1. Applicable Law and Jurisdiction.
These Terms will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 19 must be brought in state or federal court in Los Angeles, California, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Los Angeles, California.
2. Overview of Dispute Resolution Process.
Rainbow is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom this Section applies: (1) an informal negotiation directly with Rainbow’s customer service team and if necessary (2) a binding arbitration in accordance with the terms of this Arbitration Agreement. You and Rainbow each retain the right to seek resolution of the dispute in small claims court as an alternative to arbitration.
2.1 Mandatory Pre-Arbitration Dispute Resolution and Notification.
At least 30 days prior to initiating an arbitration, you and Rainbow each agree to send the other party an individualized notice of the dispute in writing (“Pre-Dispute Notice") and attempt in good faith to negotiate an informal resolution of the individual claim. A Pre-Dispute Notice must include: the date, your name, mailing address, email address y, your signature, a brief description of the dispute, and the relief sought. If the parties are unable to resolve the dispute within the 30-day period, only then may either party commence arbitration by filing a written demand for arbitration with the arbitration provider designated pursuant to Section 2.6, below. A claimant’s Pre-Dispute Notice requirement is a prerequisite to any arbitration, and a copy of the Pre-Dispute Notice and evidence that it was sent as required by this Section must be attached to any arbitration demand.
2.2 Agreement to Arbitrate.
You and Rainbow mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or any use of the website, or any Content (collectively, “Disputes”) will be settled by binding arbitration on an individual basis (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to a Dispute, you and Rainbow agree that an arbitrator will decide that issue. For the avoidance of doubt, you and Rainbow agree that any question regarding arbitrability and the formation, enforceability, validity, scope, or interpretation of all or part of this Section, including any dispute over compliance with the Pre-Dispute Notice requirement and a party’s responsibility to pay arbitration fees, shall be resolved exclusively by an arbitrator.
2.3 Exceptions to Arbitration Agreement.
You and Rainbow each agree that the following causes of action and/or claims for relief are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction as defined under this agreement: (i) any claim or cause of action alleging actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (iii) a request for the remedy of public injunctive relief; and (iv) any claim or cause of action for vexatious litigation; . You and Rainbow agree that any request for the remedy of public injunctive relief will proceed after the arbitration of all arbitrable claims, remedies, or causes of action, and will be stayed pending the outcome of the arbitration pursuant to section 3 of the Federal Arbitration Act.
2.4 Arbitration Forum Rules and Governing Law.
This Arbitration Agreement evidences a transaction in interstate commerce and the Federal Arbitration Act governs all substantive and procedural interpretation and enforcement of this Arbitration Agreement, and not state law. The arbitration will be administered by ADR Services, Inc. (“ADR”) (www.adrservices.com) in accordance with Rules 1, 6–7, 8–9, and 11–12, 45, 54, and 56 of the Federal Rules of Civil Procedure (“Selected Federal Rules") (https://www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure) and ADR’s Arbitration Rules then in effect (the “ADR Rules”), except as the Selected Federal Rules or ADR Rules are modified by or conflict with this Arbitration Agreement. The ADR Rules are available at www.adrservices.com. If an arbitration demand is submitted to ADR Services in accordance with this agreement and the ADR Rules, and ADR Services cannot or will not administer the arbitration, the arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Selected Federal Rules and the AAA’s Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules”) then in effect, except as modified here. The AAA Rules are available at www.adr.org. If the AAA cannot and will not administer the arbitration, you and Rainbow shall confer and select an alternative arbitral forum, and if we are unable to agree, either you or Rainbow may ask a court to appoint an arbitrator pursuant to 9 U.S.C. § 5. In that event, the arbitration will be conducted in accordance with the rules of the appointed arbitral forum, unless those rules are inconsistent with the provisions of this Arbitration Agreement.
2.5 Modification of Arbitration Rules - Arbitration Hearing/Location.
In order to make the arbitration most cost-effective, efficient, and convenient, any required arbitration hearing in an arbitration wherein the amount in controversy does not exceed $10,000,000 shall be conducted remotely via video conference except as otherwise agreed by the parties or instructed by the arbitrator. Any required arbitration hearing in an arbitration wherein the amount in controversy exceeds $10,000,000 shall be conducted in Los Angeles County except as otherwise agreed by the parties or instructed by the arbitrator. If the amount in controversy is $10,000 or less, the parties agree to proceed solely on the submission of documents to the arbitrator.
