You and we each agree that, except as explicitly set forth in this provision, any and all disputes or claims that have arisen or may arise between you and us in connection with these Terms of Service or the Portal, including without limitation, federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation or any other legal theory, and all threshold arbitrability issues, including but not limited to disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this agreement to arbitrate, including any claim that all or any part of this arbitration agreement is void or voidable, unconscionable, or illusory, as well as defenses to arbitration, including but not limited to waiver, delay, laches, or estoppel, shall be resolved exclusively through final and binding arbitration, rather than in federal, state, or local court or agency, except that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. This agreement to arbitrate is intended to be broadly interpreted. The Federal Arbitration Act governs the interpretation and enforcement of this agreement to arbitrate.
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, the arbitrator(s) 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(s) 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 persons or parties. This paragraph constitutes a Class Action Waiver.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator or arbitrators instead of a judge or jury, and court review of an arbitration award is very limited. However, the arbitrator(s) can award the same damages and relief on an individual basis that a court can award to an individual. The arbitrator(s) also must follow the terms of these Terms of Service as a court would. All issues are for the arbitrator(s) to decide, except that issues relating to arbitrability, the scope or enforceability of this agreement to arbitrate, or the interpretation of the prohibition of class and representative actions and non-individualized relief provisions above, shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association (the “AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this agreement to arbitrate. The AAA’s rules are available at www.adr.org.
You and we agree that informal efforts to resolve disputes can often lead to efficient, cost-effective, and mutually agreeable outcomes. You and we therefore agree that, before either of us brings claims against the other or otherwise initiates the arbitration process, you and we will meet and confer, by telephone or videoconference, in a good-faith effort to informally resolve any claim covered by this agreement. You and we also agree that multiple individuals who initiate claims cannot participate in the same informal dispute resolution meeting, and that, unless otherwise agreed upon in writing, if either you and we are represented by counsel, counsel may participate in the meeting, but both you and we will participate individually. Each informal dispute resolution meeting shall address only the claims of a single claimant. Any attempt to conduct a joint, consolidated, or coordinated meeting on behalf of multiple claimants shall not satisfy the condition precedent for any claimant, and any arbitration demand subsequently filed by any such claimant shall be dismissed as premature. If you and we decide to arbitrate, neither party’s statements from the dispute resolution meeting will be admissible in the arbitration. To initiate an informal dispute resolution meeting, a party must provide notice to the other party in writing, with the meeting to take place within 60 days after the other party receives such a notice, unless you and we agree upon an extension. If, after good faith efforts, the meeting cannot be held within 60 days, you and we shall conduct the meeting on the earliest date reasonably possible thereafter.
To initiate an informal dispute resolution meeting, you must notify us in writing at: AppFolio, Inc., 70 Castilian Drive, Goleta, CA 93117, Attn: General Counsel. The notice must include: (a) your full legal name; (b) the telephone number(s) and email address(es) associated with your account; (c) a specific and individualized description of the factual basis for your claim, including the approximate date(s) of the conduct at issue and the specific product, service, or account feature involved; (d) a specific statement of the relief sought and the basis for calculating any monetary damages claimed; and (e) your signature (and not the signature of any attorney, agent, or representative). A notice that does not include all of the foregoing information shall be deemed defective and shall not satisfy the condition precedent to arbitration described in this section. We will notify you in writing within 14 days if we contend that a notice is defective, and will specify the alleged deficiency. You will then have 30 days to cure any deficiency and submit a corrected notice, which will restart the applicable deadlines. Our failure to object to a notice within 14 days shall not be construed as a waiver of any defense.
For the avoidance of doubt, engaging in an informal dispute resolution meeting is a condition precedent that must be fulfilled before starting arbitration. That means the arbitrator shall dismiss any arbitration demand that is filed before completing an informal dispute resolution meeting. Any arbitration demand filed with AAA must be accompanied by a signed certification from the claimant personally (and not from any attorney, agent, or representative) attesting: (a) that a timely and complete informal dispute resolution notice was provided to AppFolio; (b) the date on which such notice was sent and the manner of transmission; (c) that the informal dispute resolution meeting was held or, if not held, the reason why; and (d) that the claimant personally participated in the informal dispute resolution meeting. AAA shall not process, and an arbitrator shall dismiss without prejudice, any demand not accompanied by this certification. A materially false certification shall entitle us to seek sanctions, including recovery of attorneys’ fees and costs incurred in connection with any resulting arbitration proceedings, from both the claimant and claimant’s counsel jointly and severally. The statute of limitations and any filing fee deadlines shall be tolled between the day you or we receive notice of the other’s intent to initiate an informal dispute resolution meeting and the day of the meeting, and for an extra 30 days thereafter.
