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Cashback Rewards Agreement

Last Updated: February 15, 2022

Please read these Highbeam Cash Back Terms & Conditions (the “Terms”) carefully and retain them for your future reference. These Terms contain the general terms, conditions and disclosures related to the cashback program (the “Program”) made available by Highbeam Inc. (“Highbeam”), to businesses that have a Highbeam Deposit Account (the “Account”) and Highbeam VISA debit card (the “Card”) provided by Blue Ridge Bank, N.A. This is a separate and independent agreement from the Highbeam Business Visa Debit Cardholder Agreement.
When you see the words “we,” “us,” or “our” in these Terms, it refers to the Highbeam and any of Highbeam’s affiliates, successors, assignees, agents or service providers. When you see the words “you” or “your,” it refers to you, the business that elects to earn cashback on Qualifying Purchases by enrolling in the Program, that is responsible for complying with these Terms, as well as your Authorized Users, representatives, administrators, and successors.

By enrolling in the Program, you agree to be bound by these Terms as well as any other agreement or document we may provide to you from time to time in connection with the Program.

IMPORTANT NOTE: THESE TERMS ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTIONS AND YOUR RIGHT TO A JURY. THE TERMS OF ARBITRATION AND THE WAIVER APPEAR IN SECTION 16 OF THESE TERMS.

1. Program Overview

These Terms describe how the Program works and are an agreement between you and Highbeam. By participating in the Program, you agree to be bound by these Terms, the terms of service for the Services available at: https://www.highbeam.co/legal/terms-and-conditions, and the Privacy Policy each of which is a legally binding contract between you and Highbeam regarding your participation in the Program and is incorporated by reference herein. Interpretation of these Terms and any other Program Rules shall be at our sole discretion. Your participation in the Program is expressly conditioned upon your compliance with these Terms and with all present and future Program Rules, terms, regulations, policies and procedures that Highbeam may, in its discretion, adopt from time to time. The Program is void where prohibited by law. You agree that use of your Account or any feature of the Program indicates your acceptance of these Terms.

2. Definitions

In these Terms, the following words have the special meanings below:

● “Account” means your Highbeam Deposit Account;

● “App” means the Highbeam application that may be used with the Card and the Program, which can be downloaded from the Apple App Store or Google Play;

● “Authorized User” means anyone legally authorized by you to use your Account;

● “Bank” means Blue Ridge Bank, N.A., member of the Federal Deposit Insurance Corporation and the Bank partner of the Card and the Highbeam Deposit Account;

● “Card,” means the Highbeam VISA Debit Card that is associated with your Account;

● “Cardholder” means any Account holder who successfully applies for the Card;

● “Deposit Account” means your Highbeam Deposit Account provided by Blue Ridge Bank, N.A.;

● “Marketing Spend” means money you spend on activities such as advertising on platforms such as Facebook, Google and other paid advertising vendors. Whether or not a purchase qualifies as Marketing Spend is determined by Highbeam in its sole discretion;

● “Privacy Policy” means the Highbeam Privacy Policy at: https://www.highbeam.co/legal/privacy-policy as amended from time to time;

● “Program Rules” shall reference the Program Terms, along with any other rules, terms, regulations our, policies and procedures that Highbeam may issue in writing conjunction with the Program, which shall, in Highbeam’s discretion, be incorporated by reference herein;

● “Qualifying Purchases” is defined in the section 5 of these Terms, titled “How you can earn cashback;”

● “Website” means the Highbeam Website, at https://www.highbeam.co/.

3. Eligibility

The Program is available to legal entities formed and registered in the United States which have a U.S. physical address and a valid U.S. Employer Identification Number (EIN). Individual consumers and companies organized and registered outside the United States are not permitted to join or attempt to join the Program. The Program is only available to businesses to use for business purposes and may not be used by individuals or for personal, family, or household purposes.

To be eligible to participate in the Program, you must have a minimum daily balance of $100. You will not be able to earn cashback for Qualifying Purchases made on days when your Account balance is below $100.

We may decline to provide access to the Program for any reason at our sole discretion. We are not liable for any damages or liabilities resulting from refusal of a Program relationship.

4. Changes to These Terms

We may make changes to the Program and the Terms at any time and at our sole discretion. We will provide advance notice to you of a change in terms where required by law.

