Terms of Use

22. Binding Arbitration of All Disputes.  No Class Relief.

This Section 22 is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act.  You and we agree that we intend that this Section 22 satisfies the “writing” requirement of the Federal Arbitration Act.  If binding arbitration is adjudged by a tribunal to be unenforceable, the provisions of Section 23 shall apply to all relevant disputes between you and us.

We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us.  Therefore, pursuant to these Terms, if you have any dispute or disagreement with us regarding (i) your use of or interaction with the Robert Toigo Foundation Services, (ii) any purchases or other transactions or relationships related to your use of the Robert Toigo Foundation Services, or (iii) any data or information you may provide to us or that we may gather in connection with such use, interaction or transaction (collectively, “Robert Toigo Foundation Transactions or Relationships”), you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration.  By using or interacting with the Robert Toigo Foundation Services, or engaging in any other Robert Toigo Foundation Transactions or Relationships with us, you agree to binding arbitration as provided below.

We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us.  If those efforts fail, by using the Robert Toigo Foundation Services, you agree that any complaint, dispute, or disagreement you may have against us, and any claim that we may have against you, arising out of, relating to, or connected in any way with these Terms or any Robert Toigo Foundation Transactions or Relationships shall be resolved exclusively by final, confidential and binding arbitration (“Arbitration”) before a single arbitrator administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”).  The Applicable Rules can be found at www.jamsadr.com.  If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances).  If JAMS (or, if applicable, AAA) at the time the arbitration is filed has Minimum Standards of Procedural Fairness for Consumer Arbitrations in effect which would be applicable to the matter in dispute, we agrees to provide the benefit of such Minimum Standards to you to the extent they are more favorable than the comparable arbitration provisions set forth in this Section 24, provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (e) or (i) below.  Furthermore, this Section 22 shall not prevent any party from seeking provisional remedies (that is, a temporary restraining order or preliminary injunction) from a court of appropriate jurisdiction.  You further agree that:

(a) Single Arbitrator.  The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and us (the “Arbitrator”);

(b) Arbitrator Will Interpret This Agreement.  The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms and/or these arbitration provisions in Section 24 hereof, including but not limited to any claim that all or any part of these Terms is void or voidable;

(c) Location of Arbitration.  The Arbitration shall be held either: (i) at a location determined pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and us; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.

(d) Governing Law.  The Arbitrator (i) shall apply internal laws of the State of California consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with New York or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;

(e) No Class Relief.  The Arbitration can resolve only your and/or our individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;

(f) Written Award.The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”).  Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;

(g) Arbitration Costs.  In the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;

(h) Reasonable Attorney’s Fees.  In the event you recover an Award greater than our last written settlement offer, the Arbitrator shall also have the right to include in the Award our reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but we shall in all events bear our own attorneys’ fees; and

(i) Interpretation and Enforcement of Arbitration Clause.  With the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitrate any dispute between us and you, and must instead bring any claims subject to subsection (k) below and Section 25.

(j) Modification of Arbitration Clause With Notice.  We may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after we have given notice of such modifications and only on a prospective basis for claims arising from Robert Toigo Foundation Transactions and Relationships occurring after the effective date of such notification.  If any modification pursuant to this subpart (j) is deemed to be invalid, unenforceable, or illegal, then the arbitration provisions effective at the time of your agreement to these Terms shall govern any dispute or disagreement between you and us regarding Robert Toigo Foundation Transactions or Relationships.

(k) Small Claims Matters are Excluded.  No Class Relief or Joinder of Claims.  Notwithstanding the foregoing arbitration provisions, and subject to Section 18, at your option, you may bring any claim for damages you have against us in your local small claims court within the U.S., if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.

(l) Confidentiality of Arbitration. You and we agree to maintain the confidential nature of the Arbitration and shall not disclose the fact of the Arbitration, any documents exchanged as part of any mediation,  proceedings of the Arbitration, the Arbitrator’s decision and the existence or amount of any Award, except as may be necessary to prepare for or conduct the Arbitration (in which case anyone becoming privy to such confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or court order.