YOU AND THE COMPANY ARE EACH AGREEING BELOW TO ARBITRATION OF ALL DISPUTES, ARE EACH WAIVING THE RIGHT TO JURY AND COURT PROCEEDINGS FOR SUCH DISPUTES, AND ARE EACH WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. You should think carefully before agreeing to arbitration. You can of course consult counsel before agreeing.
- 1. Claims Subject to Arbitration.You and the Company agree to resolve by final and binding arbitration any and all disputes, claims or controversies of any kind or nature, arising between or among you (or your successors, heirs or assigns), on the one hand, and the Company (or any of its predecessors, successors or affiliated entities, or any of their past or present employees, independent contractors, owners, agents, officers, directors, members, partners, shareholders, successors, assigns or insurers), on the other hand (the “Claims”). The Claims subject to arbitration include but are not limited to Claims arising under tort, contract, common law, statute or regulation; Claims that arise before or after this Agreement becomes effective; and Claims concerning or arising out of the Company’s texting, privacy or other policies, loyalty programs, advertising, sales or products.
- 2. Claims Not Subject to Arbitration.This Agreement does not apply to any Claims expressly prohibited by law from being subject to arbitration, provided such prohibition is not preempted under the Federal Arbitration Act or any other federal law. Nothing in this Agreement prevents you or the Company from: (a) submitting disputes to small claims court within the scope of its jurisdiction; or (b) seeking provisional remedies, including a temporary restraining order or preliminary injunction, in a state court with proper jurisdiction, and pursuit of such provisional remedies will not constitute a waiver of right to submit or to compel any dispute to arbitration and shall not render the compulsory arbitration provisions of this Agreement unenforceable.
- 3. Class, Collective and Representative Action Waivers.To the fullest extent permitted by law, and notwithstanding anything else in this Agreement, you and the Company agree that any Claims shall be decided by the arbitrator on an individual basis and not on a class, collective or representative basis. Accordingly, class, collective and representative actions are not permitted under this Agreement. The arbitrator shall not have the authority or jurisdiction to hear the arbitration as a class, collective or representative action or to join or consolidate causes of action of different parties into one proceeding. To the fullest extent permitted by law, you and the Company agree to waive, to the maximum extent possible, any of their rights to bring or participate in class, collective or representative actions with respect to any Claims. Notwithstanding the foregoing, if and to the extent applicable law precludes you and/or the Company from waiving any right to bring class, collective or representative claims, and provided that the applicable law is not preempted by the Federal Arbitration Act or other federal law, then you and the Company agree that such class, collective or representative claims shall not be subject to the terms of this Agreement and shall be heard by a court of competent jurisdiction.
- 4. ProcedureAny arbitration will be filed with and conducted by AAA. The arbitration shall be held at the closest office of AAA to where you reside or at a mutually agreed location. The arbitration will be conducted pursuant to the AAA Consumer Arbitration Rules (“Rules”) in effect at the time the demand for arbitration is filed, except as modified by this Agreement (including, without limitation, as modified in Section 10). You may obtain a copy of the most current Rules by visiting the AAA website, currently located at www.adr.org, by calling the AAA at its current number (800-778-7879) or by requesting the rules from the Company by emailing email@example.com. If the AAA is unable or unwilling to accept the matter for any reason, the parties to the arbitration will submit the matter to a comparable arbitration service, which will apply the Rules as modified by this Agreement, or the comparable rules of the other service.
- 5. Discovery and Motions.The parties to the arbitration shall be entitled to conduct reasonable discovery and the arbitrator shall have the authority to determine what constitutes reasonable discovery. The arbitrator will have the authority to hear and grant motions, including but not limited to motions for summary judgment and summary adjudication.
- 6. Remedies/Arbitrator PowerThe arbitrator may award any form of remedy or relief that would otherwise be available in court and any such form of remedy or relief awarded must comply with applicable state and federal law. The arbitrator shall not have the power to commit errors of law or legal reasoning.
- 7. Arbitration Fees and Costs.Fees and costs shall be paid and assessed as provided in the Rules. Generally, the Rules provide that the Company shall bear all reasonable and necessary fees and costs of the arbitration forum that you would not otherwise be required to bear if the Claims were brought in court, except for an initial filing fee. The parties shall be responsible for their own attorneys’ fees and costs, except that the arbitrator shall have the authority to award attorneys’ fees and costs to the prevailing party in accordance with the substantive law governing the Claims.
- 8. Law Governing Claims.The arbitrator shall apply the applicable substantive federal, state, and/or local law, to any Claims and defenses asserted by the parties to the arbitration.
- 9. Law Governing This Agreement.The Federal Arbitration Act shall provide the substantive governing law for the interpretation and enforcement of this Agreement, including with respect to enforceability of the class, collective, and representative action waiver in Section 3.
- 10. Determination of Arbitrability.A court with jurisdiction over the party’s Claims, and not the arbitrator, shall have the exclusive authority and jurisdiction to resolve any issues relating to: (a) the formation or enforceability of this Agreement; (b) whether a Claim is subject to arbitration under this Agreement; and (c) whether the Agreement permits or prohibits class, collective and/or representative actions in arbitration and the enforceability of Section 3 of the Agreement.
- 11. Revocation and ModificationThe Company may modify or revoke this Agreement by providing 30 days’ email notice. You will then have 30 days to reject that modification or revocation. If you do so, this Agreement shall continue to apply without modification.
- 12. Reformation and Severability.If any clause or provision of this Agreement is declared void or unenforceable by any tribunal, then such clause or provision shall be modified or, if modification is not possible, stricken to the extent necessary to allow enforcement of this Agreement, and the remaining provisions shall remain in full force and effect. However, in no event shall the arbitrator hear any Claims as class, collective or representative actions, even if Section 3 of this Agreement, or any clause or provision contained therein, is adjudged void or is otherwise unenforceable. In other words, if one or more of the class, collective and/or representative action waivers in Section 3 are found to be unenforceable, the specific type of waiver(s) found to be unenforceable shall be stricken from the Agreement and the respective action(s) that were the subject of the stricken waiver(s) shall be heard and determined through an appropriate court proceeding, and not in arbitration. All remaining Claims shall proceed in individual arbitration.
- 13. Entire Agreement.This Agreement constitutes the entire understanding between you and the Company with respect to its subject matter hereof, and it supersedes all prior or contemporaneous oral or written agreements or understandings on the subject of arbitration of disputes between you and the Company and supersedes any prior agreement concerning arbitration between you and the Company. Your consent to this Agreement is confirmed by clicking the website acceptance.
YOU HAVE THE RIGHT TO CONSULT COUNSEL BEFORE AGREEING TO THESE TERMS