5. Authorization to Access Account and Card Data on Your Behalf

By enrolling in the Program and agreeing to these Cashback Terms, you expressly authorize us to act on your behalf as your agent and representative to access your consumer financial information in your Account and Card pursuant to Section 1033 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Through this authorization, we will collect information about your financial transactions on your Account and your Card for the purpose of facilitating the Program and your participation in it. Your consumer financial information will be collected, maintained, stored, and shared in accordance with our Privacy Policy available at https://www.highbeam.co/legal/privacy-policy.

For the purposes of the foregoing, Highbeam is acting as an agent of our bank partner, Blue Ridge Bank, N.A.

6. How You Can Earn Cashback

You’ll earn cashback when an Authorized User:

● uses the Card to make eligible purchases of products and services including Marketing Spend, minus any returns or refunds (“Qualifying Purchases”).

Qualifying Purchases are defined to be all Card transactions except:

● balance transfers;

● cash advances;

● purchase of travelers’ checks, foreign currency, money orders, wire transfers or similar cash-like transactions;

● purchase of lottery tickets, casino gaming chips, racetrack wagers or similar betting transactions;

● writing or cashing checks;

● interest;

● unauthorized or fraudulent charges;

● fees of any kind, including an annual fee, if applicable; and

● purchases made prior to signing up for the Program.

Discounts, gift cards, offers, promotions, coupons or any other rewards received     through this Program or otherwise are not eligible for earning cashback.

Transactions not involving your Card made through your Account are not eligible for cashback.

For each Qualifying Purchase, you will receive a predetermined amount of cashback based on a percentage of the transaction amount.

For the first $20,000 of Marketing Spend per calendar month you will earn 2% cashback. Marketing Spend over $20,000 per calendar month will earn 1% cashback. All other Qualifying Purchases will receive 1% cashback.  You will earn cashback as follows:

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Once the limits have been reached, any additional Qualifying Purchases regardless of type or vendor will earn cashback at a rate of 1%.

Cashback is only earned on the amount actually spent on Qualifying Purchases. If cashback is issued for a Qualifying Purchase that is later returned or refunded, or the transaction is otherwise voided, the corresponding amount of cash will be automatically deducted from your Account.

7. Ways to Earn Bonus Cashback

We may offer you ways to earn bonus cashback (“Bonus Cashback”) through the Program or with third-party partners, such as special promotional offers (“Offers”). You’ll find out more about the amount of cashback you can earn and any other terms at the time of the Offer. The additional terms for those Offers are incorporated by reference as part of these Terms. Taking advantage of Offers is optional and such Offers may be subject to unique additional terms and conditions that are not subject to Highbeam’s control. Highbeam is not liable for the actions of any third parties; it is your responsibility to read carefully and comply with any terms and conditions imposed in connection with any Offer.

Cashback will be posted to your Account within five (5) business days following the end of the calendar month, based on the Qualifying Purchases made with your Card, plus any Bonus Cashback earned, but minus any returns or refunds for the preceding month. If you have returns or refunds more than cashback earned from Qualifying Purchases or Offers, then the associated cashback will be deducted from your Account and may result in a negative balance.

8. Caution and Warning

Highbeam reserves the right to reject, revoke, cancel, terminate, or suspend any benefit and/or ability to participate in the Program, or take any other action under the law at its discretion, at any time with immediate effect and without written notice or liability to you, if Highbeam, in its sole discretion, believes: (a) you or any of your Authorized Users have (1) violated any of the Program Rules; (2) acted in a manner inconsistent with applicable law, regulations or ordinances; (3) engaged in any misconduct or wrongdoing in connection with the Program; or (4) engaged in abusive, fraudulent, inappropriate, or hostile conduct in connection with the Program; or (b) Highbeam’s provision of the Program and/or any associated benefits to you may violate any applicable laws to which Highbeam is subject from time to time.

Any attempt to deliberately damage or undermine the legitimate operation of the Program or the App may be a violation of criminal and civil laws. Should such an attempt be made, Highbeam reserves the right to seek damages or other remedies to the fullest extent permitted by law. Any abuse of the Program, failure to follow any Program Rules, or any misrepresentation by you may subject you to cancellation of your ability to participate in the Program and will affect eligibility for future participation in the Program. Highbeam reserves the right to seek all remedies, whether available at law or at equity, criminal or civil, in the event you defraud or abuse the Program, fail to follow any terms of the Program, or make any misrepresentations to Highbeam.

