ARBITRATION AGREEMENT
Mutual Arbitration Agreement Between You and Defenitely Naturals LLC:
This Agreement is binding and inures to the benefit of the Purchaser, the
Retailer, and their successors and assigns. This Agreement is also for the
benefit of the manufacturer, and any entity providing financing and their
successors and assigns, who may elect to submit any dispute covered by this
Agreement to binding arbitration by providing written notice to the Retailer
and the Purchaser within 60 days of the date any complaint is served upon
them.
We agree—both you (and your family members and beneficiaries) and Defenitely
Naturals LLC (meaning the corporation together with its directors, officers,
employees, affiliates, agents, successors or assigns)—that (1) any mutual
claim, dispute or controversy, or (2) any claim by either of us against the
other on any matter, or (3) any claim arising from or related to this
agreement, or (4) any claim arising from the relationships that result from
this agreement, no matter against whom made, or (5) any dispute over the
applicability of this Arbitration Agreement, or (6) any dispute about the
validity of part of or the entire Arbitration Agreement (and hereinafter any
or all types of claims, disputes, or controversies shall be referred to as a
“Dispute” or “Disputes”), SHALL BE RESOLVED EXCLUSIVELY BY NEUTRAL, BINDING
ARBITRATION BY THE NATIONAL ARBITRATION FORUM in the United States, under
its Code of Procedure in effect at the time that the cause(s) of the Dispute
arose or at the time that the Dispute is arbitrated (whichever is
determined, in the sole discretion of the arbitrator, to be appropriate),
except as specified otherwise in this Mutual Arbitration Agreement.
Arbitration hearings will take place in a location as convenient for you as
possible subject to the approval of the National Arbitration Forum. To get
more information on how to file a claim and obtain relevant forms, please
contact the National Arbitration Forum at http://www.adrforum.com/, write to
them at P.O. Box 50191, Minneapolis, Minnesota 55405, call them toll-free at
1-800-474-2371, or fax them at 1-952-345-1160. The identity of the
arbitrator shall be determined solely by the National Arbitration Forum, so
as to eliminate any undue influence that you or Defenitely Naturals LLC can
apply to the detriment of the other regarding the choice of arbitrator at
the National Arbitration Forum.
In the event that, for any reason, the National Arbitration Forum is unable
or unwilling to arbitrate the Dispute in binding fashion, you and Defenitely
Naturals LLC agree that the American Arbitration Association shall arbitrate
the Dispute in binding fashion. To contact the American Arbitration
Association (at www.adr.org), write to them at The Paramount Building, 1633
Broadway, Tenth Floor, New York, NY 10019, call them at 1-212-484-3266, or
fax them at 1-212-307-4387. The identity of the arbitrator shall be
determined solely by the American Arbitration Association, so as to
eliminate any undue influence that you or Defenitely Naturals LLC can apply
to the detriment of the other regarding the choice of arbitrator at the
American Arbitration Association.
In the event that, for any reason, the American Arbitration Association is
also unable or unwilling to arbitrate the Dispute in binding fashion, you
and Defenitely Naturals LLC agree that you and Defenitely Naturals LLC shall
endeavor in good faith to secure the services of another neutral arbitration
body and that, under no circumstances, shall the Dispute be entertained by a
court of law.
This Mutual Arbitration Agreement is effective pursuant to a transaction
involving interstate commerce, and shall be governed by and interpreted
under the Federal Arbitration Act. The Act is codified as law at Title 9 of
the U.S. Code, sections 1-16. You may review the provisions of the Act at
the website of the Office of Law Revision Counsel of the United States House
of Representatives.
We both agree that the arbitration shall be conducted before one neutral
arbitrator, who shall be selected by the National Arbitration Forum (or by a
default arbitration body as set forth above). Any award of the arbitrator
may be entered as a judgment in a United States court having jurisdiction as
determined in the sole discretion of the arbitrator. In the event that a
court having jurisdiction finds any portion of this Mutual Arbitration
Agreement unenforceable, that portion shall not be effective, and the
remainder of the Mutual Arbitration Agreement shall remain effective.
