DISPUTE RESOLUTION AND BINDING ARBITRATION IF YOU ARE A CONSUMER
This clause 17 only applies if you are a consumer.
17.1 YOU AND LES MILLS ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT (OTHER THAN SMALL CLAIMS COURT) OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION OR SMALL CLAIMS COURT. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF EQUIPMENT, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION (OR IN SMALL CLAIMS COURT).
17.2 Informal Dispute Resolution Procedure. We are available at firstname.lastname@example.org to address any concerns you may have regarding these Purchase Terms or your use of the Equipment. Most concerns may be quickly resolved in this manner. You and we agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations, which shall be a precondition to either party initiating an arbitration or small claims court suit. If you or Les Mills intends to seek arbitration or file a small claims court suit, the party seeking arbitration or small claims court must first notify the other party of the dispute in writing at least 45 days in advance of initiating the arbitration or small claims court suit (the “Notice Period”). Notice to Les Mills should be sent to:
Les Mills United States Trading, Inc.
Address: 363 W Erie St, Suite 200, Chicago, IL 60654
(with a copy sent to email@example.com).
The notice must include enough information to allow the receiving party to assess and attempt to resolve the dispute, including but not limited to, (i) the name, address, telephone number, and email address of the party seeking arbitration or small claims court, (ii) the product or service at issue, (iii) a description of the claim, (iv) the facts supporting the claim, (v) the damages claimed to have been suffered, and (vi) the relief being sought (the “Dispute Notice”). The Notice Period is designed to allow you or Les Mills to make a fair, fact-based offer of settlement if either chooses to do so. Engaging in this informal dispute resolution process is a requirement that must be fulfilled before commencing arbitration or a small claims court suit. The statute of limitations shall be tolled while the parties engage in the informal dispute resolution process required by this Section 17.2.
17.2 Agreement to Binding Arbitration, Except for Small Claims Court. If the parties do not reach an agreed upon solution within a period of forty-five (45) days from the time a Dispute Notice is sent pursuant to Section 17.2 above, then either party may initiate binding arbitration (or bring an action in small claims court pursuant to Section 17.4 below). All claims arising out of or relating to these Purchase Terms (including their formation, performance and breach), the Equipment and/or the parties’ relationship with each other shall be finally settled by binding arbitration administered by the AAA, in accordance with the AAA Consumer Arbitration Rules (“Consumer Rules”), excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the AAA Consumer Rules. Except as stated to the contrary in Sections 17.4 or 17.6 below, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or scope of these Purchase Terms, including, but not limited to, any claim that all or any part of these Purchase Terms is void or voidable. You or we may elect to appear at the arbitration by phone or, if you and we both agree, to conduct it online, in lieu of appearing live. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms of Service shall be subject to the Federal Arbitration Act.
The AAA Consumer Rules governing the arbitration may be accessed at www.adr.org. In an arbitration, you shall be required to pay no more than half of the total administrative, facility and arbitrator fees (collectively, “AAA-related fees”), or $200.00 of such fees, whichever is less, and Les Mills shall pay the remainder of such fees. If the law allows for an award of attorney’s fees, expert witness fees, or costs incurred by you should you prevail in arbitration, an arbitrator may award them too. You will not be required to pay any fees or costs incurred by us if you do not prevail in arbitration, unless the arbitrator determines that the claim was brought in bad faith, in which case the arbitrator may award Les Mills its attorney’s fees, expert witness fees, AAA-related fees and/or costs.
Each side may, but is not obligated to, make a written settlement offer, inclusive of damages and attorney’s fees itemized separately, at any time prior to 30 days before an arbitration hearing. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an interim award on the claim. If the party receiving the offer doesn’t accept it, and the arbitrator awards the receiving party an amount of damages that is less than or substantially the same as the amount of damages offered, then the arbitrator shall limit any recoverable attorney’s fees to the amount incurred at the time of the offer, so long as the attorney’s fees tendered in the offer are substantially the same as the fees incurred as of the offer date.
The parties understand that, absent these mandatory provisions, they would have the right to sue in court (other than small claims court) and have a jury trial. They further understand that the right to discovery may be more limited in arbitration or small claims court; and review of an arbitration award (or small claims court judgment) also may be limited.
