1. This Arbitration Agreement (“Agreement”) is executed contemporaneously with, and as an inducement and consideration for, the sale and/or use of this product and its derivatives (collectively and separately, the “Product”). The Parties hereto (defined in Paragraph 2) acknowledge that this Agreement governs any and all uses of the Product and evidences a transaction in interstate commerce governed by the Federal Arbitration Act. Any use of this Product, including but not limited to reading any part of it and/or any material derived from it (each, a “Use”), shall be considered use sufficient to bind the Parties Compelled to Arbitrate (defined in Paragraph 2) to this Agreement.1
2. The Parties to this Agreement are:
(A) the publisher(s) of this Product and the owners of its copyright (collectively or separately, as context requires, the “Proprietors”) and
(B) any user of this Product (broadly construed) who claims relief premised on Use, dissemination, and/or existence of the Product and who: (i) is identified by name in the Product or (ii) claims its identity is inferable from the Product or its derivatives (the persons identified in Paragraph 2.B, individually and/or collectively, the “Parties Compelled to Arbitrate” or “PCTAs”).2
3. The use of the pronouns, including but not limited to “he,” “she,” “its,” and “their” shall be construed expansively, as shall the use of conjunctions such as “and” and “or,” the use of the singular or plural form (including plurals used as singular neuters), and the use or non-use of Oxford commas; such pronouns, conjunctions, singulars, plurals, and punctuations shall not be construed in any way that limits arbitrability under this Agreement. This Agreement to arbitrate shall be construed broadly, to favor arbitration. The Parties acknowledge that this Agreement establishes the arbitrability of any claims brought by the PCTAs against the Proprietors.3
4. To the fullest extent permitted by law, the PCTAs waive any claims arising from any Use, including the reading, dissemination, promotion, or existence of this Product. Such claims include but are not limited to claims, disputes, and controversies arising out of, or relating in any way to, the sale, purchase, advertisement, promotion, or use of the Product or of any goods or services (including websites) offered or provided in connection with the Product including but not limited to claims for equitable relief, claims based on contract, tort, statute, warranty, or any alleged breach, default, negligence, wantonness, fraud, recklessness, misrepresentation, suppression of fact, libel, defamation, slander, inducement, emotional distress, economic interference, and any other legal theory, including claims that arose before this Agreement or any prior agreement, or claims that might arise after the termination of this Agreement in whole or part (collectively, “Alleged Claims”).4
5. Subject to Paragraph 4, any Alleged Claim brought shall, to the fullest extent permitted by law (including reasonable arguments for extension of existing law articulated by the Proprietors), be resolved by binding arbitration administered by the mother of Bruce Cannon Gibney (the “Default Arbitrator”), according to rules established by her, at the place of Do Not Bend LLC’s choosing, and the PCTAs explicitly waive any objections to venue in the Counties of San Francisco and New York. Should the Default Arbitrator be unavailable or decline, or should the preceding sentence be deemed by an authority of competent jurisdiction to be unenforceable (either event, an “Unavailability”), arbitration shall be conducted by JAMS, per its rules existing at the time a claim is brought. Any arbitration brought under this Agreement shall be, at the sole discretion of the Proprietors, confidential.5
6. Notwithstanding the rules of the Default Arbitrator, JAMS, or any other entity who might conduct an arbitration under this Agreement, the PCTAs explicitly agree to the following: (i) a PCTA must post cash or other security equal to One Million Dollars (US $1,000,000) concurrently with filing any claim and that such security is necessary to protect the rights, including rights and interests arising under the First Amendment, of the Proprietors; (ii) if any claim filed by a PCTA (including any claim that this Agreement is not enforceable or that the PCTAs are not bound to arbitrate their claims) is determined to be without merit (and the PCTAs agree that “without merit” shall include any order requiring arbitration of any kind whatsoever of any claim(s) brought by the PCTAs), the PCTAs shall pay, in addition to any other relief to which the Proprietors are entitled, an additional sum of One Million Dollars (US $1,000,000) to the Proprietors as liquidated damages for the inestimable value of the intrusion on Proprietor’s free speech; and (iii) that during the course of any proceeding brought by a PCTA relating to the Product, the PCTAs (but not the Proprietors) waive any objection to the Proprietors seeking discovery, including discovery regarding the character and motivations of the PCTAs, and explicitly including information sufficient to establish: (a) bases for venue and jurisdiction; (b) counterclaims by Proprietors against the PCTAs; (c) grounds for recusal of any arbitrator or judge other than the Default Arbitrator deciding disputes related to or arising from the Product; and (d) discovery sufficient, in the event recusal is deemed appropriate but is not invoked by the arbitrator/judge, for the Proprietors to prepare a file for transmission to the appropriate institution for the termination, impeachment, or removal of such authority. For the avoidance of doubt, the provisions of Paragraph 6.iii.d shall not apply to the Default Arbitrator and any claims of bias as to the Default Arbitrator shall be brought after the conclusion of arbitration.6
7. Notwithstanding the foregoing, the Proprietors shall have the option to arbitrate or to bring any claims against the PCTAs in any court of competent jurisdiction. The Parties agree that any such decision will be made in the Proprietors’ sole and complete discretion.7
8. Any challenges to the validity or enforceability of this Agreement shall be determined by the arbitrator in accordance with applicable law and the Default Arbitrator’s rules (or the rules of JAMS, in the event of Unavailability).8
