PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND WE MAY HAVE AGAINST EACH OTHER ARE RESOLVED.
Customer satisfaction is the foundation of our success. That is why, if a dispute arises between us, our goal is to resolve the dispute quickly in a fair and cost-effective way. Accordingly, before taking any other action, first reach out to us by contacting customer service at feedback@CheapOair.ca or 1-800-525-0400 so we have an opportunity to try to address your concerns. Otherwise, you and we agree that any dispute, claim or controversy between you and us, including our agents or any representatives acting on our behalf, arising out of or relating to your use of the Site, these Terms & Conditions, or the breach, termination, enforcement, interpretation or validity thereof, or our relationship in connection with the Site or these or previous versions of these Terms & Conditions (each, a "Claim"), shall be resolved in accordance with one of the subsections of this Resolution of Disputes section below or as otherwise mutually agreed by the parties in writing.
GOVERNING LAW; CLAIMS
These Terms & Conditions and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New York, USA, exclusive of conflict or choice of law rules. Unless otherwise prohibited by applicable law, any Claim must be brought within two (2) years from the date on which such Claim arose or accrued. The preceding sentence does not apply to New Jersey residents.
WAIVER OF TRIAL BY JURY AND CLASS, REPRESENTATIVE, AND PRIVATE ATTORNEY GENERAL ACTIONS
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS AND CONDITIONS, WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY. WE ARE ALSO EACH WAIVING THE RIGHT TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING, OR SIMILAR PROCEEDING, WITH RESPECT TO THE CLAIMS COVERED BY THIS PROVISION, WHETHER SUCH CLAIMS ARE SUBJECT TO MANDATORY ARBITRATION OR ARE BROUGHT IN ANY OTHER COURT OR TRIBUNAL, INCLUDING SMALL CLAIMS, AS SET FORTH BELOW. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS. ANY DISPUTE ABOUT WHETHER A CLAIM IS BROUGHT AS A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING, OR SIMILAR PROCEEDING, MUST BE DECIDED BY A COURT OF COMPETENT JURISDICTION.
DISPUTE RESOLUTION AND MANDATORY ARBITRATION OR SMALL CLAIMS COURT
For disputes or claims you have against Cheapoair, you must first give us an opportunity to resolve your claim by sending a written description of your claim to feedback@CheapOair.ca or 1-800-525-0400. You and we each agree to negotiate your claim in good faith. You agree that you may not commence any arbitration or court proceeding unless you and we are unable to resolve the claim within 60 days after we receive your claim description and you have made a good faith effort to resolve your claim directly with us during that time.
If we are unable to resolve your claim within 60 days despite those good faith efforts, then either you or we may start arbitration or small claims court proceedings.
Claims shall be resolved via binding arbitration initiated through AAA except for claims asserted on an individual basis that are properly filed in a small claims court.
For small claims court proceedings: if your claim falls within the jurisdiction of a small claims court, then either party may choose to take the claim to small claims court instead of arbitration. Either party may seek to have a claim resolved in small claims court in your county of residence or the small claims court in closest proximity to your residence, and you may also bring a claim in small claims court in New York County, the State of New York, USA. The parties may take their claims to small claims court without first filing with AAA. After a case is filed with AAA, but before the arbitrator is formally appointed to the case by AAA, a party can send a written notice to the opposing party and AAA that it wants the case decided by a small claims court. After receiving this notice, AAA will administratively close the case without further inquiry. Any dispute about whether a claim falls within the jurisdiction of a small claims court shall be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding shall remain closed unless and until a decision by the small claims court that the claim is not within its jurisdiction.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, except as set forth below, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the Terms & Conditions as a court would.
The arbitration will be governed by the AAA Consumer Arbitration Rules (the “AAA Rules”) and the AAA Consumer Due Process Protocol, Statement of Principles, as modified by this Agreement, and will be administered by AAA. The AAA Rules and Consumer Due Process Protocol, Statement of Principles are available online at www.adr.org/consumer or by calling AAA at 1-800-778-7879. If you initiate arbitration the only fee you shall be required to pay is US $200; all other costs will be borne by the Company, except in the event that the arbitrator determines that the claims were frivolous, the arbitrator may award to the prevailing party the costs and attorneys' fees reasonably incurred in connection with the arbitration, except that, in arbitrations proceeding in California, the arbitrator is not empowered to award the prevailing party the fees and costs it incurred in connection with the arbitration.
Notwithstanding the provision above with respect to applicable substantive law, any arbitration conducted pursuant to these Terms & Conditions shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16, the “FAA”) and any dispute about the interpretation of this arbitration clause shall be covered by the FAA. AAA and the parties must comply with the following rules: (a) the arbitration shall be conducted by a single arbitrator approved by or otherwise affiliated with AAA; (b) the party initiating the arbitration shall choose the form in which they would like the arbitration to be conducted: via telephone, online, solely based on written submissions, or at an in-person hearing; (c) notwithstanding the foregoing, if either party requests an in-person hearing: (i) the arbitrator shall decide whether a hearing is necessary or whether the arbitration should proceed via telephone, online or solely based on written submissions, (ii) if the arbitrator deems that a hearing is necessary, the hearing shall occur at a mutually agreed upon location, or, if the parties are unable to agree on a location, at a location that is selected by the arbitrator and is reasonably convenient to all parties, and (iii) either party may elect to participate in an in-person hearing by phone, unless the arbitrator decides otherwise; (d) the arbitrator may not award any: (i) incidental, indirect or consequential damages, including damages for lost profits, or (ii) punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages described in subparagraphs (d)(i) and (d)(ii); (e) the arbitrator may award injunctive or declaratory relief only in favor of the party seeking relief and only to the extent necessary to provide relief warranted by that party's claim; and (f) unless otherwise mutually agreed by the parties in writing, 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.
The arbitrator shall decide all issues relating to jurisdiction and arbitrability and the interpretation, applicability, formation, existence, validity, scope or enforceability of this Mandatory Arbitration provision. Claims, if any, determined by the arbitrator not to be within the scope of this Mandatory Arbitration provision must be brought exclusively in a Federal or State court located in New York County, the State of New York, USA. If subparagraph (f) above is found to be unenforceable, then the entirety of this Mandatory Arbitration provision shall be null and void. Judgment on the award issued by the arbitrator may be entered in any court having jurisdiction. This Mandatory Arbitration provision shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.