13. DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
Notwithstanding the foregoing, and as an exception to final and binding confidential arbitration, you and REVELRY WELLNESS both retain the right to pursue, in small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis, including overdue account matters within the small claims court’s jurisdiction. REVELRY WELLNESS will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is and remains pending in that court. The following claims shall not be subject to final and binding arbitration and must be adjudicated only in the state or federal courts of New York: (i) any dispute, controversy, or claim relating to the infringement or validity of our proprietary rights, including without limitation, trademarks, service marks, copyrights, or trade secrets; or (ii) an action by REVELRY WELLNESS for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief, against you for breach or threatened breach of this Agreement. You expressly agree to refrain from bringing or joining any claims that are excluded from final and binding arbitration pursuant to this subsection “b” in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration. Small claims matters may be filed in any small claims court with personal and subject matter jurisdiction over the parties. For all other matters excluded from final and binding arbitration by this subsection “b,” the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the State of New York, and forever waive any challenge to said courts’ jurisdiction and venue.
c. Required Pre-Dispute Procedures
We acknowledge and agree that before initiating any Claim against the other, we agree to first contact the other with a written description of the dispute, which shall include all relevant documents and information, and the proposed resolution. You may send the written description of any dispute you have with us by U.S. Mail to REVELRY WELLNESS, 7125 Orchard Lake Rd, Suite 210, West Bloomfield, MI 48322. REVELRY WELLNESS will contact you by letter at the billing address you provided to us or at the email address you provided to us. You agree to negotiate with REVELRY WELLNESS or its designated representative in good faith about your problem or dispute. If for some reason the dispute is not resolved within 60 days after receipt of the written dispute, we agree to the dispute resolution provisions below.
d. Commencing Arbitration
You and REVELRY WELLNESS agree to commence any arbitration proceeding within 1 year after the Claim arises (the 1 year period includes the required pre-dispute procedures set forth above) and that any arbitration proceeding commenced after 1 year shall be forever barred.
e. Arbitration Location
For your convenience, the arbitration may be conducted in the federal district where you reside. It may be held by telephone or through written submissions if both you and REVELRY WELLNESS agree.
f. Organization, Rules and the Arbitrator
We each agree that any and all Claims other than those exempted under subsection “b” above shall be submitted to final and binding confidential arbitration before a single arbitrator of the American Arbitration Association (“AAA”). Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA, and providing a copy to the other party, within the time period set forth in subsection “d” above. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with Rules of the AAA. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration.
For your convenience, REVELRY WELLNESS will pay all of the filing costs for the arbitration, including the fees charged by the arbitrator. The parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
h. Governing Law and Award
The arbitrator shall follow the substantive law of the State of Michigan without regarding to its conflicts of laws principles and may order any relief if permitted by law. The arbitrator may award any form of individual relief, including permanent injunctions and punitive damages, so long as they are in accordance with applicable law and not otherwise excluded by these Terms. The arbitrator may award costs or fees to a prevailing party, but only if the law expressly allows it. Nothing herein shall be construed to limit the arbitrator’s ability to award remedies provided by applicable law. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the FAA. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
This provision survives termination of your account or relationship with REVELRY WELLNESS, bankruptcy, assignment or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
Failure or any delay in enforcing this arbitration provision in connection with any particular Claims will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims except all Claims must be brought within the 1 year limitation period set forth above. This provision is the entire arbitration agreement between you and REVELRY WELLNESS and shall not be modified except in writing by REVELRY WELLNESS.
REVELRY WELLNESS reserves the right to amend this arbitration provision at any time. Your continued use of the Website, purchase of a product on or through the Website, or use or attempted use of a REVELRY WELLNESS product, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, REVELRY WELLNESS will provide you notice and an opportunity to opt-out. Your continued use of the Website, purchase of a product on or through the Website, or use or attempted use of a REVELRY WELLNESS product, is affirmation of your consent to such material changes.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION.
You have THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN thirty (30) days from the date that you PURCHASE, USE, OR ATTEMPT TO USE A PRODUCT PURCHASED ON OR THROUGH THIS WEBSITE (WHICHEVER COMES FIRST) BY WRITING TO REVELRY WELLNESS at 7125 Orchard Lake Rd, Suite 210, West Bloomfield, MI 48322. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY PRODUCT YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE THE PRODUCT. If more than thirty (30) days have passed, you are not eligible to opt out of THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING ARBITRATION AS SET FORTH IN THIS AGREEMENT.