of that website. Therefore, before interacting
with any Third-Party Website, you should consult the legal terms governing the
use of such Third-Party Website. We expressly disclaim any and all liability
resulting from your use of any Third-Party Website.
9. DISCLAIMER
THE WEBSITES, ALL
CONTENT PROVIDED THEREIN, AND PROPRIETARY MATERIALS ARE PROVIDED “AS-IS”, “WHERE-IS”
AND “AS-AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY HEREBY EXPRESSLY DISCLAIMS
ON BEHALF OF OURSELVES AND OUR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS
(COLLECTIVELY, THE “COMPANY PARTIES”) ANY AND ALL WARRANTIES OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER
COMPANY NOR ANY OF THE COMPANY PARTIES REPRESENTS OR WARRANTS THAT THE WEBSITES
WILL BE ERROR-FREE, THAT DEFECTS, IF ANY, WILL BE CORRECTED OR THAT THE WEBSITES
ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; NOR DOES COMPANY OR ANY OF THE
COMPANY PARTIES MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE
ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, QUALITY, PERFORMANCE OR
SUITABILITY OF THE WEBSITES OR PROPRIETARY MATERIALS.
10. MARKETING COMMUNICATIONS
Company is committed to
complying with all applicable laws and regulations regarding its marketing
communications. You agree that Company and the Company Parties may collect,
store, process, analyze, and utilize your contact information, including, but
not limited to, phone number, email address, mailing address, and other contact
details you provide to send you updates about services, promotional offers, and
other pertinent product information. Such communications may be sent through
various methods, including phone, mail, email, text message (such as SMS/MMS),
chat (such as RCS), push notifications, or other mediums. For text messages,
the frequency of the text messages may vary, and standard data rates may apply.
You agree that Company and the Company Parties may monitor, record, retain, or
transcribe any telephone calls, emails, chats, or other communications with
you, regardless of the medium. You may opt-out of marketing communications by
following the instructions within the communication or contacting Company at support@spydialer.com.
For questions about your
privacy, please review Company’s privacy policy.
11. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PROVIDED BY
LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF COMPANY AND ITS SUBSIDIARIES
AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS,
OFFICERS, AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED ONE-THOUSAND DOLLARS
($1,000.00) FOR THE APPLICABLE CONTENT OR SERVICE OUT OF WHICH LIABILITY AROSE.
The limitation of liability set out
above does not apply to liability resulting from our gross negligence or
willful misconduct.
THE FOREGOING DOES
NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE
LAW.
12. INDEMNIFICATION
You shall
indemnify, defend, and hold harmless Company and the Company Parties from and
against any and all claims, actions, damages, obligations, losses, liabilities,
costs, and expenses (including reasonable attorneys’ fees, collection costs,
and other defense costs) arising out of or relating to your use of the Websites
or Proprietary Materials or your violation of these Terms of Service.
13. TERMINATION OF THESE TERMS OF SERVICE
We may, without
notice to you, immediately terminate these Terms of Service if you breach them
or engage in conduct that we, in our sole discretion, believe violates
applicable law, our rights, or the rights of other users of the Websites.
Upon termination of these Terms of
Service, your right to use the Websites and Proprietary Materials will
immediately terminate.
14. COMPLETE AGREEMENT
Please note that
the Websites may include summary descriptions or other general information
about our products or services. While we strive for accuracy, these materials
are intended only as overviews.
These Terms of
Service constitute the entire agreement between you and us with respect to your
use of the Websites and Proprietary Materials.
15. LEGAL DISPUTES AND ARBITRATION
Please Read This Following Clause
Carefully - It Significantly Impacts Your Legal Rights, Including Your Right to
File a Lawsuit in Court
Under this arbitration clause (“Clause”),
either you or we may elect for an arbitrator to decide in an arbitration any
claims between you and us that a court would normally decide (including
contract claims, fraud and other tort claims and statutory claims, as well as
claims for money, injunctions or other equitable or declaratory relief).
15.1. What is an Arbitration? An alternative to a court case. In an arbitration (“Arbitration”), a
neutral third party (“Neutral”) decides claims without a judge or jury. The
hearing is private. It is usually less formal and faster than a lawsuit. It can
save legal fees. It involves limited pre-hearing fact-finding and limited
appeals. Courts rarely reverse Arbitration awards.
