1. Scope of Services
By using and/or visiting this website or mobile applications that link to or reference these Terms and Conditions (collectively, including all content and functionality available through the Cortera.com and related domain names and any mobile applications , the “Cortera Services”), you (”you” or “User”) signify your agreement to (i) these terms and conditions (this “User Agreement”); and (ii) Cortera, Inc.’s (”Cortera”) privacy notice, located at www.cortera.com/privacy and which is incorporated herein by reference (the “Cortera Privacy Notice”). If you do not agree to any of these terms or the Cortera Privacy Notice, please do not use the Cortera Services. Although Cortera may attempt to notify you when major changes are made to this User Agreement, you should periodically review the most up-to-date version. Cortera may, in its sole discretion, modify or revise this User Agreement at any time, and you agree to be bound by such modifications or revisions. Nothing in this User Agreement shall be deemed to confer any third-party rights or benefits. If you are using the Cortera Services on behalf of a company, entity, or organization, you hereby represent and warrant that you are an authorized representative with authority to bind such company, entity, or organization to these terms and conditions and that you hereby exercise such authority by using the Cortera Services. You accept this User Agreement by accessing or using the Cortera Services in any manner, even if you do not create an account with Cortera. You represent and warrant that you are at least 18 years of age and of legal competence to enter into this agreement.
This User Agreement requires that disputes between us be resolved by binding arbitration rather than by jury trials or class actions and limit your remedies in the event of a dispute.
2. Restricted License and Use Restrictions
Cortera hereby grants to User a non-exclusive, non-transferable, restricted license (without the right to sublicense) to use the Cortera Services solely in connection with present or prospective credit, financial, or risk management transactions with the business entities to which the User’s inquiries relate. User will not use the Cortera Services as a factor in establishing an individual’s eligibility for credit or insurance to be used primarily for personal, family or household purposes, or employment purposes, or for any other purposes governed by the Fair Credit Reporting Act. User will use the Cortera Services in compliance with all laws, regulations, and ordinances that, in Cortera’s opinion, govern the use of the Cortera Services, and in compliance with all use restrictions set forth in the Agreement or hereafter adopted by Cortera. Specifically, and notwithstanding the generality of the foregoing, User warrants that in utilizing the Cortera Services, including but not limited to Cortera Decisions, User has and will comply with the federal Equal Credit Opportunity Act, as amended, and its state counterparts, and all other federal, state, and local laws. User’s use of the Cortera Services shall be for internal business purposes only. User shall not resell, broker, transfer, or otherwise make the Cortera Services and/or the information contained therein available to any third parties. User shall not use the Cortera Services, or store the information contained therein, for the purpose of creating product(s) that compete with the Cortera Services. You agree that you will not, and will not assist or enable others to:
a. use the Cortera Services to threaten, stalk, defraud, incite, harass, or advocate the harassment of another person, or otherwise interfere with another user’s use of the Cortera Services;
b. use the Cortera Services to submit or transmit spam, chain letters, contests, junk email, pyramid schemes, surveys, or other mass messaging, whether commercial in nature or not;
c. use the Cortera Services for promotional or commercial purposes, except as expressly allowed in writing by Cortera;
d. use the Cortera Services for keyword spamming or to otherwise attempt to manipulate natural search results;
e. use the Cortera Services to promote bigotry or discrimination against protected classes;
f. use the Cortera Services to violate any third-party right, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
g. use the Cortera Services to submit or transmit pornography or illegal content;
h. use the Cortera Services to solicit personal information from minors or to harm or threaten to cause harm to minors;
i. use the Cortera Services in violation of these Terms or any applicable law;
j. modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Cortera Services;
k. reverse engineer any portion of the Cortera Services;
l. remove or modify any copyright, trademark or other proprietary rights notice on the Cortera Services or on any materials printed or copied off of the Cortera Services;
m. record, process, or mine information about other users;
n. use any robot, spider, Cortera Services search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index the Cortera Services or any Cortera Services Content;
o. access, retrieve or index the Cortera Services to for purposes of constructing or populating a searchable database of business information or reviews;
p. reformat or frame any portion of the Cortera Services;
q. take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on Cortera’s technology infrastructure;
r. attempt to gain unauthorized access to the Cortera Services, user accounts, computer systems or networks connected to the Cortera Services through hacking, password mining or any other means; use the Cortera Services to transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature ; use any device, software or routine that interferes with the proper working of the Cortera Services, or otherwise attempt to interfere with the proper working of the Cortera Services; make excessive traffic demands; use the Cortera Services to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Cortera Services; remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Cortera Services, features that prevent or restrict the use or copying of information from the Cortera Services, or features that enforce limitations on the use of the Cortera Services;
s. use the Cortera Services to compare the data and information offered by Cortera to that of a competitive service.
