Terms Of Service
1. Bounce Services and Registration Requirements. Bounce monitors offerings by various electricity and/or natural gas suppliers licensed by your state utility commission including your local utility (collectively, “Supplier(s)”) and acts as your agent in the purchase of electricity and/or natural gas from such Suppliers (collectively, the “Bounce Services” or “Service(s)”). Monitoring may be based on historical rates, publication of forward rates, third-party forecasts of forward rates, current contract rates, where available, and your estimated usage. The goal of our Service is to identify offers that you are eligible for and to enroll you in an electricity plan with an annual total cost that is equal to or lower than your Standard Offer Service with your utility, for a monthly service subscription fee of $9.99 per meter (“Service Fee”). “Standard Offer Service” refers to the electricity supply services sold to you by your local utility company, which is your public utility that provides facilities for the transmission and distribution of electricity and/or natural gas to retail customers and your default energy provider for Standard Offer Service (“Utility”). If, at the end of 24 consecutive billing periods, you have paid more than you would have paid on Standard Offer Service, Bounce will reconcile your account and will, in Bounce’s sole discretion either (i) refund the difference to you or (ii) provide bill credit(s) (toward future Service Fees) equal to the difference. To determine the amount, you would have paid on Standard Offer Service, Bounce will multiply your actual usage (in kilowatt hours and/or ccf/mcf/therm) by the actual Standard Offer Service rates (per kilowatt and/or ccf/mcf/therm) during the relevant billing periods.
Before you can use the Services, you must register with Bounce for a user account (a “Bounce Account”). Services are not available in all areas and Services may be discontinued, suspended, modified or terminated at any time in our sole discretion, subject to applicable law. To be eligible to register for the Services and create a Bounce Account, you must: (A) be at least 18 years of age (or the age of majority in your jurisdiction of residence); (B) reside in a zip code in which we make the Services available, which availability is determined in our sole discretion and may change from time to time; (C) be in good standing with your current electricity provider; (D) provide login information to enable Bounce to connect to your online account with your existing Supplier (“Supplier Account”); (E) enroll in Bounce’s bill pay program (see below for further details); (F) agree to the Terms of Service and (G) comply with any other registration or enrollment requirements specified in our online registration and enrollment process. You are responsible for keeping your email address, Bounce Account information and other information current. You may at the applicable time make changes or provide updated information to us by logging into your Bounce Account.
2. Broker Agency Authorization. By entering into this Agreement, you authorize Bounce to monitor Suppliers’ offers on your behalf as your agent (“Broker Agency Authorization”). Bounce’s role as agent is limited to the specific purposes described in this document and does not extend to any other matters. By this brokerage agency authorization, you agree to the following:
- Bounce may not be able to perform this monitoring for every customer or in every jurisdiction, and Bounce reserves the right to perform this activity at its sole discretion.
- Bounce does not warrant that it will monitor all Suppliers or that Bounce will find you the lowest possible price
- Bounce seeks to identify Supplier offers that it believes, in good faith, will keep your supply charge and monthly fee, on a 24-month basis, at or below your Standard Offer Service cost. If Bounce identifies such an offer, it will communicate that offer to you by email at the email address Bounce has on file for your Bounce Account that contains the terms of the offer including the total price per kilowatt hour and/or ccf/mcf/therm.
- You understand that Bounce may enroll your account with any identified Supplier licensed by your utility commission, including but not limited to Bounce’s affiliate(s) and/or subsidiary(ies) (i.e. Direct Energy Services, LLC, Direct Energy, LP, etc.).
- You understand that if you and/or Bounce terminate and/or cancel this Agreement, for any reason, before 24 months of continuous Services, you will not be eligible for any potential Bounce refund and/or credits, as described herein.
- You understand that Bounce’s automatic payment enrollment is a requirement for Bounce Services.
- You authorize Bounce to solicit energy supply prices from Suppliers on your behalf as your agent.
- You further authorize Bounce to act as your agent with the power to express interest in a Supplier's offer and discuss terms with Suppliers on your behalf.
- You authorize Bounce to act as your agent for the purpose of initiating service and enrolling you with a Supplier pursuant to the terms of the offer. This authorization includes the authority to revert your account to your utility’s Standard Offer Service if we cannot find a better offer with a Supplier.