15.2. What is this Clause about? Your and our agreement to decide certain “Claims” through Arbitration.
Generally, either you or we may elect to decide any “Claim” (as defined in 15.4)
through an individual Arbitration or, for certain “Mass Claims,” a “Group Arbitration”
(as such terms are defined in 15.5 and 15.11(vi)).
15.3. Who does this Clause cover? You and us. This Clause governs you, the
person using the Websites, and us. Solely as used in this Clause, the words “we,”
“us,” and “our” mean Company and the Company Parties.
15.4. What Claims does this Clause cover? All legal claims (except certain claims
about this Clause). This Clause governs all “Claims” between you and us that a
court would normally decide.
The word “Claims” has the broadest reasonable
meaning. “Claims” includes claims based on contract, statute, ordinance, rule,
regulation, constitution or any other legal theory. It includes tort claims
(including fraud and intentional tort claims). “Claims” includes claims for
money, injunctions or other equitable or declaratory relief. It includes direct
claims, counterclaims, and crossclaims. “Claims” includes claims that arose
before this or any prior agreement between us (including, but not limited to, claims
relating to advertising or disclosures), and claims that may arise after the
termination of this agreement.
BUT, “Claims” does not include disputes about
the validity, coverage, or scope of this Clause or any part of this Clause.
This includes:
·
issues relating to the
scope and enforceability of this Clause,
·
whether a dispute can or
must be brought in arbitration,
·
whether the American
Arbitration Association (“AAA”) cannot or will not administer the arbitration
in accordance with this Clause,
·
whether Section 15.5 has
been complied with or violated for purposes of awarding relief under that
Section that a court can award, and
·
whether Sections 15.10, 15.11,
or 15.12 have been complied with or violated.
All such disputes are for a court and not a
Neutral to decide.
15.5. Pre-Filing Requirements. Before starting a lawsuit or Arbitration,
the party with a Claim (the “Claimant”) must comply with all of the rules set
forth in this section 15.10 (the “Pre-Filing Rules”). The Claimant must give
the other party (the “Respondent”) a written notice (“Claim Notice”). The Claim
Notice must state the claimant’s name, mailing address, email address, phone
number, and explain in reasonable detail the nature of the Claim, any
supporting facts, the requested relief, and how such relief was computed.
If you are the Claimant, you must
send the Claim Notice in writing to us by U.S. mail or professional courier
service, addressed to: General Counsel, Spy Dialer, 501 Union St Ste 545, PMB 29296, Nashville, TN,
37219-1876 (“Notice Address”).
You and any lawyer you have hired for the Claim must manually sign the Claim
Notice, and the Claim Notice must give your full name and full contact
information for you and your lawyer (if any). If you are represented by a
lawyer, your lawyer must certify in your Claim Notice whether or not your
lawyer knows or has good reason to believe that your Claim will be a “Mass
Claim.” (“Mass Claims” are Claims made by 25 or more individuals (“Mass
Claimants”) who have retained at any time the same lawyer or coordinating
lawyers for such Claims.) If so, or if it is later shown that the Claim is a
Mass Claim, the Mass Claim will be subject to the “Mass Claims Rules” section
of this Clause (the “Mass Claims Rules”). By signing the Claim Notice, you and
your lawyer certify that, after a reasonable investigation, all facts set forth
in the Claim Notice are true and not misleading to the best of the signer’s
knowledge. To protect Your privacy, you might be required to provide both your
authentication and consent for us to discuss your Claim Notice or any other
information with anyone but you, including an attorney (“Authentication and
Consent”).
If we are
the Claimant, we may send a Claim Notice to you at any physical or email
address we have for you in our records. A Company representative must sign any
Claim Notice we send. A notice or letter stating that any amount you owe us is
past due will serve as a Claim Notice.
Whoever sends the Notice must give the other
party 60 days after receipt of a complete Claim Notice (including Your
Authentication and Consent, if required) to investigate the Claim (the “Pre-Filing
Period”). During the Pre-Filing Period, either You or Company may request an
individualized discussion (by phone call or videoconference) regarding the
Claim Notice (“Meet-and-Confer”). You and Company must work together in good
faith to select a mutually agreeable time for the Meet-and-Confer (which can be
after the 60-day period). You and a Company representative must personally
participate, unless otherwise agreed in writing. Your and Company’s lawyers (if
any) can also participate. The Meet-and-Confer will be limited to Claims
between you and us.
