Terms & Conditions

17. Dispute Resolution

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND HOMETHRIVE TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER.  ARBITRATION PRECLUDES YOU AND HOMETHRIVE FROM SUING IN COURT OR HAVING A JURY TRIAL.  YOU AND HOMETHRIVE AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING.  HOMETHRIVE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.

THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION ARE INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY’S CLAIMS.

FOLLOW THE INSTRUCTIONS BELOW, IN SECTION 16(J), IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.  NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS AGREEMENT.

• Claims This Section Applies To. The dispute resolution and binding arbitration terms in this Section 16 (the “Agreement”) apply to all Claims between you and Homethrive.  A “Claim” is (i) any dispute, claim, or controversy (excluding those exceptions listed below) between you and Homethrive, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, that either party wishes to seek legal recourse for and that arises from or relates to these Terms, or the Services, including any privacy or data security claims or claims related to the validity, enforceability, or scope of the arbitration requirement or any portion of it; (ii) any dispute, claim, or controversy that is presently the subject of purported class action litigation in which you are not a member of a certified class; and (iii) any dispute, claim, or controversy that may arise after termination of these Terms of Use.
• Informal Dispute Resolution Prior to Arbitration. If you have a Claim against Homethrive or if Homethrive has a Claim against you, you and Homethrive will first attempt to resolve the Claim informally in order to try and resolve the Claim faster and reduce costs for both parties.  You and Homethrive will make a good-faith effort to negotiate the resolution of any Claim for 45 days, or such longer period as mutually agreed in writing (email suffices) by the parties, (“Informal Resolution Period”) from the day either party receives a written notice of a dispute from the other party (a “Claimant Notice”) in accordance with this Agreement.

You will send any Claimant Notice by certified mail addressed to Homethrive, Inc., Attn: Legal Department, 980 N Michigan Ave. Suite 1090, PMB 792811, Chicago, IL 60611, or by email to privacy@homethrive.com. Homethrive will send any Claimant Notice to you by certified mail or email using the contact information you have provided to Homethrive.  The Claimant Notice sent by either party must (i) include the sender’s name, address, email address, and telephone number; (ii) describe the nature and basis of the Claim; (iii) set forth the specific relief sought; and (iv) include your handwritten signature or the handwritten signature of a Homethrive employee, as applicable, depending on which party is initiating the Claim.  A Claimant Notice shall be individualized such that it may only pertain to you and you alone, and may not be combined with a Claimant Notice by any other customer or user of the Services.

During the Informal Resolution Period and before we may commence arbitration of a dispute, we agree to meet and confer by telephone or by videoconference in a good faith effort to resolve the dispute informally (the “Informal Dispute Resolution Conference”).  If you are represented by counsel, your counsel may participate in the Informal Dispute Resolution Conference, but you must also personally participate in the Informal Dispute Resolution Conference.

The party initiating the dispute agrees to provide a notice of intent to initiate the Informal Dispute Resolution Conference (“Notice of Conference”) as follows: the Notice of Conference must include the following information: Your name, telephone number, mailing address, e‐mail address associated with your account (if you have one), the name, telephone number, mailing address, and e‐mail address of your counsel (if any), and whether you intend to have the conference by telephone or by videoconference.  The Notice of Conference must be mailed to Homethrive by certified mail return receipt requested to Homethrive, Inc., Attn: Legal Department, 980 N Michigan Ave. Suite 1090, PMB 792811, Chicago, IL 60611, or by email to privacy@homethrive.com. A Notice of Conference shall be individualized such that it may only pertain to you and you alone, and may not be combined with a Notice of Conference by any other customer or user of the Services.  A customer or user of the Services may, but is not required to, combine in one mailing a Claimant Notice and a Notice of Conference.

The Informal Resolution Period is designed to allow the party who has received a Claimant Notice to make a fair, fact-based offer of settlement if it chooses to do so. You or Homethrive cannot proceed to arbitration before the end of the Informal Resolution Period.  If you or Homethrive file a Claim in court or proceed to arbitration without complying with the requirements in this Section 16, including waiting until the conclusion of the Informal Resolution Period, the other party reserves the right to seek relief from a court to enjoin the filing and seek damages from the party that has not followed the requirements in this Section 16 to reimburse it for any arbitration fees and costs already incurred as a foreseeable consequence of that breach.

The statute of limitations and any filing fee deadlines for a Claim will be tolled for the duration of the Informal Resolution Period for that Claim so that the parties can engage in this informal dispute-resolution process.

