If you’re upset with us, let us know, and we’ll work together in good faith to resolve your issue. But if we can’t work it out, then you and Mafafa Creations (including our employees, officers, directors, agents, subsidiaries, and affiliates) agree to submit our disputes exclusively to binding individual arbitration, and we won’t sue each other in court before a judge or jury, except in the limited circumstances described below.

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This Section 7 (which we’ll also refer to as the “Arbitration Agreement” or “Agreement”) applies only if you are a user in North or South America, and applies to the fullest extent allowable by law.

 

Please read this Section carefully, as it affects your rights.

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A. Disputes that We’ll Arbitrate. You and Mafafa Creations agree to mandatory individual arbitration for all claims arising from or relating to the Services, these and prior versions of the Terms, any products, data, or content bought, sold, offered, accessed, displayed, transmitted, or listed through the Services, and actions or statements by Mafafa Creations, in each case including disputes that arose before the effective date of these Terms (each, a “Dispute”). The exception is that we each may (1) bring qualifying individual claims in “small claims” court, so long as those claims remain in small claims court; and (2) seek injunctive relief in court for infringement or misuse of intellectual property rights (like trademarks, copyrights, and patents). All other Disputes must be arbitrated, which means you and Mafafa Creations are each waiving your right to sue in court and have a court or jury trial.

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B. Class and Representative Action Waiver. You and Mafafa Creations agree that each of us may bring claims against the other only on an individual basis, and not on a class, representative, or collective basis (and we each waive any right we have to bring such claims). We each may only seek or obtain individualised relief, and, except as provided in Section 7.F (Batch Arbitration), disputes between us cannot be arbitrated or consolidated with those of any other person or entity. If a court (after exhaustion of all appeals) decides that any part of this Section 7.B is unenforceable as to a particular claim or request for relief (e.g., public injunctive relief), then solely that particular claim or request for relief shall be severed from the arbitration and may be litigated in court (but only after the arbitrator issues an award on the arbitrable claims and remedies).

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C. Informal Dispute Resolution. Before filing an arbitration, you and Mafafa Creations will try in good faith to resolve any Dispute informally. To start the dispute process, you must send an individualized written notice (“Notice of Dispute”) to info@mafafacreations.com that includes (1) your name, phone number, username, and email address for your account, and (2) a description of the Dispute and how you’d like it resolved. If Mafafa Creations has a Dispute with you, we will send a Notice of Dispute with the same information to the email address for your account. Once a complete Notice of Dispute has been received, the recipient has 60 days to investigate the claims. If either side requests a settlement conference during this period, then you and Mafafa Creations must cooperate to schedule that meeting by phone or videoconference. You and Mafafa Creations each will personally participate and can each bring counsel, but the conference must be individualised, even if the same firm(s) represent multiple parties. For the claims in the Notice of Dispute, any statute of limitations will be tolled from the date the notice is received until the later of (i) 60 days, or (ii) after a timely requested settlement conference is completed (“Informal Resolution Period”). An arbitration cannot be filed until the Informal Resolution Period has ended, and a court can enjoin the filing or prosecution of an arbitration in breach of this Section.

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D. Arbitration Rules and Procedures. To initiate arbitration, either you or we must file an arbitration demand with the Canadian Arbitration Association (“CAA”). You may serve Mafafa Creations with any arbitration demand by post to: Mafafa Creations, 1-222, Du Piree Street, Gatineau, QC J9J 4B2. If Mafafa Creations has a dispute with you, we will send an arbitration demand to the email address for your account. If the CAA cannot or will not administer the arbitration in accordance with Section 7, you and we will select another provider (and if we can’t agree, a court will choose the provider).

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The arbitration will be conducted in the English language by a single arbitrator. The arbitration hearing (if any) will be held by videoconference unless either party requests an in-person hearing and the arbitrator agrees. If an in-person hearing is required, it will be held in the province where you live (for Canadian residents), Gatineau City, (for non-Canadian residents), or as determined by the arbitrator (in the case of Batch Arbitration).

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The arbitration will be decided under CAA’s Consumer Arbitration Rules, as modified by this Agreement. But if you are using the Services as a business and either your or Mafafa Creations’s claims exceed $75,000, the CAA’s Commercial Arbitration Rules will apply, as modified by this Agreement. As in court, the arbitrator shall apply governing law, any counsel must comply with Federal Rule of Civil Procedure 11(b), and the arbitrator may impose any sanctions available under the CAA Rules, Rule 11, or other applicable law. The arbitrator also shall enforce statutes of limitations and other time-based defences, offers of judgement/compromise and fee-shifting rules in the same way as a court would.