- You understand that at its sole discretion, Bounce may determine that you do not qualify for the Services and may terminate this Agreement and your Bounce Account, with notice to you.
- You grant Bounce your explicit, informed, and affirmative consent to take these steps as your agent.
- You expressly authorize Bounce to sign or otherwise consent to Supplier contracts, and any other documents or agreements necessary to complete the enrollment with a Supplier, on your behalf.
- You authorize Bounce to act as your agent in signing or otherwise consenting to such contracts or agreements, and you agree that such contracts or agreements will have the same legal effect as if you had signed or otherwise consented to them yourself.
- You understand that any Supplier contract Bounce enters on your behalf is for the energy charges you have enrolled with Bounce only.
- P. You further agree that your Supplier may share information it has about you with Bounce to accomplish contract solicitation, execution, enrollment, and services post-execution.
- Bounce may show this Agreement to utilities, Suppliers, or other authorized parties as required to provide the Services or as authorized by law.
- You will receive any notifications about potential changes to your Supplier to the email address Bounce has on file for your Bounce Account.
- If you join Bounce while on an existing Supplier contract, you will be liable for any early termination fee or similar charges that may be imposed by your current Supplier if we switch you to another Supplier under this Agreement.
- Bounce typically does not enroll customers in Supplier contracts with early termination fees or with any other consequences for cancellation. However, if Bounce enrolls you in such a contract, we will reimburse you for any early termination fee you incur as a result of terminating a Supplier contract that Bounce enrolled you in.
- You may cancel this Broker Agency Authorization at any time by calling 1-833-309-0778 or emailing firstname.lastname@example.org. If you cancel this Broker Agency Authorization, we may terminate your Bounce Account and your access to the Services.
- Bounce may receive compensation from the Supplier for services it provides to you. You consent to this material benefit from a third-party. You acknowledge and agree that such compensation is retained by Bounce and you are not entitled to any portion of such compensation.
- By using Bounce’s Services, you acknowledge and agree that Bounce is acting only as an agent and is not a party to any transaction between you, your Supplier, Direct Energy Services, LLC d/b/a Bounce Energy or any other Supplier. Accordingly, Bounce assumes no responsibility and will have no liability of any kind whatsoever in respect to your dealings with your Supplier including with regards to electric or natural gas delivery, payments, notices, and the proper and timely delivery of goods or services by your Supplier.
- Bounce in no way endorses, recommends, and/or bears any responsibility or liability for any products, services or statements made by your Supplier.
- Bounce is not liable for the accuracy of your Supplier bill, charges, or statement, including your metering. Any discrepancies or disputes regarding the accuracy of your utility statement must be addressed with your Supplier directly. You understand and agree that any utility statement provided to you through the Services may be delayed or prevented by a variety of factors.
- We use commercially reasonable efforts to provide statements in a timely manner with accurate information. However, we neither guarantee the delivery nor the accuracy of the content of any statement. You also agree that Bounce will not be liable for any delays, failure to deliver, or misdirected delivery of any statement; for any errors in the content of a statement; or for any actions taken or not taken by your or any third party in reliance on a statement.
- Bounce assumes no responsibility, and will not be liable, for your failure to take any action or inaction with respect to your Supplier Account(s) or your failure to receive any information with respect to any Supplier Account(s). You agree to hold Bounce, and its affiliates, harmless should your Supplier fail to deliver your utility statement(s). You are responsible for ensuring timely payment of all utility statements.
- These terms do not alter any liability or obligations that currently exist between you and your Supplier. You agree that your relationship with your Supplier is governed solely by the agreement(s) with between you and your Supplier.
3. Bounce Account.You are responsible for maintaining the confidentiality of your user name (or other account ID) and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your Bounce Account using your password. If your status as a registered user of a Bounce Account or a user of the Services is terminated, you will immediately cease using the Site, the Bounce Account and the Services. You understand that you are financially responsible for all uses of your Bounce Account and the Services by you and those using your login information
Bounce will communicate with your Supplier on your behalf using an email address owned by Bounce and assigned to you by Bounce solely for purposes of the Services (“Bounce Email’). You agree that only Bounce may access and use the Bounce Email and that Bounce retains all right, title and interest in and to the Bounce Email.
You agree to notify Bounce of any changes to your Supplier Account Information or Supplier Account Credentials. By providing Bounce with your Supplier Account Credentials, you certify that you or another member of your household or small business owns the Supplier Account(s) associated with your home or business. You acknowledge and agree that when Bounce is accessing and retrieving your Supplier Account Information from third-party sites, Bounce is acting as your agent, and not as the agent for or on behalf of any third-party.
5. Identity Verification. You authorize Bounce, directly or through third parties, to make any inquires we consider necessary to verify your identity. This may include asking you for further information, requiring you to take steps to confirm ownership of your email address or financial instruments, and verifying your information against third party databases or through other sources. If you cannot verify your identity, Bounce reserves the right to deny you access to or continued use of the Services.
6. Service Fee(s). The use of the Services, as described herein, requires payment of the monthly Service Fee of $9.99 per meter. A separate Service Fee is required for each additional meter. Until you cancel by notifying Bounce or this Agreement is terminated, this Agreement will automatically renew month to month at the same Service Fee. Bounce service subscriptions may not be transferred to another meter or subscriber. You agree to pay: (A) any outstanding Service Fee balance in full within 30 days of cancellation of your subscription, and (B) a late charge on all Service Fee amounts that are more than 30 days past due. The late charge will be 1.5% of the past due amount or the highest rate allowed by law (whichever is less) per month. Such rights are in addition to and not in lieu of any other legal right or remedies available to Bounce.
We reserve the right to increase the monthly Service Fee, but we will notify you 30 days in advance of the effective date. If you do not accept the new fees, you should terminate your subscription before the new fees go into effect.
We also reserve the right to refer your account to a third party for collection to pursue unpaid amounts, and you will remain liable to us for all unpaid charges and all the costs we incur to collect those charges (such as collection agency fees).
7. Term of Agreement. This Agreement will begin upon completion of your registration with Bounce for the Services. This Agreement shall renew on a month-to-month basis, until cancellation either by you or by Bounce upon notice to the other party. You may cancel the Services by logging into your Bounce Account and following the instructions.
8. Bounce Bill Pay. In order to use the Services, you will need to enroll in our bill pay program. Bounce will send you a bill for your Service Fee (a “Bounce Bill”). Your Bounce Bill will be delivered to the email address we have on file for you and you may also view your Bounce Bill by logging into your Bounce Account. Your Bounce Bill will be emailed to you at least ten (10) days prior to the payment due date listed on your Bounce Bill (the “Payment Date”).
We use a third party payment processor (“Payment Processor”) to process your payment for your Bounce Bill. When you provide credit card or debit card (each, a “Payment Method”) information to pay your Bounce Bill, you represent and warrant to us and Payment Processor that (A) you are the authorized user of the Payment Method card or account; (B) you will notify us of any changes to the relevant account number, expiration date, and billing address, or if the card expires or is canceled; and (C) we or Payment Processor may receive updated card information (such as a new expiration date) from your card issuer. Payment Processor will charge your Payment Method on each Payment Date for the amount indicated on your Bounce Bill. You are responsible for reviewing the periodic statements provided to you for your Payment Method for billing accuracy.
Bounce will use reasonable efforts to provide information to the Payment Processor that is consistent with your Bounce Bill. Neither Bounce nor Payment Processor is responsible for any failure to complete, or delay in completing, any payment due to any of the following:
- Your Payment Method does not contain sufficient funds or does not have sufficient available credit to complete the payment or the charge is rejected or returned by your bank or financial institution;
- The payment processing services are not working properly and you know or have been advised by us about the malfunction before you execute the transaction;
- Your equipment, software or any communications link is not working properly;
- Circumstances beyond our control (including, but not limited to, Force Majeure) that prevent or delay the payment from being completed; and/or
- You have not provided us with the correct bank account, debit card information or credit card information.