No Claimant
may start an Arbitration until the Claimant complies in full with these
Pre-Filing Rules. This includes: (i) giving a Claim Notice; (ii) trying to
settle the Claim in good faith; (iii) upon request, participating personally in
a Meet-and-Confer on an individual basis; and (iv) for Mass Claims, complying
with the Mass Claims Rules.
Any applicable statute of limitations or
contractual limitations period will be tolled for the Claims and requested
relief in the Claim Notice during the “Pre-Filing Period.” The Pre-Filing
Period is the number of days between the date that the complete Claim Notice
(and Authentication and Consent, if required) is received by the other party
and the later of (i) 60 days later or (ii) the date the Meet-and-Confer is
completed, if timely requested.
If we give written notice that you have not
complied with the Pre-Filing Rules, no person may accept your Arbitration
filing or proceed under this Clause unless you obtain a court order (no longer
subject to appeal) that authorizes the filing. If you do not comply with the
Pre-Filing Rules, you agree that we are entitled to an injunction and/or money
damages for our Arbitration filing fees and our reasonable legal fees and costs
to enforce the Pre-Filing Rules.
15.6. Commencement of Arbitration or Litigation. If and when the Claimant has complied with
the Pre-Filing Rules, including the pre-filing terms of the Mass Claims Rules
(when they apply), the Claimant may file a lawsuit or an Arbitration with the
American Arbitration Association (the “AAA”) or any Neutral appointed by a
court (or by a Process Neutral appointed under the Mass Claims Rules). If the
Claimant starts or threatens a lawsuit, the Respondent may demand an Arbitration
instead. The Respondent may make this demand in court papers. The Respondent
may make this demand if the Claimant starts a lawsuit on an individual basis
and then tries to pursue a class action. Any lawsuit must stop at once if the
Respondent makes an Arbitration demand.
Arbitrations are conducted under
this Clause and, for AAA Arbitrations, the AAA Rules in effect at the time the
Arbitration is filed, including AAA’s Consumer Arbitration Rules and, if
applicable, the AAA Consumer Mass Arbitration Rules. The Neutral must be a
lawyer with at least ten years of experience or a retired judge unless you and
we otherwise agree. No Arbitration brought on a class basis may be managed or
conducted without our consent by any Neutral who would permit a class Arbitration
under this Clause.
Lawsuits: The
Claimant may bring a lawsuit instead of an arbitration if the Respondent does
not demand an Arbitration. Also, some Claims for a public injunction may be
brought in court. See “Invalid Terms.” Finally, either party may start or
require that a small claims court decide any individual Claim that such court
may hear under its rules. The judge hearing such a Claim will be treated as the
Neutral under this Clause. The judge’s decision will be treated as an Arbitration
award under this Clause. The small claims court will conduct its hearing under
its own rules.
Waivers: If
you start an Arbitration or we demand an Arbitration of a Claim you bring in
court, you give up your right to: (i) have a court or jury decide the Claim; (ii)
bring the Claim as a private attorney general or representative of other
parties; (iii) without our consent, join the Claim with claims of other
consumers; or (iv) engage in a class action or class Arbitration as a class
representative or class member. But, see “Invalid Terms” as to public
injunction Claims.
Invalid Terms: (i) You must give
us written notice and at least 30 days to cure any problem that might prevent
an Arbitration of a Claim. We may waive any rights or amend this Clause at any
time without your consent, solely to cure any such problem or to give you more
rights and/or less duties. (ii) If any part of this Clause is held invalid,
generally the rest of this Clause will continue to apply. (iii) But, if a court
rules that the Neutral can decide a Claim on a class or other representative
basis and the ruling becomes final after all appeals, only this sentence will
apply and the remainder of this Clause will be void. (iv) And, if you bring a
Claim for public injunctive relief and a court enters an order, not subject to
further appeal, that the limits on representative Claims are invalid regarding
such Claim, such Claim will be decided in court, and any individual Claims for
monetary relief will be arbitrated. In such a case, the parties will ask the
court to stay the Claim for public injunctive relief until a court has entered
the Arbitration award as to individual relief.
