YOU AND WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY DISPUTE, CLAIM, OR CONTROVERSY RELATING IN ANY WAY TO THE TERMS AND CONDITIONS, YOUR USE OF THE SITE, OR PRODUCTS SOLD—IRRESPECTIVE OF WHEN THAT DISPUTE, CLAIM, OR CONTROVERSY AROSE—WILL BE RESOLVED SOLELY BY BINDING, INDIVIDUAL ARBITRATION AS SET FORTH IN THE TERMS AND CONDITIONS, RATHER THAN IN COURT. YOU AND WE THEREBY EACH AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL, AND AGREE THAT YOU AND WE MAY BRING CLAIMS AGAINST EACH OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Exceptions. The arbitration agreement and class action waiver shall be subject to these limited exceptions:
- You may assert claims in small claims court if your claims apply.
- You and we each retain the right to participate in class-wide settlement of claims.
Informal Dispute Resolution. You and we each recognize and agree that good faith, informal efforts to resolve disputes often result in prompt, low-cost, and mutually beneficial outcomes. Therefore, you and we each agree that, before either of us may commence an arbitration or assert a claim in small claims court, you and we will engage in the following informal dispute resolution process:
- The party seeking to initiate a claim in arbitration or small claims court ("claimant") must give written notice to the other party ("respondent"). To notify us that you intend to initiate informal dispute resolution, you must send an email to Shop Nice Kicks at firstname.lastname@example.org, providing: your full name; the email address and mailing address associated with your Shop Nice Kicks account, if applicable; your counsel's name and contact information, if you are represented by counsel; and a brief description of your claim(s) and the relief sought. To notify you that we intend to initiate informal dispute resolution, we will email you at the email address associated with your Shop Nice Kicks account and provide a brief description of our claim(s) and the relief sought, and our counsel's name and contact information.
- You and we will then personally meet and confer, via teleconference or videoconference, in a good faith effort to informally resolve any claim covered by this mutual arbitration agreement. If either you or us is represented by counsel, that counsel may participate in the informal dispute resolution conference.
- All offers, promises, conduct, and statements made in the course of the informal dispute resolution process by any party, its agents, employees, and attorneys are confidential and not admissible for any purpose in any subsequent proceeding, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the informal dispute resolution process.
- The informal dispute resolution conference shall occur within sixty (60) days of receipt of the written notice described above, unless an extension is mutually agreed upon by you and us. If, after participating in that conference, you and we have been unable to resolve the dispute, the claimant may commence an arbitration or assert a claim in small claims court in accordance with this arbitration agreement.
- Any statute of limitations will be tolled while you and we engage in the informal dispute resolution process described in this section.
Governing Law; Interpretation and Enforcement. The arbitration agreement in the Terms and Conditions is governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) ("FAA"), including its procedural provisions, in all respects. This means that the FAA governs, among other things, the interpretation and enforcement of this arbitration agreement and all of its provisions, including, without limitation, the class action waiver. State arbitration laws do not govern in any respect. Further, you and we each agree that the Terms and Conditions evidence a transaction involving interstate commerce, and will be governed by and construed in accordance with federal law to the fullest extent possible.
Arbitration Generally; Relief Available. There is no judge or jury in arbitration, and court review of an arbitration award is limited pursuant to the FAA. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the Terms and Conditions as a court would. For the avoidance of doubt, the arbitrator can award public injunctive relief if authorized by law and warranted by the individual claim(s).
Arbitration Proceedings and Rules. The following rules and procedures shall apply:
- Any arbitration will be administered by New Era ADR in accordance with their Virtual Expedited Arbitration Rules and Procedures, as well as any applicable General Rules and Procedures, except as modified by the Terms. New Era ADR's Virtual Expedited Arbitration Rules and Procedures and General Rules and Procedures are both available at https://www.neweraadr.com/rules-and-procedures/.
- The arbitrator shall be selected pursuant to New Era ADR's standard rank and strike process, as set forth in New Era ADR's General Rules and Procedures.
