9. Arbitration Agreement & Dispute Resolution
IMPORTANT: PLEASE REVIEW THIS SECTION (“ARBITRATION AGREEMENT”) CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH VIA ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION, EXCEPT AS EXPRESSLY PROVIDED BELOW. BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU WAIVE YOUR RIGHT TO HAVE A TRIAL BY JURY AND YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, EXCEPT AS EXPRESSLY PROVIDED BELOW.
You have the right to consult with counsel of your choice concerning the Arbitration Agreement and to be represented by counsel at any stage in the arbitration process.
A. Mutual Agreement to Binding Arbitration
You and Via Transportation Inc. and its subsidiaries and affiliates (“Via” or the “Company”) agree that, except as expressly provided in Subsection B (“Limited Exceptions to Arbitration”), any and all disputes, claims, or disagreements, whether past, present, or future, which arise out of or relate in any way to (i) this Agreement and this Arbitration Agreement and any of their respective prior versions (including the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity of the Terms and the Arbitration Agreement), (ii) the Transportation Services (including any incidents or accidents in connection with such services), (iii) your access to or use of the Via Platform or any other tools or services provided by the Company, (iv) transactions involving you and the Company or payments by or to the Company (including claims regarding compensation or benefits), (v) your relationship with the Company, (vi) any communications, including marketing communications, drafted or distributed by the Company or by any third party on its behalf, and (vii) any other dispute with the Company (“Claims”), shall be resolved exclusively through binding arbitration between you and the Company, and not by any federal, state, or local court, jury trial, or agency.
For purposes of this Arbitration Agreement, the terms “you” and “Company” also include each entity’s respective parents, affiliates, subsidiaries, successors, and assigns, and their respective owners, directors, officers, executives, employees, shareholders, and agents.
This Arbitration Agreement shall be binding upon and shall extend to any Claims brought by or against any third parties and third-party beneficiaries (including your spouses, heirs, and assigns). The Company’s service providers, including background check providers and payment processors, shall be considered intended third-party beneficiaries of this Arbitration Agreement and may also enforce this Arbitration Agreement.
THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR, AND NOT A JUDGE OR JURY WILL ADJUDICATE THE CLAIM, AND THAT RIGHTS TO APPEALS OR TO DISCOVERY OR OTHER EXCHANGES OF INFORMATION MAY BE LIMITED IN ARBITRATION. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
B. Limited Exceptions to Arbitration
Notwithstanding Subsection A (“Mutual Agreement to Binding Arbitration”) and without waiving the enforceability of the Arbitration Agreement as to any other Claim or to the class and representative action waivers in Subsection J (“Class and Coordinated Action Waiver”), each party retains the right to: (i) resolve a Claim in small claims court, so long as it is within that court’s jurisdiction, the Claim is adjudicated only on an individual basis and not on a class or collective action basis, and the Claim remains in that small claims court; (ii) seek injunctive or other equitable relief in court for infringement or other misuse of intellectual property rights (including patents, copyrights, moral rights, trademarks, and trade secrets or other confidential or proprietary information, but not privacy or publicity rights); or (iii) raise individual claims of sexual assault or sexual harassment in a court of competent jurisdiction.
The claims listed in this Subsection B (“Limited Exceptions to Arbitration”) as express exceptions to the requirement of binding arbitration must be brought and litigated in a court of competent jurisdiction by you on an individual basis only and not on a class or collective action basis. You agree that no action brought by you under this Subsection B (“Limited Exceptions to Arbitration”) may be consolidated or joined in any fashion with any other proceeding unless otherwise expressly agreed to by the Company. The filing of any action under this Subsection B (“Limited Exceptions to Arbitration”) will automatically stay any arbitration(s) filed that are related to the action pending its outcome.
Nothing in this Arbitration Agreement is intended to or shall prohibit you from providing information to, filing a charge with, or participating in any investigation or proceeding conducted by a governmental agency or official.
C. Pre-Arbitration Negotiation
The Company is committed to working with you to reach a reasonable resolution to resolve disputes in a reasonably prompt, cost-effective, and mutually beneficial manner. Therefore, you and the Company agree that before either party initiates an arbitration proceeding, the parties must first make a good faith effort to resolve their dispute informally (“Pre-Arbitration Negotiation”). Pre-Arbitration Negotiation as described in this subsection is a prerequisite and condition precedent to any arbitration.
The party initiating the Pre-Arbitration Negotiation must provide written notice to the other party which will include a description of the Claim. You shall provide notice to the Company by emailing firstname.lastname@example.org and the Company shall provide notice by emailing the email address associated with your User Account or, if you did not create a User Account, any other email address you have provided to the Company. An informal telephonic dispute resolution conference between the parties shall be held between 30 and 60 days after the date the notice is received (or at a later date, if mutually agreed by the parties), and the parties are free to attempt to resolve the Claim in the intervening period. If either party is represented by counsel, the counsel may participate in the conference, but the party must also attend. A separate, individualized conference must be held for purposes of Pre-Arbitration Negotiation each time either party intends to commence a formal dispute resolution proceeding; multiple claimants cannot participate in the same conference.
