Terms of Service
Last Updated: August 2nd, 2023
These terms of service are terms of a legal agreement (this “Agreement”) between you (“you”, “your”, or “user”) and Shift Time Inc. dba Sorbet, its subsidiaries, affiliates, agents and assigns (“Sorbet”, “we”, “us”, or “our”) and set forth the terms and conditions for your use of Sorbet’s mobile application (“App”), Sorbet’s website (www.getsorbet.com), and the products and services we offer or make available through www.getsorbet.com or the App (the App, the website, and the products and services, collectively, the “Services”). We own and operate the Services and provide them to you expressly subject to this Agreement.
THIS AGREEMENT ALSO INCLUDES, AMONG OTHER THINGS, A BINDING ARBITRATION PROVISION THAT CONTAINS A CLASS ACTION WAIVER. IT WILL HAVE A SUBSTANTIAL EFFECT ON YOUR RIGHTS IN THE EVENT OF A DISPUTE UNLESS YOU OPT OUT IN ACCORDANCE WITH SECTION 16.3. PLEASE REFER TO SECTION 16 BELOW ENTITLED “DISPUTE RESOLUTION BY BINDING ARBITRATION” FOR MORE INFORMATION.
TABLE OF CONTENTS
1. ACCEPTANCE OF AGREEMENT
Please carefully review this Agreement before using the Services, or accessing any data available through the Services. If you do not agree to these terms, you may not access or use the Services. To use the Services and to accept the Agreement, you must (1) be a permanent resident of the United States, (2) be at least the legal age of majority in your state of residence, (3) not be prohibited by law from using the Services, and (4) not have been suspended or removed from the Services.
By accessing, browsing, or using any of the Services, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement and to comply with all applicable laws and regulations. The terms and conditions of this Agreement form an essential basis of the bargain between you and Sorbet, and this Agreement governs your use of the Services.
2. MODIFICATION OF THIS AGREEMENT
Sorbet reserves the right to amend this Agreement at any time and will notify you of any such changes by posting the revised Agreement on our website (www.getsorbet.com). If we make material changes to this Agreement, we will provide you notice of such changes before they become effective. You should check this Agreement on our website periodically for changes. All changes will be effective upon posting or as otherwise noted. We will date the terms with the last day of revision. Your continued use of the Services after any change to this Agreement constitutes your agreement to be bound by any such changes. Sorbet may terminate, suspend, change, or restrict access to all or any part of the Services without notice or liability.
4. USER INFORMATION ACCURACY AND UPDATES
You agree to provide accurate, current, and complete information—such as your name, social security number, mailing address, email address, and employment information—as may be prompted by any registration forms available through the Services or as we otherwise request (“User Information”) and to keep such User Information up to date. You represent that you are a legal owner of, and that you are authorized to provide us with, all User Information and other information necessary to facilitate your use of the Services.
You authorize us to make any inquiries we consider necessary to validate your identity. If you do not respond to such inquiries or we cannot verify your identity, we can refuse to allow you to use the Services.
Should any of your User Information change, you agree that you will update this information as soon as possible. To update your User Information, you may log into your personal account with Sorbet (a “Sorbet Account”) and update your User Information through the options listed or you may contact Sorbet Customer Service (see Section 21 for details on how to contact us).
Should you believe or have reason to believe that any of your User Information, including your Sorbet Account password, has been compromised, or that another person is accessing your Sorbet Account through some other means, you agree to notify us as soon as possible. See Section 21 for details on how to contact us.
5. OVERVIEW OF SERVICES
Sorbet offers a variety of services and features collectively referred to in this Agreement as the “Services.” These Services enable you to predict the value of your paid time off when you eventually leave your employer (“Predicted Payout”), and manage your loan or application.
Through the Services, you may use Sorbet’s calculator tool to estimate your Predicted Payout. You may also request an advance (an “Advance”) equal in amount to a percentage of unused paid time off that you have accrued with your employer and for which you have not been paid (“PTO”). To be eligible for an Advance, you must be issued a W-2 form by your employer, and have PTO under a policy that (1) allows carryover of PTO from one year to the next, and (2) includes payment to you for the value of your PTO at the time of your separation from your employer. Please note that Advances may be subject to one or more additional agreements, and the ultimate amount advanced may also be determined using other Sorbet underwriting policies and guidelines.
