We value our relationships with our supported Merchants and the buyer relationships we empower. We will strive to resolve any disputes among us in a professional manner without the need for escalation outside the community. In the event, however, that any claim or dispute at law or equity has arisen or may arise between us relating in any way to or arising out of this or previous versions of the Mobility Sales Terms of Use (hereafter “Agreement” in this section entitled “Legal Disputes”), your use of or access to Mobility Sales’s sites, services, applications, and tools, or any products or services sold or purchased through Mobility Sales’s sites, services, applications, or tools will be resolved in accordance with the provisions set forth in this Legal Disputes Policy. Please read this Policy carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS AND NON-INDIVIDUALIZED RELIEF
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 Mobility Sales agree otherwise, 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. 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 other Mobility Sales users.
APPLICABLE LAW; VENUE
South Australian law will govern this Agreement, except for the body of law relating to conflicts of law. If the Agreement to Arbitrate below is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, then venue for any legal action will be the state courts of Adelaide, South Australia, or the federal courts of South Australia. The parties waive trial by jury. You and Mobility Sales agree to submit to the personal jurisdiction of the courts located within Adelaide, South Australia, Australia for the purpose of litigating all such claims or disputes.
AGREEMENT TO ARBITRATE
Any and all disputes or claims that have arisen or may arise between you and Mobility Sales relating in any way to or arising out of (a) the current or previous versions of the Terms of Use and/or the Sub-Policies or (b) your use of or access to Mobility Sales’s sites, services, applications, and tools, or any products or services sold or purchased through Mobility Sales’s sites, services, applications, or tools will be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
PROCEDURES
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator also must follow the terms of the Terms of Use as a court would.
The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of the Terms of Use including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or Terms of Use is void or voidable.
The arbitration will be conducted by the Australian Commercial Dispute Centre (‘ACDC’) under its rules and procedures, including the ACDC’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The ACDC’s rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the ACDC’s site at https://www.acdcltd.com.au. In addition to filing this form with the ACDC in accordance with its rules and procedures, you must send a copy of the completed form to us at the following address to initiate arbitration proceedings:
- MobilitySales.com.au
- c/o Mobility Digital Pty Ltd
- Attn: Legal Arbitration
- 40 Sturt Street,
- Adelaide SA 5000
The arbitration will 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, you or Mobility Sales may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and Mobility Sales 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 by you and/or Mobility Sales, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving different Mobility Sales users, but is bound by rulings in prior arbitrations involving the same Mobility Sales user to the extent required by applicable law. The arbitrator’s award will be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
COSTS OF ARBITRATION
Payment of all filing, administration and arbitrator fees will be governed by the ACDC’s rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, Mobility Sales will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Mobility Sales should be submitted by mail to the ACDC along with your Demand for Arbitration and Mobility Sales will make arrangements to pay all necessary fees directly to the ACDC. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Mobility Sales will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Mobility Sales for all fees associated with the arbitration paid by Mobility Sales on your behalf, which you otherwise would be obligated to pay under the ACDC’s rules.
SEVERABILITY
With the exception of any of the provisions of this Agreement to Arbitrate, if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate will still apply. If an arbitrator or court decides that any of the provisions of this Agreement to Arbitrate is invalid or unenforceable, then the entirety of this Agreement to Arbitrate will be null and void. The remainder of the Terms of Use and the Legal Disputes Policy will continue to apply.
OPT-OUT PROCEDURE
If you are a new Mobility Sales user, you can choose to reject this Agreement to Arbitrate (“opt-out”) by mailing us a written opt-out notice (“Opt-Out Notice”). The Opt-Out Notice must be postmarked no later than 30 days after the date you accept the terms of use for the first time. You must mail the Opt-Out Notice to:
- MobilitySales.com.au
- c/o Mobility Digital Pty Ltd
- Attn: General Counsel
- Re: Opt-Out Notice,
- 40 Sturt Street,
- Adelaide, SA 5000
We will make available upon request an Opt-Out Notice form you must complete and mail to opt out of the Agreement to Arbitrate. You must complete the Opt Out Notice form by providing the information called for in the form, including your name, address (including street address, city, state and zip code), and the user ID(s) and email address(es) associated with the Mobility Sales account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt-out of the Agreement to Arbitrate. If you opt-out of the Agreement to Arbitrate, all other parts of the Terms of Use and its Legal Disputes Policy will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
FUTURE CHANGES TO THE AGREEMENT TO ARBITRATE
Notwithstanding any provision in the Terms of Use to the contrary, you and we agree that if we make any change to this Agreement to Arbitrate (other than a change to any notice address or site link provided herein) in the future, that change will not apply to any claim that was filed in a legal proceeding against Mobility Sales prior to the effective date of the change. The change will apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Mobility Sales. We will notify you of changes to this Agreement to Arbitrate by posting the amended terms on www.MobilitySales.com.au at least 30 days before the effective date of the changes and by providing notice through the customer support centre and/or by email. If you do not agree to these amended terms, you may close your account within the 30 day period and you will not be bound by the new terms.
Moreover, if we seek to terminate the Agreement to Arbitrate as included in the Terms of Use, any such termination will not be effective until 30 days after the version of the Terms of Use not containing the Agreement to Arbitrate is posted to our website, and will not be effective as to any claim that was filed in a legal proceeding against Mobility Sales prior to the effective date of termination.