To use some of the Cortera Services, you may be required to create an account and provide information about yourself to Cortera. All information submitted to Cortera in connection with the creation of an account must be accurate. You agree not to provide to Cortera an email address other than your own. User acknowledges that it is User’s duty to keep secure and hold in the strictest confidence all user identification codes (the “User IDs”) and passwords and the information obtained through the Cortera Services. Accordingly, User agrees to: (a) take all commercially reasonable measures to prevent unauthorized access to, or use of, the Cortera Services or the data received therefrom, whether the same is in electronic form or hard copy, by any third party. For companies, entities, or organizations, you hereby agree to: (a) restrict access to the Cortera Services to employees who have a need to know; (b) immediately deactivate the User IDs of any employee who no longer has a need to know, or for terminated employees on or prior to the date of termination; and (c) unless otherwise agreed, prohibit the sharing of User IDs amongst employees. You agree to notify Cortera immediately of any unauthorized use of your User ID(s).
In using the Cortera Services, you may be exposed to information or content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate. Cortera disclaims all liability associated with such content and information. Cortera does not endorse such information and content, and cannot vouch for its accuracy. Cortera is under no obligation to monitor the Cortera Services or the information and content displayed through the Cortera Services. However, Cortera reserves the right to investigate possible violations of these terms, block users from accessing the Cortera Services, and refer matters to law enforcement authorities for further investigation. We may disclose information to third parties, including your User Submissions (as defined below), in accordance with the privacy notice, located at www.cortera.com/privacy.
User agrees that if Cortera determines or reasonably suspects that User is reselling or brokering the Cortera Services’ information, programs, computer applications, or data, or is otherwise violating any provision of these terms, Cortera may take immediate action, including terminating the delivery of, and the license to use, the Cortera Services. Cortera reserves the right to use whatever means it deems appropriate to monitor User’s compliance with the terms and conditions of this Agreement. Cortera reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized access to or use of the Cortera Services, including, but not limited to, technological barriers, IP mapping, and contacting your Internet Service Provider (ISP) regarding such unauthorized use.
User agrees that (i) he/she/it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she/it is not listed on any U.S. Government list of prohibited or restricted parties.
3. User Submissions
You may submit textual content (the “User Submissions”) through the Cortera Services. You understand that, whether or not such User Submissions are published, Cortera does not guarantee any confidentiality with respect to any User Submissions, In connection with User Submissions, you affirm, represent, and/or warrant that you own or have the necessary licenses, rights, consents, and permissions to use and authorize Cortera to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Cortera Services and this User Agreement. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to Cortera, you hereby grant Cortera a worldwide, non-exclusive, irrevocable, perpetual, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, and display the User Submissions in connection with the Cortera Services and for any other purpose as determined by Cortera, its successors, and affiliates. You also hereby grant each user of the Cortera Services and any other third parties to whom Cortera displays the User Submissions a non-exclusive license to access your User Submissions through the Cortera Services or any other means as determined by Cortera, and to use such User Submissions as permitted through the functionality of the Cortera Services and under this User Agreement or under any other terms as determined by Cortera. You also irrevocably waive, and cause to be waived, any claims and assertions of moral rights or attribution with respect to User Submissions. In connection with User Submissions, you further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Cortera all of the license rights granted herein. Cortera does not endorse any User Submission, and Cortera expressly disclaims any and all liability in connection with User Submissions. Cortera does not permit copyright infringing activities and infringement of intellectual property rights on the Cortera Services, and Cortera will remove a User Submission if properly notified that such User Submission infringes on another’s intellectual property rights. Cortera reserves the right to remove User Submissions without prior notice or to decline to publish any User Submissions for any reason, including if a User Submission does not comport with Cortera’s Rating Guidelines. You alone are responsible for your User Submissions. You assume all risks associated with your User Submissions, including risk for anyone’s reliance on its accuracy, completeness or usefulness, or any disclosure by you of information in User Submissions that makes you personally identifiable. You may not imply that your User Submission is in any way sponsored or endorsed by Cortera. You may expose yourself to liability if, for example, your User Submissions violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is false, intentionally misleading, or defamatory; encourages others to adopt a specific policy or to boycott a business in violation of antitrust laws; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation. Cortera and its licensees may display advertisements and other information adjacent to or included with your User Submissions. You are not entitled to any compensation for such advertisements. The manner, mode, and extent of such advertising are subject to change without specific notice to you. Under no circumstances are you entitled to any compensation for your User Submissions.
