VERGE CLUB TERMS OF SERVICE
Last updated: 17.07.2023
These Terms of Service for the Verge Club, hereinafter referred to as the “Agreement”, apply to your access to and use of the Verge Club (whether online or via the Verge Mobile App (the “Verge App”)) and related services, content, software and applications, including the Verge App (collectively, the “Service”).
Certain additional and/or different terms apply in Estonia, Germany, USA, Italy and any other countries or states provided in Schedule A at the end of this Agreement.
By submitting a request to create an account to use the Service and checking the box to confirm your acceptance of this Agreement when prompted to do so, you agree to be bound by the terms of this Agreement. Please read this Agreement carefully prior to submitting a request to create an account to use the Service.
For customers residing in the United States: PLEASE BE AWARE THAT SECTION 13 (APPLICABLE LAW AND arbitration agreement – usa) IN SCHEDULE A OF THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW ANY DISPUTES THAT YOU AND VERGE HAVE AGAINST EACH OTHER WILL BE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST VERGE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
1. PROVIDER OF THE SERVICE
Verge Motorcycles OÜ, a private limited company, registry code 16535648, (“Verge”, “we”, “us”, “our”) is acting as the provider of the Service. Our address is Ilunurme tee 10/1, Liivamäe küla, Jõelähtme vald, 74207 Harju maakond, Estonia and email is email@example.com.
2. REGISTRATION AND ELIGIBILITY
You must be at least the minimum age permitting you to drive a motorcycle in your country in order to use the Service and in any event, at least 16 years old.
We reserve the right to refuse your registration and/or cancel this Agreement if we have reasonable grounds to suspect that this Agreement was entered into in bad faith by you.
You represent and warrant that (i) you are not located in a country that is subject to an European Union (“EU”), Monaco or United States of America (“U.S.”) sanctions or government embargo, or that has been designated by the U.S. Government as a “terrorist supporting country”; and (ii) you are not listed on any EU, Monaco or U.S. Government list of prohibited or restricted parties. We reserve the right to refuse your registration and/or cancel this Agreement at any time in the event that we have reasonable grounds to suspect that you are in breach of these representations and warranties given by you.
3. CREATING AN ACCOUNT
You must create an account to the Service in order to access it. No charges apply to creating an account. However, you are responsible for any other costs and fees you may incur in creating and using the account or the Service, including but not limited to costs for establishing necessary connections.
You can create an account to the Service through our website at www.vergemotorcycles.com (“Website”) or through the link provided in the confirmation email sent to you for your purchase through the Website. Your log-in credentials will allow you to access the Service via the Website or Verge App. The Verge Club content and features available via Website versus via the Verge App may differ.
You must protect your account against misuse and keep the password to your account confidential. You are responsible for the security and integrity of your account, any use of or access to your account, and for all communications and activity in connection with your account. You must promptly notify us through the contact information provided above of any unauthorized use of your account.
Your account to the Service is intended for your personal use only. You may not transfer your account to a third party. If you sell or gift your Verge motorcycle to another consumer, the new owner of the Verge motorcycle must create a new account to the Service for themselves. In such case, you may also be required to release your Verge motorcycle to the new owner and provide us with the contact information of the new owner in order for us to register the motorcycle in the new owner’s name in the Service.
4. USE OF THE SERVICE
4.1 Limited license to use the Service
You can use the Service through our Website and through our Verge App. You may only use the Service in accordance with this Agreement.
The Service is licensed and not sold to you. You are hereby granted a non-exclusive, revocable and nontransferable license to use the Service through the Website and through the Verge App in accordance with this Agreement. We and our licensors own all title and rights to the Service, including but not limited to all patents, copyrights, trademarks, know-how and other intellectual property rights included therein, including in the Website and the Verge App, and any software included therein. You may not reproduce (whether by linking, framing or any other method), transfer, distribute, store, modify, reverse engineer, decompile, disassemble, or create derivative works of, publicly display, or commercially exploit any part of the Service except as necessary to display, download or print (without modification) for your own use.
You may also not hack, avoid, remove, impair, or otherwise attempt to circumvent any security or technological measure used to protect the Service.
In case you have violated or attempted to violate any term, condition or the spirit of this Agreement, the license afforded to you with respect to the Service may be temporarily or permanently revoked, with or without prior notice to you.
