DISPUTE RESOLUTION AGREEMENT AND CLASS ACTION WAIVER
A. WITH YOUR PURCHASE, YOU AUTOMATICALLY AND EXPRESSLY WAIVE ANY RIGHT YOU MAY HAVE TO ARBITARTE A CLASS ACTION AND AUTOMATICALLY AGREE TO THESE TERMS. IF YOU THINK THAT THERE IS ANY SIGN OF FRAUD OR NON-COMPLIANCE WITH ANY FEDERAL OR STATE LAW, YOU AGREE NOT TO DO BUSINESS WITH US.
B. ALL TERMS ARE COMMUNICATED CLEARLY. IF YOU FIND IT OTHERWISE, YOU MUST NOTIFY US IN WRITING, VIA EMAIL, PRIOR TO MAKING ANY PURCHASE.
C. WE PROHIBIT THE USE OF OUR PRODUCTS IF YOU DO NOT AGREE TO THESE TERMS.
D. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATRION AND NOT IN COURT OR JURY TRIAL.
E. IF A DISPUTE IS ARBITARTED, YOU WILL GIVE UP YOUR LEGAL RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER OF ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
F. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU WOUL DHAVE IN COURT MAY NOT BE AVAILABLE IN ARBITARTION.
1. How This Agreement Applies
This Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and evidences a transaction involving commerce. Except as it otherwise provides, this Agreement applies to any legal dispute, past, present or future, arising out of or related to Customer (sometimes “you” or “your”) purchasing any of our products from us (“Company”) or relationship with any of its agents, employees, affiliates, successors, assigns, subsidiaries or parent companies (each of which are third party beneficiaries of this Agreement). Except as it otherwise provides, this Agreement is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law, and therefore this Agreement requires all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial. Except as this Agreement otherwise provides, such disputes include without limitation disputes arising out of or relating to interpretation or application of this Agreement, including the scope, formation, enforceability, revocability or validity of the Agreement or any portion of the Agreement.
2. Limitations on How This Agreement Applies
This Agreement does not apply to claims for workers compensation, state disability insurance and unemployment insurance benefits.
3. Mediation Either party may request to engage in mediation for any dispute before proceeding to arbitration. In the event that the parties mutually agree to mediate the dispute, the Company will pay the entirety of the mediator’s costs and fees. A neutral mediator will be selected by mutual agreement of the parties.
4. Selecting the Arbitrator The Arbitrator shall be selected by mutual agreement of the Company and the Associate. Unless the you and Company mutually agree otherwise, the Arbitrator shall be an attorney experienced in arbitrating employment law disputes or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If for any reason the parties cannot agree to an Arbitrator, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral Arbitrator. The court shall then appoint an arbitrator, who shall act under this Agreement with the same force and effect as if the parties had selected the arbitrator by mutual agreement. The location of the arbitration proceeding shall be no more than 45 miles from the place where the Company is located, unless each party to the arbitration agrees in writing otherwise.
5. Starting the Arbitration All claims in arbitration are subject to the same statutes of limitation that would apply in court. The demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period.. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy in accordance with applicable law, and any such application shall not be deemed incompatible with or waiver of this agreement to arbitrate. The court to which the application is made is authorized to consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law. All determinations of final relief, however, will be decided in arbitration.
6. How Arbitration Proceedings Are Conducted In arbitration, the parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator. A party, or at a party’s request the Arbitrator, may subpoena witnesses or documents for discovery purposes or for the arbitration hearing.
7. Paying for the Arbitration Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. However, in all cases where required by law, the Company will pay the Arbitrator’s and arbitration fees. If under applicable law the Company is not required to pay all of the Arbitrator’s and/or arbitration fees, such fee(s) will be apportioned between the parties in accordance with said applicable law, and any disputes in that regard will be resolved by the Arbitrator.
8. The Arbitration Hearing and Award Within 30 days of the close of the arbitration hearing, any party will have the right to prepare, serve on the other party and file with the Arbitrator a brief. The Arbitrator may award any party any remedy to which that
party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Agreement. The Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration.
9. Enforcement of this Agreement In the event any portion of this Agreement is deemed unenforceable, the remainder of this Agreement will be enforceable.