Arbitration Provision


1 How are disputes resolved?Any disputes between you and us will be resolved per the questions and answers in this Arbitration Provision (this "Provision").This Provision is legally binding.
2 What is arbitration?An alternative to a court case.In arbitration, a neutral third party (an "NTP") decides claims without a judge or jury.
3 Does it differ from court and jury trials?Yes.The hearing is private. There is no jury. It is usually less formal, faster and less expensive than a lawsuit. It involves limited pre-hearing fact-finding and limited appeals. Courts rarely reverse arbitration awards.
4 Who does this Provision cover?You and us.This Provision governs you and us. Solely as used in this Provision, "you" means all persons who sign the Contract, including any co-signers, and the heirs, executors and assigns of the foregoing. Solely as used in this Provision, the words "we," "us," and "our" mean: (1) OrCam, Inc.; (2) the parents, subsidiaries, affiliates, assignees and successors of the companies named in (1); (3) the employees, directors, officers, shareholders, members and representatives of the companies named in (1)-(2); and (4) any person or company that is named in a Claim you pursue at the same time you pursue a related Claim against us, such as a credit reporting agency, or any third party providing any goods and/or services in connection with the origination, servicing, and collection of this Contract.
5 Can you opt out of this Provision?Yes, within 60 days.If you do not want this Provision to apply, you must send us a signed notice within 60 calendar days after the date you become subject to the Contract. You must send the notice in writing (and not electronically) via certified mail, return receipt requested to 1115 Broadway, New York, NY 10010 (or any address we later provide you) (the "Notice Address"), Attn. Legal. Provide your name, address and the date. State that you "opt out" of the Arbitration Provision. If you send a rejection notice, we will give you a credit for the standard cost of a letter sent by certified mail.
6 What is this Provision about?The parties' agreement to arbitrate Claims.Unless prohibited by law or you opt out, either you or we may elect to arbitrate or require arbitration of any "Claim" (as defined below).
7 What Claims does this Provision cover?All legal claims (except certain claims about this Provision).This Provision governs all "Claims" between you and us that a court would normally decide. The word "Claims" has the broadest reasonable meaning. It includes contract and tort claims (including fraud and intentional tort claims) and claims under constitutions, statutes, ordinances, rules and regulations. It includes all claims even indirectly related to: (1) any events leading up to the Contract, including any disclosure, advertisement, application, solicitation, promotion or oral or written statement, warranty or representation made by us; (2) the Contract and/or our privacy policy; (3) any Product(s); (4) fees, charges or interest; (5) the servicing or collection of amounts due under the Contract and the manner of collection; (6) an application for or denial of credit; (7) credit reporting; (8) our use or disclosure of, or failure to protect, your personal information; (9) enforcement of any and all of the obligations a party hereto may have to another party; (10) compliance with applicable laws and/or regulations; or (11) the relationships resulting from the Contract or any of the foregoing. This Provision applies to actions, omissions and events prior to, on or after the date of the Contract.It includes claims related to the validity of the Contract as a whole. However, it does not include disputes about the validity, coverage or scope of this Provision or any part of this Provision. All such disputes are for a court and not the NTP to decide.
8 Who manages the arbitration? What rules apply?Usually, the AAA.Usually, the American Arbitration Association ("AAA") will manage the arbitration under its rules. But, if the AAA cannot do this and the parties cannot agree on another company, a court will pick the manager (if any). Also, an NTP may conduct some arbitrations ("Group Arbitrations") of common issues of law or fact ("Common Issues") without a manager. See section 29 of this Provision.No arbitration brought on a class basis may be managed or conducted without our consent by any company or NTP that would permit class or representative arbitration under this Provision.
Generally, arbitrations are subject to the rules of the arbitration manager in effect at the time the arbitration begins. But, rules that conflict with this Provision do not apply.
The manager (if any) will select the NTP under its rules. But, the NTP must be a lawyer with at least ten years of experience or a retired judge unless you and we otherwise agree.