The parties agree to negotiate in good faith for up to 60 days, subject to extension by mutual agreement of the parties, before arbitration can be initiated. Any statute of limitations or filing fee deadlines that are applicable to the Claim shall be tolled while the parties engage in Pre-Arbitration Negotiation.
D. Arbitration Rules and Procedures
The arbitration will be administered by JAMS, under the JAMS Streamlined Arbitration Rules & Procedures that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Arbitration Agreement. However, if the value of any Claim exceeds $500,000, the arbitration will be administered in accordance with the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration is initiated, as modified by the terms set forth in this Arbitration Agreement. The applicable JAMS rules and procedures are available at https://www.jamsadr.com/adr-rules-procedures/ or by calling JAMS at 1-800-352-5267.
Unless the parties agree otherwise, any arbitration hearing will take place at the JAMS location closest to the county in which you reside. The arbitration will take place before a single arbitrator selected in accordance with the applicable JAMS rules. The arbitration will be conducted in English. If English is not your native language, you shall have the right to be accompanied by a translator in your native language during any arbitration hearings or conferences.
If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents the parties submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or the claimant seeks declaratory or injunctive relief, either party may request to hold a hearing (or the arbitrator may determine to hold one). Any hearing must be attended by the claimant.
Any exchange of information in the arbitration must be consistent with the expedited, cost-efficient nature of arbitration. Document requests and disclosures in any arbitration shall be limited to documents directly relevant to significant issues in the case or to the case’s outcome, shall be restricted in terms of timeframe, subject matter, and persons or entities to which the requests pertain, and shall not include broad phraseology such as “all documents directly or indirectly related to.” The parties agree that any JAMS rule that would entitle each party to conduct at least one deposition shall not apply.
All Claims in arbitration shall be subject to the same statutes of limitation that would apply in court.
Unless otherwise prohibited by law, all arbitration proceedings will be confidential and all records relating to it will be sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
E. Commencing an Arbitration
If the parties have engaged in the Pre-Arbitration Negotiation process and were unable to reach a resolution, the party raising a Claim may initiate an arbitration by: (1) submitting the arbitration demand to JAMS and to the other party or parties, and (2) paying its, his, or her portion of any initial arbitration filing fee.
The demand for arbitration must include the claimant’s name, telephone number, mailing address, and email address. Additionally, as a safeguard against counsel who may file claims on behalf of individuals with whom they do not have contact, any demand for arbitration filed by counsel must also include the party’s original (i.e., non-electronic) signature.
To provide notice to the Company, you must send the arbitration demand by USPS Priority Mail to the Company’s registered CSC agent in your jurisdiction (please see the list of agents by jurisdiction available at https://www.cscglobal.com/cscglobal/pdfs/CSC-registered-agent-addresses.pdf), and also submit a courtesy copy electronically to email@example.com.
Nothing in this Arbitration Agreement waives any requirements under the JAMS Rules for commencing an arbitration.
The payment of initial arbitration filing fees will be governed by the JAMS rules, which require the party bringing a Claim to pay a fee to initiate the arbitration.
Except in the case of offers of judgment under Subsection G (“Offers of Judgment”) below, each party in a dispute will be responsible for its own attorneys’ fees and any costs that are not unique to arbitration, unless the applicable substantive law governing the claims in the arbitration expressly provides otherwise. If required by the arbitrator, the Company will pay the arbitrator’s fees, as well as all fees and costs unique to arbitration, but all such fees may be apportioned between the parties in a final ruling by the arbitrator in accordance with JAMS rules and applicable law.
The parties also agree that a good faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of the Arbitration Agreement while such challenge remains pending, and that any and all deadlines for paying those fees shall be tolled during the pendency of such challenge.
G. Offers of Judgment
At any time but no later than 14 days before the date set for any arbitration hearing or, if a hearing is not held, the deadline for submitting the last documents on the basis of which the arbitrator’s decision will be made, any party may serve an offer of judgment on the other party on terms specified in that offer. If the offer of judgment is not accepted prior to the commencement of the hearing or within 30 days of being made, whichever occurs first, it shall be deemed withdrawn and cannot be given in evidence. If the offer of judgment is not accepted by the receiving party within this timeframe and the receiving party then fails to obtain a more favorable award in the arbitration, the receiving party shall pay the costs incurred by the offering party after the offer was made, excluding attorneys’ fees, the arbitrator’s professional fees, and JAMS’ administrative fees. The arbitrator shall enter a post-award judgment on any amounts owed under this section.
