8.         Dispute Resolution

PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING INDIVIDUAL ARBITRATION, AMONG OTHER THINGS.

A.         First – Try to Resolve Disputes and Excluded Disputes.  If any controversy, allegation, or claim arises out of or relates to the Service, the Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of EducationDynamics’ actual or alleged intellectual property rights (an “Excluded Dispute”), which includes those actions set forth in Section 8(D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it.  Our notice to you will be sent to you based on the most recent contact information that you provide us.  But if no such contact information exists or if such information is not current, then we have no obligation under this Section 8(A).  Your notice to us must be sent via certified U.S. mail to: EducationDynamics.com c/o EducationDynamics, 15200 Santa Fe Trail Drive, Suite 200, Lenexa, KS 66219.  The written description included in your notice must be on an individual basis and provide at least the following information: your name; the nature or basis of the claim or dispute; the date of any purchase or transaction at issue (if any and if available), and the relief sought.  For a period of sixty (60) days from the date of receipt of notice from the other party, EducationDynamics and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, through an informal telephonic dispute resolution conference between you and EducationDynamics in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or EducationDynamics to resolve the Dispute or Excluded Dispute on terms with respect to which you and EducationDynamics, in each of our sole discretion, are not comfortable.  The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference.  If either party is represented by counsel, that party’s counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference.  This informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding.  The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal dispute resolution process.  Certain portions of this Section 8(A) are deemed to be a “written agreement to arbitrate” pursuant to the U.S. Federal Arbitration Act (“FAA”).  You and EducationDynamics agree that we intend that this Section 8(A) satisfies the “writing” requirement of the FAA.

B.         Binding Arbitration.  If we cannot resolve a Dispute as set forth in Section 8(A) within sixty (60) days of receipt of the notice, then ANY DISPUTE ARISING BETWEEN YOU AND EDUCATIONDYNAMICS OR ANY OF ITS AGENTS, VENDORS, CONTRACTORS, OR OTHER THIRD PARTY BENEFICIARY OF THESE TERMS (whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, any other intentional tort or negligence), common law, constitutional provision, respondeat superior, agency or any other legal or equitable theory), whether arising before or after the effective date of these Terms, MUST BE RESOLVED BY FINAL AND BINDING INDIVIDUAL ARBITRATION.  The FAA, not state law, shall govern the arbitrability of all disputes between EducationDynamics and you regarding these Terms (and any Additional Terms) and the Service including the No Class Action Matters section below.  BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.  EducationDynamics and you agree, however, that the applicable state, federal, or provincial law, as contemplated in Section 8(J) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and EducationDynamics regarding these Terms and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles.  An Excluded Dispute will only be subject to binding arbitration pursuant to this Section 8 if the parties mutually agree.  Any Dispute will be resolved solely by binding arbitration in accordance with the then-current: (i) Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in effect since the matter involves a “consumer” agreement as defined by Consumer Arbitration Rule R-1; and if such Consumer Arbitration Rules do not apply then: (ii) the Commercial Arbitration Rules (collectively, “Rules”) of the AAA, except as modified herein, and the arbitration will be administered by the AAA.  If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing, then either party can elect to have the arbitration administered by Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’s streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of EducationDynamics consent to in writing. 

C.         Arbitration Process.  If after sixty (60) days the informal dispute resolution procedure set forth in Section 8(A) above is unsuccessful in resolving the parties’ dispute, a party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Rules. (The AAA provides applicable forms for Demands for Arbitration available at https://www.adr.org/sites/default/files/Demand_for_Arbitration_0.pdf  (Commercial Arbitration Rules) and https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf (Consumer Arbitration Rules), and a separate affidavit for waiver of fees for California residents only is available at https://adr.org/sites/default/files/Waiver_of_Fees_CA_Only.pdf.)  The arbitrator will be either a retired judge or an attorney licensed to practice law in the state or county in which you reside.  The parties will first attempt to agree on an arbitrator.  If the parties are unable to agree upon an arbitrator within twenty-one (21) days of receiving the AAA’s list of eligible neutrals, then the AAA will appoint the arbitrator in accordance with the Rules.  The arbitration may be conducted by telephone or based on written submissions, and if an in-person hearing is required, then it will be conducted in the county where you live or at another mutually agreed upon location.  You and we will pay the administrative and arbitrator’s fees and other costs (and please note that you will be responsible for a portion or percentage of such fees) in accordance with the requirements of the Rules; but if the Rules (or other applicable arbitration rules or laws) require EducationDynamics to pay a greater portion or all of such fees and costs in order for this Section 8 to be enforceable, then EducationDynamics will have the right to elect to pay the fees and costs and proceed to arbitration.  Except as set forth in Section 8(D), the arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim.  The arbitrator will render an award within the time frame specified in the Rules.  The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award.  Judgment on the arbitration award may be entered in any court having jurisdiction thereof.  The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the Rules, and these Terms.  The arbitrator’s award of damages and/or other relief must be consistent with the terms of the Limitations of Our Liability section below as to the types and the amounts of damages or other relief for which a party may be held liable.  If a claim is brought seeking public injunctive relief and a court determines that the restrictions prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims will be arbitrated.  In such a case, the court shall stay the claim for public injunctive relief until the arbitration pertaining to individual relief has been entered in court.  In no event will a claim for public injunctive relief be arbitrated.  All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide.  Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.  If the arbitrator finds that either the substance of a claim or the relief sought in a Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in U.S. Federal Rule of Civil Procedure 11(b)), the other party will have the right to recover its attorneys’ fees and expenses.  This arbitration provision shall survive termination of these Terms or the Service.  You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.