9 Can a Claimant bring Claims in court?Sometimes. The party bringing a Claim ("Claimant") may bring a lawsuit if the other party (the "Respondent") does not demand arbitration. Also, either party may require that a small claims court resolve any individual Claim that such court may hear. But, either party may require arbitration of any appeal of a small-claims decision or any small-claims action brought on a class basis. Finally, some Claims for a public injunction may be brought in court. See section 12 of this Provision.
10 Are you giving up any rights?Yes.If we demand arbitration of a Claim you bring, you are giving up your right to: (1) have a court or jury decide the Claim; (2) bring the Claim as a private attorney general or representative of other parties (but see section 12 of this Provision as to public injunction Claims); (3) without our consent (and except for Group Arbitrations), join the Claim with claims of other consumers; or (4) engage in a class action or class arbitration.
11 Can you start a class arbitration?No.The NTP may not decide any Claim on a class or representative basis.
12 What happens if part of this Provision is invalid?It depends.You must give us written notice and at least 30 days to cure any problem that might prevent arbitration of a Claim. See section 31 of this Provision. But:
i. If any part of this Provision is held invalid, generally the rest will continue to apply.
ii. But, if a court rules that the NTP 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 Provision will be void.
iii. And, if you bring a Claim for public injunctive relief and a court rules that the restrictions in this Provision prohibiting the NTP from awarding relief on behalf of third parties are invalid with respect to such Claim (and the ruling becomes final after all appeals), the Claim for public injunctive relief will be decided in court and any individual Claims seeking monetary relief will be arbitrated. In such a case, the parties agree to request the court to stay the Claim for public injunctive relief until a court has entered the arbitration award as to individual relief.
iv.A Claim for class relief or public injunctive relief can never be arbitrated. This limit applies to individual arbitrations and to Group Arbitrations.
13 In sum, what options do you have to assert Claims against us?Most Claims are subject to arbitration.All Claims subject to this Provision must be decided in: (1) an individual arbitration; (2) a Group Arbitration of Common Issues; (3) a lawsuit if (and only if) the Respondent does not demand arbitration; (4) an individual action in small-claims court; or (5) a lawsuit that solely addresses a Claim for public injunctive relief, but only as provided in section 12 of this Provision.
14 What law applies?The Federal Arbitration Act ("FAA").The Contract involves interstate commerce. Thus, the FAA governs this Provision. The NTP must apply substantive law and comply with the FAA. The NTP must honor statutes of limitation and privilege rights. As to punitive damages, the NTP must honor constitutional standards that apply in court.
15 Will anything you do make this Provision invalid?No.If you do not opt out, this Provision will stay in force even if you: (1) cancel the Contract; (2) default, renew, prepay or pay the Contract in full; or (3) become insolvent or bankrupt.
16 What must a party do before starting a lawsuit or arbitration?Send a written Claim Notice and work to settle the Claim.Before starting a lawsuit or arbitration, the Claimant must give the Respondent written notice of the Claim (a "Claim Notice"). The Claim Notice must explain in reasonable detail the nature of the Claim, any supporting facts and the requested relief. If you are the Claimant, you must send the Claim Notice in writing (and not electronically) to us at the Notice Address, 1115 Broadway, New York, NY 10010 Attn. Legal Department. You or a lawyer you have personally hired must sign the Claim Notice and must provide your full name and a phone number for you or your lawyer. If we are the Claimant, we may send a Claim Notice to you at any mail or email address we have for you in our records. A collections letter from us to you will serve as a Claim Notice. The Claimant must give the Respondent a reasonable chance for at least 30 days to settle the Claim on an individual basis.If the Respondent gives notice that the Claimant has not complied with this section 16 and the Claimant does not dispute such notice, no arbitration manager or NTP may proceed under this Provision.
17 How does arbitration start?Per the manager's rules.If the parties do not reach an agreement to settle a Claim within 30 days, the Claimant may start a lawsuit or arbitration. To start an arbitration, the Claimant must follow the manager's rules. If the Claimant begins or threatens a lawsuit, the Respondent may demand arbitration. The Respondent may make this demand in court papers. Also, 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.