Any commercial use of the Service is strictly prohibited.
All rights in the Service not expressly granted to you by us in this Agreement are retained by us and our licensors.
4.2 Standard services
As part of the Service, you have access to certain standard services which may include:
- enhanced customer service, ability to schedule maintenance and ability to order spare parts or Verge merchandise;
- access to your order status with detailed information on your Verge motorcycle; and
- opportunities to utilize additional perks and limited-time offers which may become available from time-to-time and which you will be notified of through the Service.
The use of the standard services is included in the Service free of charge. We may provide from time-to-time additional free services by notifying you.
You are responsible for creating and maintaining required connections in order to use the Service online and Verge accepts no responsibility for issues with such connections.
4.3 Additional premium services
You may be eligible for premium services available for an additional fee or subscription plan provided through the Service from time to time. We will notify you separately of any such premium services, its terms and conditions, and applicable fees. If you fail to pay the charges applicable as provided, we will terminate your subscription to the premium service you ordered.
4.4 Prohibited Activities
You may not violate or attempt to violate any features or the security of the Service, including, without limitation, (a) probe, scan or test the vulnerability of the Service or any of its components; (b) breach, remove, tamper with or circumvent any security or authentication measures; (c) attempt to interfere with the Service or service to any user, host or network, including, without limitation, via means of submitting a virus to the Service, “overloading”, “flooding”, “spamming”, “mailbombing” or “crashing”; (d) decode or decipher any portion of the Service; (e) any other activity that is unlawful, threatening, fraudulent, or potentially harmful to the Service or Verge; (f) use any software, devices or other processes to “scrape” or download data from any web pages contained in the Service (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); or (g) copy, reproduce, distribute, republish, download, display, post, or transmit the Service, or any portion thereof, including any trademarks, service marks, brands or logos featured therein, in any form or by any means except as expressly stated herein.
4.5 Verge App and App Stores
We grant you a license and right to download, install and use a copy of the Verge App on a single mobile device or computer that you own or control and to run such copy of the Verge App solely for your own personal purposes. Furthermore, with respect to any copy of the Verge App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any copy of the Verge App accessed through or downloaded from the Google Play store, you may have additional license rights with respect to use of the Verge App on a shared basis within your designated family group.
You acknowledge and agree that the availability of the Verge App is dependent on the third party from whom you received the Verge App license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Verge and not with the App Store. Verge, not the App Store, is solely responsible for the Verge App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Verge App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Verge App. You agree to comply with, and your license to use the Verge App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using the Verge App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
5. SUGGESTIONS, IDEAS AND USER-CREATED CONTENT
You may propose to us ideas and suggestions for modifications or improvements to all or any part of the Service. By choosing to disclose such idea or suggestion to us, you hereby agree that: (1) your submissions and their contents along with related intellectual property rights will automatically become the property of Verge, unless prohibited by mandatory law, in which case you will grant us a worldwide, non-revocable, transferable, royalty-free license to use your submissions and their contents along with related intellectual property rights valid for the duration of the Agreement without any compensation to you; (2) we may use or redistribute the submissions and their contents for any purpose and in any way on an unrestricted basis during the validity of this Agreement without any compensation to you; (3) there is no obligation for us to review the submissions; and (4) there is no obligation by us to keep any submissions confidential.
During the validity of this Agreement, you agree to grant Verge the right to use any content and data created by you in relation to your use of the Service. Unless prohibited by applicable provisions of mandatory legislation, Verge reserves the right to use any content and data created by you in the Service also after the end of this Agreement.
6. CHANGES TO THE SERVICE
Verge may make changes to the Service and this Agreement from time-to-time and may do so at its discretion. In the event of any changes to this Agreement, we will notify you in writing of such revised Agreement through the Services, by email, or by posting such information to our website.
However, if you are a consumer residing in a country within the EU to which Verge provides its products and services or in Monaco, Verge reserves the right to change this Agreement at any time for the following reasons:
- to maintain or improve the functionality or security of the Service;
- for legal or regulatory reasons;
- to prevent harm or abuse; or
- to reflect changes in our services or how we do business (for example, if we add new services, features, technologies, pricing or benefits or delete old ones).
