PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATING TO ANY PURCHASE YOU MAKE VIA THIS WEBSITE, ANY INFORMATION YOU PROVIDE VIA THIS WEBSITE, THIS AGREEMENT (INCLUDING ITS FORMATION, PERFORMANCE, OR ALLEGED BREACH), AND YOUR USE OF THE WEBSITE WILL BE EXCLUSIVELY RESOLVED UNDER CONFIDENTIAL BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO BRING A LAWSUIT IN COURT AGAINST FBH, INCLUDING THE RIGHT TO A TRIAL BY JURY, AND RIGHTS AVAILABLE IN A COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. ARBITRATION IS A FORM OF PRIVATE DISPUTE RESOLUTION IN WHICH PARTIES TO A CONTRACT AGREE TO SUBMIT THEIR DISPUTES AND POTENTIAL DISPUTES TO A NEUTRAL THIRD PERSON (CALLED AN ARBITRATOR) FOR A BINDING DECISION, INSTEAD OF HAVING SUCH DISPUTE DECIDED IN A LAWSUIT, IN COURT, BY A JUDGE OR JURY TRIAL.
YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF 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.
Generally. Arbitration is a method of resolving a Claim without filing a lawsuit. “Claim” means any dispute between you, FBH, and/or any involved third party relating to your account, Your Use (defined here), your relationship with FBH, or these Terms of Use and Conditions of Purchase. This includes any and all claims that relate in any way to your use of the products, your attempted use of the products, and any act or omission by FBH or any third party related to your use or attempted use of the products. You, FBH, or any involved third party may pursue a Claim. FBH agrees to binding arbitration should it have any Claims against you. Likewise, you agree to binding arbitration should you have any Claims against FBH. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to binding arbitration. This arbitration provision sets forth the terms and conditions of our agreement to binding arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.
Exceptions to Binding Arbitration. As an exception to binding arbitration, you and FBH both retain the right to pursue, in a small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis. FBH 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 pending only in that court. Binding arbitration also does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, or trademark infringement or dilution.
Mandatory Pre-Dispute Procedures. You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against FBH, you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us, including, but not limited to, information or representations related to our products and upon which you rely. You may send the written description by U.S. Mail to FBH NUTRITION Inc (USA), 6628 Stirling Road, Hollywood , Florida33024 Commencement of Arbitration. Except where otherwise prohibited by law (including, without limitation, the State of New Jersey), You and FBH agree to commence any arbitration proceeding within 1 year after the Claim arises (including the mandatory pre-dispute procedures outlined above) and that any proceeding commenced after 1 year shall be barred.
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 FBH agree.
Applicable Law. This Agreement has been made in and will be construed and enforced in accordance with the laws of the State of Florida, without regard to principles of conflict of laws thereof
Sponsoring Organization, Rules and the Arbitrator. You agree that any Claims shall be resolved by submitting the dispute to final and binding confidential arbitration before a single arbitrator who is a retired judge or an experienced attorney with experience in the subject(s) of the Claim. The arbitrator shall be chosen from JAMS Comprehensive Arbitration Rules and Procedures and the arbitration rules of the selected tribunal shall apply, which can be obtained by calling the selected tribunal.
The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms of Use and Conditions of Purchase and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or FBH.
Arbitration Fees. FBH shall pay for all filing, administrative, and arbitrator fees for an arbitration initiated by either party. 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. However, if FBH is the prevailing party in the arbitration, applicable law may allow the arbitrator to award attorneys’ fees and costs to FBH.
Arbitration Award. The arbitrator shall follow substantive law and may order any relief if permitted by law. The arbitrator may award any form of individual relief, including injunctions and punitive damages, so long as they are in accordance with applicable law. 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 written opinion and shall be final, subject to appeal under the FAA.
Enforceability. This provision survives termination of your account or relationship with FBH, 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.
Miscellaneous. This provision is the entire arbitration agreement between you and FBH and shall not be modified except in writing by FBH.
Amendments. FBH reserves the right to amend this arbitration provision at any time. Your continued use of any FBH Website, purchase of an FBH product, or use or attempted use of an FBH product, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, FBH will provide you notice. Your continued use of any FBH Website, purchase of an FBH product, or use or attempted use of an FBH product, after receiving such notice is affirmation of your consent to such material changes.
YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN 30 DAYS FROM THE DATE OF PURCHASE, USE, OR ATTEMPTED USE OF AN FBH PRODUCT (WHICHEVER COMES FIRST) BY WRITING TO PEJUAN (USA), LLC, 6628 Stirling Road, Hollywood, Florida, 33024; ATTN: GENERAL COUNSEL. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY FBH PRODUCT YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE OF FBH PRODUCTS. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST THEN PURSUE YOUR CLAIM THROUGH ARBITRATION PURSUANT TO THESE TERMS.
