15. Jurisdiction and Applicable Law.
Except to the extent any applicable law provides otherwise, the Agreement and any access to or use of our Services will be governed by the laws of the state of California, U.S.A., excluding its conflict of law provisions. The proper venue for any disputes arising out of or relating to the Agreement and any access to or use of our Services will be the state and federal courts located in San Francisco County, California.
16. Arbitration Agreement
Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under the Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce the Agreement shall be entitled to costs and attorneys’ fees.
So, WordPress requires arbitration through the JAMS system, and they require the arbitration to take place in California. Not only that, but they declare that whoever wins can claim costs and attorneys’s fees. This, of course, is meant to dissuade people like Heartiste from taking them to arbitration.
But not so fast. JAMS enforces the following standards, which are based on California law.
Consumer Arbitration Minimum Standards
JAMS will administer arbitrations pursuant to mandatory pre-dispute arbitration clauses between companies and consumers only if the contract arbitration clause and specified applicable rules comply with the following minimum standards of fairness.
The consumer must have a right to an in-person hearing in his or her hometown area.
With respect to the cost of the arbitration, when a consumer initiates arbitration against the company, the only fee required to be paid by the consumer is $250, which is approximately equivalent to current Court filing fees. All other costs must be borne by the company, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator’s services. When the company is the claiming party initiating an arbitration against the consumer, the company will be required to pay all costs associated with the arbitration.
In California, the arbitration provision may not require the consumer to pay the fees and costs incurred by the opposing party if the consumer does not prevail.
In other words, Chateau (or any of his readers) can bring an arbitration against WordPress for $250, can do it in his hometown area rather than on WordPress’s turf, and cannot be forced to pay costs or legal fees even if he loses.
Always read the fine print.