H. Governing Law
Notwithstanding any choice of law or other provision in the Terms, the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern the interpretation, enforcement, and proceedings pursuant to this Arbitration Agreement because it evidences a transaction involving interstate commerce. If for whatever reason the FAA does not apply, the state law governing arbitration agreements in the state in which you resided at the time of accepting this Agreement shall apply.
I. Arbitrator’s Jurisdiction and Powers
Except as expressly provided in Subsection B (“Limited Exceptions to Arbitration”) or Subsection J (“Class and Coordinated Action Waiver”), the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to (1) resolve any and all Claims, including disputes about the scope, applicability, enforceability, revocability, unconscionability, voidability, or validity of this Arbitration Agreement or any portion of the Arbitration Agreement as well as any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment), and (2) determine threshold arbitrability questions, including any issues relating to whether the Terms and/or Arbitration Agreement are applicable, unconscionable, or illusory, as well as any defense to arbitration.
The arbitrator shall have no authority or jurisdiction to consider or resolve any claim or issue any relief on a class, collective, or representative basis. If the arbitrator awards declaratory or injunctive relief, the arbitrator shall only have authority to order such relief in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims.
The arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication, motions to dismiss, demurrers, and motions for a directed award, including prior to the commencement or close of any arbitration hearing.
The arbitrator shall be authorized to afford any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or any applicable state law for either party’s violation of the standards set forth in those rules and statutes.
The arbitrator’s award or decision shall be final and binding on all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so.
J. Class and Coordinated Action Waiver
YOU AND THE COMPANY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, YOU AND THE COMPANY CAN ONLY RESOLVE DISPUTES IN AN INDIVIDUAL CAPACITY AND SHALL NOT HAVE THE RIGHT OR AUTHORITY TO BRING OR PURSUE CLAIMS IN ARBITRATION OR LITIGATION AGAINST ONE ANOTHER ON A CLASS, JOINT, COORDINATED, COLLECTIVE, OR CONSOLIDATED BASIS OR IN A PURPORTED REPRESENTATIVE CAPACITY, INCLUDING CLAIMS AS A PRIVATE ATTORNEY GENERAL OR FOR PUBLIC INJUNCTIVE RELIEF (“CLASS AND COORDINATED ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT THIS COLLECTIVE ACTION WAIVER PRECLUDES YOU FROM PARTICIPATING IN OR RECOVERING RELIEF IN ANY CURRENT OR FUTURE CLASS, JOINT, COORDINATED, COLLECTIVE, CONSOLIDATED, MASS, AND/OR REPRESENTATIVE ACTION BROUGHT AGAINST THE COMPANY.
For purposes of this Arbitration Agreement, a “Coordinated Action” is defined to include instances in which (i) any party is represented by a law firm or collection of law firms that has filed or provided assistance in 20 or more arbitration demands of a substantially similar nature (including because they assert substantially similar facts or seek substantially similar relief) against the other party (including any of its affiliates, subsidiaries, representatives, affiliates, officers and directors), within 180 days of the arbitration demand filed on your or the Company’s behalf, and (ii) the law firm or collection of law firms seeks to simultaneously or collectively administer and/or arbitrate the arbitration demands. Except as authorized under Subsection K (“Batch Arbitration”) below or otherwise prohibited by law, the parties expressly waive the right to have any Claim brought, heard, administered, resolved, or arbitrated as a Coordinated Action, and agree that no court, arbitrator, or arbitration provider (e.g., JAMS) shall have any authority to hear or administer any Coordinated Action or to award relief to anyone but the individual in arbitration.
Notwithstanding any other provision of this Arbitration Agreement or the JAMS Rules, disputes regarding the validity, enforceability, conscionability, or breach of the Class and Coordinated Action Waiver or any portion thereof, or whether the Class and Coordinated Action Waiver or any portion thereof is void or voidable, may be resolved only by a court of competent jurisdiction and not by an arbitrator, and any arbitration in which such a dispute is raised shall be stayed pending the final resolution, including all appeals, of any such dispute in court.
If, and only if, there is a final determination that one of the parties has filed a Coordinated Action in violation of the Class and Coordinated Action Waiver, each party shall have 30 days to opt out of arbitration following that decision. You may opt out of arbitration by providing written notice of your intention to opt out signed by you – and not by any attorney, agent, or other representative of yours – to the Company at the relevant address listed here, via USPS certified mail. A copy must also be sent to firstname.lastname@example.org. The Company may opt out of arbitration by sending written notice of its intention to opt out to JAMS and to you or to your counsel if you are represented. The Class and Coordinated Action Waiver will continue to apply if you opt out of arbitration; opting out of arbitration does not entitle you to bring a class, collective, coordinated, consolidated, mass and/or representative action or to seek relief on a class, collective, coordinated, consolidated, mass and/or representative basis. If the parties proceed to arbitration, the parties agree that the arbitrations will be batched pursuant to Subsection K (“Batch Arbitration”) below.