BOTH PARTIES TO THIS Mutual Arbitration Agreement--YOU AND Defenitely
Naturals, LLC—UNDERSTAND THAT YOU AND WE WOULD HAVE HAD THE RIGHT OR
OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY
DECIDE OUR CASE, BUT YOU AND WE CHOOSE TO HAVE ANY DISPUTES DECIDED THROUGH
ARBITRATION.
We agree that THE ARBITRATION SHALL BE LIMITED SOLELY TO THE DISPUTE BETWEEN
YOU AND Defenitely Naturals LLC, meaning that the arbitration, or any
portion of it, will not be consolidated with any other arbitration, and will
not be conducted on a class-wide or class action basis. In other words, WE
ARE BOTH WAIVING THE RIGHT TO JOIN OR CONSOLIDATE CLAIMS WITH OTHER PERSONS
OR CORPORATIONS WHO MAY HAVE THE SAME OR SIMILAR CLAIMS AGAINST YOU OR
AGAINST US. Further, WE BOTH WAIVE THE RIGHT TO ARBITRATE ANY CLAIM AS A
REPRESENTATIVE OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, AND WE
BOTH WAIVE THE RIGHT TO PARTICIPATE IN ANY MANNER IN A CLASS ACTION EITHER
IN COURT OF LAW OR IN ARBITRATION AGAINST EACH OTHER.
THE TERMS OF THIS ARBITRATION AGREEMENT MAY CHANGE WITHOUT NOTICE FROM TIME
TO TIME. THE TERMS THAT SHALL BE APPLICABLE TO DISPUTES BETWEEN YOU AND
Defenitely Naturals, LLC SHALL BE THOSE TERMS THAT ARE SET FORTH HERE AT THE
TIME THAT THE TRANSACTION OR OCCURRENCE THAT GAVE RISE TO THE DISPUTE
OCCURRED.
YOU MAY OPT OUT OF THIS AGREEMENT IF, WITHIN 30 DAYS OF YOUR PURCHASE OF A
PRODUCT FROM THIS WEBSITE, YOU SEND AN EMAIL TO THE FOLLOWING EMAIL ADDRESS:
DISPUTE@Defenitely Naturals.COM AND SUCH EMAIL CLEARLY INDICATES YOUR
REQUEST TO OPT OUT. You must include your name, telephone number, and order
number in your email. You will receive an email confirmation of your opt-out
within 5 business days. You must retain this email confirmation of your
opt-out for your records. If you do not receive an email confirmation of
your opt-out within 5 business days, please contact us via the following
telephone number: North America 1-732.970.3549 Our regular business hours
(9:00am - 5:00 pm Pacific Time) Monday Through Friday.
In the event that, for whatever reason, any portion of a dispute between you
and Defenitely Naturals LLC is to be determined by a state court, we both
agree that any questions arising from or relating to this Mutual Arbitration
Agreement, its interpretation, its breach, its termination, its validity,
and the relationships that result from this Mutual Arbitration Agreement, or
any questions arising from or relating to the marketing, advertising, sales,
or any related purchase of products from Defenitely Naturals LLC OR
WWW.Defenitely Naturals.COM, SHALL, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, BE GOVERNED BY THE LAWS OF THE STATE OF NEW JERSEY, WITHOUT
REGARD TO CONFLICTS OF LAWS RULES.
If you reside outside of the United States, any claims we may have against
each other shall be brought before an arbitrator of the National Arbitration
Association in New York City, and all the other terms and conditions of this
Mutual Arbitration Agreement shall apply to you as if you were a resident of
New York City. In the event that, for any reason, the National Arbitration
Forum is unable or unwilling to arbitrate the Dispute in binding fashion,
then the default mechanism as set forth above for determining the
arbitration body to resolve the Dispute in binding fashion shall apply.
Each party shall pay for its own costs and attorneys' fees, if any, and
Defenitely Naturals LLC will endeavor to secure pro bono assistance for an
indigent claimant. However, if a party prevails on a statutory claim that
affords the prevailing party attorneys' fees, the arbitrator may award
reasonable fees to the prevailing party, under the standards for fee
shifting provided by law.