• Claims Subject to Binding Arbitration. Exceptions. Except for individual disputes that qualify for small claims court (provided that the small-claims court does not permit class or similar representative actions or relief) and any disputes exclusively related to the intellectual property or intellectual property rights of you or Homethrive, including any disputes in which you or Homethrive seek injunctive or other equitable relief for the alleged unlawful use of your or Homethrive’s intellectual property or other infringement of your or Homethrive’s intellectual property rights (“IP Claims”), all Claims, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 16(B) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury.  Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision.  The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
• Binding Individual Arbitration. The sending of a Claimant Notice and the completion of an Informal Dispute Resolution Conference are conditions precedent to our respective right to commence arbitration.  Accordingly, if, but only if, we are unable to resolve a dispute within 30 days after the Informal Dispute Resolution Conference is completed, we may commence arbitration pursuant to the procedures in this Agreement.  No arbitration may commence or proceed until the requirements set forth in Sections 16(B) (above) are fully satisfied.

The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association, as modified by this Agreement, and will be administered by the AAA.  If the AAA is unavailable or refuses to arbitrate the parties’ dispute for any reason, the arbitration shall be administered and conducted by a widely-recognized arbitration organization that is mutually agreeable to the parties, but neither party shall unreasonably withhold their consent.  If the parties cannot agree to a mutually agreeable arbitration organization, one shall be appointed pursuant to Section 5 of the Federal Arbitration Act.  In all events, the AAA Rules shall govern the parties’ dispute.  The AAA Rules are available online at www.adr.org, or by calling the AAA at 1 800-778-7879.  The AAA Rules may change from time to time, and you should review them periodically.

The arbitrator shall be bound by the terms of this Agreement and shall follow the applicable law.  In this regard, the arbitrator shall not have the power to commit errors of law or legal reasoning, and any award rendered by the arbitrator that employs an error of law or legal reasoning may be vacated or corrected by a court of competent jurisdiction for any such error.

This Agreement affects interstate commerce, and the enforceability of this Section 16 will be substantively and procedurally governed by the FAA to the extent permitted by law.  As limited by the FAA, this Agreement, and the AAA Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability.  To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or Homethrive to satisfy one of our individual Claims (that the arbitrator determines are supported by credible relevant evidence).

We agree that, by entering into this Agreement, we are each waiving the right to a trial by jury or to participate in a class action to the maximum extent permitted by law.

• Arbitration Procedure and Location. You or Homethrive may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing a demand for arbitration with AAA in accordance with the AAA Rules.

Instructions for filing a demand for arbitration with AAA are available on the AAA website or by calling AAA at 800-778-7879.  You will send a copy of any demand for arbitration by certified mail addressed to Homethrive, Inc., Attn: Legal Department, 980 N Michigan Ave. Suite 1090, PMB 792811, Chicago, IL 60611, or by email to privacy@homethrive.com. Homethrive will send any demand for arbitration to you by certified mail or email using the contact information you have provided to Homethrive.

The arbitration will be conducted by a single arbitrator in the English language.  You and Homethrive both agree that the arbitrator will be bound by this Agreement.

Unless the parties agree in writing, any arbitration hearings will take place in the county (or parish) of your billing address.

At either party’s election, arbitration of any dispute shall proceed pursuant to the Desk Arbitration rules of the AAA, unless both parties are represented by counsel.

Prior to the appointment of a merits arbitrator, either party may request the appointment of a process arbitrator to determine: (i) whether the conditions precedent set forth in paragraph B of this Section 16 have been satisfied; (ii) whether AAA’s filing requirements have been satisfied; (iii) the applicable arbitration agreement; (iv) the applicable AAA rules that apply; (v) the allocation of payment advances on administrative fees, arbitrator compensation, and/or expenses; (vi) any other issue agreed to be addressed by the process arbitrator; and (vii) any other issue regarding the administration of the arbitration.

If the process arbitrator makes an initial determination that the dispute is frivolous or brought in bad faith, it shall allocate all AAA and arbitrator fees and expenses to the party who initiated the arbitration.  If the merits arbitrator subsequently determines that the claims were not frivolous, Homethrive will reimburse any AAA filing, administration and arbitrator fees that were paid by you.

If the merits arbitrator finds that a dispute is frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the prevailing party shall recover all fees paid to AAA and, at the arbitrator’s discretion, an award of reasonable attorney’s fees and costs.