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The arbitrator will have exclusive authority to resolve all issues, except that a court has exclusive authority to decide issues related to the arbitrability of a dispute, the enforceability of any part of this Section 7 (Arbitration and Dispute Resolution Agreement), and either party’s compliance with Section 7.C (Informal Dispute Resolution). Except as provided in Section 7.F (Batch Arbitration), the arbitrator can award damages and other relief only in favour of the individual claimant, and only to the extent necessary to provide relief warranted by the claimant’s individual claim(s). The arbitrator will not be bound by decisions reached in other arbitrations. The arbitrator’s award is final and binding on you and Mafafa Creations. Judgement on the award may be entered in any court with jurisdiction.

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E. Arbitration Fees. Payment of all filing, case-management, administrative, hearing, and arbitrator fees (“Arbitration Fees”) will be governed by the CAA’s rules and fee schedules unless otherwise stated in this Arbitration Agreement. If you are a consumer and your share of Arbitration Fees is more than you’d otherwise pay in court, let us know, and Mafafa Creations will pay the difference on your behalf.

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F. Batch Arbitration. To ensure efficient resolution, if within a 90-day period, 25 or more claimants submit Notices of Dispute or file arbitrations raising similar claims (i.e., with the same or similar facts or events and legal issues) and are represented by the same or coordinated counsel, the disputes must be arbitrated in batches of up to 50 claimants each (“Batch”). Specifically, upon notice from either side, the CAA shall group the claimants into (1) a single Batch (if there are 25-50 claimants), or (2) Batches of 50 claimants each, with a smaller, final Batch consisting of any remaining claimants (if there are more than 50 claimants). The CAA shall thereafter provide for the resolution of each Batch as a single consolidated arbitration with a single arbitrator appointed by the CAA, one set of Arbitration Fees, and one hearing (if any) per Batch to be held by videoconference (or in a place decided by the arbitrator). The parties will cooperate in good faith to implement this process and minimize the time and costs of arbitration. Any challenges to administrative determinations by CAA shall be heard by a single process arbitrator. If this Section 7.F is deemed unenforceable as to a particular claimant or Batch, then it shall be severed as to that claimant or Batch, and those parties shall arbitrate in individual proceedings.

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G. Opt-out. You have a limited right to opt out of this Arbitration Agreement (excluding Section 7.I). Specifically, if you are a new user of our Services, you can opt out of this Arbitration Agreement within 30 days after you first accept the Terms. If you are an existing user of our Services, you can opt-out within 30 days after the effective date (listed above). To opt out, you must send a timely email to info@mafafacreations.com with your name, the email address for your account, and your username, additionally, append a request to opt out of arbitration. If you validly opt out, neither Mafafa Creations nor you will be required to arbitrate as a result of this (or any prior version of the) Arbitration Agreement, but the Terms (and any other agreements between us) will otherwise apply to you. If we update the Terms after you validly opt out, we will continue to respect your opt-out, but such updates do not provide a new opportunity to opt out of arbitration.

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H. Future Changes to the Arbitration Agreement. Mafafa Creations will notify you of material changes to this Arbitration Agreement at least 30 days before they become effective. You may reject future changes to the Arbitration Agreement by emailing info@mafafacreations.com within 30 days after you receive notice, including your name, and email address associated with your account. Otherwise, you’ll be bound by the change, and the modified Arbitration Agreement shall apply to all Disputes between you and Mafafa Creations, including those arising before the effective date of the changes, but excluding any claims pending in arbitration (or court, if permitted) as of the effective date. If you reject a change, you’ll be bound by the most recent version of the Arbitration Agreement before the change you rejected.

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I. Choice of Law and Forum. Mafafa Creations is based in Canada, so if there are claims between you and Mafafa Creations that aren’t subject to arbitration, you and Mafafa Creations each agree to litigate those claims exclusively in state or federal court in Gatineau City, Quebec, and to submit to the personal jurisdiction of those courts. The exception is if you file in small claims court – you can do that in the province of your residence. Except as prohibited by law, these Terms, and all disputes between us, shall be governed exclusively by Quebec law, without regard to conflict-of-law rules, and Canada federal law (including the Federal Arbitration Act). For clarity, this Section 7. I will continue to apply even if you validly opt out of arbitration under Section 7. G.