17.3 Small Claims Court Remains Available. Notwithstanding anything in these Purchase Terms to the contrary, for disputes within the jurisdictional limit of the small claims court in the county encompassing the dispute, either you or Les Mills can choose to bring an individual action in small claims court instead of proceeding in arbitration; furthermore, if the claims in any request or demand for arbitration could have been brought in small claims court, then either you or Les Mills may choose to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party and AAA of that choice in writing. You and we agree that, after receiving notice from you or us that the claims shall be decided by a small claims court rather than in arbitration, AAA shall administratively close the case. Any disagreements regarding the jurisdiction of the small claims court or the interpretation or application of the provisions of this Section 17.4 specifically shall be decided by a court rather than an arbitrator; pending resolution of any such disagreements by a court, you and Les Mills agree that the arbitration shall be stayed. If the provisions in this Section 17.4 are found to be invalid for some reason, then the provisions shall be severable; in no event will the provisions allow for an action or arbitration to be brought on a class or collective basis.
17.4 Exception – California Private Attorneys General Act (PAGA) Action. Notwithstanding the parties’ agreement to resolve all disputes through arbitration or small claims court, either party may seek relief in a court of law (other than small claims court) for a claim arising under California’s Private Attorneys General Act.
17.5 Class Action and Class Arbitration Waiver. You and Les Mills acknowledge and agree that you and Les Mills are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class, collective, consolidated or representative proceeding. Further, unless both you and Les Mills otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any class, collective, consolidated or representative proceeding. If there is a final determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy will be severed and may be brought in a court of competent jurisdiction, but the waiver contained in this paragraph shall be enforced in arbitration on an individual basis as to all other claims, causes of action or requested remedies to the fullest extent possible. In the event that a claim, cause of action or requested remedy is severed pursuant to this Section 17.6, then you and Les Mills agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator. If a court or arbitrator decides that any part of Section 17 of the Contract cannot be enforced as to a particular request for public injunctive relief, then that request for public injunctive relief (and only that request for public injunctive relief) must be brought in court and must be stayed pending arbitration of the arbitrable remedies. Notwithstanding anything in these Purchase Terms to the contrary, all disputes related to the enforceability and applicability of this Class Action and Class Arbitration Waiver and the provisions of this Section 17.6 specifically shall be resolved by a court and not an arbitrator.
17.6 Exception – Mass Arbitration. Notwithstanding anything in these Purchase Terms to the contrary, if Les Mills receives 30 or more Dispute Notices related to the same or similar subject matter and sharing common issues of law or fact, and counsel for the individuals submitting the Dispute Notices are the same or coordinated, then if the disputes proceed in arbitration, they shall proceed in a coordinated manner, as follows: (a) counsel for the claimants and counsel for Les Mills shall each select five (5) cases to proceed in arbitration on an individual basis in a series of “bellwether” proceedings; (b) the remaining cases shall be stayed and/or held in abeyance until the first ten (10) have been fully and finally resolved; (c) if the parties are unable to resolve the remaining cases after the conclusion of the initial ten (10) “bellwether” proceedings, then each side may select another five (5) cases (or such fewer number as remain unresolved) to proceed in arbitration on an individual basis, with the remaining cases, if any, stayed and/or held in abeyance; and (d) this process shall continue until the parties are able to resolve all of the claims. If the provisions of this Section 17.7 are found to be invalid for some reason, then the provisions shall be severable; in no event will the provisions allow for an action or arbitration to be brought on a class or collective basis.
17.7 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following email: firstname.lastname@example.org. The notice must be sent within thirty (30) days of placing an order for Equipment, otherwise you shall be bound to arbitrate disputes in accordance with the terms of this Section 17. If you opt-out of these arbitration provisions, we also will not be bound by them.
17.8 Exclusive Venue for Litigation. In the event that the arbitration provisions set forth in Section 17 are determined not to apply, or if you have opted out of arbitration, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Cook County, Illinois (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Cook County, Illinois for any litigation other than small claims court actions. In the event of litigation relating to these Purchase Terms, the parties agree to waive, to the maximum extent permitted by law, any right to a jury trial, except where a jury trial waiver is not permissible under applicable law.