2.6 Modification of Arbitration Rules - Arbitration Fees and Costs.
Your arbitration fees and your share of arbitrator compensation shall be governed by the ADR Rules and the ADR Services fee schedule (available at www.adrservices.com). If you have a gross monthly income of less than 300% of the federal poverty guidelines, you are entitled to a waiver of arbitration fees and costs, exclusive of arbitrator fees. You may request a fee waiver by providing the arbitration provider with a declaration under oath stating your monthly income and the number of persons in your household. If a fee waiver is granted by the arbitration provider and you provide Rainbow with documents necessary to prove that your gross monthly income is less than 300% of the federal poverty guidelines, Rainbow will pay your share of any arbitrator fees.
2.7 Modification of Arbitration Rules - Claims Brought for an Improper Purpose or In Violation of This Arbitration Agreement.
Either party may make a request that the arbitrator impose sanctions upon proving that the other party or its attorney(s) has asserted a claim or defense that is groundless in fact or law, brought in bad faith or for the purpose of harassment, or is otherwise frivolous. As allowed by applicable law, the arbitrator shall impose sanctions equal to the requesting party’s reasonable attorneys’ fees and costs upon finding that a claim or defense is groundless in fact or law, brought in bad faith or for the purpose of harassment, asserted in violation of Fed. R. Civ. P. 11(b) (treating the arbitrator as “the court”), or is otherwise frivolous. Either party may seek dismissal of any arbitration filed in violation of any provision of this Arbitration Agreement. Either party may assert in arbitration a counterclaim for the other party’s initiation of proceedings concerning an arbitrable Dispute without complying with or otherwise in violation of the requirements of this Arbitration Agreement. Upon finding that a party has initiated proceedings concerning an arbitrable Dispute without complying with or otherwise in violation of the requirements of this Arbitration Agreement, the arbitrator shall award the other party its actual damages, including but not limited to reasonable attorneys’ fees and costs.
2.8 Arbitrator’s Decision.
The arbitrator will issue a written decision which shall include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award any relief allowed by law or the ADR Rules, but declaratory or injunctive relief may be awarded only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
2.9 Jury Trial Waiver.
You and Rainbow acknowledge and agree that both parties are each waiving the right to a trial by jury as to all arbitrable Disputes.
2.10 No Class Actions or Representative Proceedings.
You and Rainbow acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative or consolidated proceeding. Unless we agree in writing or as provided in this agreement, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If there is a final judicial determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy, and only that claim, cause of action or requested remedy, will be severed from this agreement to arbitrate and will be brought in a court of competent jurisdiction. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you and we agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator.
2.11 Mass Action Waiver.
You and Rainbow acknowledge and agree that the relative benefits and efficiencies of arbitration may be lost when 100 or more arbitration claims are filed within 180 days which (1) involve the same or similarly situated parties; (2) are based on the same or similar claims which arise from the same or substantially identical transactions, incidents, alleged violations or events requiring the determination of the same or substantially identical questions of law or fact; and (3) involve the same or coordinated counsel for the parties (“Mass Action”). Accordingly, you and Rainbow agree to waive the right to have any Dispute administered, arbitrated, or resolved as part of a Mass Action. In case of a dispute, the appointed arbitrator for the first matter instituted within a set of claims identified by either party shall decide whether those claims are part of a Mass Action. If no arbitrator has yet been appointed, an arbitrator shall be appointed solely to determine whether claims identified by either party are part of a Mass Action. Nothing in this provision prevents you or Rainbow from participating in a mass settlement of claims.
