THIS ARBITRATION AGREEMENT AFFECTS YOUR LEGAL RIGHTS AND REMEDIES BY PROVIDING THAT DISPUTES BETWEEN YOU AND CALDO CALDO, LLC MUST BE RESOLVED THROUGH MANDATORY, BINDING ARBITRATION, RATHER THAN IN A COURT. PLEASE READ THIS AGREEMENT CAREFULLY. YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT SHALL BE EVIDENCED BY THE FIRST TO OCCUR OF: (1) YOUR OPENING OF ONE OR MORE OF THE INSTYLER PRODUCT UNITS SHIPPED TO YOU (COLLECTIVELY, THE "PRODUCT"), (2) YOUR OPENING OF ONE OR MORE OF THE INSTYLER ACCESSORY PRODUCTS SHIPPED TO YOU (COLLECTIVELY, THE "ACCESSORY PRODUCTS"), OR (3) YOUR RETAINING THE PRODUCT OR THE ACCESSORY PRODUCTS FOR MORE THAN TEN (10) DAYS AFTER RECEIPT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST RETURN THE PRODUCT AND/OR THE ACCESSORY PRODUCTS, AS THE CASE MAY BE, TO CALDO CALDO, LLC UNOPENED WITHIN TEN (10) DAYS OF RECEIPT AT NO COST TO YOU BY FOLLOWING THE PROCEDURES SPECIFIED IN THE RETURN POLICY OF CALDO CALDO, LLC. THIS ARBITRATION AGREEMENT COVERS ALL DISPUTES BETWEEN YOU AND CALDO CALDO, LLC REGARDING BOTH THE PRODUCT AND THE ACCESSORY PRODUCTS.
1. RESOLUTION OF CLAIMS OR DISPUTES.
Any claim or dispute between you and Caldo Caldo, LLC (including any of Caldo Caldo, LLCs subsidiaries or affiliates, collectively "Caldo Caldo") arising out of or relating in any way to the Product, the Accessory Products or this Agreement shall be resolved through final, binding arbitration. This mandatory arbitration obligation applies regardless of whether the claim or dispute involves a tort, fraud, misrepresentation, product liability, negligence, violation of a statute, or any other legal theory. Both you and Caldo Caldo specifically acknowledge and agree that you waive your right to bring a lawsuit based on such claims or disputes and that you waive your right to have such claims or disputes resolved by a judge or jury. Notwithstanding the foregoing, you have the right to seek relief in small claims court for claims or disputes within the scope of small claims jurisdictional limits.
2. LIMITATION OF LEGAL REMEDIES.
All arbitrations under this Agreement shall be conducted on an individual (and not a class-wide) basis, and an arbitrator shall have no authority to award class-wide relief. You acknowledge and agree that this Agreement specifically prohibits you from commencing arbitration proceedings as a representative of others or joining in any arbitration, litigation or other proceeding brought by any other person.
3. ARBITRATION PROCEDURES.
a. Before commencing any arbitration proceedings under this Agreement, you must first present the claim or dispute to Caldo Caldo by calling (800) 474-7213 and asking for the Legal Department and allowing Caldo Caldo the opportunity to resolve the claim or dispute. If your claim or dispute is not resolved within sixty (60) days, you may commence arbitration proceedings in accordance with the terms of this Agreement.
b. The arbitration of any claim or dispute under this Agreement shall be conducted pursuant to the American Arbitration Associations ("AAA") United States Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer-Related Disputes. These rules and procedures are available by calling AAA at 1-800-778-7879 or by visiting its web site at www.adr.org.
c. The arbitration of any claim or dispute under this Agreement shall be conducted in the State of California and the County of Los Angeles; provided that if the parties do not agree on a location for the arbitration, then the AAA shall determine a reasonably convenient location.
d. The arbitration of any claim or dispute under this Agreement shall be conducted by an arbitrator who is independent and impartial.
e. The exchange of information and timing of the arbitration shall be supervised by the arbitrator and shall be in accordance with procedures provided by the arbitrator.
f. The arbitration of any claim or dispute under this Agreement and the resolution or settlement thereof shall be confidential and shall not be disclosed by the parties to any third parties other than their respective professional representatives.
g. Each party shall have the right, at their own expense, to be represented by an attorney (or other spokesperson if permitted by law) of their own choosing.
h. All administrative expenses of arbitration proceedings commenced under this Agreement shall be divided equally between you and Caldo Caldo, except that: (a) if the claim or dispute that is the subject of the arbitration proceedings is less than ten thousand dollars (US $10,000), you will be responsible for no more than one hundred twenty-five dollars (US $125) in administrative expenses; (b) if the claim or dispute that is the subject of the arbitration proceedings is more than ten thousand dollars (US $10,000) but less than seventy-five thousand dollars (US $75,000), you will be responsible for no more than three hundred seventy-five dollars (US $375) in administrative expenses; and (c) if the claim or dispute that is the subject of the arbitration proceedings is more than seventy-five thousand dollars (US $75,000) or non-monetary, then you will be responsible for administrative expenses in accordance with the Commercial Fee Schedule provided by the AAA. You acknowledge and agree that each party shall pay the fees and costs of its own counsel, experts and witnesses.
4. CHOICE OF LAW.
This Agreement shall be governed by the United States Federal Arbitration Act and the laws of the state of California.
If any provision of this Agreement is declared or found to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions shall remain fully enforceable.
6. WAIVER OF DAMAGES.
Each of the parties hereby (a) irrevocably waives, to the maximum extent not prohibited by law, any right it may have to a trial by jury in respect of any proceeding directly or indirectly at any time arising out of, under or in connection with the purchase of the Product and the Accessory Products from Caldo Caldo or any transaction contemplated hereby or associated herewith; (b) irrevocably waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any such proceeding any special, exemplary, punitive or consequential damages, or any damages other than, or in addition to, actual damages.
NOTICE OF ARBITRATION AGREEMENT:
This Agreement provides that all disputes between you and CALDO CALDO, LLC will be resolved by MANDATORY, BINDING ARBITRATION.
You thus GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this Agreement (EXCEPT for matters that may be taken to SMALL CLAIMS COURT).
- Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.
- You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT.
- Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
FOR MORE DETAILS:
- Review Section 3 below, OR
- Review the American Arbitration Association's Web Site at www.adr.org, OR
- Call the American Arbitration Association at 1-800-778-7879