18 Should the NTP limit costs and burdens on the parties?Yes.The NTP should try to limit costs and burdens on the parties to the extent possible. Where possible: (1) arbitrations should be limited to documents, without any testimony, oral argument or in-person hearing; (2) any needed testimony should be by recorded deposition instead of live testimony; (3) discovery obtained from a party in a prior proceeding involving similar facts, legal issues and/or counsel should be used instead of new discovery from that party; (4) any needed hearing should be virtual or by conference call; and (5) any in-person hearing must be at a place reasonably convenient to you.
19 What about appeals?Very limited.Appeal rights under the FAA are very limited. Except for: (1) FAA appeal rights; (2) Claims involving more than $50,000 (including Claims for an order that could cost more than $50,000); and (3) Claims involving Common Issues decided in a Group Arbitration, the NTP's award will be final and binding. For Claims involving more than $50,000 and Claims involving Common Issues decided in a Group Arbitration, any party (including a majority of the Claimants in a Group Arbitration) may appeal the award to a three-NTP panel selected per this Provision. The appeals panel will reconsider from the start any part of the initial award either party has appealed. The panel's decision will be final and binding except for any FAA appeal right. Any appropriate court may enter judgment upon the NTP's award.
20 Do arbitration awards affect other disputes?No.You and we agree that no arbitration award involving you will affect any issues or claims involving any other party (including the parties in a Group Arbitration that does not involve you). Also, no arbitration award in another party's dispute will affect any individual arbitration or Group Arbitration involving you.
21 Who bears arbitration fees?Usually, we do.Except for Group Arbitrations, we will pay all filing, administrative, hearing and NTP fees if you act in good faith, cannot get a waiver of such fees and ask us to pay. We will always pay these amounts if required by law or the manager's rules or if required to enforce this Provision.
22 When will we cover your legal fees and costs?Usually, if you win.If you win an arbitration you start (meaning you recover more than we offered before the arbitration), we will pay your reasonable fees and costs for attorneys, experts and witnesses. We will always pay these amounts if required by law or the manager's rules or if required to enforce this Provision. Attorney's fees will be based on the number of hours worked and standard rates. The NTP will not limit his or her fee award because your Claim is for a small amount. But, unless required by law or to enforce this Provision, the NTP shall not award you any fees and costs you incur after we make a written offer to resolve a Claim for at least the amount the NTP awards you.
23 Will you ever owe us for arbitration or attorney's fees?Only for bad faith or breaches of this Provision.The NTP may require you to pay our attorney's fees if: (1) the NTP finds that you have acted in bad faith under the standards in Federal Rule of Civil Procedure 11(b); and (2) this power does not make this Provision invalid. Also, you may be liable for certain arbitration fees under the manager's rules or applicable law or in a Group Arbitration, as provided below. Finally, the NTP or a court may award us some or all of our attorney's fees that result from your bad-faith breach of this Provision (but not if the power to assess such fees would make this Provision invalid).
24 Can our failure to settle a Claim produce a larger award for you?Yes, except in Group Arbitrations.Except for Claims resolved in or after a Group Arbitration, the NTP must award you at least $5,100 if: (1) you give us notice of a Claim on your own behalf (and not on behalf of any other party) and comply with all of the requirements of this Provision (including section 16); and (2) the NTP awards you more money than the last amount you requested at least ten days before the arbitration commenced. This is in addition to any attorney's fees and expenses including expert witness fees and costs you are due under the law or this Provision. This $5,100 minimum award is a single award for all your possible Claims. You cannot get multiple $5,100 awards. Neither party may disclose settlement demands or offers except to justify a minimum recovery of $5,100.
25 Can the parties get a written ruling?Yes.Any party may request details from the NTP, within 14 days of the ruling. Upon such request, the NTP will explain the ruling in writing.
