This Agreement to Arbitrate Disputes (the “Agreement”), executed between you, an individual (“Contractor”) and Bungii, LLC (“Bungii” or “Company”), confirms that Contractor and Bungii have agreed to submit to binding arbitration pursuant to the Federal Arbitration Act (“FAA”) any dispute, controversy or claim arising out of or relating to Contractor’s business relationship with Bungii and/or the termination thereof, with the exception of any claims that cannot be arbitrated as a matter of law (collectively the “Arbitrable Claims”) such as workers’ compensation claims; claims for unemployment insurance benefits; claims for unfair labor practices contemplated by the National Labor Relations Act; claims filed with a state or federal administrative agency (such as the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, or the State Labor Commissioner or an equivalent state official) (“Administrative Agency Claims”), provided however, that if any such agency completes its processing of any Administrative Agency Claims, a private right of action may only be pursued through the arbitration process; and claims for public injunctive relief. To the extent permitted by law, Contractor and Bungii agree that any non-Arbitrable Claims such as Administrative Agency Claims that become arbitrable in whole or in part as a result of a change in law after the date this Agreement is executed shall be submitted to the fullest extent permissible to binding arbitration consistent with the procedures set forth in this Agreement.
Waiver of Representative, Collective and Class Action Procedures
Except as otherwise required under applicable law, Contractor and Bungii expressly agree that: (1) representative, collective action, and class procedures are waived, and shall not be asserted, nor will they apply, in any arbitration (or dispute adjudicated in any other forum) pursuant to this Agreement; and (2) Contractor agrees that s(he) will not participate in any representative, collective, or class action, claim, or procedure instigated by any other person in any forum or seek to initiate such an action. No arbitrator shall have the authority under this Agreement to order any such representative, collective action, class action(s). Nothing herein shall be construed as a waiver of any rights Contractor may have to pursue an individual civil action under the California Private Attorneys’ General Act through binding arbitration.
In the event that this waiver of representative, collective action, and class procedures is prohibited or invalidated in whole or in part as a result of a change in law after the date this Agreement is executed (collectively, “Non-Waivable Claims”), Contractor and Bungii agree that the Non-Waivable Claims shall be litigated in court. Notwithstanding the foregoing, and to the extent that any portion of this waiver remains valid, the claims subject to the valid portion of this waiver shall be submitted to binding arbitration consistent with the procedures set forth in this Agreement.
Waiver of Representative, Collective and Class Action Procedures
Except as set forth in this paragraph, the arbitrator, and not any court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable.
Initiating an Arbitration Claim
Arbitration shall be initiated upon the express written notice of either Contractor or Bungii. The complaining party must give written notice of any claim to the other party. Written notice of a Contractor’s claim shall be mailed by certified or registered mail, return receipt requested, to Bungii at Bungii, LLC Attention Legal Department, 11011 King Street Suite 280, Overland Park, KS 66210. Written notice of Bungii’s claim will be mailed to the Contractor’s last known address.
This Agreement does not shorten time limits under which either party may bring a claim to arbitration. The time limits under which a dispute, claim or controversy may be brought to arbitration will be governed by the applicable statutes of limitations. Contractor and Bungii understand that a written request for arbitration must be made to the other party within the time limits which would apply to the filing of a civil complaint in court or the complaining party will waive their right to pursue any claim. Contractor acknowledges that (s)he is knowingly and voluntarily waiving his/her right to pursue such claims in court and instead will pursue them in arbitration. Contractor also acknowledges and agrees that all claims subject to this Agreement must be brought in an individual capacity, and that Contractor cannot bring any action as a plaintiff or class member in any purported class action.
