Ethereal Empress Dispute Resolution Policy

LAST REVISED: July 1, 2020

APPLICABILITY OF THIS DISPUTE RESOLUTION POLICY.
This Dispute Resolution Policy (“Agreement”) is a part of the contracts between you and Ethereal Empress LLC (“Ethereal Empress”), which governs the resolution of any dispute, controversy, or claim, whether based on contract, tort, fraudulent misrepresentation, statute, regulation, constitution, common law, equity, End User License Agreement (“Dispute”). By agreeing to the Ethereal Empress End User License Agreement, you hereby consent to this Agreement.
DISPUTES.
In an effort to accelerate resolution and reduce the cost of any Dispute related to, or arising out of, the Ethereal Empress User License Agreement, which is incorporated into this policy, you and Ethereal Empress agree to first attempt to negotiate any Dispute (except as set forth in Section 5 below) informally for at least thirty (30) days before either party initiates any arbitration or court proceeding.
1. Negotiations will begin upon receipt of written notice by the party raising the Dispute. Ethereal Empress will send its notice to your billing address and e-mail you a copy to the e-mail address you have provided to us.
2. You will send your notice to Ethereal Empress LLC, 1322 Wautagua ST, Roanoke, VA 24015, Attn.: Resolution Disputes.
BINDING ARBITRATION.
If a Dispute cannot be resolved through negotiations, either you or Ethereal Empress may elect to have the Dispute (except as set forth in Section 5 below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. You should review this provision carefully. This arbitration provision limits your and Ethereal Empress’s ability to litigate claims in court and you and Ethereal Empress each agree to waive your respective rights to a jury trial. You may file your Dispute with any national arbitration company under the Commercial Arbitration Rules of the American Arbitration Association.
1. The arbitrator shall determine the scope and enforceability of this arbitration agreement, including whether a Dispute is subject to arbitration. The arbitrator has authority to decide all issues of arbitrability, including where a party raises as a defense to arbitration that the claims in question are subject to one or more Exceptions to Negotiations and Arbitration in Section 5, below.
2. Where any action includes claims that are arbitrable and claims that are not, the entire action shall be stayed, absent a showing of prejudice to the complaining party, pending the completion of the arbitration of the arbitrable issues. You or Ethereal Empress can request the stay be lifted upon a showing of prejudice.
3. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law. The decision of the arbitrator shall be final and binding on you and Ethereal Empress, and any award of the arbitrator may be entered in any court of competent jurisdiction.
4. THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation. However, the arbitrator shall shift such fees and costs to ensure that you do not pay significant forum fees. In addition, you shall not be required to pay any type of fee or cost in arbitration that you would not have had to pay had you been free to file your claim in court. The parties understand that the right to discovery may be more limited in arbitration than in court. However, each side will be permitted discovery sufficient to allow that side a fair opportunity to present or defend their claims.
CLASS AND COLLECTIVE ACTION WAIVER.
You and Ethereal Empress agree that any arbitration or court proceeding shall be limited to the Dispute between Ethereal Empress and you individually. YOU ACKNOWLEDGE AND AGREE THAT:
1. A CLAIM BY, OR ON BEHALF OF, OTHER PERSONS, WILL NOT BE CONSIDERED IN, JOINED WITH, OR CONSOLIDATED WITH, THE ARBITRATION PROCEEDINGS OR ANY COURT PROCEEDINGS BETWEEN YOU AND ETHEREAL EMPRESS;
2. THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED, ADJUDICATED, OR RESOLVED THROUGH COURT PROCEEDINGS ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND
3. YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR AS A MEMBER OF ANY CLASS OF CLAIMANTS FOR ANY DISPUTE SUBJECT TO ARBITRATION OR ANY DISPUTE BROUGHT IN COURT.
Any Dispute regarding the prohibitions in the prior sections shall be resolved by the arbitrator in accordance with this Agreement. If, for any reason, this class or collective action waiver is deemed unenforceable by a court or arbitrator, you agree that the parties’ contract to arbitrate is then void, and any ongoing or future Dispute will be submitted to a court of competent jurisdiction within the City of Roanoke, Commonwealth of Virginia, United States of America, to the exclusion of arbitration. Any Dispute at that time in arbitration will be dismissed without prejudice and refiled in a court. Under no circumstances do you or Ethereal Empress agree to class or collective procedures in arbitration or court proceedings or the joinder of claims in arbitration or court proceedings.
EXCEPTIONS TO NEGOTIATIONS AND ARBITRATION.
You and Ethereal Empress agree that the following Disputes are not subject to the above provisions concerning negotiations and binding arbitration:
1. any Dispute seeking to enforce or protect, or concerning the validity of, any of Ethereal Empress’s intellectual property rights;
2. any Dispute related to, or arising from, claims that the other party has committed piracy, or tortious interference; and
3. any claim within the jurisdictional limits of the small claims courts.
LOCATION OF ARBITRATION.
If you are a resident of the United States, any arbitration will take place in your county of residence, to the exclusion of all other venues. For residents outside the United States, any arbitration shall be initiated in the City of Roanoke, Commonwealth of Virginia, United States of America. Any Dispute not subject to arbitration shall be decided by a court of competent jurisdiction within the City of Roanoke, Commonwealth of Virginia, United States of America, and you and Ethereal Empress agree to submit to the personal jurisdiction of that court.
GOVERNING LAW.
1. Except as expressly provided otherwise, all Disputes shall be governed by and construed under the laws of the United States of America and the law of the Commonwealth of Virginia, without regard to choice of law principles.
2. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
SEVERABILITY.
You and Ethereal Empress agree that if any portion of this Agreement is found illegal or unenforceable, such portion shall be severed and the remainder of this Agreement shall be given full force and effect. Any Dispute subject to any such portion of this Agreement shall be decided by the arbitrator.
RULES OF CONSTRUCTION.
A court shall construe the agreement to arbitrate and the agreement to waive class or collective actions in any manner that will render them enforceable and give them effect.
REJECTION OF THIS AGREEMENT.
If you desire to reject this Agreement, do not complete installation and return your product to its place of purchase for a full refund. Completion of the installation process shall indicate your acceptance of this Agreement.