If your application for an Advance is approved, you will receive an email notifying you of your approval and containing information about how to access your Sorbet Account. Your request for an Advance may be rejected, including because you do not meet the eligibility criteria stated above; you do not have sufficient PTO, you have previously received an Advance and have missed payments, paid payments late regularly, or not repaid it. In addition, we may approve an Advance in an amount less than requested based on factors such as your current PTO balance, employment situation, or other reasons.
You may access information about any Advance that you obtained from Sorbet through your Sorbet Account. Such information may include your outstanding balance, interest accrued, and fees, as well as payments that you have made. You may also initiate payments on your Advance through your Sorbet Account
6. THIRD-PARTY INFORMATION
In the course of using the Services, you may direct Sorbet to retrieve your bank account transaction history, balance information, and/or other information maintained by third-parties with which you have employment or financial relationships, maintain accounts or engage in financial transactions (“Third-Party Account Information”). This may include information maintained by your employer or depository institution. Sorbet works with one or more third-party service providers to access this Third-Party Account Information. We will use this information to provide you with the Services you request, including to track paycheck deposits and account balances. By using the Services, you authorize Sorbet to access this information maintained by identified third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. By agreeing to this Agreement, you are also agreeing that you are responsible for keeping any passwords and usernames you provide to us so we can retrieve this Third-Party Account Information secure, and for keeping those passwords and usernames up-to-date in your Sorbet Account. Sorbet does not review the Third-Party Account Information for accuracy, legality or non-infringement, and Sorbet is not responsible for your Third-Party Account Information or products and services offered by or on third-party sites. You acknowledge that any Third-Party Account Information that is displayed through the Services will be the information we most recently accessed, and that this information may not reflect pending transactions or other recent activity.
7. APPLICATION LICENSE
If you access the Services via the App, then we grant you a revocable, non-exclusive, non-transferable, limited right to install and use the App, on wireless electronic devices owned or controlled by you, and to access and use the App, on such devices strictly in accordance with the terms and conditions of this App license contained in these Agreement. The following terms apply when you use a App obtained from either the Apple Store or Google Play (each an “App Distributor”) to access the Services: (1) the license granted to you for our App is limited to a non-transferable license to use the App on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service; (2) we are responsible for providing any maintenance and support services with respect to the App as specified in the terms and conditions of this App license contained in this Agreement or as otherwise required under applicable law, and you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the App; (3) in the event of any failure of the App to conform to any applicable warranty, you may notify the applicable App Distributor; (4) you represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) you are not listed on any U.S. government list of prohibited or restricted parties; (5) you must comply with applicable Third party terms of agreement when using the App, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the App; and (6) you acknowledge and agree that the App Distributors are Third party beneficiaries of the terms and conditions in this App license contained in this Agreement, and that each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this App license contained in this Agreement against you as a Third party beneficiary thereof. Apple and Google are not a sponsor of any content or Services.
8. SMS MESSAGING AND TELEPHONE CALLS
You consent to receive SMS messages (including text messages), and telephone calls (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, with service-related information such as alerts, or questions about your use of the Services. You certify, warrant and represent that the telephone number you have provided to us is your contact number and not someone else’s. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number. Sorbet and our agents, representatives, affiliates and anyone calling on our behalf may use such means of communication described in this section even if you will incur costs to receive such phone messages, text messages, e-mails or other means.
Standard message and data rates may apply to all SMS messages (including text messages). We may modify or terminate our SMS messaging services from time to time, for any reason, and without notice, including the right to terminate SMS messaging with or without notice, without liability to you.
We will not use autodialed or prerecorded message calls or texts to contact you for marketing purposes unless we receive your prior express written consent. You do not have to agree to receive autodialed or prerecorded message calls or SMS messages to your mobile phone number in order to use the Services. You can decline to receive autodialed or prerecorded message calls or texts to your mobile phone number by replying STOP to a message or by contacting us and notifying us of your preference.
