Legal

The Federal Arbitration Act (“FAA”) applies to this agreement to arbitrate. In particular, the FAA applies even if a choice of law principle would result in application of a different law. No provision of this Agreement will be interpreted to preclude application of the FAA. If a court nevertheless concludes for any reason that the FAA does not apply, then the laws of the State of Georgia shall govern this Agreement and no effect shall be given to any Georgia choice of law or conflict of law rules or provisions that would cause the application of the laws of any other state.

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND IMPACTS THE WAY THAT YOU AND WE BRING CLAIMS AGAINST EACH OTHER AND HOW THOSE CLAIMS ARE DECIDED. THE FOLLOWING TERMS TO WHICH YOU ARE CONSENTING CONSIST OF A PRE-DISPUTE RESOLUTION PROCESS, BINDING ARBITRATION PROVISION, MASS ARBITRATION PROVISION, AND A CLASS-ACTION AND JURY TRIAL WAIVER.

To the fullest extent permitted by law, by using the Service, you and we agree that if a dispute arises between you and us relating in any way to the Service or your use thereof, including common law or statutory claims, the dispute will be resolved in accordance with the provisions set forth in this section. You and we agree that any and all disputes or claims that have arisen or may arise between you and us in connection with the Service, including any products or services offered or sold on the Service and your use of the Service, shall be resolved exclusively through confidential, final, and binding arbitration; provided that either party may file suit in court seeking to enjoin infringement, misappropriation, or misuse of its intellectual property rights. YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY.

22.1. Opt-Out Procedure: You may elect to opt-out (exclude yourself) from the final, binding arbitration procedure, mass arbitration procedure, and waiver of class and representative proceedings specified in this Agreement by sending a written letter to us at CallRail, Inc. Attn: Legal 100 Peachtree St. NW #2700, Atlanta, GA 30303 (the “Notice Address”), within thirty (30) calendar days of your initial agreement to this Agreement. The letter must be signed personally by you or your legal guardian and specify: (1) your first and last name; (2) your mailing address; (3) your email address; and (4) your request to be excluded from the final, binding arbitration procedure and waiver of class and representative proceedings specified in this Section. In the event that you opt-out consistent with the procedures set forth above, all other terms of this Agreement shall continue to apply.

22.2. Pre-Arbitration Dispute Resolution: You and we agree that whenever you or we have a disagreement (“Dispute”) with the other arising out of, connected to, or in any way related to the Service that is subject to the arbitration provision herein, you and we will first send a written notice to the other party (a “Demand”). You and we agree that the requirements of this Dispute Resolution section will apply even to disagreements that may have arisen before you accepted this Agreement. You must send the Demand to the Notice Address. We must send the Demand to you via certified mail to the most recent address we have on file for you (or by email if we only have an email address for you on file). A Demand (1) shall seek to resolve a Dispute only on an individual basis; (2) shall state the full basis for the Dispute (including the details about the Dispute sufficient for the recipient to review and respond) and the date that the Dispute arose; (3) shall provide the individual claimant’s full name, phone number, and email address to confirm their identity and to aid communication; and (4) shall be personally signed by the individual claimant or for us by our authorized representative (and not only your or our counsel). Within twenty (20) business days of receipt of a Demand, the recipient may request an individualized video or telephone conference to attempt in good faith to resolve the Dispute which both you and we will personally attend (with counsel, if represented). You and we agree that you and we will not take any legal action, including filing a lawsuit or demanding arbitration, until after the period to request a conference expires or, if a conference is requested, twenty (20) business days after the individualized conference is completed. Compliance with this informal dispute resolution procedure section is mandatory and a condition precedent to initiating any lawsuit or arbitration. This procedure is essential to providing each of us a meaningful opportunity to resolve Disputes informally. Any applicable limitations periods and filing fee deadlines will be tolled while the parties engage in the process set forth above. A court of competent jurisdiction may enjoin the filing or prosecution of a lawsuit or arbitration if these requirements have not been met.

22.3. Arbitration Procedure: If the Dispute stated in the Demand is not resolved to your or our satisfaction within ten (10) business days after the conference described above (or within ten (10) business days after the time when such a conference may be requested if no conference has been requested), and you intend on taking legal action, you agree that you will file a demand for arbitration with JAMS (a “Claim”) unless the Mass Arbitration provisions of Section 22.4 are triggered. The arbitration will be conducted under JAMS’s Comprehensive Rules & Procedures, including the JAMS’s Consumer Rules (as applicable), as modified by this Agreement to Arbitrate. The JAMS’s rules and a form for initiating arbitration proceedings are available on the JAMS's website at: https://www.jamsadr.com/rules-comprehensive-arbitration/. The arbitrator, and not any federal, state, provincial, territorial or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable, except that a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration if the Pre-Arbitration Dispute Resolution requirements set forth above have not been met.

The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, either you or we may elect to have the arbitration conducted by telephone and/or video conference or based solely on written submissions, which election shall be binding on the other party subject to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant. Attendance at an in-person hearing may be made by telephone and/or video conference, unless the arbitrator requires otherwise. The arbitrator will decide the substance of all Claims in accordance with the laws of the State of Georgia, including recognized principles of equity, and will honor all Claims of privilege recognized by law.

22.4. Mass Arbitrations: If, at any time, 25 or more claimants (including you) submit Demands or Claims or seek to file demands for arbitration raising similar claims against us, then your Claim will proceed before JAMS pursuant to the JAMS Mass Arbitration Procedures and Guidelines (available at https://www.jamsadr.com/mass-arbitration-procedures). If a court of competent jurisdiction also determines that the JAMS Mass Arbitration Procedures and Guidelines are not enforceable as to your Claim, then your Claim will proceed in a court of competent jurisdiction consistent with these Terms, including the Class Action Waiver and Jury Trial Waiver described below.

A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. 

22.5. CLASS ACTION WAIVER: You and we agree that each of us may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both you and we agree otherwise or the Mass Arbitration provisions set forth above are triggered, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded cannot affect any other person or party. You and we further agree that in the event this arbitration agreement is held to be unenforceable for any reason, the prohibitions on class and representative actions and non-individualized relief set forth in this paragraph are severable and shall apply to any claim between you and us in any forum. YOU ARE GIVING UP THE RIGHT TO COMMENCE OR PARTICIPATE IN CLASS AND REPRESENTATIVE ACTIONS. The arbitrator’s award shall be confidential, final, and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Payment of all filing, administration, and arbitrator fees will be governed by JAMS’s rules or NAM’s rules, as applicable.

22.6. JURY TRIAL WAIVER: IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND WE EACH UNCONDITIONALLY WAIVE ANY RIGHT TO A JURY TRIAL. THIS MEANS THAT ANY CLAIM WOULD BE DECIDED BY A JUDGE, NOT A JURY.