Defenitely Naturals LLC recognizes that the size of a claim against it may
be relatively minor compared to the expense in bringing and maintaining an
arbitration action, and Defenitely Naturals LLC recognizes that, by this
Mutual Arbitration Agreement, we have both waived our rights to proceed
against each other on a class action basis, whether in litigation or
arbitration. Although this Mutual Arbitration Agreement is reciprocal in
every respect, we understand that unequal bargaining power may exist between
you and Defenitely Naturals LLC in making this agreement. Therefore, in
light of our mutual waiver of the opportunity and right to litigate disputes
through a court and to have a judge or jury decide the case, and in light of
our mutual waiver of the opportunity and right to proceed against each other
in class-wide litigation or class-wide arbitration. In addition, we would
also be happy to try to settle our dispute via mediation before proceeding
to binding arbitration.
If you wish to try mediation before binding arbitration, then you and
Defenitely Naturals LLC hereby agree that any and every Dispute shall be
entertained by a mediator at the National Arbitration Forum (using the
contact information provided above for the National Arbitration Forum)
strictly between us within 30 days of your asking us for mediation of the
dispute. Any such mediation shall be held in the location designated by the
National Arbitration Forum, and shall be conducted according to the
mediation rules of the National Arbitration Forum in effect at the time that
the cause(s) of the Dispute arose or at the time that the Dispute is
mediated (whichever is determined, in the sole discretion of the mediator,
to be appropriate). You can review the mediation procedures on the website
of the Forum at http://www.adrforum.com/, or by asking the Forum for a copy
using the Forum's contact information provided above. In the event that, for
any reason, the National Arbitration Forum is unable or unwilling to mediate
the Dispute, then the default mechanism as set forth above for determining
the arbitration body to resolve the Dispute in binding fashion shall apply,
mutatis mutandis, for determining the mediation body, i.e., shall apply
giving due consideration to the difference in application between mediation
and arbitration.
You and Defenitely Naturals LLC hereby further agree that both of us shall
endeavor to resolve our mediated dispute in good faith. If, 150 days after
the commencement of mediation, we are not successful in resolving the
Dispute(s), then you and Defenitely Naturals LLC hereby agree that the
matter shall be resolved solely by binding arbitration strictly between you
and Defenitely Naturals LLC according to the terms, conditions, and
procedures for this outlined above.
No waiver of any breach of this Mutual Arbitration Agreement shall be
considered as a waiver of any subsequent breach of the same provision or
other provision.
If any provision of this Mutual Arbitration Agreement is held by any
competent legal, arbitral, or regulatory authority with jurisdiction to be
invalid or unenforceable in whole or in part, the validity of the other
provisions and the remainder of the affected provision shall be unaffected
and shall remain in full force and effect.
We shall have no liability to you for any delay in performance to the extent
that such delay is due to any event outside our reasonable control including
but not limited to acts of God, flood, fire, WAR, labor disputes,
sub-contractor delays, strikes, lock outs, riots, civil commotion, malicious
damage, explosion, governmental action and any other similar events. If we
are affected by any such event, then time for performance shall be extended
for a period equal to the period that such event or events delayed such
performance.
All third party rights are excluded and no third party shall have any right
to enforce this Mutual Arbitration Agreement.
For Disputes that arise from this particular purchase or website
browsing/usage, this current Mutual Arbitration Agreement supersedes all
prior or contemporaneous communications or proposals, whether electronic,
oral or written, between you and Defenitely Naturals LLC, whether with
respect to this website or any other matter. For Disputes that arise from
previous purchases or website browsing/usage, the Mutual Arbitration
Agreement terms at the time of the previous purchase or website
browsing/usage remain in effect.
This Agreement is an election to resolve claims, disputes, and controversies
by arbitration rather than the judicial process. IT IS UNDERSTOOD THAT THE
PARTIES WAIVE ANY RIGHT TO A JURY TRIAL OR A TRIAL IN COURT. The parties
understand that the rules applicable to arbitrations and the rights of
parties in arbitrations differ from the rules and rights applicable in
court. The arbitration will be conducted at an appropriate time and place
set by the arbitrator or panel in the county of sale. Purchaser(s)
acknowledge receipt of a copy of this Agreement. This Agreement dated
7/1/2014.
Defenitely Naturals, LLC 2014-07-27
**Individual results may vary. Results are based on adherence to the program and exercise.