Terms of Use

BY ENTERING INTO THIS AGREEMENT, YOU AND MNBOOST ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. This arbitration provision will survive termination of this Agreement.

References to “Mnboost” or “we” include our past, present, and future parents, subsidiaries, affiliates, and related entities, as well as Mnboost’s and all of those entities’ officers, agents, employees, licensors, predecessors in interest, successors, and assigns. References to “you” include your past, present, and future parents, subsidiaries, affiliates, related entities, agents, employees, predecessors in interest, successors, and assigns; and all authorized or unauthorized users or beneficiaries of Mnboost Services or products under past, present, or future Agreements between you and Mnboost.

Despite the provisions of this section (Generally), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (1) bring an individual action in small claims court; (2) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (3) seek injunctive relief in a court of law; or (4) file suit in a court of law to address an intellectual property infringement claim.

This part of the Agreement outlines how disputes between you and Mnboost will be resolved through the informal dispute resolution process, individual arbitration, or small claims court. The informal dispute resolution process gives you the opportunity to explain your problem to the responsible person from our team or our legal department. Under the terms of this Agreement, Mnboost is encouraged to resolve issues early, without going any further.

Here is the brief description of how the process should look like to resolve any disputes that may arose between us:

• Informal process first. To resolve your dispute, we encourage and require you to contact us first. A phone call, chat session, or email with us is usually the quickest way to resolve an issue. Try contacting us the following email support@mnboost.com or send us a letter to 16192 Coastal Highway, Lewes, DE 19958, Attn: Chief Executive Officer.
• You choose. If you aren’t satisfied after talking to customer service, you can choose to file your individual claim in small claims court or send us a Notice of Dispute, which is required before starting arbitration.
• Let’s work it out. If you decide not to go to small claims court, start the informal dispute resolution process by sending a Notice of Dispute to our legal department, which you can contact via support@mnboost.com. You and Mnboost agree to give each other at least 60 days to share information and try to reach an agreement. (We’ll use the same process if we have a dispute with you.) At your or our request, we’ll schedule an Informal Settlement Conference to try to reach an agreement by phone or videoconference.
• Pursue an arbitration. If the dispute still isn’t resolved, you can pursue an individual arbitration. The nation’s largest non-profit arbitration provider, the NAM (National Arbitration and Mediation), will administer the arbitration and select the neutral arbitrator, with input from both you and Mnboost.

An “arbitration” is a less formal alternative to a lawsuit or jury trial in court. A neutral third party, called an arbitrator, decides the dispute. The arbitrator applies the same law and can award the same individualized remedies that a court could award, but uses streamlined procedures and limits discovery to simplify the process and reduce costs. The arbitrator’s decision is legally binding, and it is subject to very limited review by courts.

Small Claims Option and reporting to state agencies.

Neither in this Agreement prevents either you or Mnboost from bringing an action seeking only individualized relief in the small claims court for disputes or claims arise from theft, piracy, or unauthorized use of intellectual property or within the scope of that court’s jurisdiction.

This arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Those agencies can, if the law allows, seek relief against us on your behalf.

Pre-arbitration Informal Dispute Resolution Process:

You and Mnboost must try to resolve any issues in an informal way first. Customer service is available to help and usually can resolve any concerns you may have. If that does not work, the first step in the dispute resolution process is to send a written Notice of Dispute (“Notice”). The Notice to us may be sent by U.S. mail or professional courier service to our office at: 16192 Coastal Highway, Lewes, DE 19958, Attn: Chief Executive Officer, or to our designated email address: support@mnboost.com (“Notice Address”). You must personally sign this Notice for it to be effective. The Notice must individually describe the basis of your dispute and not any other person’s dispute and must include the following information:

• your full name;
• account identifiers such as account ID, profile screenshot, or anything else that allows us to identify your account;
• a thorough description of the dispute, with supporting evidence like screenshots or documents, a detailed description of dispute which must include the nature and factual basis of its claim(s); and
• the specific remedy or resolution you seek, including a detailed calculation of any monetary damages.

If we are the claimant, we will provide you the Notice in the similar manner.  To safeguard your Account, you might be required to provide both your authentication and consent for us to discuss your Account or share your Account information with anyone but you, including an attorney (“Authentication and Consent”). The Notice must include the signature of our representative and the following details:

(a) the claimant’s name, address, and phone number;

(b) the Account ID at issue;

(c) the services (if any) to which the claim pertains;

(d) a description of the nature and basis of the claim or dispute; and

(e) an explanation of the specific relief sought and the basis for the calculations.