9. Termination/Cancellation

The Program has no predetermined termination date and may continue until such time as we, at our sole discretion, elect to designate a Program termination date. We may, in our sole discretion, terminate the Program, in whole or in part, at any time, with 30 days’ notice, which may result in the cancellation of all benefits and privileges associated with the Program. Subject to the Terms, you can still earn cashback during the 30 day termination notice period. Such cashback will be posted to your Account within 5 business days of the Program termination date. Following the Program termination date, you will no longer be able to earn cashback. If you wish to cancel your participation in the Program, you may contact our customer service team at hello@highbeam.co.

10. Other Important Information You Should Know

Notwithstanding the foregoing, Highbeam’s failure to exercise any of its rights under the Program Rules or its delay in enforcing or exercising any of those rights shall not constitute a waiver of such rights.

Events beyond Highbeam’s control, such as computer equipment or electronic data transmission failure, strikes, acts of God, civil disturbance, terrorism or war, which may materially affect our ability to perform, will allow Highbeam to suspend or terminate the Program.

All dollar amounts referred to in these Terms are in U.S. dollars (USD).

Highbeam may assign our rights and obligations under these Terms to a third party, who will then be entitled to any of our rights that we assign to them.

We’re not responsible for any disputes you may have with any Authorized Users about the Program.

You agree to indemnify and hold Highbeam and its third party service providers and all of their respective affiliates, directors, officers, employees, agents and contractors harmless from and against any loss, damage, liability, cost, or expense of any kind (including attorneys’ fees) arising from your or an Authorized User’s: use of the Program, any fraud or misuse of the Program, violation of these Terms, the Program Rules and/or violation of any applicable law or the rights of any third party.

Any merchants and third party service providers that participate in the Program are not affiliated with us and are not sponsors or co-sponsors of the Program. All participating merchant and third party service provider names, logos, and marks are used with permission and are the property of their respective owners. Participating merchants and third party service providers are subject to change without notice.

Any participating merchants and third party service providers are responsible for the quality and performance of any products or services they provide. Highbeam is not responsible for any aspects of the products and services provided by participating merchants or third party service providers.

The Program is void where prohibited by federal, state, or local law.

These Terms and use of the Program is governed by federal law, as well as the law of New York, and will apply no matter where you live or use the Program.

11. Communications

We may send communications about the Program and marketing messages to you at any mailing or email address or phone number in our records or through our online services, such as SMS or the App.

By providing your phone number and enrolling in the Program, you are providing Highbeam or our agents your signature expressly consenting to receive marketing messages, SMS, and texts, including by automated means, at the number provided, even if the number is on a corporate, state, or national Do Not Call list. You acknowledge and agree that you are not required to agree as a condition of any purchase or service. To opt-out of marketing messages, please contact our Customer Service team at hello@highbeam.co.

Let us know right away about any changes to your contact information in the App.

You agree that Highbeam and its third party service providers may listen to and record telephone calls as part of providing Program services.

