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Arbitration is an alternative dispute resolution process where complaints are resolved by a neutral arbitrator. Arbitration is typically a faster, more informal and more efficient manner of dispute resolution compared with court proceedings. The following are the procedures that will apply to resolution of all Disputes under the Agreement.
The arbitration of the Dispute will be administered by the American Arbitration Association ("AAA") or, in the event the AAA declines or is unable to administer the arbitration, by an arbitration forum or arbitrator that you and eHarmony mutually agree upon.
If, after making a reasonable effort, you and eHarmony are unable to agree upon an arbitration forum or arbitrator, the AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the AAA's Commercial Arbitration Rules ("Commercial Rules") and, when deemed appropriate by the arbitration forum or arbitrator, the AAA's Supplementary Procedures for Consumer-Related Disputes ("Consumer Procedures"), or the appropriate rules of any alternative arbitration forum selected by you and eHarmony or appointed by a court. The procedures set forth below will supercede any conflicting provision in the rules applied to Disputes. The AAA rules are available from the AAA, which can be contacted by mail at 1633 Broadway, Floor 10, New York, New York 10019, by telephone at (800) 778-7879, or through its website at www.adr.org.
The arbitration will be conducted before a single arbitrator who will be a licensed attorney or a former judge and will have at least 10 years of legal experience in the resolution of commercial disputes. The parties will choose the arbitrator in accordance with the Commercial Rules. The arbitrator will have power, in addition to other remedies, to impose injunctive relief limited to the claim(s) at issue.
As limited by the Federal Arbitration Act, the terms of the Agreement, and the applicable AAA rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute. This does not include the power to conduct a class arbitration or a representative action, which is prohibited by the terms of this agreement as stated above. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person's claims and may not preside over any form of representative or class proceeding, or any proceeding on behalf of or involving more than one person or persons.
To commence an arbitration against eHarmony, you must complete a short form, submit it to the AAA, and send a copy to eHarmony at eHarmony, Inc. - Arbitrations, PO Box 3640, Santa Monica, CA 90404. For more information, see the AAA's claim filing page, http://www.adr.org/fileacase. You may represent yourself in the arbitration or be represented by an attorney or another representative. Once we receive your arbitration claim, we may assert any counterclaims we may have against the complaining party.
Each party may request that the other party provide the particulars of its claims or defenses, and may request relevant, non-privileged documents from the other party. Such discovery requests must be delivered to the other party within 14 days after the arbitrator's appointment, and responses to such request must be provided no later than 14 days after receipt of the requests. Any disputes about discovery or requests for extensions must be submitted promptly to the arbitrator for resolution. In ruling on any such dispute or request, the arbitrator will take into consideration the nature, amount, and scope of the underlying arbitration claim, the cost and other effort that would be involved in providing the requested discovery, the case schedule, and whether the requested discovery is necessary for the adequate preparation of a claim or defense. No other forms of written discovery (such as interrogatories or requests for admissions) may be utilized without both parties' agreement. No depositions may be taken, except by agreement of the parties or by order of the arbitrator upon a showing of good cause by the requesting party and a finding by the arbitrator that the deposition is necessary to determination of the matter.
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties, and any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive or declaratory relief in an appropriate court of law.
Each party must include and/or copy the other party in communications with the arbitrator, whether by phone, letter, email or other manner. To the extent practicable, conferences with the arbitrator will take place by telephone conference call or email. No ex parte communications are permitted with the arbitrator.
In making any award, the arbitrator will be restricted by the Limitation of Liability provisions in section 7 of the Agreement and will not have jurisdiction to make an award to any party to the arbitration contrary to such provisions; provided however that if the enforceability of any of these restrictions is limited by the applicable substantive law or by the AAA rules, that restriction will only be enforced to the extent permitted by such law or rules.
The prevailing party in any of the following matters (without regard to the Limitation of Liability provisions) will be entitled to recover its reasonable attorneys' fees and costs incurred: (i) a motion which any party is required to make in any court to compel arbitration of a Dispute; (ii) any appeal of an arbitration award, whether to the arbitrator or the courts, for the purpose of vacating or modifying the award; or (iii) any action to enforce the confidentiality provisions stated herein.
eHarmony will pay the amount of any arbitration costs and fees charged by the AAA, subject to the right of eHarmony to request that the arbitrator allocate the ultimate responsibility for that fee in a fair and reasonable manner. Unless the arbitrator finds that you are economically unable to pay a share of the arbitrator's fee or that it is otherwise inappropriate for you to do so, the arbitrator ultimately may decide that you are responsible for some portion of that fee in the arbitrator's discretion.
Either party will be held in default if it: (a) does not respond to a claim or counterclaim within the time set forth by the Commercial Rules; or (b) materially fails to participate in the arbitration process (e.g., failure to submit information necessary to select an arbitrator, failure to respond to discovery requests in a timely and complete fashion, or non-appearance at conferences or hearings). Upon default, the arbitrator will enter an award in favor of the non-defaulting party and against the defaulting party.
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