9. LIMITATIONS OF USE
You agree to use the Services only for lawful purposes. You are prohibited from any use of the Services that would constitute a violation of any applicable law, regulation, rule or ordinance of any nationality, state, or locality or of any international law or treaty, or that could give rise to any civil or criminal liability. Any unauthorized use of the Services, including but not limited to unauthorized entry into Sorbet’s systems, misuse of passwords, or misuse of any information posted on through the Services is strictly prohibited. Sorbet makes no claims concerning whether use of the Services is appropriate outside of the United States. If you access the Services from outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
You agree you will not (1) try to reverse engineer, disassemble, decompile, or decipher the Services or software making up the Services, (2) navigate or search the Services with any tool, software, agent, engine or other means (including bots, avatars, intelligent agents, or spiders), (3) use a means other than Sorbet’s provided interface to access the Services, (4) use the Services in a way that could impair, overburden, damage, or disable any portion of the Services, or (5) mirror any material contained on the Services.
Sorbet reserves the right to take various actions against you if we believe you have engaged in activities restricted by this Agreement or by laws or regulations, and Sorbet also reserves the right to take action to protect Sorbet, other users, and other third parties from any liability, fees, fines, or penalties. We make take actions including, but not limited to: (1) updating information you have provided to us so that it is accurate, (2) limiting or completely closing your access to the Services, (3) suspending or terminating your ability to use the Services on an ongoing basis, (4) taking legal action against you, and (5) holding you liable for the amount of Sorbet’s damages caused by your violation of this Agreement.
10. INTELLECTUAL PROPERTY RIGHTS
We own and operate the Services. We own exclusively or our licensors and suppliers own all content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, text, data, contents, names, trade names, trademarks, trade dress, service marks, layout, logos, designs, images, graphics, illustrations, artwork, icons, photographs, displays, sound, music, video, animation, organization, assembly, arrangement, interfaces, databases, technology, and all intellectual property of any kind whatsoever and the selection and arrangement thereof (collectively, the “Sorbet Materials”). The Sorbet Materials are protected by U.S. copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Sorbet Materials displayed on the Services, without our prior written permission in each instance.
You may not use, copy, display, distribute, modify or reproduce any of Sorbet Materials found on the Services unless in accordance with written authorization by us. Sorbet prohibits use of any of the Sorbet Materials as part of a link to or from the Services unless establishment of such a link is approved in writing by us in advance. Any questions concerning any Sorbet Materials, or whether any mark or logo is a Sorbet Material, should be referred to Sorbet. All rights related to the Sorbet Materials are hereby reserved. You agree that the Sorbet Materials may not be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the express prior written consent of Sorbet. You acknowledge that the Sorbet Materials are and will remain the property of Sorbet. You may not modify, participate in the sale or transfer of, or create derivative works based on any Sorbet Materials, in whole or in part.
Sorbet may terminate this Agreement at any time without notice, or suspend or terminate your access and use of the Services at any time, with or without cause, in Sorbet’s absolute discretion and without notice. You may terminate your access and use of the Services by contacting us. See Section 21 for details on how to contact us.
The following provisions of this Agreement will survive termination of your use or access to the Services: the sections concerning Indemnification, Disclaimer of Warranties, Limitation of Liability, Waiver, Dispute Resolution by Binding Arbitration, and General Provisions, and any other provision that by its terms survives termination of your use or access to the Services. For clarity, termination of this Agreement does not affect your obligations or our rights under any agreement between you and Sorbet, including any loan agreement.
Sorbet further reserves the right to modify or discontinue, either temporarily or permanently, any portions or all of the Services at any time with or without notice.
12. DISCLAIMER OF WARRANTIES
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, SORBET AND ALL OF ITS SUCCESSORS, PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, INVESTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND ATTORNEYS AND THEIR RESPECTIVE HEIRS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “SORBET PARTIES”) EXPRESSLY MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, OR IMPLIED AS TO THE CONTENT OR OPERATION OF THE SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
THE SORBET PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, ADEQUACY, TIMELINESS, RELIABILITY, COMPLETENESS, OR USEFULNESS OF ANY OF THE INFORMATION OR CONTENT ON THE SERVICES, AND EXPRESSLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE. THE SORBET PARTIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE SERVICES ARE FREE OF VIRUSES, BUGS, DEFECTS, ERRORS, OR OTHER COMPUTING ROUTINES THAT CONTAIN DAMAGING OR OTHERWISE CONTAMINATING PROPERTIES, OR PROGRAMS INTENDED TO INTERCEPT OR STEAL PERSONAL OR SYSTEM DATA.