4. Digital Millennium Copyright Act.
Notice. If you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (”DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Cortera’s designated Copyright Agent to receive notifications of claimed infringement is: Jason Matthes, 901 Yamato Road, Suite 210E, Boca Raton, FL 33431, email: firstname.lastname@example.org, fax: 561-290-0424. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Cortera’s User service department. You acknowledge that if you fail to comply with all of the requirements of this paragraph 5(A), your DMCA notice may not be valid.
Counter-Notice. If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Fort Lauderdale, Florida, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Cortera may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Cortera’s sole discretion.
Upon subscribing to a paid subscription, User agrees to pay the then-prevailing fees for such subscription as described in the Cortera Services. Cortera’s prices may be updated from time to time by any of the following methods: online announcements, User bulletins, emails, notices, announcements in invoices, and revised published price lists. Cortera is not responsible for ensuring the delivery of any updates to its pricing policies (including additions thereto or deletions therefrom) to User, and all present and future price lists are hereby incorporated by reference into this Agreement. Cortera reserves the right at any time to discontinue any pricing or discount promotions at any time.
6. Payment of Fees
User agrees to pay for all services obtained through User’s User IDs when billed by Cortera. All unpaid fees and late payments will bear interest at a rate of 18% per annum.
7. Term and Termination
This User Agreement is for services rendered and shall be in full force and effect during such time as Cortera is providing the Cortera Services to User; provided, however, if Customer has signed a subscription-based order form that incorporates this User Agreement, then (i) Customer may only terminate such subscription at the end of the subscription by providing Cortera with written notice at least 30 days prior to the end of the subscription; and (ii) if not terminated, the subscription will automatically renew for successive periods equal to the length of the initial subscription period and Customer may only terminate such renewal subscription at the end of the renewal subscription by providing Cortera with written notice at least 30 days prior to the end of the renewal subscription. Cortera may disable User’s access to the Cortera Services at any time. Cortera reserves the right to modify, update, or discontinue the Cortera Services at its sole discretion, at any time, for any or no reason, and without notice or liability. Cortera may close any user account at any time in its sole discretion. Provisions hereof relating to limits on liability, indemnification, use and protection of information and data, payment for the Cortera Services, audits, and disclaimers of warranties shall survive the termination of this User Agreement.
8. Intellectual Property
User agrees that User shall not reproduce, retransmit, republish, or otherwise transfer for any commercial purposes the Cortera Services’ information, programs, or computer applications. User acknowledges that Cortera (and/or their third-party data providers) shall retain all right, title, and interest under applicable contractual, copyright, and related laws in and to the data and information that they provide. User shall use such materials in a manner consistent with Cortera’s interests and notify Cortera of any threatened or actual infringement of Cortera’s rights. User shall not remove or obscure the copyright notice or other notices contained on materials accessed through the Cortera Services.
9. Disclaimer of Warranties and Limits of Liability
a. THE CORTERA SERVICES AND ALL INFORMATION AND CONTENT IS MADE AVAILABLE TO YOU ON AN “AS IS,” “AS AVAILABLE” BASIS. CORTERA, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND THIRD PARTY DATA PROVIDERS AND MOBILE APPLICATION DISTRIBUTORS (“COLLECTIVELY THE “CORTERA PARTIES”) MAKE NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO (1) THE OPERATION AND FUNCTIONALITY OF THE CORTERA SERVICES, (2) THE ACCURACY, INTEGRITY, COMPLETENESS, QUALITY, LEGALITY, USEFULNESS, SAFETY, AND IP RIGHTS OF ANY OF THE INFORMATION AND CONTENT, INCLUDING BUT NOT LIMITED TO THE ACCURACY OF BUSINESS RATINGS AND BUSINESS INFORMATION CONTAINED ON THE CORTERA SERVICES, AND (3) THE PRODUCTS AND SERVICES ASSOCIATED WITH THE CORTERA SERVICES. THE CORTERA PARTIES FURTHER DISCLAIM ALL WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM CORTERA OR THE CORTERA SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION, OR CONDITION NOT EXPRESSLY STATED HEREIN.
b. THE CORTERA PARTIES DISCLAIMALL LIABILITY FOR ANY (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (B) LOSS OF PROFITS, (C) BUSINESS INTERRUPTION, (D) LOSS OF OR DAMAGE TO REPUTATION, OR (E) LOSS OF INFORMATION OR DATA.