15.7. Applicable Law. Use of the Websites involves interstate
commerce. Thus, the Federal Arbitration Act (the “FAA”) governs this Clause.
The Neutral must apply substantive law and comply with the FAA. The Neutral
must honor statutes of limitation and privilege rights. As to punitive damages,
the Neutral must honor constitutional standards that apply in court.
15.8. Arbitration Procedures. The Neutral shall be bound by the terms of
this arbitration provision. The Arbitration will be governed by the Consumer
Arbitration Rules (“AAA Rules”) of the AAA, as modified by this Arbitration
provision. The AAA Rules are available online at www.adr.org or by writing to
the Notice Address. The AAA shall administer the Arbitration. If the AAA is
unavailable or unwilling to administer the Arbitration in accordance with this
arbitration provision, the Arbitration will be administered by another
Arbitration provider that the parties agree to or that the court selects (“Manager”).
As in court, You and Company agree that any
counsel representing someone in Arbitration certifies that they are complying
with the requirements of Federal Rule of Civil Procedure 11(b), including a
certification that the Claim or the relief sought is neither frivolous nor
brought for an improper purpose. The Neutral is authorized to impose any
sanctions available under the AAA Rules, Federal Rule of Civil Procedure 11, or
applicable federal or state law against all appropriate represented parties and
counsel.
Unless Company and You agree otherwise, any
Arbitration hearings will take place in the county (or parish) of Your
residence at the time of the filing of the Claim. If You bring a Claim for
$10,000 or less, we agree that You may choose whether the Arbitration will be conducted
solely on the basis of documents submitted to the Neutral, through a telephonic
hearing, or by an in-person hearing as established by the AAA Rules. If Your
Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
Neutrals may consider rulings in prior
Arbitrations involving different Company users, but a Neutral’s ruling will not
be binding in proceedings involving different Company users.
Unless the parties agree otherwise, You and we
must bring all directly related Claims in a single Arbitration proceeding. If
You or we later initiate a subsequent Arbitration asserting Claims that are
directly related to ones that were raised in a prior Arbitration between the
same parties, the AAA or the Neutral shall either (i) consolidate the
subsequent Arbitration with the earlier proceeding if it is ongoing or (ii)
dismiss any claims raised in the subsequent Arbitration that would be barred by
applicable law if brought in court.
Regardless of the manner in which the
Arbitration is conducted, the Neutral shall issue a written decision sufficient
to explain the essential findings and conclusions on which the award is based. Except
as provided in Section 15.10, the Neutral can award the same damages and relief
that a court can award under applicable law. Although under some laws Company
may have a right to an award of attorneys’ fees and expenses if it prevails in
an Arbitration, Company agrees that it will not seek such an award unless You
are represented by an attorney and the Neutral has determined that Your Claim
is frivolous or brought for an improper purpose (as measured by the standards
of Federal Rule of Civil Procedure 11(b)).
Cost Reduction Measures: To the extent
possible, Neutrals must try to limit costs and burdens on the parties. Thus,
where possible, Neutrals must employ the following measures (the “Cost
Reduction Measures”): (i) conduct document-only Arbitrations, without oral
argument or an in-person hearing; (ii) allow the parties to introduce any
needed testimony through excerpts from recorded depositions of party witnesses;
(iii) conduct any necessary hearing virtually or by conference call; (iv) hold
any in-person hearing at a place reasonably convenient to you and us; and (v)
follow expedited procedures. Where possible, a Process Neutral shall decide how
to apply the Cost Reduction Measures.
15.9. Fees and Costs. The AAA, a Process Neutral or the Neutral in your
Arbitration will decide each party’s share of fees and costs for Arbitrations.
But, we will pay all Arbitration fees and costs required by law or required to
enforce this Clause. If you win an Arbitration you start, we will pay your
reasonable fees and costs for attorneys, experts and witnesses if required by
law or required to enforce this Clause. The Neutral need not limit a fee award
because your Claim is for a small amount.
Unless it would conflict with law or make this
Clause invalid:
(i)
A party is entitled to its
reasonable fees and costs if the other party brings or defends a Claim for any
improper purpose, including to harass the injured party, cause unnecessary
delay or increase costs to the injured party.