2.12 Modification of Arbitration Rules – Mass Action Batching Requirements.
If for any reason, notwithstanding the preceding sub-section, an arbitration proceeds as part of a Mass Action, the parties shall group the arbitration demands into batches of no more than 200. The batches shall be determined by listing the claimants’ alphabetically (by last name or business name, as applicable)—for example, the first 200 claimants listed will be the first batch, the next 200 claimants listed will be the second batch, and so forth. The parties shall randomly assign each batch a sequential number and arbitrate the batches one at a time, in sequential order. While one batch is being arbitrated, the arbitration provider shall hold the remainder in abeyance unless otherwise agreed by the parties or instructed by the arbitration provider. Each batch shall be resolved within 240 days of the pre-hearing conference for that batch. Notwithstanding the forgoing, if any claimant’s demand has not been the subject of a pre-hearing conference within 2 years of the latest-filed demand in the Mass Action, such claimant may elect to pursue the claims asserted in the claimant’s demand in court subject to this agreement.
2.13 Modifications of Arbitration Rules - Offers of Judgment.
At least 10 days before the date set for the arbitration hearing, you or Rainbow may serve a written offer of judgment on the other party to allow judgment on specified terms. If the offer is accepted, the offer with proof of acceptance shall be submitted to the arbitration provider, who shall issue an award accordingly. If the offer is not accepted prior to the arbitration hearing or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn and cannot be given as evidence in the arbitration, other than with respect to costs (including all fees paid to the arbitration provider). If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover their post-offer costs and shall pay the offering party’s costs (including all fees paid to the arbitration provider) from the time of the offer.
2.14 Severability.
Except as otherwise provided in this agreement, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision will be severed and the remainder of the Arbitration Agreement will be given full force and effect.
2.15 Amendment to Agreement to Arbitrate.
If Rainbow amends this Section after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject the change by sending us written notice no later than 30 days of the date the change is effective. Your notice must include your name, mailing address, the date of the notice, email address, and an unequivocal statement that you want to opt out of the amended Section. Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any Dispute between you and Rainbow (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between you and Rainbow.
2.16 Survival.
Except as otherwise provided in this agreement, this Section will survive any termination of these Terms and will continue to apply even if you stop using the website.
3. Disclaimer of Warranties and Damages; Limitation of Liability
YOUR USE OF THIS SITE IS AT YOUR OWN RISK THIS SITE (INCLUDING ALL CONTENT AND FUNCTIONS MADE AVAILABLE ON OR ACCESSED THROUGH THIS SITE) IS PROVIDED "AS IS." TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WITH REGARD TO THE CONTENT ON THIS SITE, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER (1) FOR THE ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY CONTENT PUBLISHED ON OR AVAILABLE THROUGH THE SITE; (2) THAT THE SERVER THAT MAKES THIS SITE AVAILABLE IS FREE OF VIRUSES OR OTHER COMPONENTS THAT MAY INFECT, HARM, OR CAUSE DAMAGE TO YOUR COMPUTER EQUIPMENT OR ANY OTHER PROPERTY WHEN YOU ACCESS, BROWSE, DOWNLOAD FROM, OR OTHERWISE USE THE SITE. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO RAINBOW'S NEGLIGENCE, SHALL RAINBOW BE LIABLE FOR ANY CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES RELATED TO (A) THE USE OF, (B) THE INABILITY TO USE, OR (C) ERRORS OR OMISSIONS IN THE CONTENTS AND FUNCTIONS OF THIS SITE, EVEN IF RAINBOW OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL RAINBOW'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE)
EXCEED $100.00.
4. No Unlawful or Prohibited Use
As a condition of your use of the Web Site, you warrant to Rainbow that you will not use the Web Site for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Web Site in any manner which could damage, disable, overburden, or impair the Web Site or interfere with any other party's use and enjoyment of the Web Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Web Site.
5. Changes to the Agreements
Occasionally we may make changes to the Agreements for valid reasons, such as improving the existing functions or features or adding new functions or features to the website, implementing advancements in science and technology, and reasonable technical adjustments to the website, ensuring the operability or the security of the website, and for legal or regulatory reasons. When we make material changes to the Agreements, we'll provide you with notice as appropriate under the circumstances, e.g.. by displaying a prominent notice or seeking your agreement within the website or by sending you an email. In some cases, we will notify you in advance, and your continued use of the website after the changes have been made will constitute your acceptance of the changes. Please therefore make sure you read any such notice carefully.