Mutual Agreement to Arbitrate
This Mutual Agreement to Arbitrate is entered into between you (“you”) and MBO Partners, Inc. (“MBO” as additionally defined below) (collectively the “Parties” and each a “Party”), in consideration of the mutual promises contained herein and, as applicable, one or more of the following:
(b) your use of MindSumo (which is part of MBO, as defined below) or related tools or services;
(c) your use of MBO’s online marketplace or related tools;
(d) your engagement, or your continuing engagement with MBO; or
(e) your employment, or continuing employment with MBO.
Definition of MBO
For purposes of this Mutual Agreement to Arbitrate, the term “MBO” expressly includes MBO Partners, Inc., MBO Professional Services, Inc., MindSumo, MBO Healthcare, Inc., and their respective parents, subsidiaries, and affiliates, and their respective officers, directors, and employees.
Clients are intended third party beneficiaries of this Mutual Agreement to Arbitrate.
To the extent permitted by law,
- MBO’s clients for whom you seek to perform services,
- MBO’s clients for whom you performed services,
- each of their respective clients, parents, subsidiaries, and affiliates, and
- each of their respective officers, directors, and employees
(the “Intended Third-Party Beneficiaries”) are expressly intended third party beneficiaries of this Mutual Agreement to Arbitrate with full rights as such, entitled to enforce the terms of this Mutual Agreement to Arbitrate. The term “MBO” expressly includes the Intended Third-Party Beneficiaries.
For purposes of this Mutual Agreement to Arbitrate, MBO’s client is an “Electing Client” if MBO’s client has agreed to be bound by this Mutual Agreement to Arbitrate and has agreed to mandatory arbitration of any and all disputes between MBO’s client and you.
Notwithstanding anything else in this Mutual Agreement to Arbitrate to the contrary, if MBO’s client has elected to be an Electing Client, then the term “MBO” also expressly includes MBO’s client, and its parent, subsidiaries, and affiliates, and their respective officers, directors, and employees.
Resolve Disputes through Arbitration
In any business relationship, disputes sometimes arise that need to be resolved in a formal proceeding. In order to resolve any future disputes that may arise between you and MBO without the costly expense and lengthy delays typically associated with court actions, you and MBO agree as follows:
1. Mutual Agreement to Arbitrate Claims
Except for Excluded Claims as described in paragraph 5 below, any claim that you may have against MBO or that MBO may have against you shall be submitted to and determined exclusively by a single, neutral arbitrator through to final and binding arbitration with the American Arbitration Association (“AAA”), and not to any court.
The AAA arbitrator shall be chosen by mutual agreement between the parties or if the parties cannot agree, in accordance with the AAA Arbitration Rules. The parties may, by mutual written agreement, agree to use some other arbitrator or arbitration service, such as JAMS.
2. Arbitration Rules
(a) Commercial Disputes. For commercial disputes, the arbitrator will follow the version of the AAA’s “Commercial Arbitration Rules and Mediation Procedures” in effect at the time a demand for arbitration is filed.
The most recent Commercial Arbitration Rules and Mediation Procedures are currently available online at https://www.adr.org/Rules. Note that the web addresses are subject to change; you can visit the AAA’s homepage (https://www.adr.org) or call the AAA at 1.800.778.7879 to ask which rules are in effect when a demand for arbitration is filed.
(b) Employment Disputes. For employment disputes, the arbitrator will follow the version of the AAA’s “Employment Arbitration Rules and Mediation Procedures” then in effect at the time the demand for arbitration is filed.
A copy of the current AAA rules can be obtained at the following website: https://www.adr.org/Rules. Note that the web addresses are subject to change; you can visit the AAA’s homepage (https://www.adr.org) or call the AAA at 1.800.778.7879 to ask which rules are in effect when a demand for arbitration is filed.
(c) Other disputes. For any other disputes, the arbitrator shall follow the applicable AAA rules as determined by the arbitrator.
3. Claims Covered by This Mutual Agreement to Arbitrate
The claims that are to be arbitrated under this Mutual Agreement to Arbitrate are any claims that arise between you and MBO (the “Covered Claims”) except for the Excluded Claims as defined in paragraph 5 below.