(ii)
At any time after the
Claimant gives a Claim Notice (including before any Arbitration begins), either
party may make a written offer to settle the Claim. If the settlement offer is
rejected but the Neutral’s award is no better to the rejecting party, then that
party must bear its own post-offer legal and Arbitration fees and costs. Also,
the rejecting party must pay the other party all reasonable post-offer Arbitration
fees and costs the other party incurs but not any amount that exceeds the
amount you would otherwise receive in the Arbitration.
(iii)
The party who receives a
settlement offer may only disclose it to support a claim for relief under
subsections (i) or (ii) of this “Fees and Costs” section.
15.10. Requirement of Individual Arbitration. YOU AND COMPANY AGREE THAT EACH MAY BRING
CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A
PLAINTIFF, CLASS MEMBER, OR PARTICIPANT IN ANY PURPORTED CLASS, REPRESENTATIVE,
OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both You and Company
agree otherwise, the Neutral may not consolidate more than one person’s Claims,
and may not otherwise preside over any form of a class, representative, or
private attorney general proceeding. The Neutral may award any relief that a court
could award, so long as the relief is individualized to the claimant and would
not affect other Company users. Neither You nor we may seek non-individualized
relief that would affect other Company users. If (after exhaustion of all
appeals) a court decides that any of this Section’s limitations are
unenforceable as to some aspect of the case, then all other aspects of the case
must be arbitrated first. After completing Arbitration, the remaining
(non-arbitrable) aspects of the case will then be decided by a court.
15.11. Administration and Requirements of Mass Claims. Despite any language in this Clause to the
contrary:
(i)
If you and/or your counsel
know or have good reason to believe that there are or will be Mass Claims, you
must comply with the “Pre-Filing Rules” and the Mass Claims Requirements before
filing any lawsuit or Arbitration.
(ii)
At any time, upon our
request or the request of the Mass Claimants (the two “Sides”), the AAA shall
appoint a Neutral (a “Process Neutral”) to decide any scheduling, discovery, or
other process issues the two Sides cannot resolve through discussion. Decisions
of the Process Neutral are not subject to appeal.
(iii)
No Mass Claimant may file
any Mass Claim in court or an Arbitration until 210 days run from the first
delivery of a Notice by a Mass Claimant or, if earlier, until counsel for the
Mass Claimants (“Mass Claims Counsel”) certifies in writing that the Pre-Filing
Period has run for all or substantially all the Mass Claims.
(iv)
Once this no-filing period
ends, each Side will select up to 10 Mass Claims for individual Arbitrations
under this Clause (“Initial Arbitrations”).
(v)
Soon after all Initial
Arbitrations have ended (or sooner if both Sides agree), both Sides will engage
in a single mediation of all remaining Mass Claims (the “Mediation”). We will
pay the mediator fees. If the two Sides cannot agree on a mediator within 30
days, AAA, the Manager, a Process Neutral, or a court will appoint the
mediator. Both Sides must cooperate to schedule the Mediation soon after the
mediator is appointed.
(vi)
If the two Sides do not
settle all Mass Claims within 30 days after the end of the Mediation, either
Side (the “Elector”) may give a written notice to the other Side (the “Receiver”)
within 60 days after the end of the Mediation (a “Group Election”). The Group
Election must state that, in the Elector’s view, the Claims of the remaining
Mass Claimants (the “Remaining Claimants”) include common issues best resolved
through Arbitrations among groups of Mass Claimants (“Qualifying Groups”) and
us (“Group Arbitrations”).
(vii)
If either Side makes a
Group Election, the Elector and Receiver must try in good faith to agree: (a)
whether Group Arbitrations are warranted; (b) if so, how many Remaining
Claimants should be in each Qualifying Group; and (c) how Mass Claimants should
be assigned to Qualifying Groups. If the two Sides cannot agree on the above
matters in this subsection within 30 days, a Process Neutral will decide.
(viii)
Before the Remaining
Claimants start any Group Arbitration, the two Sides will ask AAA how much it
will charge for Group Arbitrations. Neither Side shall start a Group
Arbitration before 30 days have run from the time AAA gives the two Sides final
price data for Group Arbitrations.
(ix)
No Neutral in a Group
Arbitration may decide any class Claim or any Claim for a public injunction.
(x)
The Process Neutral will
decide how the two Sides will share the Neutral’s fees and charges in each
Group Arbitration (or else the Neutral in each Group Arbitration will decide),
without regard to AAA Rules that would otherwise apply. But, we will ordinarily
bear at least 50% of such fees and charges.