Any AAA filing fee submitted with an arbitration demand that is dismissed for failure to complete the informal dispute resolution condition precedent shall be forfeited and shall not be refunded, credited, or applied to a subsequently filed demand. We shall bear no obligation to pay or reimburse any filing fees associated with a demand dismissed on this basis.
If the informal dispute resolution meeting is not successful at resolving the claims, any and all remaining disputes, claims, or controversies shall be resolved only through individual arbitration. You and we expressly waive the right to have any dispute, claim, lawsuit, or controversy brought, heard, administered, resolved, or arbitrated as a mass action. According to the AAA, a “mass action” is defined by the following criteria: 25 or more similar claims are filed, and there is consistent or coordinated legal representation across the claims. Neither an arbitrator nor an arbitration provider shall have authority to hear, arbitrate, or administer any mass action or to award relief to anyone except an individual in arbitration, except as expressly provided below. You and we also expressly waive any right to seek, recover, or obtain non-individual relief. This paragraph constitutes a Mass Action Waiver. Notwithstanding anything else in this agreement, this Mass Action Waiver does not prohibit you or we from participating in a mass settlement of claims.
An arbitrator or panel of arbitrators shall have authority to determine whether the party bringing any claim has violated the Mass Action waiver. All other disputes concerning the Class Action Waiver and/or Mass Action Waiver shall be heard and decided by a court of competent jurisdiction, rather than an arbitrator, including, but are not limited to, any claim that all or part of the waiver in question is unenforceable, unconscionable, illegal, void, or voidable.
A party who intends to seek arbitration must first send the other party, by certified mail, a completed Demand for Arbitration. You should send this notice to us at: AppFolio, Inc., 70 Castilian Drive, Goleta, CA 93117, Attn: General Counsel. We will send any notice to you to the address associated with your account; it is your responsibility to keep your address up to date. All information called for in the notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
A form for initiating arbitration proceedings is available on the AAA’s website at www.adr.org.
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, you or we may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and us subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or we may attend by telephone, unless the arbitrator(s) require otherwise. Any settlement offer made by you or us shall not be disclosed to the arbitrator(s).
The arbitrator(s) will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator(s) shall not be bound by rulings in prior arbitrations involving different AppFolio users, but is/are bound by rulings in prior arbitrations involving you to the extent required by applicable law. The award of the arbitrator(s) shall be final and binding, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Notwithstanding any provision to the contrary in the AAA’s rules, the arbitrator shall have the power to determine whether the party bringing any claim has filed a mass action as defined above, in violation of the Mass Action Waiver. Either you or we shall raise such a dispute with the arbitrator or arbitration provider within 30 days of its arising. You and we agree that, if such a dispute arises before an arbitrator has been appointed, a panel of three arbitrators shall be appointed to resolve only disputes concerning whether the party bringing any claim has filed a mass action in violation of the Mass Action Waiver. Each party shall choose one arbitrator from the arbitration provider’s roster to serve as a neutral arbitrator, and these arbitrators shall appoint a third neutral arbitrator. If the parties’ arbitrators cannot agree on a third arbitrator, the arbitration provider will appoint the third arbitrator. You and we furthermore agree that we will pay (a) administrative fees or costs related to the appointment of arbitrators under this provision, and (b) any fees or costs that would not be incurred in a court proceeding, e.g., arbitrator and/or room rental fees. You and we further agree that the arbitrators shall issue a written decision with findings of fact and conclusions of law; and that any further arbitration proceedings or assessment of arbitration-related fees shall be stayed pending the arbitrators’ resolution of our dispute.
If the arbitrator(s) determine that either you or we have violated the Mass Action Waiver, you and we shall each have an opportunity to opt out of arbitration within 30 days of any such decision. You may do so by notifying in writing both us, at the address above, as well as the arbitration provider. Any such notification must include your signature, not the signature of counsel or any other representative. If we opt out, we will notify in writing both the arbitration provider and you, or your attorney, agent, or representative if you are represented. For the avoidance of doubt, the ability to opt out of arbitration described in these paragraphs applies only where an arbitrator or panel of arbitrators determines that you or we have violated the Mass Action Waiver. If either you or we opt out of arbitration, the statute of limitations shall be tolled between the date the arbitration claim was filed with the arbitration provider and the date of the opt-out notice and for an extra 30 days thereafter. If arbitration proceeds, you and we agree that arbitrations will be grouped as provided below.