- To increase the efficiency of administration and resolution of arbitrations: in the event of a claim seeking equitable relief (including injunctive relief), the arbitrator shall bifurcate the proceeding and rule on liability first, before conducting any proceedings (including discovery) related to the appropriate relief.
- Unless applicable law provides otherwise, the arbitration proceeding and all records pertaining to it—including but not limited to any documents prepared or produced in connection with the arbitration proceeding, as well as the hearing and the arbitration award—will be confidential and will not be disclosed to any third party, except as necessary to obtain court confirmation of the arbitration award.
In the event that New Era ADR is unable to conduct the arbitration for any reason, the arbitration will be conducted by FairClaims pursuant to its FastTrack Rules & Procedures, and/or any applicable rules for consumer arbitrations, available at https://www.fairclaims.com/. In the event that FairClaims is unable to conduct the arbitration for any reason, you and we will mutually select an alternative arbitration provider, and the arbitration will be conducted pursuant to that provider's applicable rules. If, pursuant to this paragraph, the arbitration is conducted by an arbitration provider other than New Era ADR, references to New Era ADR and its rules in the Terms shall be construed as references to that arbitration provider and its applicable rules.
Commencing an Arbitration. A party who has complied with the informal dispute resolution provisions described above, and who wishes to start arbitration, must submit a Demand for Arbitration and a copy of the Terms to New Era ADR at https://app.neweraadr.com/, and must also give notice to the other party. If the notice is being sent to us, it must be emailed to Shop Nice Kicks at email@example.com. If the notice is being sent to you, it will be sent to the email address associated with your Shop Nice Kicks account.
Arbitration Fees and Costs. If you commence an arbitration in accordance with the Terms and Conditions, you will be required to pay New Era ADR's $300 filing fee. You will not be responsible for paying any other fees for the arbitration, other than the filing fee; all other fees or expenses charged by New Era ADR will be paid by us (unless the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose). Further, if New Era ADR determines that you are unable to pay any part of the filing fee, we will pay that part too.
In the event that the arbitration is conducted by a different arbitration provider in accordance with the Terms and Conditions, payment of any filing, administration, or arbitrator fees shall be governed by that provider's rules.
You and we each agree that New Era ADR, FairClaims, JAMS, and any other arbitration provider selected pursuant to the Terms and conditions has discretion to modify the amount or timing of any fees due under any applicable rules or fee schedules, and further agree not to oppose any modifications to the timing or amount of any fees due—provided that such modifications do not increase the fees to either you or us.
Attorneys' Fees. You are responsible for your own attorneys' fees; we will not pay any attorneys' fees unless ordered to do so by the arbitrator. For the avoidance of doubt, in cases where a statute gives you the right to recover attorneys' fees if you prevail, the arbitrator may award attorneys' fees pursuant to that statute.
Delegation; Interpretation. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to the extent permitted by law to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable; however, in the event of a dispute about which particular version of this Agreement you agreed to, a court will decide that specific question. This arbitration agreement is intended to be broadly interpreted and will survive termination of the Terms.
Limited Right to Appeal. As explained above, court review of the arbitrator's decision is limited pursuant to the FAA; however, the Terms and Conditions provide a limited right to appeal the arbitrator's decision to a panel of JAMS arbitrators, as set forth in this sub-section. Specifically, in the event that the arbitrator awards injunctive relief against either you or us, the party against whom injunctive relief was awarded may—within 21 days of the arbitrator's final decision—appeal that decision to JAMS, in accordance with the following procedure:
Except as otherwise provided by the Terms and Conditions, the appeal will be conducted pursuant to the JAMS Optional Arbitration Appeal Procedure, available at https://www.jamsadr.com/.
To commence an appeal, a party must submit the Demand for Arbitration Form available at https://www.jamsadr.com/, and must also provide notice to the other party in the manner described above in this section.
The JAMS appeal panel will consist of arbitrators who are either (a) retired state or federal judges or (b) licensed attorneys with at least 20 years of active litigation experience and substantial expertise in the substantive laws applicable to the subject matter of the dispute.
The JAMS appeal panel will conduct a de novo review of the arbitrator's decision.
Except as provided in the FAA, there will be no right of appeal from the JAMS appeal panel's decision.