(xi)
If neither Side makes a
Group Election and Mass Claims Counsel certifies that individual issues
predominate over common issues for all your Claims, you may bring a lawsuit
against us to resolve any remaining Claims. In such an event, you may not bring
an arbitration against us. But, we may still elect an Arbitration of any Claims
other than public injunction claims if you try to assert in court any Claims on
a class or representative basis.
(xii)
If: (a) neither Side makes
a timely Group Election within 60 days from the end of the mediation after the
Initial Arbitrations; (b) either Side makes a timely Group Election and AAA
provides final price data for Group Arbitrations; or (c) Mass Claims remain
after the final Group Arbitrations, within 30 days after any such event either
Side may give written notice to the other Side (a “Manager Rejection Notice”)
that it elects for Neutrals (“Further Neutrals”) to conduct any further Single
Arbitrations or Group Arbitrations (“Further Arbitrations”) without help from
AAA. In such an event, the two Sides will agree on Further Neutrals or the
Process Neutral will appoint such Further Neutrals (or, failing that, a court
will appoint such Further Neutrals). The Process Neutral (or court) should try
to appoint qualified Neutrals who charge no more than the amount Neutrals
charge for AAA mass Arbitrations. Once a Further Neutral has been selected and
retained for a Further Arbitration, such Further Neutral will start and conduct
such Further Arbitration per this Clause and such further procedures as such
Further Neutral shall adopt with due regard to the AAA Rules.
(xiii)
Each Side may introduce in
any Initial Arbitration or Further Arbitration prior recorded live testimony
from any other Arbitration of a Mass Claim.
(xiv)
The Neutral hearing any
Mass Claim shall limit Mass Claimants from obtaining new and duplicative
discovery from us by, among other things, allowing discovery obtained from us
in any Arbitration of a Mass Claim to be used by all of the Mass Claimants in any
other Arbitration or lawsuit between a Mass Claimant and us.
(xv)
Absent your and our
written consent, no person may serve as Neutral for more than one Initial
Arbitration or Further Arbitration involving the Mass Claimants.
(xvi)
You agree that Mass Claims
Counsel will act for you and all other Mass Claimants.
(xvii)
The statute of limitations
on any Claim you bring will not run from the time you file a proper Claim
Notice until you are first allowed to start a lawsuit or Further Arbitrations.
(xviii) While the Mass Claims Rules are designed to
resolve Mass Claims fairly, quickly, and efficiently, you understand that your
Claim may not be selected for an Initial Arbitration or resolved in a Group
Arbitration. You further understand that, in some cases, the resolution of any
Mass Claims you assert may be delayed by these Mass Claims Rules.
If this Section applies to a Notice, the
Informal Resolution Period for the Claims and relief set forth in that Notice
will be extended (including the tolling of any applicable statute of
limitations or contractual limitations period for the Claims and requested
relief) until that Notice is selected for a staged proceeding, withdrawn, or
otherwise resolved.
This Section and each of its requirements are
intended to be severable from the rest of this Clause. If, after exhaustion of
all appeals, a court decides that the staging process in this Section is not
enforceable, then the cases may be filed in Arbitration, and the payment of AAA
fees will be assessed as the Arbitrations advance and Neutrals are appointed
rather than when Arbitrations are initiated.
15.12. Future Changes to Agreement to Arbitrate. Notwithstanding any provision in these Terms
to the contrary, if Company makes any future change to this arbitration
provision (other than a change to the Notice Address, website links, or
telephone numbers listed in this provision), You may reject any such change by
sending us written notice via U.S. mail within 30 days of the first notice of
the change to the Notice Address Above. Include Your name, address, phone
number, account name, and a statement personally signed by You that You wish to
reject the changes to the arbitration provision. By rejecting any future
change, You are agreeing that you will arbitrate any dispute between You and Company
in accordance with the language of this arbitration provision.
16. SEVERABILITY
If any provision of these Terms of Service is found to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable provision will be deemed superseded by a valid and enforceable provision that most closely matches the intent of the original provision, and the remainder of these Terms of Service will remain in full force and effect.
17. CONTACT US
If you have any questions about these Terms of Service, please contact us at
support@spydialer.com.