Please note, the ability to exclude warranties varies in different jurisdictions. To the extent that a jurisdiction places limits on the ability for a party to exclude warranties, these exclusions exist to the extent permitted by law. Because of this jurisdictional variance, some of the above exclusions may not apply to you.
13. NO LEGAL TAX OR FINANCIAL ADVICE
SORBET DOES NOT INTEND TO PROVIDE YOU WITH ANY LEGAL, TAX, OR FINANCIAL ADVICE THROUGH THE SERVICES. SORBET IS NOT A LAWYER, TAX ADVISOR, BROKER, OR FINANCIAL PLANNER. SORBET ENCOURAGES YOU TO CONSIDER CONSULTING AN ACCOUNTANT OR OTHER FINANCIAL ADVISOR AWARE OF YOUR INDIVIDUAL CIRCUMSTANCES BEFORE IMPLEMENTING ANY FINANCIAL STRATEGY OR MAKING OTHER FINANCIAL DECISION.
14. LIMITATION OF LIABILITY
THE SORBET PARTIES WILL NOT BE RESPONSIBLE, UNDER ANY CIRCUMSTANCES, TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED, OR PUNITIVE DAMAGES, INCLUDING DAMAGES UNDER WARRANTY, CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER CLAIMS, ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICES, THE SORBET MATERIALS, OR ANY CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE APP, SORBET WEBSITE, OR THE SERVICES, EVEN IF SORBET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SORBET PARTIES WILL ALSO NOT BE LIABLE TO YOU FOR ANY USE OF INFORMATION, DATA, OR OTHER MATERIAL TRANSMITTED VIA THE SERVICES, OR FOR ANY ERRORS, DEFECTS, INTERRUPTIONS, DELETIONS, OR LOSSES RESULTING FROM, INCLUDING LOSS OF PROFIT, REVENUE, OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO, OR USE OF, THE SERVICES. IN NO EVENT WILL THE SORBET PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED USD $1,000 (ONE THOUSAND UNITED STATES DOLLARS). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF OUR SERVICES.
To the fullest extent permitted by law, you agree to indemnify, defend and hold harmless the Sorbet Parties from and against any and all claims, losses, expenses, demands or liabilities, including reasonable attorneys’ fees arising out of or relating to (i) your access to, use of or alleged use of the Services; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party, including without limitation, your employer. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You will cooperate as fully as reasonably required in the defense of any such claim. Sorbet reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You agree not to settle any matter without the prior written consent of Sorbet.
16. DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE READ THIS SECTION 16 CAREFULLY AS IT AFFECTS YOUR RIGHTS AND INCLUDES, AMONG OTHER THINGS, A CLASS ACTION WAIVER.
YOU ACKNOLWEDGE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN SECTION 16.3 BELOW
16.1 Informal Dispute Resolution
If a Dispute arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any Dispute in arbitration or, for an excluded matter, in court, you will try to resolve the Dispute informally by contacting firstname.lastname@example.org (or through any of the methods described in Section 21). Similarly, Sorbet will undertake reasonable efforts to contact you (if we have contact information for you) to resolve any Dispute we may possess informally before taking any formal action. If a Dispute is not resolved within thirty (30) days after the email noting the Dispute is sent, you or Sorbet may initiate an arbitration proceeding as described below. As used in this Section 16, “Dispute” shall include any past, present, or future Dispute, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us on the other hand, including our affiliates, employees, directors, representative and agents, relating to or arising out of this Agreement, and/or the activities or relationships that involve, lead to, or result from this Agreement, including (except to the extent provided otherwise 16.2 below) the validity or enforceability of this Arbitration Provision, any part thereof, or the Agreement.
16.2 Election to Arbitrate
You and Sorbet agree that the sole and exclusive forum for resolution of a Dispute be final and binding arbitration pursuant to this Section 16 (the “Arbitration Provision”), unless you opt out as provided in Section 16.3 below or your Dispute is subject to an explicit exception to this Arbitration Provision. Disputes are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity, or otherwise. Notwithstanding the foregoing sentence, both you and Sorbet retain the right: (1) to bring an individual action in small claims court (a “Small Claims Action”); (2) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, the misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (an “IP Protection Action”); or (3) to bring a claim in a court of competent jurisdiction related to consumer personal information, including without limitation, the provision of false information or a data breach resulting in the unauthorized access, acquisition or compromise of consumer personal information (a “Personal Information Action”). Disputes include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
16.3 Opt-Out of Arbitration Provision
You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to email@example.com, within thirty (30) days of the date of your electronic acceptance of this Agreement (such notice, an “Arbitration Opt-Out Notice”). Such Arbitration Opt-Out Notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, and address, and be signed by you. If you don’t provide Sorbet with an Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to a Small Claims Action, an IP Protection Action, or a Personal Information Action, as expressly set forth above. For the avoidance of doubt, your opt-out will be effective only for Disputes that arise after execution of the revised Agreement.