• Arbitration Fees. After Homethrive receives notice that you have commenced arbitration, Homethrive will promptly reimburse you for your payment of the filing fee.  If you are unable to pay this fee, Homethrive will pay it directly upon receiving a written request from you.  Except as otherwise provided for herein, Homethrive will pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with the terms of this Agreement.
• Offers of Settlement. Either party may, but is not obligated to, make a written settlement offer for a Claim. If an arbitration decision or award is later issued that is less favorable to a party than the latest written offer of settlement that party did not accept, that party must pay all costs and fees—including arbitration, attorney, and expert fees—incurred by the other party after the written settlement offer was made.  The terms of any settlement offer may not be disclosed to an arbitrator until after the arbitrator issues a decision or award on the Claim.  
• Confidentiality. If you or Homethrive submits a Claim to arbitration, you and Homethrive agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of discovery in the arbitration.  You and Homethrive agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.
• Mass Arbitration. WE AGREE THAT IN THE EVENT THAT MASS ARBITRATION IS ATTEMPTED OR SOUGHT, SUCH ARBITRATION SHALL BE ADMINISTERED PURSUANT TO THE FOLLOWING RULES.

1. “Mass Arbitration” means 25 or more arbitration demands that: (i) are filed within 180 days of each other, (ii) allege similar or identical claims or causes of action, and (iii) either (a) the parties to those arbitration demands seek to simultaneously or collectively administer and/or arbitrate together, or (b) are filed by the same counsel or in coordination with each other.
2. In the event that Mass Arbitration is attempted or sought involving 250 arbitration demands or less, we agree the arbitration provider shall: (i) group the arbitration demands into batches of no less than 25 arbitration demands per group; and (ii) provide for resolution of each group or batch as a single arbitration with one set of filing and administrative fees and a single arbitrator assigned per group or batch.
3. In the event that Mass Arbitration is attempted or sought involving over 250 arbitration demands, we agree that the arbitration provider shall: (i) group the arbitration demands into batches of no less than 250 arbitration demands per group; and (ii) provide for resolution of each group or batch as a single arbitration with one set of filing and administrative fees and a single arbitrator assigned per group or batch.
4. All Mass Arbitration shall be subject to all other substantive and procedural terms contained within this Agreement.
5. We agree to cooperate in good faith with the arbitration provider to implement the aforementioned protocol for Mass Arbitration with regard to resolution, fees, and administration.
6. If any part of this Section 16(I) related to Mass Arbitration is found to be unenforceable, the unenforceable portion shall be stricken, and the remainder of this Section 16(I) and this Agreement shall be enforced to the maximum extent permitted by law.
7. 7.  If the arbitration provider is unwilling or unable to follow the procedures set forth in this Section 16(I) with regard to Mass Arbitration, the parties may attempt to retain a different, mutually agreeable and widely-recognized arbitration organization that will agree to follow the procedures set forth in this Section 16(I).  In the event that the parties are unable to retain or agree to such an alternative arbitration provider, the alternative dispute resolution provisions set forth in this Agreement shall not apply to those disputes within the Mass Arbitration

• Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted this Agreement by emailing privacy@homethrive.com.  To be effective, the opt-out notice must include your full name, mailing address, and email address.  The notice must also clearly indicate your intent to opt out of binding arbitration in order to be valid.  By not opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 16.
• Rejection of Future Arbitration Changes. You may reject any change we make to Section 16 (except address changes) by sending us notice of your rejection within 30 days of the change via email at privacy@homethrive.com. Changes to Section 16 may only be rejected as a whole, and you may not reject only certain changes to Section 16.  If you reject changes made to Section 16, the most recent version of Section 16 that you have not rejected will continue to apply.
• Severability. If any portion of this Section 16 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from this Agreement; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 16 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 16; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction, in accordance with this Agreement, and not in arbitration.  The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration.  Further, if any part of this Section 16 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 16 will be enforceable.
• Delegation. All issues are for the arbitrator to decide including, but not limited to, (i) all issues regarding arbitrability, (ii) the scope and enforceability of this arbitration provision as well as the Agreement’s other terms and conditions, (iii) whether you or Homethrive, through litigation conduct or otherwise, waived the right to arbitrate, (iv) whether all or any part of the arbitration provision or Agreement is unenforceable, void or voidable including, but not limited to, on grounds of unconscionability, (v) any dispute regarding the payment of arbitration-related fees, (vi) any dispute related to the Claimant Notice, Notice of Conference and/or Informal Dispute Resolution Conference, and (vii) any dispute related to Mass Arbitration (defined above).

Pursuant to this Agreement, the arbitrator has been delegated with, and possesses, exclusive authority to resolve all of the above-enumerated types of disputes.  However, if putative class or representative claims are initially brought by either party in a court of law, and a motion to compel arbitration is brought by any party, the court shall have the power to decide whether this agreement permits class or representative proceedings