PLEASE READ THIS AGREEMENT CAREFULLY, AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE OR PARTICIPATE IN A LAWSUIT FILED IN COURT OR TO A TRIAL BY JURY.

You and Material Bank agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of the Material Bank Terms of Use (including their formation, performance, and breach) or payments by or to Material Bank, or that in any way relate to the provision or use of the Services, your relationship with Material Bank, or any other dispute with Material Bank (including, without limitation, claims relating to Material Bank’s advertisements, pricing, and disclosures; email, SMS or other messages sent by Material Bank; or Material Bank’s collection, processing or retention of your information), shall be resolved exclusively through binding arbitration in accordance with the Mandatory Arbitration and Class Action Waiver (“Dispute Resolution”) provision in Section 20 of the Terms of Use and this Mutual Arbitration Agreement (collectively, the “Arbitration Agreement”). This includes claims that arose, were asserted, or involve facts occurring before the existence of this or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement.

This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects, and evidences a transaction involving interstate commerce. You and Material Bank expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Arbitration Agreement. To the maximum extent permitted by law, no effect shall be given to state laws concerning arbitration procedure (such as the California Arbitration Act).

Except as set forth in this Arbitration Agreement, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including, but not limited to any claim that all or any part thereof are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of NAM (defined in Section (a) below) administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity.

Notwithstanding the parties’ decision to resolve all disputes through arbitration, each party retains the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction; (ii) bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights); and (iii) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this Arbitration Agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action. 

You and Material Bank agree to submit to the personal jurisdiction of any federal or state court in New York County, New York, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. mail and hereby waive any and all jurisdictional and venue defenses otherwise available.

Except as set forth in the “Class Action and Collective Relief Waiver” in Section 20(c) of the Terms of Use, if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.

1. Arbitration rules. 

Except as modified by this Arbitration Agreement including, if applicable, Sections (d) and (e) below, the arbitration will be administered by National Arbitration and Mediation (“NAM”). If NAM is not available to arbitrate, the parties will select an alternative arbitration provider, but in no event shall any arbitration be administered by the American Arbitration Association. Except as modified by this Arbitration Agreement, NAM will administer the arbitration in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer, and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Department at commercial@namadr.com.

2. Initiating arbitration.

Only after the parties have engaged in a good-faith effort to resolve the dispute in accordance with the “Informal Dispute Resolution Procedure” provision in Section 20(a) of the Terms of Use, and only if those efforts fail, then either party may initiate binding arbitration as the sole means to resolve claims using the procedures set forth in the applicable NAM rules.  In addition to any NAM requirements, the initiating document must include the following: (1) the name, telephone number, mailing address, and email address of the party seeking arbitration (if you are seeking arbitration, you must provide the email address associated with your Customer 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 a good-faith calculation of the amount in controversy (requests 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); (4) the party’s original signature; and (5) the party’s portion of the applicable filing fee. If the party seeking arbitration is represented by counsel, the demand for arbitration must also include counsel’s name, firm, telephone number, mailing address, email address, and original signature.

If you are initiating arbitration, hard-copy service of the demand to Material Bank shall be made in accordance with NAM’s rules and procedures to the following address: 3651 FAU Blvd, Suite 200, Boca Raton, Florida 33431, Attn: Legal, and a copy of the same shall also be emailed to legal@materialbank.com. If Material Bank is initiating arbitration, it will serve a copy of the demand to the email address associated with your Customer Account, as well as in hard copy if Material Bank has your mailing address.

NAM or the arbitrator may require amendment of any demand or counterclaim that does not satisfy these requirements. Where a party is represented by counsel, counsel's signature on the demand for arbitration or any other paper submitted to NAM or the arbitrator constitutes a certification that such paper complies with the standard set forth in Federal Rule of Civil Procedure 11(b). 

3. Arbitration location and procedure.

The arbitration proceedings will presumptively be held via video- or telephone-conference unless (1) the arbitrator determines there is good cause to hold an in-person hearing or (2) the parties agree otherwise. Unless you and Material Bank otherwise agree or unless the designated arbitrator determines that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue: (1) if you are a resident of the United States, any in-person proceedings will be conducted in the county where you reside; or (2) if you are not a resident of the United States, to the extent permissible in your country, any in person proceedings shall be conducted in New York, New York, United States of America. Any arbitrator nationwide may be appointed.

If the amount in controversy does not exceed $25,000, including counterclaims, and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents and written materials you and Material Bank submit to the arbitrator, unless (i) the arbitrator determines that a hearing is necessary, or (ii) the parties agree otherwise. 

Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with the “Informal dispute resolution procedure” provision contemplated by Section 20(a) of the Terms of Use. If a party timely serves an offer of judgment under Federal Rule of Civil Procedure 68, or any other state-law equivalent, and the judgment that the other party finally obtains is not more favorable than the unaccepted offer, then the other party shall pay the costs, including filing fees, incurred after the offer was made unless prohibited by applicable law. 

Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Material Bank, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).