In such event, we will notify you in writing (which may be by email) of anticipated changes in advance. If the change negatively affects your ability to access or use the Service or creates additional costs to you, the change will become effective if you do not object within four (4) weeks from receiving a notice of the change. You also have the right to terminate this Agreement subject to Section 7 (Termination of the Agreement).
For customers residing in Monaco: Your express consent (via email or by other technical means) will be requested for changes to the Agreement at the latest at the time of the implementation of the changes.
If we change, or add to, this Agreement (including Schedule A) with respect to provisions that do
not apply in your country, we may do so in our discretion without any notice to you.
7. TERMINATION OF THE AGREEMENT
This agreement will remain in force until it is terminated by either party.
Verge may terminate this Agreement and/or suspend your access to the Service by notice in writing to you (which may be by email) if you materially or continuously fail to comply with any terms of this Agreement or if we decide to discontinue the Service.
8. LIMITATION OF LIABILITY
Neither Verge nor its suppliers shall be responsible for any indirect, incidental, special or consequential loss or damages or loss of profit to you relating to this Agreement. The aforementioned does not apply to damage or loss caused by negligence of Verge or its employees or suppliers.
If you are a consumer residing in a country within the EU or Monaco to which Verge provides its products and services, nothing in this Agreement will limit your rights or exclude our liability for any legal responsibility that cannot be limited or excluded by applicable mandatory law.
You agree to defend, indemnify and hold us and our partners, affiliates, service providers, licensors, officers, directors, employees and agents harmless from and against any claims, actions or demands, including but not limited to reasonable legal and accounting fees, alleging or resulting from: (a) your violation of this Agreement; or (b) your violation of our intellectual property rights, any third-party rights or any applicable law when using the Service. This does not apply if you are not responsible for the violation.
10. FORCE MAJEURE EVENT
In the situation of a force majeure event preventing a party (“affected party”) from meeting its obligations under the Agreement, including, without limitation, external events that cannot be averted even by the exercise of the utmost diligence reasonably to be expected, that is not attributable to the sphere of either Party (e.g., natural disasters, pandemics, war or government restrictions), neither party shall be obligated to compensate the other party for any damages or costs caused due to the nonperformance by the affected party.
Verge disclaims any and all warranties, whether express or implied, with respect to anything provided under this Agreement, other than as expressly agreed hereunder. This Agreement does not contain any guarantees regarding uptime or continued availability or that the Service will function uninterrupted or error-free.
You may not, directly or indirectly, create a Verge Club account or use the Service in any jurisdiction or country in which such use is prohibited by any US, Monaco or EU law, rule or regulation.
If a court of competent jurisdiction determines that any provision of this Agreement is unenforceable, the remainder of this Agreement will remain in full force and effect and the unenforceable provision will be deemed to be amended to the extent necessary.
We may assign this Agreement at our discretion to one of our affiliated entities. In this case, you are entitled to terminate the Agreement at any time with immediate effect.
13. APPLICABLE LAW AND DISPUTE RESOLUTION
This Agreement is governed by the laws of Republic of Estonia, without regard to the principles of conflicts of law of any jurisdiction. If you are a consumer residing in a country within the EU or Monaco to which Verge provides its products and services, nothing in this Agreement will limit your rights that cannot be limited or excluded by applicable mandatory law.
Any dispute concerning this Agreement may be dealt with by the non-exclusive jurisdiction of the Harju County Court (Harju Maakohus) in Tallinn, Estonia.
If you are a consumer residing in a country within the EU or Monaco to which Verge provides its products and services, you may bring any dispute concerning this Agreement to the courts of the place where you live. In addition, for consumers residing in the EU, alternative dispute resolution mechanisms may be available. You can access the European Commission’s online platform for online dispute resolution here: http://ec.europa.eu/consumers/odr/.
14. QUESTIONS REGARDING THIS AGREEMENT
If you have any questions regarding this Agreement, do not hesitate to contact us through the contact details provided above.
Country or state specific provisions
In addition to the terms set forth in this Agreement, the country or state specific provisions that are
applicable to you as set forth in this Schedule A will be included in, form a part of this Agreement
and modify your Agreement to the extent set forth in this Schedule A.