Whoever sends the Notice must give the other party 60 days after receipt of a complete Notice (including your Authentication and Consent, if required) to investigate the claim. During that period, either you or Mnboost may request an individualized discussion as part of the good faith negotiations (including via Google Meet or Zoom etc., by call or by any other videoconference application agreed between us) about the settlement of your dispute (“Informal Settlement Conference”). You and Mnboost must work together in good faith to select a mutually agreeable time for the Informal Settlement Conference (which can be after the 60-day period). You and Mnboost representative must personally participate, unless otherwise agreed in writing. Your and Mnboost’s lawyers (if any) also can participate.

Any applicable statute of limitations or contractual limitations period will be tolled for the claims and requested relief in the Notice during the “Informal Resolution Period.” The Informal Resolution Period is the number of days between the date that the complete Notice (and Authentication and Consent, if required) is received by the other party, and the later of (1) 60 days later or (2) the date the Informal Settlement Conference is completed, if timely requested. Any arbitration proceeding cannot be commenced until after the Informal Resolution Period has ended.

All of the pre-arbitration dispute resolution requirements are essential so that you and Mnboost have a meaningful chance to resolve disputes informally. If any aspect of these requirements has not been met, a court can enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the NAM may not accept, administer, assess, or demand fees in connection with such an arbitration. If the arbitration already is pending, it must be dismissed.

Binding arbitration.

If you and Mnboost do not reach an agreement to resolve the claim within the Informal Resolution Period, You and Mnboost agree that any claim, dispute or controversy arising out of, or relating to, this agreement, or the breach thereof, shall be resolved through final and binding Arbitration to be administrated by (“NAM”) National Arbitration and Mediation and governed by NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time such claim is filed (as modified by this Agreement).  Any award of the Arbitrator is final and binding and may be entered as a judgment in any court having jurisdiction. The arbitration shall be in English. A single independent and impartial arbitrator will be appointed remotely pursuant to the Rules, as modified herein.

This arbitration provision is intended to be broadly interpreted. It includes, but is not limited to:

• claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud, misrepresentation, or any other statutory or common-law legal theory;
• claims that arose before the existence of this or any prior Agreement (including, but not limited to, claims relating to advertising);
• claims for mental or emotional distress or injury not arising out of bodily injury;
• claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
• claims that may arise after the termination of this Agreement.

Notwithstanding the abovementioned only a competent court can decide the following:

1. issues relating to the scope and enforceability of the arbitration provision;
2. whether a dispute can or must be brought in arbitration;
3. whether the NAM cannot or will not administer the arbitration in accordance with this arbitration provision;
4. whether provisions of “Pre-arbitration Informal Dispute Resolution Process” section has been complied with or violated for purposes of awarding relief under that subsection that a court can award, and
5. whether provisions of sections “Requirements of Individual Arbitration”, “Batch arbitration”, or “Future Changes to Arbitration Provision” have been complied with or violated.

To file an arbitration request you can use the form available at: https://www.namadr.com/submit-a-case/ or by other means in accordance with the NAM rules. A copy of the arbitration demand must be sent to NAM and the Notice Address, and a copy of the Notice must be attached to your arbitration demand.

If you have a question about the arbitration process or to obtain a current copy of the Comprehensive Dispute Resolution Rules and Procedures and/or fee schedule, NAM’s Commercial Dept. can be contacted at (800) 358-2550 or by NAM’s website at www.namadr.com.

Participation in an informal dispute resolution session is required before initiating arbitration, and, unless prohibited by applicable law, NAM must dismiss any arbitration demand and administratively close the case if the party bringing the demand has not fully adhered to the requirements outlined in this section. The arbitration administrator, unless prohibited by law, may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of these informal dispute resolution process. Failure to do so is a breach of this Agreement. If you or us do not follow the requirements of this informal dispute resolution process, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. If NAM refuses to enforce any part of this arbitration provision, you and Mnboost will select another arbitration provider. If there is no agreement, the court will do so.

As in court, you and Mnboost agree that any counsel representing someone in arbitration certifies that they’re complying with the requirements of Federal Rule of Civil Procedure 11(b), including a certification that the claim or the relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions available under NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law against all appropriate represented parties and counsel.

Unless you and Mnboost agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address.

If your claim is valued at $10,000 or less, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator or through a telephonic, videoconference, or in-person hearing under NAM Rules. If your claim exceeds $10,000, the right to a hearing will be determined by NAM Rules. During the arbitration, the amount of any settlement offers must not be disclosed to the arbitrator until after the arbitrator determines the relief, if any, to which you or Mnboost is entitled. Regardless of how the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which his or her decision is based. Except as provided in section “Requirement of Individual Arbitration” below, the arbitrator can award the same damages and relief that a court can award under applicable law.