For illustration, the Covered Claims include but are not limited to any dispute relating to your relationship with MBO or the steps leading to the your relationship with MBO, or your provision of services to MBO, or MBO’s clients, or their clients, or your use of a MBO product or service, whether arising out of or related to any claims for/under tort, bad faith, breach of contract, defamation, breach of covenant of good faith and fair dealing, promissory estoppel, negligence or other breach of duty, breach of public policy, violation of a privacy or cybersecurity law or regulation, unfair or deceptive act or practice, misclassification, wrongful discharge, and all claims under federal, state, and local laws, ordinances, regulations or orders, claims of discrimination, retaliation, or harassment under applicable federal, state or local laws, claims under any federal, state, or local leave laws, and all other claims.
The Covered Claims further include any dispute arising out of or relating to the interpretation or application of this Mutual Agreement to Arbitrate including the enforceability, revocability, or validity of this Mutual Agreement to Arbitrate, and the Parties delegate authority to decide those issues solely to the arbitrator. Both MBO and you are giving up any right to have a judge or jury decide the Covered Claims.
4. Class Action, Collective Action, and Representative Action Waiver
Any proceedings pursuant to this Mutual Agreement to Arbitrate will be conducted on an individual basis only. Covered Claims brought by you or by MBO may only be brought in the Party’s individual capacity, may not be brought on a class action, collective action, class or collective arbitration or representative basis, and may not be consolidated with other persons or entities. You and MBO hereby waive your respective rights to participate in any and all class actions, collective actions, class or collective arbitrations, and/or other representative actions, including participating as a named plaintiff or as a member of a class action, collective action, and/or other representative action (the “Class Action Waiver”).
The Class Action Waiver shall be severable from this Mutual Agreement to Arbitrate for any Covered Claims in which the Class Action Waiver is found to be unenforceable. In such instances, the class action, collective action, or representative action claim shall be litigated in a civil court of competent jurisdiction.
5. Excluded Claims.
The following claims are not subject to arbitration (the “Excluded Claims”):
(a) claims for workers’ compensation benefits, but not retaliation claims arising out of or relating to claims for workers’ compensation benefits,
(b) claims for unemployment compensation benefits,
(c) claims under the National Labor Relations Act, as amended, within the exclusive jurisdiction of the National Labor Relations Board,
(d) any claim alleging a sexual harassment dispute or sexual assault dispute at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct. “Sexual assault dispute” means a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18 or similar applicable tribal or state law, including when the victim lacks capacity to consent. “Sexual harassment dispute” means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable federal, tribal, or state law.
(e) any claim that is expressly precluded from arbitration by a federal, state, or local statute or regulation that is not preempted by the Federal Arbitration Act (“FAA”).
Further, nothing in this Mutual Agreement to Arbitrate shall be interpreted to prohibit you from filing a charge, complaint or claim with the Equal Employment Opportunity Commission, the National Labor Relations Board, the U.S. Department of Labor, the Occupational Safety and Health Commission, or any other federal, state, or local administrative agency to the extent that by law, you may not be prohibited from filing such a charge, complaint, or claim.
6. Arbitration Procedure.
The arbitrator alone, and not a court, shall have jurisdiction to decide his or her jurisdiction, any questions as to the arbitrability of any claims, whether an agreement to arbitrate exists and is valid, and whether the agreement to arbitrate covers the dispute in question. Provided, however, that to the extent any Covered Claims subject to this Mutual Agreement to Arbitrate are brought as a class action, collective action, or representative action and the arbitrator finds the Class Action Waiver set forth in paragraph 4 is unenforceable, the arbitrator shall not have jurisdiction to hear or arbitrate any such Covered Claims on a class action, collective action, or representative action basis. In such instances, the class action, collective action, or representative action must be litigated in a civil court of a competent jurisdiction. The arbitrator will be permitted to award only those remedies in law or equity that are requested by the parties and allowed by local, state, and/or federal substantive law applicable to the Covered Claim(s).
7. Arbitrator’s Decision is Final.
The arbitrator’s ruling will state the facts and the law on which the decision is based, will be final and binding on both you and MBO and any other party in the arbitration proceeding, and cannot be reviewed for error of law or legal reasoning of any kind. A judgment upon an award rendered by the arbitrator may be entered in any court of competent jurisdiction.
8. Interim Measures. The AAA rules govern each Party’s ability to seek interim measures. You and MBO adopt the AAA rules relating to interim measures.
9. Administrative Remedies / Statute of Limitations.
If you or MBO fail to make a written request for arbitration within the statute of limitations period applicable to a Covered Claim under applicable law or otherwise fail to comply with the administrative prerequisites to filing certain types of claims, you and/or MBO will have waived the right to raise that claim in any forum. In the event that you or MBO should file an action in court in violation of this Mutual Agreement to Arbitrate, that court shall require the Parties to arbitrate all Covered Claims, unless Excluded Claims under paragraph 5.