ESTONIA. Additional terms applicable in Estonia: Customers who are consumers accept the
conclusion of the Verge Club service agreement and the information thereto to be provided in
GERMANY. For consumers residing in Germany: The following applies in Germany instead of Section 8 of the Agreement (Limitation of liability): In the event of a breach of duty – based on whatever legal grounds – Verge is responsible for willful intent or gross negligence. In the event of simple negligence, Verge is only liable (i) for damage based on injury to life, limb or health, and (ii) for damage based on a breach of a material contractual obligation (obligation whose performance makes the proper execution of the Agreement possible in the first place and on the performance of which the other party usually relies and may rely); in this case, however, liability is limited to compensation for foreseeable damage which typically occurs. The limitations of liability also apply to breaches of duty by legal representatives of Verge and of persons whom Verge uses to perform its obligation.
ITALY. For consumers residing in Italy: Pursuant to Articles 1341 and 1342 of the Italian Civil Code, you accept and expressly agree to Clause 8 (“Limitation of liability”) and Clause 9 (“Indemnity”).
UNITED STATES. For customers residing in the United States the following applies instead of the paragraphs in Section 5 of the Agreement (Suggestions, ideas and user-created content): You may propose to us ideas and suggestions for modifications or improvements to all or any part of the Service or your Verge motorcycle. By choosing to disclose such idea or suggestion to us, you hereby agree that: (1) you hereby grant us a worldwide, non-revocable, transferable, perpetual, royalty-free license to use your ideas, submissions and their contents along with related intellectual property rights without any compensation to you; (2) we may use or redistribute the submissions and their contents for any purpose and in any way on an unrestricted basis during the validity of this Agreement without any compensation to you; (3) there is no obligation for us to review the submissions; and (4) there is no obligation by us to keep any submissions confidential. You acknowledge and agree that Verge may, but has no obligation to, incorporate any of your ideas or suggestions into the Service, future Verge motorcycles, or other products or services and that you shall gain no rights in such products or services by virtue of having disclosed any ideas or suggestions.
You hereby grant Verge the worldwide, non-revocable, transferable, perpetual, royalty-free license and right to use any content and data created or submitted by you in relation to your use of the Service. Unless prohibited by applicable provisions of mandatory legislation, Verge reserves the right to use any content and data created by you in the Service also after the end of this Agreement.
For customers residing in the United States the following applies instead of the paragraphs in Section 8 of the Agreement (Limitation of Liability): EXCEPT TO THE EXTENT LIMITED BY APPLICABLE LAW, NEITHER VERGE NOR ITS SUPPLIERS SHALL BE RESPONSIBLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGES OR LOSS OF PROFIT TO YOU RELATING TO THIS AGREEMENT.
For customers residing in the United States the following applies instead of the paragraphs in Section 13 of the Agreement (Applicable Law and Dispute Resolution):
13. Applicable Law and Arbitration Agreement – USA
This Agreement is governed by the laws of the State of California, without regards to its conflicts of laws principles.
Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Verge and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
13.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Verge agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive in connection therewith or the Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Verge may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Verge may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
13.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Verge. If that occurs, Verge is committed to working with you to reach a reasonable resolution. You and Verge agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Verge therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), you and Verge will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Verge that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to firstname.lastname@example.org or regular mail to our offices located at Ilunurme tee 10/1, Liivamäe küla, Jõelähtme vald, 74207 Harju maakond, Estonia. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Verge Club account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
13.3 Waiver of Jury Trial. YOU AND VERGE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Verge are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.4 Waiver of Class or Other Non-Individualized Relief. YOU AND VERGE AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 13.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, 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 the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 13.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Verge agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Verge from participating in a class-wide settlement of claims.
13.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Verge agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Verge Club account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Verge otherwise agree, or the Batch Arbitration process discussed in Section 13.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and Verge agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
13.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 13.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
13.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 13.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 13.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 13.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 13.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 13.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
13.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Verge need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
13.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Verge agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Verge by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Verge.
You and Verge agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
13.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: Ilunurme tee 10/1, Liivamäe küla, Jõelähtme vald, 74207 Harju maakond, Estonia, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Verge Club account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
13.11 Invalidity, Expiration. Except as provided in Section 13.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Verge as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
13.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Verge makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Verge at Ilunurme tee 10/1, Liivamäe küla, Jõelähtme vald, 74207 Harju maakond, Estonia, your continued use of the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your use of or access to the Service, any communications you receive from Verge, or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Verge will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
[End of Schedule A]