If NAM is unable or unwilling to perform its duties under this Agreement, the Parties shall mutually agree on an alternative administrator that will replace NAM and assume NAM’s role consistent with this Agreement and this Agreement will govern to the extent it conflicts with the arbitration provider’s rules. If the Parties are unable to agree, they will petition a court of competent jurisdiction to appoint an arbitration provider who will assume NAM’s duties under this Agreement and this Agreement will govern to the extent it conflicts with the arbitration provider’s rules.

The Parties agree that the Claim Arbitrator shall have the authority to consider dispositive motions without an oral evidentiary hearing. Dispositive motions may be requested under the following circumstances: (a) within 30 days after the Claim Arbitrator’s appointment, a Party may request to file a dispositive motion based upon the pleadings; and (b) no later than 30 days prior to the evidentiary hearing, a Party may request to file a dispositive motion for summary judgment based upon the Parties’ pleadings and the evidence submitted.

Arbitration fees.

We will pay all NAM filing, administration, case-management, hearing, and arbitrator fees if we initiate an arbitration. If you initiate arbitration of claims valued at $75,000 or less, we will pay those fees, so long as you have fully complied with the requirements in subsection “Pre-arbitration Informal Dispute Resolution Process”. In such cases, we will pay the filing fee directly to NAM upon receiving a written request from you at the Notice Address or, if NAM requires you to pay the filing fee to commence arbitration, we will send that amount to NAM and request that NAM reimburse you. If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the allocation and payment of all such fees will be governed by NAM Rules.

Requirement of Individual Arbitration.

The arbitrator may award relief (including, but not limited to, damages, restitution, declaratory relief, and injunctive relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND MNBOOST AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and Mnboost agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims and may not otherwise preside over any form of a representative, class, private attorney general, or public injunction proceeding. If a court (after exhaustion of all appeals) declares unenforceable any of these prohibitions on consolidation or non-individualized relief (such as class, representative, private attorney general, or public injunctive relief), then all other aspects of the case must be arbitrated first. After completing arbitration, the remaining (non-arbitrable) aspects of the case will then be decided by a court.

The arbitrator may consider rulings in other arbitrations involving different customers, but an arbitrator’s ruling will not be binding in proceedings involving different customers.

Decision of the Arbitrator.

Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim.

The arbitration award is binding only between you and Mnboost and will not have any preclusive effect in another arbitration or proceeding that involves a different Party.

Batch Arbitration.

To increase the efficiency of administration and resolution of arbitrations, You and Mnboost agree that in the event that there are ten (10) or more individual requests for arbitration of a substantially similar nature filed against Mnboost by or with the assistance of the same law firm, group of law firms, or organizations, within a ninety (90) day period (or as soon as possible thereafter), NAM shall:

1. administer the arbitration demands in batches of 100 requests per batch (or, if between ten (10) and ninety-nine (99) individual Requests are filed, a single batch of all those Requests, and, to the extent there are less than 100 Requests remaining after the batching described above, a final batch consisting of the remaining Requests);
2. appoint one arbitrator for each batch; and
3. provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly.

You and Mnboost agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of requests, as well as any steps to minimize the time and costs of arbitration, which may include:

1. the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and
2. the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this subsection.

Future Changes to Arbitration Provision:

Notwithstanding any provision in this Agreement to the contrary, if MNBOOST makes any future change to this arbitration provision (other than a change to the Notice Address), you may reject any such change by sending us written notice via U.S. Mail within 30 days of the first notice of the change to Legal Department – Revised Arbitration Opt-Out, MNBOOST, 16192 Coastal Highway, Lewes, DE 19958, Attn: Chief Executive Officer or to the support@mnboost.com. Include your name, address, phone number, account number, and a statement personally signed by you that you wish to reject the change to the arbitration provision. By rejecting any future change, you are agreeing that you will arbitrate any dispute between you and MNBOOST in accordance with the language of this version of the arbitration provision.

Governing law

The laws of Delaware, U.S.A., without regard to its conflict of laws rules, shall explicitly apply to any Dispute arising out of or relating to this Agreement or our Services, and the Dispute Resolution Process set forth in this Section shall be governed by the Federal Arbitration Act.

Forum Selection.

Unless you and MNBOOST agree otherwise, to the greatest extent permitted by law, the state and federal courts in Dover, Delaware will have exclusive jurisdiction over any disputes (except for disputes brought in small claims court) that are not subject to arbitration or over any action involving the applicability or enforceability of the arbitration provision or any of its parts. You and MNBOOST consent to the jurisdiction of those courts and waive any objections as to personal jurisdiction or as to the laying of venue in such courts due to inconvenient forum or any other basis or any right to seek to transfer or change venue of any such action to another court.

Severability of Arbitration Agreement

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Agreement; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis under this Arbitration Agreement; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in court under Section 14 “Governing Law “and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Arbitration Agreement is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Arbitration Agreement will be enforceable.

Survival

This Arbitration Agreement will survive any termination of your use of the Services.