c. THE CORTERA PARTIES FURTHER DISCLAIM ALL LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF YOUR USE OF THE CORTERA SERVICESAND INFORMATION AND CONTENT AVAILABLE THROUGH THE CORTERASERVICES. YOUR USE OF THE CORTERA SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING LOSS OR DAMAGE, INCLUDING BUT NOT LIMITED TO LOST REVENUE OR PROFITS, ANY LOSS OF DATA, OR DAMAGE TO YOUR COMPUTER FROM VIRUSES THAT MAY BE DOWNLOADED TO YOUR COMPUTER IN THE COURSE OF USING THE CORTERA SERVICES.
d. THE CORTERA PARTIESALSO DISCLAIM ALL LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF YOUR COMMUNICATIONS OR DEALINGS WITH ANY OF THE BUSINESSES, ADVERTISERS, OR USERS LISTED ON THE CORTERA SERVICES. YOU ACKNOWLEDGE THAT CORTERA HAS NO AFFILIATION WITH SUCH Y BUSINESSES, ADVERTISERS, AND USERS. YOUR COMMUNICATIONS OR DEALINGS WITH SUCH BUSINESSES, ADVERTISERS, AND USERS ARE SOLELY BETWEEN YOU AND THEM, THOUGH CORTERA RESERVES THE RIGHT TO MONITOR DISPUTES BETWEEN YOU AND THEM.
e. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU RESIDE IN SUCH A JURISDICTION, THE ABOVE LIMITATIONS SHALL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
f. THE CORTERA PARTIES’ MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (WHETHER SUCH LIABILITY ARISES DUE TO NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR FOR ANY OTHER REASON), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (I) THE AMOUNT PAID, IF ANY, BY YOU TO CORTERA IN CONNECTION WITH THE SITE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (II) US$100.00.
g. THE CORTERA SERVICES MAY CONTAIN HYPERLINKS TO THIRD PARTY WEBSITES (THE “THIRD PARTY SITES”), AND CORTERA ASSUMES NO RESPONSIBILITY AND HAS NO CONTROL OVER THE INFORMATION AND OR CONTENT CONTAINED THEREIN. THE CORTERA PARTIES ALSO DISCLAIM ALL LIABILITY ASSOCIATED WITH YOUR USE OF THE THIRD PARTY SITES.
You agree to indemnify and hold the Cortera Parties, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them harmless, including costs, liabilities and legal fees, from any claim or demand made by any third party due to or arising out of (i) your access to or use of the Cortera Services, (ii) your violation of these terms, or (iii) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. Cortera reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify and you agree to cooperate with Cortera’s defense of these claims. You agree not to settle any matter without the prior written consent of Cortera. Cortera will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
11. Governing Law
If you are a citizen or resident of the United States, the law of the state of your residence governs this contract and any claim or dispute that you may have against Cortera, without regard to that state’s conflict of laws rules, to the extent that such law is not preempted by federal law. If you are a citizen or resident of another country, the law of the State of Florida shall apply.
12. Inapplicability of United Nations Convention
The United Nations Convention on Contracts for the International Sale of Goods shall have no applicability to this User Agreement.
This User Agreement may not be assigned by User, in whole or in part, without the prior written consent of Cortera. For Users that are corporations, organizations, or entities, a change in ownership of twenty percent (20%) or more of the outstanding shares of User shall constitute an assignment.
User understands and agrees that Cortera may conduct periodic reviews of User’s use of the Cortera Services to ensure compliance with the terms of this User Agreement and Cortera’s third party data provider contracts. Violations discovered in any review or audit may be subject to immediate action, including but not limited to the imposition of reactivation fees, the termination of your access to the Cortera Services, referral to law enforcement, and/or legal action.
The fees for all Cortera Services are exclusive of any state, local, or otherwise applicable sales, use, or similar taxes. If any such taxes are applicable, they will be charged to User’s account.
16. User Information
User will immediately notify Cortera of any material changes in User’s information. Cortera reserves the right to terminate this User Agreement upon receipt of any information which in Cortera’s sole discretion would cause User to be unable to comply with the terms and conditions of this User Agreement.
17. Relationship of the Parties
User and Cortera are independent contractors of one another. Neither party shall at any time represent that they are authorized agents or representatives of one another. Apple, Inc. and its subsidiaries are intended third party beneficiaries of this User Agreement, and they are entitled to enforce its terms.