In the event a mass action is filed and neither party exercises its right to opt out of arbitration pursuant to the procedure described above, the following procedures shall apply. At your or our request, an arbitrator shall be chosen according to the AAA’s rules to act as a special master to resolve threshold disputes regarding the arbitration demands submitted in the mass action (“Mass Arbitration Demands”). These threshold disputes (a) include those falling within the AAA’s rules providing for the resolution of threshold disputes in a mass arbitration, and (b) include, but are not limited to disputes regarding:
\- whether the AAA complied with the terms laid out above regarding processing and administering the Mass Arbitration Demands;
\-filing fees, including whether claimants have submitted valid fee waivers;
\-whether the Mass Arbitration Demands meet the requirements set forth in these provisions;
\-whether claimants are barred from proceeding with their claims based on, e.g., a prior settlement agreement, violation of these Terms of Service, or expiration of the statute of limitations;
\-representation of the same claimant by multiple law firms; and
\-whether the Mass Arbitration Demands were properly filed with the AAA.
A request to resolve such disputes via a special master shall be made within 15 days following the expiration of the opt-out period described in the section above on dispute procedures regarding mass actions, and may be made by providing written notice to the AAA. Upon such a request by either you or us, the AAA shall refrain from processing further any of the Mass Arbitration Demands as to which a dispute has been raised. The AAA will not impose or collect any further payment for filing fees, administrative costs, or arbitrator fees with respect to any of the Mass Arbitration Demands as to which a dispute has been raised until after resolution of the dispute(s) by the special master. We shall be responsible for the AAA’s and the special master’s fees and costs related to the proceedings before the special master. A special master appointed pursuant to this procedure shall have no authority to consolidate cases.
Within 14 days after the conclusion of proceedings before the special master, if any of the Mass Arbitration Demands are allowed to proceed, you and we shall (a) organize such demands into groups of no more than 100 demands per group in the following way: first by state of residence, then alphabetically by last name; and if there are less than 100 demands left over after the grouping described above, we will have a final group consisting of the remaining demands; and (b) inform the AAA of the groups and their compositions. The AAA shall assign each group to a single arbitrator, with one set of administrative documents for each group, one set of administrative and filing fees for each group, and one arbitration management conference for each group. You and we agree to cooperate in good faith, and the AAA to implement this grouped approach to administration and fees. Regardless of the grouping, all arbitrations within a group shall be done by the arbitrator on an individual basis. Nothing in this provision shall be construed as limiting the right to object that the filing or presentation of multiple arbitration demands by or with the assistance of the same law firm or organization violates these Terms of Service.
If any Mass Arbitration Demands were processed originally as individual arbitration demands before the aforementioned procedure was commenced, further proceedings, including the assessment of further arbitration filing or administration fees shall be governed by the procedures set forth here.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, and the provisions governing mass arbitration above, where applicable, unless otherwise stated in this agreement to arbitrate. If the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by us should be submitted by mail to the AAA along with your Demand for Arbitration, and we will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of accessing arbitration will be prohibitive as compared to the costs of accessing a court for purposes of pursuing litigation on an individual basis, we will pay as much of the filing, administration, and arbitrator fees as the arbitrator(s) deem necessary to prevent the cost of accessing the arbitration from being prohibitive. In the event the arbitrator(s) determine the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse us for all fees associated with the arbitration paid by us on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
With the exception of any of the prohibition of class and representative actions and non-individualized relief provisions above, if a court decides that any part of this agreement to arbitrate is invalid or unenforceable, the other parts of this agreement to arbitrate shall still apply. If a court decides that any of the prohibition of class and representative actions and non-individualized relief provisions above is invalid or unenforceable because it would prevent the exercise of a non-waivable right to pursue public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in court. All other disputes subject to arbitration under the terms of this agreement to arbitrate shall be arbitrated under its terms.
If you are a new customer, you can choose to reject this agreement to arbitrate by mailing us a written opt-out notice. The opt-out notice must be postmarked no later than 30 days after the date you accept these Terms of Service for the first time. You must mail the opt-out notice to AppFolio, Inc., 70 Castilian Drive, Goleta, CA 93117, Attn: General Counsel. The opt-out notice must include your name, address, phone number, and email address(es) used to log in to your account. You must sign the opt-out notice for it to be effective. This procedure is the only way you can opt out of this agreement to arbitrate. If you opt out of this agreement to arbitrate, all other terms of these Terms of Service will continue to apply. Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
Notwithstanding any provision in these Terms of Service to the contrary, you and we agree that if we make any amendment to this agreement to arbitrate (other than an amendment to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. For the avoidance of doubt, this provision applies only to an individual who has already filed a claim, and not any members of a putative class. The amendment shall apply to all other disputes or claims governed by this agreement to arbitrate that have arisen or may arise between you and us.