D.         Special Additional Procedures for Mass Arbitration.  If twenty five (25) or more similar claims are asserted against EducationDynamics by the same or coordinated counsel or are otherwise coordinated, you understand and agree that the resolution of your Dispute might be delayed.  You also agree to the following coordinated bellwether process and application of the AAA Multiple Consumer Case Filing Fee Schedule.  Counsel for the claimants and counsel for EducationDynamics shall each select five (5) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process; the parties may but are not required to agree in writing to modify the number of cases to be included in the bellwether process.  The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings pursuant to this provision.  In the bellwether process, a single arbitrator shall preside over each case.  Only one case may be assigned to each arbitrator during the bellwether process unless the parties agree otherwise.  After decisions have been rendered in the first ten (10) cases, EducationDynamics and all claimants shall engage in a global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the bellwether cases.  If the parties are unable to resolve the remaining cases after the mediation, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process.  After decisions have been rendered in the second group of twenty (20) cases, EducationDynamics and all claimants shall engage in a second global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the decided bellwether cases; if a global settlement cannot be reached in the second mediation, the parties also may discuss with the mediator the process for resolving the remaining cases with the benefit of the decisions in the first two (2) rounds of bellwether cases; the parties are not required to agree to any modifications to the process set forth herein.  Absent a settlement or agreement to modify the procedure for arbitrating the remaining cases, in order to increase the efficiency of administration and resolution of arbitrations, the arbitration provider shall: (i) administer the arbitration demands in batches of fifty (50) demands per batch (to the extent there are fewer than fifty (50) arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one (1) arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch.  You agree to cooperate in good faith with EducationDynamics and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims.  This “batch arbitration” provision shall in no way be interpreted as authorizing class arbitration of any kind.  EducationDynamics does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section 8(D).  The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this Section 8(D) from the time of the first cases are selected for a bellwether process until the time your case is selected to proceed, withdrawn, or otherwise resolved.  A court shall have authority to enforce this Section 8(D) and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against EducationDynamics.

E.         Limited Time to File Claims.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 8(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES—OR IT WILL BE FOREVER BARRED.  Commencing means, as applicable: (i) by delivery of written notice as set forth above in Section 8(A); (ii) filing for arbitration with JAMS as set forth in Section 8(B); or (c) filing an action in state or federal court.  The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.

F.         Injunctive Relief.  The foregoing provisions of this Section 8 will not apply to any legal action taken by a party to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, the Content, these Terms and/or EducationDynamics’ intellectual property rights (including such that EducationDynamics may claim are in dispute), EducationDynamics’ operations, and/or EducationDynamics’ products or services. 

G.         No Class Action Matters.  YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION.  Except as expressly contemplated for mass arbitrations set forth in Section 8(D), Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party.  There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated.  But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 8(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 8(H).  Notwithstanding any other provision of this Section 8, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this No Class Action Matters section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator.  The arbitrator does not have the power to vary these class action waiver provisions.  Notwithstanding any other provision of this Agreement, if the foregoing class action waiver and prohibition against class arbitration is determined to be invalid or unenforceable, then this entire arbitration agreement shall be void.  If any portion of this arbitration agreement other than the class action waiver and prohibition against class arbitration is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this arbitration agreement. 

H.         Federal and State Courts in New Castle County, Delaware.  Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or federal court in New Castle County, Delaware.  Accordingly, you and EducationDynamics consent to the exclusive personal jurisdiction and venue of such courts for such matters.

I.          Small Claims Matters Are Excluded from Arbitration Requirement.  Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court on an individual basis for disputes and actions within the scope of such court’s competent jurisdiction.

J.         Governing Law.  These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State Delaware, without regard to its conflicts of law provisions.