HUGHES, J.
This is an application for supervisory review, requesting this court to overturn a district court's denial of the defendant/relator's exception of prematurity, based on a contractual arbitration agreement in a suit in which the plaintiff/respondent had alleged fraudulent inducement in the contract between the parties. For the reasons that follow, we grant the defendant/relator's application for supervisory review, reverse the district court ruling, and order these proceedings stayed pending arbitration.
FACTS AND PROCEDURAL HISTORY
Jasper Contractors, Inc. (Jasper), the plaintiff/respondent, is a multi-state roofing contractor, having its principal place of business in Baton Rouge, Louisiana. In October 2008 Jasper signed a contract with E-Claim.com, LLC (E-Claim), the defendant/relator, a Belle Chasse, Louisiana company. The contract stated that E-Claim would provide software and a "server hosted environment"1 to maintain certain business records belonging to Jasper, which included plans, specifications, proposals, and insurance information for clients. Jasper's goals in entering into the contract with E-Claim included achieving a "paperless" record-keeping system, having "virtual" access to its records "24/7/365," and dealing with a local/Louisiana-based service provider. In July of 2009 a significant number of Jasper's electronic files were lost or deleted from E-Claim's computer servers, allegedly affecting over 900 of Jasper's clients and negatively impacting its business. Thereafter, E-Claim disclosed to Jasper that it had outsourced webhosting of Jasper's files to Edgewebhosting, Inc., a company located in Baltimore, Maryland.
On June 17, 2010 Jasper filed suit in the 19th Judicial District Court against E-Claim and Edgewebhosting, Inc., for damages sustained and sought a declaratory judgment that its contract with E-Claim was null and void for a vice of consent arising from fraud on the part of E-Claim (based on fraudulent representations and/or misrepresentations by E-Claim, which included, among others, that Jasper's records would be stored on Louisiana-located equipment, rather than out-of-state, and that all electronically-stored data would be regularly "backed-up" and protected by "banking level security"). On August 19, 2010 E-Claim filed an exception of prematurity, contending that Jasper's petition was premature, because its claim was subject to mandatory contractual arbitration.
Following a November 8, 2010 hearing, the district court overruled the exception of prematurity. The district court's March 31, 2011 written reasons stated: "The plaintiff's allegations of fraud in the instant suit are sufficient to require that the district court first determine the validity of the contract and based on that ruling, then determine whether the matter shall proceed to arbitration." A judgment denying E-Claim's exception of prematurity was signed on May 2, 2011.2
On May 31, 2011 E-Claim filed a writ application with this court, assigning one error: "The trial court erred when it refused to enforce the mandatory arbitration provisions of the contract between the parties." This court denied the writ application. See Jasper Contractors, Inc. v. E-Claim.com, LLC, 2011-0978 (La.App. 1 Cir. 8/29/11) (unpublished). However, the supreme court granted E-Claim's writ application and remanded the matter to this court "for briefing, argument, and full opinion." See Jasper Contractors, Inc. v. E-Claim.com, LLC, 2011-2126 (La.11/4/11), 75 So.3d 930, 931.
On remand to this court, E-Claim contends the district court erred when it determined that it should rule on Jasper's allegations as to the validity of the contract between the parties, rather than have the issue decided by an arbitrator.
LAW AND ANALYSIS
In the contract signed by these parties, the specified applicable law and the agreement to arbitrate is contained in Article 10, Section 10.8, which states in pertinent part:
10.8 Governing Law/Choice of Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of Louisiana applicable to contracts made, executed and performed therein and without reference to any conflicts of law codes, statutes, jurisprudence or principles. Any claim, dispute, or controversy, directly or indirectly, arising out of, relating to, or in connection with this Agreement, or the performance, enforcement, breach, termination, expiration, dissolution, rescission, cancelation, validity or interpretation of this Agreement (including, without limitation, interpretation and resolution of the scope of these arbitration provisions) shall be settled by binding, nonappealable, arbitration in accordance with the Commercial Rules of the American Arbitration Association and, to the extent not inconsistent therewith, the Federal Arbitration Act [9 USC §§ 1 et seq.]....