4. Batch arbitration. 

To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM (or another arbitration provider selected in accordance with Section (a) above if NAM is unavailable) against Material Bank within reasonably close temporal proximity (“Mass Filing”), the parties agree to administer the arbitration demands in sequential batches of approximately 100 demands per batch (as adjusted to accommodate any arbitrator strikes as described below) with only one batch filed, processed, and adjudicated at a time. To the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands.  The parties further agree to (i) designate one arbitrator for all demands in each batch; (ii) to accept applicable fees, including, without limitation, any related fee reduction determined by NAM (or another arbitration provider selected in accordance with this agreement if NAM is unavailable) in its discretion; (iii) that fees associated with a demand for arbitration included in a Mass Filing, including, without limitation, fees owed by Material Bank and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; (iv) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved; and (v) to make good faith efforts to resolve each batch of claims properly designated for filing, processing, and adjudication within 180 days, failing which any of the claimants whose demands have not yet begun arbitration or Material Bank may cease arbitration and file in a court of competent jurisdiction. 

Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and shall be subject to any rights to strike an arbitrator provided under applicable state law if the rights granted by law exceed those provided for in the NAM rules. Notwithstanding Section (c) above, the arbitrator will determine whether the proceedings will occur remotely via video- or telephone- conference or the location where any in-person proceedings will be conducted. 

You agree to cooperate in good faith with Material Bank and the arbitration provider or arbitrator to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including, without limitation, the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. For example, if the number of cases filed makes batches of 100 cases too small for the prompt resolution of all filed claims, you and Material Bank agree that NAM may increase or decrease the batch size, transfer a case between batches, or proceed with adjudication of more than one (but no greater than five) batches at a time as determined in the reasoned discretion of the NAM procedural arbitrator, following the input of the parties. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM.

This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. Unless Material Bank otherwise consents in writing, Material Bank 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 (d) of this Arbitration Agreement. If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.

The parties agree that this batching provision is integral to the Arbitration Agreement insofar as it applies to a Mass Filing. If the batching provision in this Section (d) is found to be invalid, unenforceable, or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Material Bank shall be entitled or required to arbitrate any claim that is a part of the Mass Filing.

5. Mediation following first batch in Mass Filing. 

The results of the first completely adjudicated batch of demands will be given to a NAM mediator selected from a group of 5 mediators proposed by NAM, with Material Bank and the remaining claimants’ counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results of the first batch are provided to the mediator, Material Bank, the remaining claimants and their counsel, and the mediator will have 90 days (the “Mediation Period”) to agree on a resolution or substantive methodology for resolving the outstanding demands. If the parties are unable to resolve the outstanding demands during the Mediation Period, and cannot agree on a methodology for resolving them through further arbitrations, either Material Bank or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in a court of competent jurisdiction. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. If neither Material Bank nor the remaining claimants opt out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process in Section (d) of this Arbitration Agreement, except that the batches will proceed simultaneously. 

6. Arbitrator’s decision.

The arbitrator will render an award in accordance with this Arbitration Agreement and the applicable NAM rules and procedures. 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 arbitral forum's rules, and this Arbitration Agreement. The arbitrator's award of damages and/or other relief must be consistent with the “Class Action and Collective Relief Waiver” in Section 20(c) and the “Limitation of Liability” in Section 18 of the Terms of Use as to the types and the amounts of damages or other relief for which a party may be held liable. Except for decisions in arbitrations that are joined together in a single batch, no arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.

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.

7. Fees.

Except as otherwise required by applicable law, NAM rules will govern the amount you and Material Bank must pay to NAM for arbitration fees, including with respect to any fee waivers.  However, if the arbitrator determines that your claim(s) were frivolous or asserted in bad faith, you understand and agree that consistent with NAM’s rules permitting sanctions, and as set forth in this Arbitration Agreement, you may be required to reimburse Material Bank for arbitration fees (including attorneys’ fees) it incurred to defend your claim(s). You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. 

The parties further agree that NAM has discretion to modify the amount or timing of any administrative or arbitration fees due under NAM Rules where it deems appropriate (including as specified in Section (d) above), provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.

8. Right to opt-out of arbitration.

To opt out of arbitration and this Arbitration Agreement, you must notify Material Bank in writing no later than 30 days after the date posted at the top of Material Bank’s Terms of Use or your first use of the Services, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of the Arbitration Agreement. Material Bank will continue to honor any valid opt outs if you opted out of arbitration in a prior version of the Terms of Use. Your notice must include your full name, mailing address, the email address associated with your Material Bank account, a clear statement that you want to opt out of this Arbitration Agreement, and your original signature. The notice cannot be signed by your attorney, agent, or other representative, and you may only opt out on behalf of yourself individually. You must send your opt-out notice by U.S. Postal Service certified mail to 3651 FAU Blvd, Suite 200, Boca Raton, Florida 33431, Attn: Legal.

If you opt out of this Arbitration Agreement, all other parts of the Terms of Use will continue to apply to you, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If you do not timely opt out of this Arbitration Agreement, such action shall constitute mutual acceptance of the terms of this Arbitration Agreement by you and Material Bank.

9. Changes.

Material Bank may update or change this Arbitration Agreement at any time. Material Bank will provide 30 days’ notice of any changes to this Arbitration Agreement. Any such changes will go into effect 30 days after Material Bank provides this notice and apply to all claims not yet filed. If Material Bank changes this Arbitration Agreement after the date you first accepted this Arbitration Agreement (or accepted any subsequent changes to this Arbitration Agreement), you agree that your continued use of the Services 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may opt out by providing notice as described in Section (h) above. You agree to reject any change by providing Material Bank written notice of such rejection by certified mail to: 3651 FAU Blvd, Suite 200, Boca Raton, Florida 33431, Attn: Legal or by email to: legal@materialbank.com, within 30 days of the date such change became effective, as indicated in the “effective” or “last modified” date above. To be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement.