Retroactive Effect
Use this clause when adding DecisionLayer arbitration to an existing contractual relationship. It extends arbitration to claims that arose or accrued before the agreement was entered into, including claims under prior agreements concerning the same or substantially related subject matter. Because retroactive application depends on notice, acceptance, and applicable law, review the drafting notes below and consider consulting counsel before using it for existing claims. Enter your preferred contact address where opt-out notices should be sent.
Retroactive Arbitration Clause
Any controversy or claim arising out of or relating to this agreement, any prior agreement between the parties concerning the same or substantially related subject matter, or the parties’ relationship, transactions, conduct, or dealings relating to the subject matter of this agreement, including the interpretation, formation, breach, termination, validity, arbitrability or enforceability thereof (any of the foregoing as an “Arbitrable Claim”), shall be settled by binding arbitration administered by Decision Science Research Corporation (“DecisionLayer”) in accordance with its rules then in effect at https://www.decisionlayer.ai/rules (the “Rules”). The substantive rights and obligations of the parties shall be governed by the internal laws of the State of New York. The Federal Arbitration Act, 9 U.S.C. §§ 1–16 (“FAA”), shall govern this arbitration provision, its interpretation and enforcement, all questions of arbitrability, and the arbitration proceedings. The FAA shall control over any conflicting provision of law. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THIS AGREEMENT TO ARBITRATE APPLIES TO CLAIMS ARISING OR ACCRUING BEFORE, ON, OR AFTER THE DATE ON WHICH THE PARTIES ENTER INTO THIS AGREEMENT, INCLUDING CLAIMS THAT HAD ALREADY ACCRUED OR WHICH EITHER PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF BEFORE ACCEPTING THIS AGREEMENT. Judgment on any arbitration award may be entered in any State or Federal Court located in New York State or any other court of competent jurisdiction. Subject to the Rules, DecisionLayer arbitrations will be conducted by an arbitrator utilizing DecisionLayer artificial intelligence systems or, upon mutual agreement of the parties, by DecisionLayer’s artificial intelligence system itself. The parties agree that the arbitrator selection mechanisms set forth in the Rules constitute a substantial and valuable contract right, and the designated administration by DecisionLayer is an essential term of this agreement. THE PARTIES HERETO WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT ANY CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT MUST BE BROUGHT IN AN INDIVIDUAL CAPACITY, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE PROCEEDING. EACH PARTY CONSENTS TO RECEIVE SERVICE OF PROCESS COMMENCING AN ARBITRATION VIA THE DECISIONLAYER WEBSITE (IF IT HAS AN ACCOUNT), BY EMAIL, BY REGISTERED OR CERTIFIED MAIL, OR IN ACCORDANCE WITH APPLICABLE LAWS. EACH PARTY HERETO WAIVES ANY OBJECTION TO SERVICE BY THESE MEANS. Any arbitration shall be conducted virtually via the DecisionLayer platform. Each litigant’s relationship with DecisionLayer is governed by the DecisionLayer Terms of Service available at https://www.decisionlayer.ai/terms. If DecisionLayer is disqualified, unavailable, or otherwise unable to administer or hear any dispute for any reason, the parties shall apply to a court of competent jurisdiction for appointment of an arbitrator pursuant to Section 5 of the Federal Arbitration Act, 9 U.S.C. § 5, and the agreement to arbitrate shall remain fully enforceable. The invalidity of any portion of this arbitration provision shall not affect the validity of any other portion, and any invalid provision shall be modified to the least extent necessary to render it valid. YOU MAY OPT OUT OF THIS ARBITRATION PROVISION BY SENDING WRITTEN NOTICE TO [INSERT EMAIL OR ADDRESS] WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST AGREE TO THIS PROVISION. THE NOTICE MUST IDENTIFY THE PARTY OPTING OUT AND CLEARLY STATE THAT THE PARTY ELECTS TO OPT OUT OF THIS ARBITRATION PROVISION. AN OPT-OUT APPLIES ONLY TO THIS ARBITRATION PROVISION AND DOES NOT AFFECT ANY OTHER PROVISION OF THIS AGREEMENT OR ANY SEPARATE ARBITRATION AGREEMENT BETWEEN THE PARTIES.
Drafting Notes
Considerations when applying an arbitration clause to an existing relationship or previously accrued claims:
- Affirmative Acceptance: When adding retroactive arbitration language to an existing contractual relationship, consider obtaining affirmative agreement to the updated terms. This may include execution of an amendment or affirmative click-through acceptance of updated Terms of Service.
- Clear Notice: Tell the counterparty that the updated agreement includes an arbitration provision that applies to existing or previously accrued claims. Do not rely on the arbitration language being buried in a general update. Consider providing written notice in advance of the change, in clear and easy-to-understand language, including notice of any right to opt out.
- Opt-Out Rights & Tracking: Consider providing a meaningful opt-out period when adding the clause to an existing relationship. The standard DecisionLayer clause provides a 30-day opt-out period. Keep records showing when notice was provided, when the updated terms were accepted, and whether an opt-out was received.
- Scope of Prior Claims: DecisionLayer’s sample language extends to prior agreements, transactions, conduct, or dealings relating to the same or substantially related subject matter. It does not automatically cover every unrelated dispute the parties may have had.
- Legal Review: Retroactive application of an arbitration agreement can depend on the contract, the method of acceptance, the notice provided, and applicable law. Your existing contract may require particular forms of notice or consent before its terms can be amended. Consider consulting legal counsel before using the provision for existing claims.