12. LIMITATION OF LIABILITY AND RELEASE

BY ENROLLING IN THE PROGRAM, YOU, ON YOUR OWN BEHALF AND ON BEHALF OF YOUR AUTHORIZED USERS, REPRESENTATIVES, ADMINISTRATORS, AND SUCCESSORS AGREE: (A) TO WAIVE ANY RIGHTS TO CLAIM AMBIGUITY WITH RESPECT TO THESE TERMS ; (B) TO WAIVE ALL OF YOUR RIGHTS TO BRING ANY CLAIM, ACTION, OR PROCEEDING AGAINST HIGHBEAM, ITS PARENT OR AFFILIATED ENTITIES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS (COLLECTIVELY, THE “RELEASED PARTIES”) IN CONNECTION WITH THE PROGRAM AND (C) TO FOREVER AND IRREVOCABLY AGREE TO RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS THE RELEASED PARTIES FROM ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, CAUSES OF ACTION, PROCEEDINGS, DEMANDS, FINES, PENALTIES, LIABILITY COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, OUTSIDE ATTORNEYS' OR LEGAL FEES) THAT MAY ARISE IN CONNECTION WITH: (I) THE PROGRAM AND/OR THE APP, INCLUDING BUT NOT LIMITED TO YOUR OR ANY AUTHORIZED USER’S PARTICIPATION OR INABILITY TO PARTICIPATE IN THE PROGRAM OR ANY OFFER OR BENEFIT, (II) ANY ERRORS PUBLISHED IN RELATION TO THE PROGRAM, INCLUDING, WITHOUT LIMITATION, ANY TYPOGRAPHICAL ERRORS, PRINTING, ERRORS OF DESCRIPTION, ERRORS IN THE PROGRAM RULES OR ANY PROGRAM MATERIALS, AND ERRORS IN THE CREDITING OR DEBITING OF CASHBACK FROM YOUR ACCOUNT, (III) ANY CHANGE IN ANY BENEFIT (OR ANY COMPONENTS THEREOF) DUE TO UNAVAILABILITY, OR DUE TO REASONS BEYOND HIGHBEAM’S CONTROL, (IV) ANY INTERRUPTIONS IN OR POSTPONEMENT, CANCELLATION, TERMINATION, OR MODIFICATION OF THE PROGRAM OR ANY COMPONENT THEREOF, (V) HUMAN ERROR, (VI) ANY TECHNICAL MALFUNCTIONS OR UNAVAILABILITY OF THE APP, ANY COMPUTER SYSTEM, POS, COMPUTER TIMING AND/OR DATING MECHANISM, SOFTWARE, OR INTERNET SERVICE PROVIDER, OR MAIL SERVICE UTILIZED BY ANY OF THE RELEASED PARTIES OR BY YOU OR ANY AUTHORIZED USER, (VII) ANY WRONGFUL, NEGLIGENT, OR UNAUTHORIZED ACT OR OMISSION ON THE PART OF ANY OF THE RELEASED PARTIES OR OF ANY OTHER THIRD PARTY, (VIII) LOST, LATE, MISDIRECTED, DAMAGED OR DESTROYED CORRESPONDENCE, CASHBACK, OFFERS, DISCOUNTS OR ANY OTHER BENEFIT (OR ANY ELEMENT THEREOF), (IX) THEFT OR UNAUTHORIZED REDEMPTION OF CASHBACK, OFFERS, DISCOUNTS, OR OTHER BENEFIT, AND (X) ANY ACTS OR OMISSIONS BY YOU, ANY AUTHORIZED USER OR THIRD PARTIES INCLUDING NEGLIGENCE OR WILLFUL MISCONDUCT.

THE RELEASED PARTIES ARE NOT RESPONSIBLE FOR ANY INJURY OR DAMAGE, WHETHER TO YOU, TO ANY AUTHORIZED USER OR TO ANY OTHER PERSON OR TO ANY PROPERTY, RELATED TO OR RESULTING FROM YOUR OR ANY AUTHORIZED USER’S PARTICIPATION IN THE PROGRAM AND/OR THE ACCEPTANCE OR USE OF ANY BENEFIT. BY PARTICIPATING IN THE PROGRAM, YOU AND ANY AUTHORIZED USER EXPRESSLY ASSUME ALL LIABILITY AND RESPONSIBILITY FOR YOUR OR ANY AUTHORIZED USER’S PARTICIPATION AND AGREE THAT PARTICIPATION IS SOLELY AT YOUR OR THEIR OWN RISK.

IN NO EVENT SHALL THE RELEASED PARTIES HAVE ANY LIABILITY OR RESPONSIBILITY WHATSOEVER FOR, AND THE RELEASED PARTIES SHALL BE HELD HARMLESS BY YOU, YOUR AUTHORIZED USERS, REPRESENTATIVES, ADMINISTRATORS, AND SUCCESSORS AGAINST, ANY AND ALL INJURIES, LOSSES OR DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, RELIANCE, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES TO PERSONS, INCLUDING PERSONAL INJURY OR DEATH, OR PROPERTY, ARISING IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, FROM ANY ACTION TAKEN OR NEGLECTED TO BE TAKEN WITH REGARD TO THE PROGRAM, ACCEPTANCE, POSSESSION, MISUSE OR USE OF ANY CASHBACK, OFFER, REWARD OR BENEFIT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE).

IN NO EVENT SHALL THE RELEASED PARTIES BE LIABLE TO YOU FOR ANY DELAY OR FAILURE TO PERFORM DUE TO CAUSES BEYOND OUR CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, ACTS OF WAR, NATURAL DISASTERS, WEATHER, PANDEMICS/EPIDEMICS, TERRORISM, OR ANY ACT OR OMISSION OF A THIRD PARTY.

THE SOLE REMEDY AVAILABLE TO YOU IN CONNECTION WITH THE PROGRAM (WHETHER YOUR CLAIM IS BASED IN LAW OR EQUITY) SHALL BE THE CREDITING OR RE-CREDITING TO YOUR ACCOUNT OF CASHBACK IN AN AMOUNT NO GREATER THAN THE AMOUNT OF CASHBACK AT ISSUE.

THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED. SOME STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

13. DISCLAIMER OF ALL WARRANTIES

WITHOUT LIMITING THE FOREGOING, THE PROGRAM, INCLUDING, WITHOUT LIMITATION, THE PROGRAM, APP AND ALL CASHBACK, OFFERS, DISCOUNTS AND BENEFITS, ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED,INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

NEITHER HIGHBEAM NOR ITS AGENCIES, AGENTS, SUPPLIERS OR REPRESENTATIVES WARRANT THAT: (A) ANY INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (B) THE PROGRAM WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (D) THE PROGRAM WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (E) ANY RESULT OR OUTCOME CAN BE ACHIEVED.

NEITHER THE PROGRAM NOR ANY BENEFIT OFFERED BY THE PROGRAM CREATES, CONSTITUTES OR GIVES RISE TO ANY LEGAL OR CONTRACTUAL RIGHTS BY YOU AGAINST HIGHBEAM. YOUR USE OF THE PROGRAM IS SOLELY AT YOUR OWN RISK.

SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. CHECK LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THESE LIMITATIONS OR EXCLUSIONS. THIS SECTION WILL SURVIVE TERMINATION OF YOUR PARTICIPATION IN THE PROGRAM.

14. Severability

The provisions of these Terms are intended to be interpreted in a manner which makes them valid, legal, and enforceable. If any portion of these Terms should be held invalid or unenforceable for any reason, such portion shall be deemed modified or severed from these Terms in such a manner as to enable the remaining portions of these Terms to remain in full force and effect as if no invalid or unenforceable provision had been part of these Terms. It is expressly understood and agreed between you and Highbeam that such modification or restriction may be accomplished unilaterally by us, or alternatively, by disposition of an arbitrator or a court of law. If such provisions cannot under any circumstances be so modified or restricted, they shall be excised from these Terms without affecting the validity, legality, or enforceability of any of the remaining provisions.

15. Privacy

For an explanation of Highbeam’s practices and polices relating to the collection, use, and storage of your personal information, please refer to Highbeam’s Privacy Policy available at: https://www.highbeam.co/legal/privacy-policy . Highbeam, its agents, affiliates, subsidiaries, representatives or service providers may use your information for purposes of providing cashback and/or for future marketing, such as to notify you of a product or promotion that may be of interest.

16. Arbitration and Waivers

BE SURE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US.

16.1 Election to Arbitrate

You and Highbeam agree that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 16 (the “Arbitration Provision”). As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you including any Authorized Persons), on the one hand, and us on the other hand, relating to or arising out of these Terms, and/or the activities or relationships that involve, lead to, or result from these Terms, including the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Terms. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. Please note that you may continue to assert Claims in small claims court, if your Claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.

16.2 Applicability of the Federal Arbitration Act; Arbitrator’s Powers.

This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the Federal Arbitration Act (the “FAA”). The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.

16.3 Informal Dispute Resolution

If a Claim arises, our goal is to address your concerns and, if we are unable to do so, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you will first submit your Claim to us by Email at hello@highbeam.co  and provide us with the opportunity to resolve your concern prior to initiating arbitration.

16.4 Arbitration Procedures

The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”) or Judicial Alternatives and Mediation Services (“JAMS”). The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1 (800) 778-7879 or visit the AAA's web site at: www.adr.org. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1 (800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply. The arbitration will be held in New York, NY, or any other location we agree to.

16.5 Arbitration Fees

If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules. We shall pay the administrator's hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator's rules or applicable law require otherwise, or you request that we pay them and we agree to do so. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.

16.6 Appeals

Within 30 days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator's rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (“FAA”), and may be entered as a judgment in any court of competent jurisdiction.

16.7 No Class Actions

NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this Section 16.7, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this Section 16.7 shall be determined exclusively by a court and not by the administrator or any arbitrator.

16.8 Survival and Severability of Arbitration Provision

This Arbitration Provision shall survive the termination of these Terms. If any portion of this Arbitration Provision other than Section 16.7 is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If there is a final judicial determination that applicable law precludes enforcement of this Arbitration Provision’s limitations as to a particular claim for relief or particular term, then that claim (and only that claim) or that term (and only that term) must be severed from the Arbitration Provision and may be brought in court. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in Section 16.7 are finally adjudicated pursuant to the last sentence of Section 16.7 to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.

16.9 Judicial Forum for Claims

Except as otherwise required by applicable law, in the event that this Arbitration Provision is found not to apply to you or your Claim, you Highbeam agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of New York County, New York. Both you and Highbeam consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.

16.10 Waiver of Right to Litigate

THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.