18. Changes in User Agreement
User agrees to comply with changes to the restricted license and use restrictions contained herein, changes in pricing, and changes to other provisions of this User Agreement as Cortera shall make from time to time upon notice to User. Such changes may be made from to time by any of the following methods: online announcements, User bulletins, emails, online “click wrap” amendments, mail, facsimile, announcements in invoices, revised published price lists, updates to this webpage or the webpage on which the Cortera Privacy Notice is displayed, or any other written notice.
19. Agreement to Arbitrate
Please read this carefully. It affects your rights.
a) Disputes Subject to Arbitration. Cortera and you agree to arbitrate all disputes and claims between us, including, but not limited to:
- claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- 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 Use Agreement.
Notwithstanding the foregoing, either party may bring an individual action in small claims court, provided that it seeks relief that does not affect other customers.
Any dispute as to the arbitrability of claims or the scope or enforceability of this arbitration provision, or as to the interpretation of paragraph (19)(e) below, is for the court to decide. This User Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of the agreement between us.
(b) Starting the Dispute-Resolution Process. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Cortera should be addressed to: CFO, Cortera, Inc., 901 Yamato Road, Suite 210E, Boca Raton, FL 33431 USA (“Notice Address”). The Notice must (a) provide your mailing address, phone number, and account name (if any); (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). If Cortera and you do not reach an agreement to resolve the claim within 45 days after the Notice is received, you or Cortera may commence an arbitration proceeding with the American Arbitration Association (“AAA”).
(c) Costs of Arbitration. Cortera will pay all AAA filing, administration, and arbitrator fees for any arbitration we initiate. The payment of those fees for any arbitration that you initiate will be governed by the AAA Rules. The filing fee currently is $125 for claims for up to $10,000 in damages, but is subject to change by the AAA. However, if you initiate an arbitration in accordance with the notice requirements of paragraph (19)(b) and are seeking relief valued at $300 or less (both to you and us), Cortera will pay all AAA filing, administration, and arbitrator fees. If your claim is for greater than $300 but less than $10,000, Cortera will pay all such fees in excess of $20. After Cortera receives notice at the Notice Address that you have commenced such an arbitration, Cortera will promptly reimburse you for any portion of the filing fee that you paid that Cortera has agreed to pay.
If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA filing, administration, and arbitrator fees shall be governed by the AAA Rules, and You agree to reimburse us for any amounts we have paid on your behalf to the AAA.
(d) Arbitration Procedures. The arbitrator shall be bound by the terms of this arbitration provision. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “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, the arbitration will be administered by another arbitration provider that the parties agree to or that the court selects.
Unless Cortera 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 Demand. 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 arbitrator, 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.
Arbitrators may consider but shall not be bound by rulings in prior arbitrations involving different customers. Arbitrators shall be bound by rulings in prior arbitrations involving the same customer to the extent required by applicable law.
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 arbitrator 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 arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Although under some laws Cortera may have a right to an award of attorneys’ fees and expenses if it prevails in an arbitration, Cortera agrees that it will not seek such an award unless you are represented by an attorney and the arbitrator 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)).
(e) Prohibition of Class or Representative Actions and Non-Individualized Relief. YOU AND CORTERA 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 Cortera agree otherwise, the arbitrator 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 arbitrator may award any relief that a court could award, so long as the relief is individualized to the claimant and would not affect other Cortera users. Neither you nor we may seek non-individualized relief that would affect other Cortera users. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
(f) Future Changes to Agreement to Arbitrate. Notwithstanding any provision in this User Agreement to the contrary, we agree that if Cortera 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), any such changes will not affect disputes that arose before the effective date of the change.
20. Entire Agreement
Except as otherwise set forth herein, this User Agreement sets forth the entire understanding of the Parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous letters of intent, agreements, covenants, negotiations, arrangements, communications, representations, understandings or warranties, whether oral or written, by any officer, employee, or representative of either party relating thereto. Any new, other, or different terms supplied by User that are not contained in this document, including any terms contained in purchase orders or confirmations issued by User, are specifically rejected by Cortera unless Cortera agrees to them in a signed writing specifically including those new, other, or different terms. The terms of this User Agreement shall supersede and govern in the event of a conflict with the terms of any other document into which this User Agreement is incorporated by reference. In the event one or more provisions of this User Agreement are deemed unenforceable, the enforceability of the remaining provisions shall remain unimpaired. Any inquiries regarding the Cortera Services should be directed to Cortera, Inc., 901 Yamato Road, Suite 210E, Boca Raton, FL 33431; 877-569-7376; email@example.com.
Last Updated: May 29, 2018