A plain reading of this section reveals that the parties intended to designate Louisiana law for construing and governing the making, execution, and performance of the contract, without resort to or the application of "conflicts" law. The parties further specified that "binding, nonappealable, arbitration" would be used to settle any "claim, dispute, or controversy" arising out of the contract, as well as those related to the contract's enforcement, dissolution, cancelation, and/or validity, et cetera. Arbitration was required, by Section 10.8 of the contract, to be in accordance with the American Arbitration Association's Commercial Rules (AAA Rules) and, "to the extent not inconsistent therewith," the Federal Arbitration Act (FAA), 9 U.S.C. § 1, et seq. Thus, although Louisiana law was chosen to apply to the contract generally, the AAA Rules and, to the extent not inconsistent, the FAA were chosen to apply to the arbitration agreement contained in the contract.
While Jasper has asserted a vice of consent, i.e. fraud, as to the contract as a whole, it also contends, with respect to the arbitration agreement only, that the arbitration agreement is adhesionary, because it limits any recovery for its damages to either a "Repair Remedy" or a refund of the $7,500 "Initial License And Setup Fee" originally paid by Jasper to E-Claim. In contrast, no similar contractual limitation is placed on E-Claim's recovery of sums alleged to be due by Jasper.3
While Section 10.8 of the contract between the parties, containing the arbitration agreement, does not explicitly address damages, it states as follows:
[T]he arbitrators shall have the power of, and authority to exercise, amiable compositeur, ex aequo et bono[4] and "natural justice and equity;" and, provided further, that the arbitrators shall have the authority to require specific performance or impose other equitable relief hereunder, as well as imposing money damages and awards of attorneys' fees to the prevailing party.
Also pertinent are the following provisions of the contract relating to damages, which provide, in pertinent part:
6.2 Exclusive Remedy. As the sole and exclusive remedy of Customer for any warranty claim under Section 6.1(ii) for which E-Claim is responsible, E-Claim shall provide the error-correction services set forth in Section 7.2 (the "Repair Remedy"); provided, that E-Claim reserves the right at any time to elect not to provide, or to abort, the Repair Remedy and, in conjunction therewith, to terminate this Agreement and refund the Initial License and Setup Fee; and, by such termination and payment, Customer shall have no other right, remedy, recourse or claim whatsoever (for damages or otherwise) against E-Claim....
* * *
6.4 LIMITATION OF LIABILITY.... THE CUMULATIVE LIABILITY OF E-CLAIM FOR ALL CLAIMS WHATSOEVER RELATED TO THE CMS APPLICATION, THE SERVER HOSTED ENVIRONMENT OR THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN, OR IN THE NATURE OF, CONTRACT, TORT, QUASI-CONTRACT, STATUTORY OR STRICT LIABILITY, SHALL NOT EXCEED THE LIABILITY CAP. THE TERM "LIABILITY CAP" MEANS THE AMOUNT OF THE INITIAL LICENSE AND SETUP FEE ... [excluding obligations under Section 8.1 relative to copyright, patent, trade secret, trademark or any other third-party proprietary right].
6.5 DISCLAIMER OF LIABILITY FOR CONSEQUENTIAL AND SPECIAL DAMAGES. IN NO EVENT SHALL E-CLAIM BE LIABLE FOR ANY CONSEQUENTIAL AND SPECIAL DAMAGES WHETHER OR NOT FORESEEABLE AND REGARDLESS OF WHETHER OR NOT E-CLAIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CONSEQUENTIAL AND SPECIAL DAMAGES. THE TERM "CONSEQUENTIAL AND SPECIAL DAMAGES" MEANS, IN ADDITION TO ITS GENERALLY ACCEPTED MEANING, THE FOLLOWING: LOSS OF PROFITS, REVENUE, PATRONAGE OR BUSINESS; DELAY DAMAGES; DAMAGE TO REPUTATION; LOSS OF GOODWILL; LOSS OR CORRUPTION TO DATA; AND ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES.
The issue for this court to decide is whether Jasper's allegations of fraud as to the inducement of the contract, as a whole, and/or whether the allegations of adhesion as to the arbitration clause itself, can be decided by the 19th Judicial District Court or whether these issues must be decided in arbitration.