9. The Proprietors alone shall have the right to petition for consolidation of actions in their sole discretion.
10. The PCTAs explicitly waive any right to bring claims as a class, whether such claims are brought in arbitration or otherwise. The arbitrator may award declaratory or 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. The PCTAs agree that claims against the Proprietors can only be brought in a PCTA’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Further, except at the request of the Proprietors, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.9
11. Arbitration may be initiated by any Party by sending written notice of its intention to arbitrate (“Notice”) by Federal Express 1-Day Overnight Mail to another Party’s address of record. The Notice shall contain a description of a complete claim, dispute, or controversy and the remedy requested, describe the basis for the claim with particularity and furnish all supporting evidence then in possession of the party demanding arbitration. In no event shall any demand for arbitration be brought if claims are barred by the applicable statute of limitations or laches. In the event of Unavailability, any claim requesting relief or an award greater than Twenty-Five Thousand Dollars ($25,000.00), shall be arbitrated before a panel of three independent and impartial arbitrators selected pursuant to rules of JAMS and this Agreement. Unless otherwise mutually agreed, each arbitrator other than the Default Arbitrator shall be a lawyer licensed by the State in which the venue lies per this Agreement, with twenty or more years of experience in the practice of commercial law and approved to be on a JAMS Panel, and any JAMS Panel shall include at least two arbitrators who are recognized specialists in issues involving the First Amendment.10
12. The arbitrator will deliver any decision or award in writing with a summary of the reasons for the decision or award, and the decision or award shall be final and binding on all parties, their successors, and assigns. The arbitrator may grant a motion to dismiss a claim or a motion for summary disposition of a claim. Judgment on the decision or award may be entered by any court having jurisdiction. Fees and costs of the arbitration will conform to the arbitrator’s fee schedule in effect at the time of the arbitration and any and all fees and costs shall be borne solely by the party bringing a claim.11
13. This Agreement may be amended or modified by Proprietors at any time, with updates posted to www.nonsensefactorybook.com (the “Site”). Any amendments/modifications posted to the Site shall be deemed an integral part of this Agreement and the acts or conduct that make the PCTAs party to this Agreement shall bind them to any amendments/modifications posted on the Site.12
14. This Agreement is an election to resolve claims, disputes, and controversies by arbitration rather than the judicial process. It is understood that the PCTAs waive any right to a jury trial or a trial in court. The Parties understand that the rules applicable to arbitrations and the rights of parties in arbitrations differ from the rules and rights applicable in court. The Parties acknowledge receipt of a copy of this Agreement.13
15. Should any part of this Agreement be deemed unenforceable, the Parties agree that any unenforceable part shall be severed in such a fashion to preserve the arbitrability of claims to the fullest extent the unsevered contents and applicable law allow.14 The Parties also agree that any “footnotes” hereto are not part of this Agreement.
16. The Parties explicitly agree that this Agreement is an integral and necessary part of the Product, and that this Agreement is both a binding legal agreement and necessary to the exercise of the Proprietor’s rights, including rights and interests protected under the First Amendment to the U.S. Constitution. The Parties further agree that the Product’s functionality and purpose can only be achieved by the broadest possible construction of this Agreement to favor arbitration and the waiver of claims against Proprietors, and that is in the public interest and also equitable for all Parties, to do so.15
17. The Parties acknowledge that they have received good, valuable, and adequate consideration for entering into this Agreement, including but not limited to the sale and reading of this Product and its free previews.16