9. Recurring Payment Terms: Authorization for Automatic Charges to Your Payment Method. By enrolling in any of our Services, you (A) agree to these recurring payment terms (“Recurring Payment Terms”) and (B) authorize and order Bounce (or its Payment Processor) to debit or credit your Payment Method (1) on the Payment Date and (2) for the amount noted on your monthly Bounce Bill. Certain provisions of these Recurring Payment Terms apply only if your Payment Method is an account or card that was provided to you for your personal, family or household purposes (a “Consumer Account”), as indicated below.
You understand that this authorization and order will remain in effect until you cancel it in writing, and you agree to notify Bounce of any changes in your Payment Method account information or termination of this authorization and order at least fifteen (15) days prior to the next billing date. If your Payment Method is a debit card linked to a Consumer Account, you also may cancel any scheduled payment by notifying the depository institution that provided your debit card at least three (3) Business Days before the Payment Date.
If the above noted Payment Date does not fall on a Business Day, you understand that the payment may be executed on the next Business Day. Our “Business Days” are Monday through Friday but excluding each federal holiday. You understand that because this is an electronic transaction, these funds may be withdrawn from your Payment Method account each period as soon as the above noted Payment Date.
In the case of a transaction being rejected for non-sufficient funds or declined credit, you understand that Bounce may at its discretion attempt to process the charge additional times within thirty (30) days. If your Payment Method is a Consumer Account, we will attempt any additional charge only one time for each declined payment.
Bounce is not responsible for any overdraft fees, over-the-limit fees, or insufficient fund charges (including finance charges, late fees, or similar charges) charged to you by your financial institution from your failure to maintain a balance, or have available credit, associated with your Payment Method that is sufficient to process payment of your Bounce Bill. Bounce reserves the right to charge you for any overdraft fees, over the-limit fees, or insufficient fund charges (including finance charges, late fees, or similar charges) assessed to Bounce that result from your failure to maintain a balance or credit associated with your Payment Method that is sufficient to process payment of your Bounce Bill. You acknowledge that the origination of payment transactions to the Payment Method must comply with the provisions of U.S. law. Unless your Payment Method is a Consumer Account, you will not dispute any recurring billing with your financial institution, bank or credit card company so long as the transaction corresponds to the terms indicated in these Terms of Service. Any disputes should be first brought to our attention by contacting us at Support@BounceEnergy.com or (833)-309-0778.
We may, in the future, impose transaction fees for credit card and debit card payments. If we do, we will provide you with such advance notice as may be required by law.
We will email you a copy of these Recurring Payment Terms and the terms of the payments you have authorized under these Recurring Payment Terms (your “Automatic Payment Authorization”). You acknowledge and agree that by accepting these Recurring Payment Terms, you consent to receive a copy of your Automatic Payment Authorization for recurring monthly payments in electronic form only instead of receiving a paper copy. You are thereby waiving your right to receive a paper copy. We cannot process your online recurring payment authorization unless you are willing to receive, in electronic form only, a copy of the Automatic Payment Authorization that we are required to provide to you in writing under applicable law. Once you have accepted the Recurring Payment Terms, you cannot withdraw your consent to receive your copy of the Automatic Payment Authorization in electronic form. However, you will still be able to cancel your recurring payment authorization in accordance herein. If you wish to obtain a paper copy of your Automatic Payment Authorization, you may do so by calling us at (833)-309-0778 to request a paper copy. We may charge you a reasonable service charge for the delivery of a paper copy of the Automatic Payment Authorization so long as we disclose our then current service charge to you at the time of your request for a paper copy.
10. Warranty Disclaimers and Limitation of Liability.
EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS OF SERVICE, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER BOUNCE NOR ANY AFFILIATE OR PERSON ASSOCIATED WITH BOUNCE MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER BOUNCE NOR ANY AFFILIATE OR PERSON ASSOCIATED WITH BOUNCE REPRESENTS OR WARRANTS THAT THE SERVICES OR SERVICES OBTAINED THROUGH OR IN CONNECTION WITH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES, OUR SITE, OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR ANY SERVICES OBTAINED THROUGH OR IN CONNECTION WITH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. BOUNCE IS NOT LIABLE FOR INTERRUPTIONS TO, OR SHORTAGES OF, ELECTRICITY SUPPLY, NOR ANY ASSOCIATED LOSS OR DAMAGE RESULTING THEREFROM. THESE LIMITATIONS APPLY WITHOUT REGARD TO THE CAUSE OF ANY LIABILITY OR DAMAGE. THERE ARE NO THIRD-PARTY BENEFICIARIES TO THIS AGREEMENT.