On this issue, the FAA is applicable, to the extent not inconsistent with the AAA Rules (as stated in the contract in this case), and supplies the following general rules, which provide in pertinent part:5
§ 2. Validity, irrevocability, and enforcement of agreements to arbitrate
A written provision in ... a contract... to settle by arbitration a controversy thereafter arising out of such contract... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
§ 3. Stay of proceedings where issue therein referable to arbitration
If any suit or proceeding be brought in any of the courts ... upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.
§ 4. Failure to arbitrate under agreement; petition to United States court having jurisdiction for order to compel arbitration; notice and service thereof; hearing and determination
A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any ... district court which, save for such agreement, would have jurisdiction ... in a civil action ... for an order directing that such arbitration proceed.... The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.... If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof....
(Emphasis added.)
Important to this discussion is the directive in 9 U.S.C. § 4, in particular, which requires the court to "proceed summarily to the trial" of an issue raised by the parties as to the "making of the arbitration agreement." The United States Supreme Court, citing Prima Paint Corporation v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), has interpreted the FAA to mean that if a party to a contract requiring arbitration raises a challenge to the arbitration clause itself, the district court must adjudicate it, but if the challenge is to the contract as a whole (such as a claim of fraud in the inducement of the contract), the statutory language does not permit the district court to consider the issue, rather the arbitrator must decide the issue.6 See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444-45, 126 S.Ct. 1204, 1208, 163 L.Ed.2d 1038 (2006).7 The Buckeye Court further stated that as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract (noting that the question of "severability"8 is not one of state law).9 Id., 546 U.S. at 445, 126 S.Ct. at 1208-9. The Supreme Court rejected the contention that the only arbitration agreements to which the FAA applies are those involving a valid contract. In other words, the Supreme Court has rejected the argument that an agreement, which may be void ab initio under state law, is thus not a "contract," such that 9 U.S.C. § 2's requirement "to settle by arbitration a controversy ... arising out of such contract" would not apply. The Supreme Court stated in Buckeye that such an argument echoes Justice Black's dissent in Prima Paint, wherein he stated: "Sections 2 and 3 of the Act assume the existence of a valid contract. They merely provide for enforcement where such a valid contract exists." In rejecting this argument, the Buckeye Court stated:
We do not read "contract" so narrowly. The word appears four times in § 2. Its last appearance is in the final clause, which allows a challenge to an arbitration provision "upon such grounds as exist at law or in equity for the revocation of any contract." ... There can be no doubt that "contract" as used this last time must include contracts that later prove to be void. Otherwise, the grounds for revocation would be limited to those that rendered a contract voidable — which would mean (implausibly) that an arbitration agreement could be challenged as voidable but not as void. Because the sentence's final use of "contract" so obviously includes putative contracts, we will not read the same word earlier in the same sentence to have a more narrow meaning.
See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. at 447-48, 126 S.Ct. at 1210. Thus, the Supreme Court reaffirmed that "regardless of whether the challenge is brought in federal or state court, a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator[;]" conversely, when the challenge is directed to the arbitration clause, the district court generally has the authority, under 9 U.S.C. § 4, to decide the issue.10 See Id., 546 U.S. at 449, 126 S.Ct. at 1210. See also International River Center v. Johns-Manville Sales Corporation, 2002-3060, pp. 3-4 (La.12/3/03), 861 So.2d 139, 141-42 (holding that LSA-R.S. 9:4203 (the state counterpart to 9 U.S.C. § 4) allows a district court to ascertain only two basic facts before ordering arbitration: (1) whether there is a dispute as to the making of the agreement for arbitration, and (2) whether a party has failed to comply with the arbitration agreement; if the trial court determines that those two facts are not at issue, the court shall issue an order directing the parties to proceed to arbitration).
Nevertheless, the contract in the instant case states that the laws to be applied are "the Commercial Rules of the American Arbitration Association and, to the extent not inconsistent therewith, the Federal Arbitration Act," and therefore, a deviation from the result that would be reached under an application of the FAA, with respect to the arbitrability issue, is produced by application of the AAA Rules over the FAA rules. AAA Rule R-711 provides:
R-7. Jurisdiction
(a) The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.
