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My Internet Service Provider TDS has a clickwrap contract. Two of the clauses seem to conflict. Does 12.3 give back a right that TDS gave up in 10.2? I'm bringing them to arbitration for other reasons. Is it possible I can get one of these clauses invalidated?

10.2 YOU AND TDS AGREE THAT ANY DISPUTE, CLAIM, OR CONTROVERSY WILL BE SETTLED BY BINDING ARBITRATION BETWEEN YOU AND TDS, AND NOT IN A COURT OF LAW IN ANY JURISDICTION.

12.3 Nothing contained in the Service Agreement shall be construed to limit TDS’ rights and remedies available at law or in equity.

Additional information if it matters or you're curious: Definition of service agreement: "These Residential Terms of Service (the 'Terms') [and included documents] form a legal agreement (the 'Service Agreement') between you and TDS". Clause 10.1 forbids class action, 12.1 is the entire agreement clause and 12.2 is a severability clause.

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The two terms are not in conflict.

Section 12.3 pertains to substantive legal theories for relief, in other words, that breach of contract is not the only legal theory upon which the ISP may rely in litigation with you. The ISP could also raise, for example, a statutory civil theft theory in addition to a breach of contract theory which is a non-contract legal claim, or could ask that you disgorge profits you made from violating the TOS which is an equitable claim, or could ask for an injunction barring you from violating the TOS in the same way in the future which is an equitable claim, as well as money damages for breach of contract.

Clauses in contracts like this are sometimes called "anti-pre-emption clauses".

Section 10.2 is about the forum in which those substantive legal theories are evaluated. It says that the case goes to arbitration and not to a regular court.

Is it possible I can get one of these clauses invalidated?

No (Not for any reason stated in the question, anyway. There might be other relevant facts that weren't mentioned in the question.)

Arbitration clauses, in practice, are slavishly honored by courts.

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  • I added another clause that appears to be pertinent and added the nature of the dispute. I want to take them to arbitration to recover the fees I paid and if possible, force them to correct their software.
    – Ed G
    Feb 1 at 0:09
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    @EdG I am not going to respond to that which starts to just get into personal legal advice.
    – ohwilleke
    Feb 1 at 1:10
  • Where did I do that? I will edit it out.
    – Ed G
    Feb 1 at 3:05

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