26 Can Common Issues be decided in a Group Arbitration?Sometimes.It is possible that many Claimants will pursue or threaten Claims against us involving Common Issues. In some cases, this may make individual arbitrations impractical or too costly. We have designed the Group Arbitration provisions of this Provision to address this problem.
i. Any group of 25-100 Claimants who have given Claim Notices that involve Common Issues and are not already participating in individual arbitrations under this Provision may form a "Qualifying Group" to participate jointly in a Group Arbitration. Also, we may form a Qualifying Group of 25-100 such Claimants. (We and the Qualifying Group are the "Parties" to the Group Arbitration.) No Claimant may participate in an arbitration of the same Common Issue in more than one Qualifying Group. The NTP may not decide any class Claims or Claims for public injunctions in a Group Arbitration.
ii. To form a Qualifying Group and start a Group Arbitration, either Party may give written notice to the other Party (a "Group Arbitration Notice"). A majority of the Qualifying Group (a "Group Majority") or a Qualifying Group representative appointed by a Group Majority (a "Group Agent") will act for the Qualifying Group. If a new Claimant asserts a Claim that involves a Common Issue in an existing Group Arbitration, either Party may require the new Claimant to join in the existing Group Arbitration if joinder will not make the Qualifying Group too large.
iii. Different Qualifying Groups may bring separate Group Arbitrations to decide the same or different Common Issues (for example, if there are more than 100 Claimants with the same Common Issues). A different NTP must conduct each Group Arbitration. No single NTP may hear more than one Group Arbitration of the same Common Issues. The NTP will resolve all Common Issues for each Qualifying Group by Group Arbitration under this Provision. Before a Group Arbitration starts, either Party may elect for an NTP to conduct the Group Arbitration without help from the AAA. See section 29 of this Provision.
27 Who bears arbitration costs in Group Arbitrations?We bear NTP fees. We may split other fees with the Qualifying Group.In a Group Arbitration, we will bear the fees and charges of the NTP. We will share with the Qualifying Group fees and charges of the arbitration manager (if any). The arbitration manager will decide how we share. But, the Qualifying Group will never bear more than 50% of such fees and charges. It will never bear fees and charges that would render this Provision unenforceable or conflict with the law. Also, the NTP may direct us to bear more than 50% of such fees and charges, up to 100%.
28 What happens if the NTP cannot decide your Claim in a Group Arbitration?This Provision will apply.After a Group Arbitration, any Claim the NTP cannot decide in the Group Arbitration will be subject to this Provision. Before starting a lawsuit or arbitration with respect to such Claim, the Claimant must give the Respondent a new Claim Notice and right to resolve such Claim per section 16 of this Provision.
29 What happens if a party does not want a manager for a Group Arbitration?Special rules will apply.If either Party gives timely written notice to the other that such Party does not want a manager for a Group Arbitration, the Parties must try to agree on an NTP to conduct the Group Arbitration. If the Parties cannot agree within 30 days, either Party may ask a court to appoint the NTP. See section 8 of this Provision. The court must weigh the qualifications of the NTP and the fees charged by the NTP. See section 8 of this Provision. The court should try to find a qualified NTP who charges no more than the NTP charges in AAA consumer arbitrations. Once the NTP has been selected and retained, such NTP will commence and conduct the Group Arbitration in accordance with this Provision and such additional procedures as such NTP shall adopt, giving due regard to the rules of the leading nationwide arbitration managers that would apply in an arbitration managed by them.
30 Is the arbitration confidential?Yes. You and we agree to keep confidential all aspects of the arbitration, any confidential information produced in the arbitration and any arbitration award or decision. But, either party may disclose such information to the extent needed to pursue the arbitration, to appeal or confirm any award or to get professional services. At either party's request, the NTP shall enter an order protecting confidential information.
31 Can we amend this Provision without your consent?Yes, but only in your favor.We may waive any rights or amend this Provision at any time without your consent, solely to give you more rights and/or less duties. Any other change to this Provision needs your written consent.