Notwithstanding the foregoing, if it is determined that this Class and Coordinated Action Waiver is not enforceable as to any particular Claim or request for relief, and all appeals from that determination have been exhausted or the decision is otherwise final, the parties agree that that particular Claim or request for relief may proceed in court but shall be stayed pending arbitration of any and all remaining Claims and requests for relief.
Nothing in the Class and Coordinated Action Waiver or any other portion of the Arbitration Agreement prevents you or the Company from voluntarily participating in a classwide, collective, and/or representative settlement of claims.
K. Batch Arbitration
If it is determined that an arbitration may proceed notwithstanding a claim by either party that it was brought as a Coordinated Action or a part of a Coordinated Action in violation of the Class and Coordinated Action Waiver, the parties agree that this arbitration demand will be batched with all other substantially similar arbitration demands (defined as demands asserting substantially similar facts or seeking substantially similar relief, which were presented by or with the assistance of a law firm or collection of law firms that has filed or provided assistance in 20 or more arbitration demands against the other party) subject to the following “Batch Arbitration” procedures: (i) the arbitration provider (i.e., JAMS) shall administer the arbitration demands in batches of 10 demands per batch, grouped by the state of each claimant’s residency (if fewer than 10 demands remain in the final batch, that batch will be composed of the remaining demands), and (ii) the arbitration provider shall treat each batch as a single case, with each batch having a single demand for arbitration and a separate arbitrator appointed to it. The parties may agree to assign multiple “batches” to the same arbitrator. Each batch shall proceed to arbitration one at a time. The arbitration provider shall assess a single administrative and filing fee per batch, due for each side in the dispute.
You agree to cooperate in good faith with the Company and the arbitration provider to implement this “batch” approach to dispute resolution and fees. You agree that you will not oppose the Company’s negotiation with the arbitration provider relating to the payment of the Company’s fees. The Company expressly reserves its right to raise unique defenses as to each claimant and Claim in the Batch Arbitration process. Any individual claimant whose Claim is adjudicated as part of the Batch Arbitration process must still attend the arbitration hearing in person and be subject to cross-examination by the respondent.
This Subsection K (“Batch Arbitration”) shall in no way be interpreted as authorizing class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims of any kind.
L. Opting Out
Agreeing to the Arbitration Agreement is not a mandatory condition of your contractual relationship with the Company. You may opt out of the Arbitration Agreement by notifying the Company in writing. To be effective, the opt-out notice must be dated; include your full name, phone number, and email address; clearly indicate your intent to opt out of this Arbitration Agreement; be signed by you and not by any agent or representative; and be delivered by email to email@example.com within 30 days of the date you first became subject to this Arbitration Agreement (the “Opt-out Notice”). You will not be subject to retaliation if you exercise your right to opt out of this Arbitration Agreement. If you fail to submit an Opt-out Notice within this 30-day period, you and the Company shall be bound by the terms of the Arbitration Agreement.
Updates to the Terms do not provide you with a new opportunity to opt out of arbitration if you agreed to a previous version of the Terms and did not validly opt out of arbitration. If, for any reason, you are able to electronically accept the Terms multiple times, your re-acceptance does not reset the initial 30 day opt-out deadline that applied when you first became subject to the Arbitration Agreement. Opting out of this Arbitration Agreement does not affect any other arbitration agreements you have entered into or future arbitration agreements you may enter into with the Company. Therefore, if you opt out of this Arbitration Agreement but were already bound by an existing agreement to arbitrate disputes arising out of or related to your use of the Via Platform, that existing arbitration agreement will remain in full force and effect.
Your acceptance of or decision to opt out of any other arbitration agreement you have with the Company or any of its subsidiaries or affiliated entities shall not affect any obligation you have to arbitrate claims pursuant to this Arbitration Agreement.
This Arbitration Agreement applies even after you cease using the Via Services or providing services to the Company and after your relationship with the Company ends.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from the rest of the Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, the parties agree that litigation of those claims in a court of competent jurisdiction shall be stayed pending the outcome of any individual claims in arbitration.
N. Impact on Pending Claims
This Arbitration Agreement shall not affect your standing with respect to any litigation against the Company brought by you or on your behalf pending in federal or state court, or in arbitration, as of the date of your first receipt of this Arbitration Agreement. Therefore, (1) if you were not bound by an existing arbitration agreement, you shall remain eligible to participate in any pending litigation (as of the date of your receipt of this Arbitration Agreement) to which you were a party or member of a putative class, collective, or representative action; and (2) if, at the time of your receipt of this Arbitration Agreement, you were bound by an existing arbitration agreement, that arbitration agreement will continue to apply to any pending litigation (as of the date of your receipt of this Arbitration Agreement), even if you opt out of this Arbitration Agreement.