13. Arbitration Agreement
You and we each agrees that 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, shall 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 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.
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. A party who intends to seek arbitration must first send the other party, by certified mail, a completed Notice of Dispute. You should send this notice to us at: AppFolio, Inc., 50 Castilian Drive, Goleta, CA 93117, Attn: Chief Legal Officer. 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.
If you and we are unable to resolve the claims described in the notice within 30 days after the notice is sent, you or we may initiate arbitration proceedings. 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.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA’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, 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., 50 Castilian Drive, Goleta, CA 93117, Attn: Chief Legal Officer. 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. 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.