DISPUTE RESOLUTION BY BINDING ARBITRATION; CLASS ACTION WAIVER.
This section shall apply if your (i) country of residence or establishment is in Canada (except the province of Quebec); or (ii) your country of residence or establishment is not in Canada (except the province of Quebec), but you bring any claims against us in Canada (except the province of Quebec).
- TO THE GREATEST EXTENT PERMITTED BY THE APPLICABLE LAW, AND EXCLUDING INDIVIDUAL RESIDENTS OF THE PROVINCE OF QUEBEC, (I) THE HOME MONITORING AGREEMENT IS GOVERNED BY THE LAWS OF THE PROVINCE OF ONTARIO. WITHOUT GIVING EFFECT TO ITS CHOICE OR CONFLICT OF LAW PROVISIONS; AND (II) YOU AND US ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING TO THE HOME MONITORING AGREEMENT AND/OR THE HOME MONITORING SERVICES WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS HOME MONITORING AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES). - For all disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve your claim by sending a written description of the claim to the address in section (h). You and us each agree to negotiate the claim in good faith. If you and us are unable to resolve the claim within sixty (60) days after we receive this claim description and if you have made a good faith effort to resolve the claim directly with us during that time, you may pursue the claim in arbitration.
- ARBITRATION RULES AND FORUM. The Arbitration is governed by the domestic arbitration act in the province in which you reside and ADR Institute of Canada, Inc.’s Arbitration Rules (https://adric.ca/case-administration-services/) (“ADRIC Rules”) as applicable, in all respects except as otherwise expressly agreed herein. Arbitration demands shall be filed with ADR Institute of Canada, Inc. (“ADRIC”) and shall be submitted in accordance with the ADRIC Rules and must include: (1) the name, telephone number, mailing address, and e-mail address of the party seeking arbitration; (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 (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (4) the signature of the party seeking arbitration. Your demand for arbitration must also be delivered to Signify Legal Department at Signify Canada Ltd. 281 Hillmount Rd Markham, ON Canada L6C 2S3.
Notwithstanding anything to the contrary in the ADRIC Rules, the arbitration shall be heard by a single arbitrator (selected in accordance with the ADRIC Rules), who shall be a lawyer or former judge. The seat of the arbitration shall be the capital city of the province of your primary residence as of the effective date of this Home Monitoring Agreement. However, at your request, the arbitration hearing may take place at a location that is within 45 kilometers of your primary residence as of the effective date of this Home Monitoring Agreement. The parties agree that the arbitration may proceed virtually, and the arbitrator has the discretion to order a virtual arbitration at the request of either party. If ADRIC is not available to arbitrate, the parties will mutually select an alternative arbitral forum. - ARBITRATOR POWERS - The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or this Home Monitoring Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
- Attorney’s Fees and Costs. You and us agree that we will be responsible for payment of the balance of any initial filing fee under the ADRIC Rules in excess of $200 for claims of $75,000 or less. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the ADRIC Rules. Unless the arbitrator determines that your claim was frivolous or filed for the purpose of harassment, we agree that we will not seek, and hereby waives all rights we may have under applicable law or the ADRIC Rules, to recover attorneys’ fees and expenses if we prevail in arbitration.
- CLASS ACTION WAIVER. TO THE GREATEST EXTENT PERMITTED BY THE APPLICABLE LAW, AND EXCLUDING INDIVIDUAL RESIDENTS OF THE PROVINCE OF QUEBEC, the parties agree that they both give up the right to a jury trial, and that each may bring claims against the other only on an individual basis, and not as a plaintiff or class member in any purported class action lawsuit. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. YOU AND US EACH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, MASS, OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. The arbitral tribunal may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced. - EXCEPTIONS TO ARBITRATION. Notwithstanding the foregoing, each party retains the right to have a dispute heard in small claims court provided the dispute falls within the jurisdictional limits of that court and otherwise qualifies for that court, seeks individualized relief, and so long as the action remains in that court and is not removed or appealed to a court of general jurisdiction.
Notwithstanding anything to the contrary in this section, nothing in this section prevents you from making a report to or filing a claim, application or charge with any applicable governmental or administrative agency or tribunal, or from seeking relief under applicable consumer protection legislation if and to the extent the terms of applicable legislation entitle you to do so and preclude exclusive pre-dispute recourse to arbitration. This section also does not prevent federal, provincial or local administrative agencies from adjudicating claims and awarding remedies based on those claims if and to the extent the terms of applicable legislation preclude exclusive pre-dispute recourse to arbitration. Nothing in this section prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable legislation before delivering a notice of request to arbitrate. Disputes between the parties that may not be subject to pre-dispute arbitration, including as provided by applicable legislation, are excluded from the coverage of this section. - OPT-OUT: Notwithstanding the above, you may choose to pursue your claim in court if you opt out of this section 9 within thirty days from the date you first accept the Home Monitoring Agreement via our app. You may opt out by sending us a written notice with your first name, last name, and the email address you may have used to submit information on our website and/or app at:
Signify Canada Ltd.
Attn: Legal Department - Home Monitoring Subscription Arbitration Opt-Out
281 Hillmount Rd
Markham, ON Canada L6C 2S3
- If you opt-out of this section or if this section 9 is found to be unenforceable or if it does not apply to you, then the entirety of this section 9 will be null and void and, in that case, you hereby irrevocably submit to the personal and exclusive jurisdiction of the courts of the Province of Ontario for resolution of any lawsuit or court proceeding permitted under this section. If any portion of this section is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this section as a whole will not be deemed unlawful, void or unenforceable, but only that portion of this section that is unlawful, void or unenforceable will be stricken from this section.
- If you have your residence in the United States of America:
section 9 of the WiZ Terms of Use in respect of the Home Monitoring Agreement is entirely replaced by:
apply to the use of the Services. Please read these documents as they describe, amongst others, the types of personal data we collect from you, your Products and the Services, how we might use your personal data, the legal bases we have to process your personal data, as well as your privacy rights. Additional privacy notices may be provided separately for specific products and services.