TO THE FULLEST EXTENT PROVIDED BY LAW, BOUNCE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF BOUNCE AND ITS AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) INCLUDE INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, NOR EXCEED THE AMOUNT YOU HAVE PAID TO US FOR THE SERVICE FEE PURSUANT TO THESE TERMS OF SERVICE IN THE LAST THREE (3) MONTHS FOR THE SERVICES. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
11. Indemnification. You agree to defend, indemnify, and hold harmless Bounce, its affiliates, licensors, partners, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, settlements, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of this Agreement or your use of the Services. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You shall cooperate as fully as reasonably required in the defense of any such claim. You agree not to settle any matter without the prior written consent of Bounce.
13. Taxes. Except as otherwise provided in this Agreement or required by law, all taxes of whatsoever kind, nature and description, due and payable with respect to your performance of your obligations under this Agreement, will be paid by you.
14. Miscellaneous Provisions. If we have reason to believe that you have broken the terms of this Agreement, we may take various actions to protect Bounce, a third party, or you from fees, costs, expenses, fines, penalties and any other liability. The actions we may take include but are not limited to the following:
- close, suspend, or limit your access to your Bounce Account, the Services, or the Site;
- update inaccurate information you provided us;
- refuse to provide the Services to you in the future; and/or
- Bounce may take legal action against you.
Bounce, in its sole discretion, reserves the right to terminate access to its Site, to your Bounce Account, or to the Services for any reason and at any time upon notice to you. If we close your Bounce Account or terminate your use of the Services for any reason, we will provide you with notice of our actions. If we limit access to your Bounce Account, we will provide you with notice of our actions and the opportunity to request restoration of access if appropriate in our sole discretion. We will not be liable to you or any third party for any claims or damages arising out of any termination, suspension or closure or any other actions taken by us in connection therewith.
This Agreement is subject to applicable laws and supersedes any previous promises, understandings and agreements. If any provision of this Agreement is deemed invalid, illegal or otherwise unenforceable, you agree that it shall be modified to the minimum extent necessary to render it valid, legal and enforceable. If a provision cannot be modified in a manner that would make it valid, legal and enforceable, the provision shall be severed from the Agreement, and all other provisions shall remain in full force and effect. Any failure on our part to enforce any of the terms of this Agreement or to exercise any right under such terms shall not be considered a waiver of Bounce’s right to enforce each and every such term, exercise such right or exercise any other right under this Agreement. You may not assign this Agreement without Bounce’s prior written consent. Bounce may: (a) transfer or sell this Agreement or your account in connection with any financing; (b) transfer this Agreement to any of its affiliates; (c) transfer or assign this Agreement to anyone succeeding to all or substantially all of Bounce’s assets or business; and (d) transfer this Agreement. After assignment, Bounce will have no further obligations under this Agreement. This Agreement is binding upon you and Bounce and will further bind each of your successors and permitted assigns.
15. Choice of Law. You agree that this Agreement and any claim or dispute that has arisen or may arise between you and Bounce shall be governed by Texas law, without regard to its conflict of law principles. If you opt-out of the arbitration provision contained in these Terms of Service, any dispute relating to these Terms of Service shall be enforced only in state or federal courts located in Texas. You consent to personal jurisdiction in such courts and waive any argument that proceedings in such courts are not convenient.
16. Dispute Resolution. If there is a billing dispute or a disagreement involving our Service, the parties will attempt to resolve the dispute. In order to resolve a dispute, you should first contact our Customer Service Contact Center at Support@BounceEnergy.com or (833)-309-0778. We will work to resolve your inquiry fairly and efficiently. We will provide an acknowledgment to you within two (2) business days and will respond to you within five (5) business days with the results of our investigation, and we will provide a written report if requested. If you are a New York resident and we do not contact you to provide an initial acknowledgement, do not provide our response to you within two (2) weeks or the matter remains unresolved after you have received the response, you have the right to seek New York State Public Service Commission (“NYSPSC’) review in accordance with NYSPSC’s complaint process. If your dispute concerns non-residential service, you may submit your dispute to small claims court or any other court of competent jurisdiction.