10. Witnesses and Evidence.
You and MBO will have the right to conduct discovery in accordance with the AAA rules.
11. Cost of Arbitration and Legal Fees.
The cost of arbitration will be paid by MBO, except that you will be required to pay the initial filing fee to the extent that the filing fee does not exceed the applicable fee to file a complaint in state or federal court. MBO will pay for the balance of the arbitrator’s fees and all administrative costs related to the arbitration. The Parties will each bear their own costs for legal representation, discovery, deposition, expert witnesses, and other legal costs ordinarily borne by a Party in litigation, provided, however, that the arbitrator shall have the authority to require one Party to pay the costs and fees for the other Party’s representation during the arbitration, but only to the extent permitted under applicable federal or state laws, as a part of any remedy that may be ordered.
12. Miscellaneous Mutual Agreement to Arbitrate Provisions
(a) Modifications and No Waiver of Covered Claims. Any change, alteration, revision, or modification to this Mutual Agreement to Arbitrate and any waiver or cancellation of this Mutual Agreement to Arbitrate must be in writing, agreed to by both Parties. If either you or MBO fails to assert a claim under this Mutual Agreement to Arbitrate, that does not affect either your or MBO’s rights to assert another similar claim under the Mutual Agreement to Arbitrate. No agreements or representations regarding the subject matter hereof, oral or otherwise, express or implied, have been made by either Party which are not set forth expressly in this Mutual Agreement to Arbitrate.
(b) Law Governing this Mutual Agreement to Arbitrate. This Mutual Agreement to Arbitrate, including but not limited to the Class Action Waivers set forth in paragraph 4, shall be governed by and interpreted in accordance with FAA.
(c) Severability. Except as otherwise provided in this Mutual Agreement to Arbitrate, if any part of this Mutual Agreement to Arbitrate is found to be not valid or not enforceable, that part shall be stricken and the remainder of the Mutual Agreement to Arbitrate shall remain in full force and effect.
(d) Survival. This Mutual Agreement to Arbitrate shall survive termination of your business relationship with MBO and shall apply to all Covered Claims other than Excluded Claims as specified in paragraph 5, regardless of whether the asserted are during your business relationship with MBO, or after your services for MBO and such relationship has terminated.
(e) Entire Agreement. This Mutual Agreement to Arbitrate is the entire agreement between you and MBO regarding the adjudication of Covered Claims. It supersedes any previous agreements or understandings between you and MBO regarding the adjudication of Covered Claims. You are not agreeing to this Mutual Agreement to Arbitrate in reliance on any promises or representations other than those contained in this Mutual Agreement to Arbitrate.
(f) Conflicts. In the event that there is a conflict between this Mutual Agreement to Arbitrate and any other agreement you may have with MBO (“Other Agreement”), then the terms of this Mutual Agreement to Arbitrate shall supersede and govern except if the Other Agreement expressly references the provisions of this Mutual Agreement to Arbitrate in which case the terms of the Other Agreement shall control.
13. You Agree to this Mutual Agreement to Arbitrate.
By affirmatively agreeing to the Mutual Agreement to Arbitrate and/or accessing, registering, using, or continuing to use one or more of MBO’s Websites, Products and Services, you agree that:
(A) YOU INTEND TO CONDUCT BUSINESS ELECTRONICALLY.
(B) YOU HAVE READ THIS MUTUAL AGREEMENT TO ARBITRATE.
(C) YOU HAVE BEEN PROVIDED SUFFICIENT TIME TO READ THE MUTUAL AGREEMENT TO ARBITRATE AND CONSULT AN ATTORNEY.
(D) THIS MUTUAL AGREEMENT TO ARBITRATE CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY BOTH PARTIES.
(E) THIS MUTUAL AGREEMENT TO ARBITRATE REQUIRES THAT DISPUTES THAT INVOLVE THE MATTERS SUBJECT TO THIS MUTUAL AGREEMENT TO ARBITRATE BE SUBMITTED TO ARBITRATION AND NOT TO A JUDGE OR A JURY.
(F) BOTH MBO AND YOU ARE WAIVING THE RIGHT TO HAVE DISPUTES COVERED BY THIS MUTUAL AGREEMENT TO ARBITRATE HEARD OR TRIED BY A JUDGE OR JURY.
IF YOU DO NOT AGREE TO THIS MUTUAL AGREEMENT TO ARBITRATE, STOP USING THE WEBSITE, PRODUCTS, AND SERVICES IMMEDIATELY.