ARBITRATION AGREEMENT AND CLASS ACTION WAIVER (UNITED STATES)
This Arbitration Agreement is part of the Microsoft Advertising Agreement
that governs your use of Microsoft Advertising and the Microsoft Advertising Partner Program Agreement that governs your participation in the Microsoft Advertising Partner Program. You and we agree to these terms.
Binding Arbitration and Class Action Waiver if your principal place of business is in the United States.
We hope we never have a dispute, but if we do, you and we agree to try for 60 days to resolve it informally. If we can’t, you and we agree to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury. Instead, a neutral arbitrator will decide and the arbitrator’s decision will be final except for a limited right of appeal under the FAA. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity aren’t allowed. Nor is combining individual proceedings without the consent of all parties.
Class action waiver and binding arbitration
- Disputes covered — everything except IP. The term “dispute” is as broad as it can be. It includes any claim or controversy between you and Microsoft or any Microsoft affiliate concerning Microsoft Advertising, the Bing Advertising Network, the Microsoft Advertising Site, Insertion Orders, the Microsoft Advertising Agreement, the Microsoft Advertising Partner Program, the Microsoft Advertising Partner Program Agreement or your advertising or its price, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of your, your licensors’, our, or our licensors’ intellectual property rights.
- Mail a Notice of Dispute first. If you have a dispute and our customer service representatives can’t resolve it, send a Notice of Dispute by U.S. Mail to Microsoft Corporation, ATTN: CELA ARBITRATION, One Microsoft Way, Redmond, WA 98052-6399. Tell us your name, address, how to contact you, what the problem is, and what you want. A form is available at http://go.microsoft.com/fwlink/?linkid=245497. We’ll do the same if we have a dispute with you. After 60 days, you or we may start an arbitration if the dispute is unresolved.
- Small claims court option. Instead of mailing a Notice of Dispute, you may sue us in small claims court in the county of your principal place of business or King County, Washington, if you meet the court’s requirements. We hope you’ll mail a Notice of Dispute and give us 60 days to try to work it out, but you don’t have to before going to small claims court.
- Arbitration procedure. The AAA will conduct any arbitration under its Commercial Arbitration Rules (or if the value of the dispute is $75,000 USD or less whether or not you are an individual or how you use Microsoft Advertising, or its Consumer Arbitration Rules). For more information, see www.adr.org or call 1-800-778-7879. To start an arbitration, submit the form available at http://go.microsoft.com/fwlink/?linkid=245497 to the AAA; mail a copy to Microsoft at the address in Section (b). In a dispute involving $25,000 USD or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. Any in-person hearing will take place in the county of your principal place of business or King County, Washington. You choose. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually to satisfy your individual claim.
- Arbitration fees and payments.
- Disputes involving $75,000 USD or less. Microsoft will promptly reimburse your filing fees and pay the AAA’s and arbitrator’s fees and expenses. If you reject our last written settlement offer made before the arbitrator was appointed, your dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards you more than this last written offer, Microsoft will: (1) pay the greater of the award or $1,000 USD; (2) pay your reasonable attorney’s fees, if any; and (3) reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration. The arbitrator will determine the amounts unless you and we agree on them.
- Disputes involving more than $75,000 USD. The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
- Disputes involving any amount. If you start an arbitration we won’t seek our AAA or arbitrator’s fees and expenses, or your filing fees we reimbursed, unless the arbitrator finds the arbitration frivolous or brought for an improper purpose. If we start an arbitration we will pay all filing, AAA, and arbitrator’s fees and expenses. We won’t seek our attorney’s fees or expenses from you in any arbitration. Fees and expenses are not counted in determining how much a dispute involves.
- Must file within one year. You and we must file in small claims court or arbitration any claim or dispute (except intellectual property disputes) within one year from when it first could be filed. Otherwise, it’s permanently barred.
- Rejecting future arbitration changes. You may reject any change we make to this Arbitration Agreement (other than address changes) by sending us notice within 30 days of the change by U.S. Mail to the address listed in Section (b) above. If you do, the most recent version of this Arbitration Agreement before the change you rejected will apply.
- Severability. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, those parts won’t be arbitrated but will proceed in court, with the rest proceeding in arbitration. If any other provision of this Arbitration Agreement is found to be illegal or unenforceable, that provision will be severed but the rest of this Arbitration Agreement still applies.
- Conflict with AAA rules. This agreement governs if it conflicts with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.
- Microsoft affiliates are third-party beneficiaries. Microsoft Corporation and other affiliates of Microsoft Online, Inc. are not parties to this Arbitration Agreement but are third-party beneficiaries of your agreement with us to resolve disputes through informal negotiation and arbitration.