BY ENTERING INTO THIS AGREEMENT, YOU AND BOUNCE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY. YOU AND BOUNCE EACH AGREE THAT ANY PROCEEDINGS TO RESOLVE DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION. THE PARTIES WILL NOT ACT AS A MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION.
IF A COURT OR ANY STATE COMMISSION DETERMINES THAT THE PROVISION IN THIS AGREEMENT RELATING TO “DISPUTE RESOLUTION” AS THE EXCLUSIVE MEANS OF RESOLVING DISPUTES IS INVALID, VOID, UNENFORCEABLE, INAPPLICABLE OR OTHERWISE DEFECTIVE, THEN ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF, RELATING, TO OR IN CONNECTION WITH THIS AGREEMENT, SHALL BE RESOLVED BY ARBITRATION IN ACCORDANCE WITH THE “ARBITRATION PROVISION” BELOW.
17. ARBITRATION PROVISION
A. Agreement to Arbitrate Disputes. This Section (the “Arbitration Provision”) sets forth the circumstances and procedures under which Claims (as defined below) that arise between you and us will be resolved through BINDING ARBITRATION instead of litigated in court. THIS MEANS THAT NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE RULES (AS DEFINED BELOW). OTHER RIGHTS THAT YOU WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE OR MAY BE LIMITED IN ARBITRATION, INCLUDING YOUR RIGHT TO APPEAL AND YOUR ABILITY TO PARTICIPATE IN A CLASS ACTION. EXCEPT AS SET FORTH BELOW, THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION. Nothing in this provision precludes you from filing and pursuing your individual Claim in a small claims court in your state or municipality, so long as that Claim is pending only in that court.
B. Scope. We each agree that all claims arising out of or related to this Agreement that were not resolved by the parties pursuant to the “Dispute Resolution” section above ("Claims") will be submitted exclusively to binding arbitration as set forth in this Section. This agreement to arbitrate applies to all Claims that could have been filed in court regarding the Claims, whether you or we are the first to file a Claim with the arbitral tribunal and whether the Claims are against you or us, or ours or your employees, agents, contractors or suppliers. This agreement to arbitrate covers all Claims under this Agreement, regardless of whether such Claim is based in contract, tort, statute, regulation, common law or equity, including, but not limited to, Claims arising out of or related to: (i) the validity, enforceability or scope of this Arbitration Provision or this Agreement; (ii) the interpretation, execution, administration, amendment or modification of the Agreement; (iii) any alleged breach of this Agreement or tort, (iv) the Services, any transaction, features or services (whether provided by us or another service provider), any advertisement or solicitation, or your business, interaction or relationship with us; (v) any charge or cost incurred pursuant to the Agreement or the collection of any amounts due under the Agreement; and (vi) any statements or representations made by us to you with respect to the Agreement, the Services, any transaction, features or services (whether provided by us or another service provider) or any advertisement or solicitation, or your business, interaction or relationship with us.
C. Opt Out Process. You may choose to opt out of the Arbitration Provision, but only by following the process set-forth below. If you do not wish to be subject to this Arbitration Provision, then you must notify us in writing within sixty (60) calendar days of your registration for a Bounce Account at the following address: 12 Greenway Plaza, Suite 250, Houston, Texas 77046. Your written notice must include your name, address, account number (if applicable) and a statement that you wish to opt out of this Arbitration Provision.
D. Initiation of Arbitration Proceeding/Selection of Administrator. Any Claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Section and the code of procedures of the national arbitration organization to which the Claim is referred in effect at the time the Claim is filed (“Rules”), except to the extent that the Rules conflict with this Agreement. Claims shall be referred to either the Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”), as selected by the party electing to initiate arbitration. If a selection by us of one of these organizations is unacceptable to you, you shall have the right within 30 days after you receive notice of our election to select the other organization listed to serve as arbitrator administrator. For a copy of the procedures, to file a Claim or for other information about these organizations, contact them as follows: (i) JAMS at 1920 Main Street, Suite 300, Irvine, CA 92614, website at www.jamsadr.com; or (ii) AAA at 335 Madison Avenue, New York, NY 10017, website at www.adr.org.