Arbitration Procedures
Arbitration shall be conducted in accordance with the Federal Arbitration Act, 9 U.S.C. §§ 1-16 et seq., and the then-current AAA Commercial Arbitration Rules & Mediation Procedures (“AAA Commercial Rules & Procedures”) (except where the AAA Commercial Rules and Procedures conflict with applicable state or federal law), and California Code of Civil Procedure section 1280 et seq. (including, but not limited to, California Code of Civil Procedure section 1283.05) or similar state laws shall govern discovery unless otherwise ordered by the arbitrator. A copy of the current AAA Commercial Rules & Procedures is available at https://www.adr.org/sites/default/files/CommercialRules_Web-Final.pdf and if requested, Bungii will provide Contractor with a copy of the same.
Unless otherwise agreed to by the parties to this Agreement, or ordered by the arbitrator, the arbitration proceeding shall be held in San Diego, California.
In addition to any other requirements imposed by law, the arbitration shall be administered through JAMS. The arbitrator selected to hear the Arbitrable Claims under this Agreement shall be a retired California Superior Court Judge, or an otherwise qualified individual, to whom the parties mutually agree. If the parties cannot agree to an arbitrator, one shall be selected pursuant to the AAA Commercial Rules & Procedures.
Within thirty (30) days following a hearing conducted by the arbitrator, the arbitrator shall issue a written opinion and award which shall be signed and dated. The opinion and award shall decide all issues submitted and shall set forth the legal principles and findings of fact supporting each part of the opinion. The arbitrator shall be permitted to award only those remedies in law or equity which are requested by the parties and which the arbitrator determines to be supported by credible, relevant evidence. Any court of competent jurisdiction may enter judgment upon the award, either by (a) confirming the award or (b) vacating, modifying, or correcting the award on any ground referred to in the Federal Arbitration Act, California Code of Civil Procedure section 1286 et seq., or similar state law.
The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant, including, without limitation, specific performance, a payment of damages, issuance of injunction, or the imposition of sanctions for abuse or frustration of the arbitration process.
Arbitration Is the Exclusive Forum for Resolving Disputes; Injunctive Relief Permitted
Contractor and Bungii agree that arbitration in accordance with this Agreement shall be the exclusive forum for resolving all Arbitrable Claims arising out of or involving Contractor’s relationship with Bungii or the termination of that relationship; provided, however, that either party may file a request of a court of competent jurisdiction for equitable relief, including but not limited to injunctive relief, pending resolution of any dispute through the arbitration procedure set forth herein. All arbitration awards shall be binding upon the parties to this Agreement, subject to judicial confirmation of the award under 9 U.S.C. § 9.
Fees and Costs Unique to Arbitration Paid by Bungii
All fees and costs that are unique to arbitration, including the arbitrator’s fees and costs, shall be borne by Bungii. However, each party shall bear the expense of its own counsel, experts, witnesses, and the preparation and presentation of evidence. Nothing in this Agreement, however, shall preclude the arbitrator from awarding attorneys’ fees and/or costs to the prevailing party pursuant to applicable California and/or federal law. Contractor will not be required to pay any fee or cost that (s)he would not be required to pay in a state or federal court action.
Agreement Survives Termination of Business Relationship
Contractor and Bungii hereby agree that this Agreement shall survive the termination of Contractor’s business relationship with Bungii.
Contractor’s Representations
Contractor certifies that (s)he is aware that by entering into this Agreement, (s)he is waiving his/her right to have his/her Arbitrable Claims against Bungii, if any, tried before a jury and that (s)he is waiving the right to appeal the arbitrator’s ruling on the merits other than to the extent necessary for judicial confirmation of the award under 9 U.S.C. § 9. Bungii further certifies that (s)he has had the opportunity to consult with legal counsel prior to executing this Agreement.
Severability
In the event any portion of this Agreement is found to be unenforceable or illegal, it can be severed, and the other provisions will remain in full force and effect.
Nature of Business Relationship
Contractor and Bungii understand and agree that this Agreement does not alter independent contractor nature of their relationship. Contractor and Bungii also understand and agree that nothing in this Agreement creates or purports to create an employment relationship between the parties.