16.4 Judicial Forum for Disputes
In the event that (i) you or we bring a Small Claims Action, IP Protection Action, or Personal Information Action; (ii) you timely provide Sorbet with an Arbitration Opt-out Notice; or (iii) this Section 16 is found not to apply, the exclusive jurisdiction and venue of any Dispute will be the state and federal courts located in New York, NY and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.
16.5 WAIVER OF RIGHT TO LITIGATE
UNLESS YOU TIMELY PROVIDE SORBET WITH AN ARBITRATION OPT-OUT NOTICE, YOU ACKNOWLEDGE THAT YOU HAVE A RIGHT TO LITIGATE DISPUTES THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH DISPUTES IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.
16.6 NO CLASS ACTIONS
You and Sorbet agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor Sorbet may bring a Dispute as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a Dispute to resolve any Dispute against Sorbet will be deemed a Collective Arbitration if (i) two (2) or more similar Disputes for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR SORBET SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 16.6 SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.
16.7 Arbitration Procedures
The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”). If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from JAMS’ roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then JAMS will appoint the arbitrator in accordance with the JAMS Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available to you in an individual lawsuit and that are not waivable under applicable law.
Notwithstanding any language to the contrary in this Section 16.7, if a party seeks injunctive relief that would significantly impact other Sorbet users as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section 16.7 shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
16.8 Arbitration Location
Unless the arbitrator determinates that an in-person hearing is necessary or you and Sorbet otherwise agree, the arbitration may be conducted in via videoconference, telephonically or via other remote electronic means. If your Dispute does not exceed $10,000 not inclusive of attorneys’ fees and interest, then the arbitration will be conducted solely on the basis of the documents that you and Sorbet submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your Dispute exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
16.9 Arbitration Fees
If we elect arbitration, we shall pay all the administrator’s filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator’s rules.
16.10 Arbitrator’s Decision
The arbitrator will render an award within the time frame specified in the administrator rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
16.11 Survival and Severability of Arbitration Provision
This Arbitration Provision shall survive the termination of this Agreement. With the exception of Section 16.6, if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 16.6 to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Dispute must be litigated in court pursuant to Section 16.4.
17. GOVERNING LAW; JURISDICTION
This Agreement will be governed by, and all Disputes will be resolved in accordance with, the Federal Arbitration Act, as set forth above, and the laws of the State of New York, United States of America without regard to its conflicts of law rules.
Except as otherwise provided in Section 16.11, if any provision of this Agreement is found to be invalid, unlawful, void, or unenforceable by either an arbitrator or a court of competent jurisdiction, this Agreement’s remaining provisions will be enforced to the fullest extent possible, and the remaining provisions of the Agreement will remain in full force and effect.
You agree that if Sorbet does not enforce any of its legal rights or remedies under this Agreement, or other legal rights or remedies Sorbet has under applicable laws, this will not be construed as a formal waiver of those rights or remedies or any other rights in any way whatsoever.
20. GENERAL PROVISIONS
This Agreement, including any agreement that incorporates or has been incorporated into this Agreement, is the entire understanding and agreement between you and Sorbet regarding the Services. This Agreement supersedes any previous agreement to which you and Sorbet may have been bound that does not incorporate or has not been incorporated into this Agreement. This Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Neither the course of conduct between parties nor trade practice will act to modify any provision of the Agreement. You may not assign or transfer this Agreement or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement or any of our rights or obligations under this Agreement at any time without notice. All rights not expressly granted herein are hereby reserved. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
21. CONTACTING US
If you have questions regarding the Agreement or the practices of Sorbet, please contact us by e-mail at firstname.lastname@example.org, by phone at (424) 383-5610 or by clicking “Contact Us” on the App.
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