E. Class Action Waiver and Other Restrictions. If either party elects to resolve a Claim by arbitration, that Claim shall be arbitrated on an individual basis. There shall be no right or authority for any Claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other customers or other persons similarly situated. The arbitrator’s authority to resolve Claims is limited to Claims between you and us alone, and the arbitrator’s authority to make awards is limited to you and us alone. Furthermore, Claims brought by you against us or by us against you may not be joined or consolidated in arbitration with Claims brought by or against someone other than you, unless otherwise agreed to in writing by all parties. 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. Notwithstanding any other provision in this Agreement (including the "Survival; Severability” provision below), and without waiving either party’s right of appeal, if any portion of this "Class Action Waiver and Other Restrictions” provision is deemed invalid or unenforceable, then this entire Arbitration Provision (other than this sentence) shall not apply.
F. Location of Arbitration/Payment of Fees. Any arbitration hearing that you attend shall take place in the federal judicial district of your residence. At your written request, we will consider in good faith making a temporary advance of all or part of the filing administrative and/or hearing fees for any Claim you initiate as to which you or we seek arbitration. Waivers may also be available from the JAMS or AAA. At the conclusion of the arbitration (or any appeal thereof), the arbitrator (or panel) will decide who will ultimately be responsible for paying the filing, administrative and/or hearing fees in connection with the arbitration (or appeal). If and to the extent you incur filing, administrative and/or hearing fees in arbitration, including for any appeal, exceeding the amount they would have been if the Claim had been brought in the state or federal court which is closest to your billing address and would have had jurisdiction over the Claim, we will reimburse you to that extent unless the arbitrator (or panel) determines that the fees were incurred without any substantial justification.
G. Arbitration Procedures. This Arbitration Provision is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16, as it may be amended (the “FAA”), and the applicable Rules, except that (to the extent enforceable under the FAA) this Arbitration Provision shall control if it is inconsistent with the applicable Rules. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law and, at the timely request of either party, shall provide a brief written explanation of the basis for the decision. In conducting the arbitration proceeding, the arbitrator shall not apply the Federal or any state rules of civil procedure or rules of evidence. Either party may submit a request to the arbitrator to expand the scope of discovery allowable under the applicable Rules. The party submitting such a request must provide a copy to the other party, who may submit objections to the arbitrator with a copy of the objections provided to the request party, within fifteen (15) days of receiving the requesting party’s notice. The granting or denial of such request will be in the sole discretion of the arbitrator who shall notify the parties of his/her decision within twenty (20) days of the objecting party’s submission. The arbitrator shall take reasonable steps to preserve the privacy of individuals, and of business matters. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA. However, any party can appeal that award to a three-arbitrator panel administered by the same arbitration organization, which shall consider anew any aspect of the initial award objected to by the appealing party. The appealing party shall have thirty (30) days from the date of entry of the written arbitration award to notify the arbitration organization that it is exercising the right of appeal. The appeal shall be filed with the arbitration organization in the form of a dated writing. The arbitration organization will then notify the other party that the award has been appealed. The arbitration organization will appoint a three-arbitrator panel which will conduct arbitration pursuant to its Rules and issue its decision within one hundred twenty (120) days of the date of the appellant’s written notice. The decision of the panel shall be by majority vote and shall be final and binding.
H. Survival; Severability. This Arbitration Provision shall survive termination of this Agreement, your receipt of the Services, the relationship between you and us concerning the Services, or any amounts owed to us for Service Fees, to any other person or entity as well as voluntary payment of any debt in full by you, any legal proceeding by or between you and us to collect a debt owed by you, and any bankruptcy by you or us. If any portion of this Arbitration Provision, except the "Class Action Waiver and Other Restrictions” provision above, is deemed invalid or unenforceable for any reason, it shall not invalidate the remaining portions of this Arbitration Provision, the Agreement or any prior agreement you may have had with us, each of which shall be enforceable regardless of such invalidity.