(b) The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part. Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator that the contract is null and void shall not for that reason alone render invalid the arbitration clause.
(c) A party must object to the jurisdiction of the arbitrator or to the arbitrability of a claim or counterclaim no later than the filing of the answering statement to the claim or counterclaim that gives rise to the objection. The arbitrator may rule on such objections as a preliminary matter or as part of the final award.
(Emphasis added.)
Although general jurisprudential law, based on the FAA, allows a district court to decide a challenge directed only to a contractual arbitration clause, when, as here, the parties explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties' intent to delegate such issues to an arbitrator. See T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., 592 F.3d 329, 344-45 (2nd Cir.2010); Contec Corporation v. Remote Solution, Co., Ltd., 398 F.3d 205, 208 (2nd Cir.2005); Shaw Group Inc. v. Triplefine International Corporation, 322 F.3d 115, 122-23 (2nd Cir.2003); PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1202 (2nd Cir.1996). Likewise, in this case, the parties' contract expressly gives the arbitrator the power to decide challenges to the validity of the arbitration clause, via the incorporated AAA Rules (which were effectively given supremacy, in Section 10.8 of the contract, over the FAA), rather than allowing the district court to decide the issue, as would otherwise be the case.12
Jurisprudence cited by Jasper to the contrary is not persuasive. In George Engine Co., Inc. v. Southern Shipbuilding Corporation, 350 So.2d 881 (La.1977), the application of Louisiana arbitration law was at issue, whereas in the instant case, the parties contractually agreed that the current AAA Commercial Arbitration Rules and the FAA would be applicable.13 Furthermore, the Louisiana Supreme Court subsequently held in Aguillard v. Auction Management Corp., 2004-2804, p. 8 (La.6/29/05), 908 So.2d 1, 8, that the United States Supreme Court has made it clear that whether a claim is brought in state or federal court, and whether a claim arises out of state or federal law, courts must enforce arbitration agreements in contracts covered by the FAA, notwithstanding any state statutory or jurisprudential rules to the contrary, stating:
[A] presumption of arbitrability does exist. Due to the strong and substantial similarities between our state arbitration provisions and the federal arbitration law as seen through a comparison of La.Rev.Stat. §§ 9:4201 and 9:4202 and 9 U.S.C. §§ 2 and 3, the federal jurisprudence provides guidance in the interpretation of our provisions. We, therefore, adopt the United States Supreme Court's interpretation of the federal arbitration law.
Accordingly, even when the scope of an arbitration clause is fairly debatable or reasonably in doubt, the court should decide the question of construction in favor of arbitration. The weight of this presumption is heavy and arbitration should not be denied unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation that could cover the dispute at issue. Therefore, even if some legitimate doubt could be hypothesized, this [c]ourt, in conjunction with the Supreme Court, requires resolution of the doubt in favor of arbitration.
Id., 2004-2804 at pp. 24-25, 908 So.2d at 18. See also FIA Card Services, N.A. v. Weaver, 2010-1372, p. 4 (La.3/15/11), 62 So.3d 709, 712 (holding that to the extent the Louisiana arbitration law conflicts with the FAA any inconsistency must be resolved in favor of the federal act as federal law preempts contrary state law). Consequently, since, in the instant case, the contract, by its terms, requires application of federal law, the federal jurisprudence, cited hereinabove, governs over state jurisprudence and requires arbitration of both the challenge to the contract as a whole and the challenge to the arbitration clause.14
Accordingly, we must conclude that the district court erred in overruling E-Claim's exception of prematurity.
CONCLUSION
For the reasons stated herein, we grant the application of E-Claim.com, LLC for supervisory review; reverse the district court judgment overruling the dilatory exception pleading the objection of prematurity asserted by E-Claim.com, LLC; render judgment in favor of E-Claim.com, LLC, sustaining the exception of prematurity; and order the district court proceedings stayed pending submission of the matter to arbitration.15 All costs of this writ application are assessed to Jasper Contractors, Inc.
WRIT GRANTED; JUDGMENT REVERSED; PROCEEDINGS STAYED PENDING ARBITRATION.
