Any grievance not resolved pursuant to the Grievance Policy shall be subject to the following:
Dispute Resolution; Mandatory Arbitration; Class Action Waiver; Limitation on Time to File Claims (this section referred to as “Dispute Resolution Covenant”).
NOTE: THIS DISPUTE RESOLUTION COVENANT CONTAINS AMONG OTHER THINGS BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT AFFECT YOUR RIGHTS WITH RESPECT TO CERTAIN DISPUTES BETWEEN YOU AND ANY OF THE COMPANY AND THEIR PARENTS, SUBSIDIARIES AND OTHER AFFILIATES AND RELATED PARTIES AND THAT REQUIRE THAT CERTAIN DISPUTES BE SUBMITTED TO INDIVIDUAL ARBITRATION RATHER THAN TO A JUDGE AND JURY IN COURT AND PROVISIONS THAT LIMIT TIME TO FILE CLAIMS.
I. Dispute Resolution
In the event of any dispute, controversy or claim arising out of or in any way relating to this Agreement or otherwise or in any way arising out of the relationships between User and any of Company or their affiliates created through this Agreement or in any way related thereto or in connection therewith, such parties shall first attempt, in good faith, to resolve such dispute informally between them including without limitation considering any offers of settlement. If the parties are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then the User and User’s heirs, executors, administrators, successors, and assigns (for purposes of this Dispute Resolution Covenant, “User”) and the Company agree to use the arbitration procedures in this Dispute Resolution Covenant instead of a trial in court before a judge or jury.
II. Mandatory Arbitration, Confidentiality (the provisions of this subsection II referred to as “Mandatory Arbitration Covenants”)
Other than as expressly provided in this Dispute Resolution Covenant, User and the Company agree that any controversy, dispute, or claim that otherwise could be raised in court that the Company has against User or the User has against the Company or their respective current or former officers, directors, shareholders, direct or indirect owners, employees, vendors, clients, customers, agents, parents, subsidiaries, affiliated companies, related parties, successors or assigns (for purposes of this Dispute Resolution Covenant, all such persons and entities, “Company Entities”) arising out of or relating to this Agreement or otherwise (including without limitation the provision or utilization of benefits or other Company Entity goods or services) or the relationships between User and any of Company or any other Company Entities arising through, in connection with or in any way related to this Agreement or otherwise or arising out of any relationship arising out of or in connection therewith (“Covered Claim”) shall be settled exclusively by binding arbitration rather than in court. This Dispute Resolution Covenant does not preclude User or Company from filing a complaint with any governmental agency; however, it is the parties’ intent that all claims between them covered by this Dispute Resolution Covenant are to be resolved through binding arbitration to the fullest extent permitted by federal law (and state law that is not preempted by federal law), not an administrative proceeding or court. However, if an arbitration award would be rendered ineffectual without provisional relief including, but not limited to, preliminary injunctions or temporary restraining orders, either party may request such relief from a court of competent jurisdiction to preserve the status quo pending arbitration.
Covered Claims include, but are not limited to, claims for a refund or that an action taken or inaction by Company or other Company Entity resulted in monetary damages; breach of contract claims; tort claims; claims for unlawful retaliation, discrimination and/or harassment; and claims for violation of any federal, state, or other government law, statute, regulation, or ordinance, such as, for example, the Act. The only claims deemed not Covered Claims are: claims attacking the validity of the waiver (see subsection III below) and claims which are not subject to arbitration, or to pre-dispute arbitration agreements, pursuant to federal law.
Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties.
III. Waiver of Multi-Plaintiff, Class, Collective and Representative Actions (for purposes of this Dispute Resolution Covenant, the provisions of this subsection III referred to as “waiver”)
Except where prohibited by federal law, covered claims must be brought on an individual basis only, and arbitration on an individual basis is the exclusive remedy for Covered Claims. Neither party may submit a multi-plaintiff, class, collective, or representative action for resolution under this Agreement or otherwise or for any other claim, and no arbitrator has authority to proceed with arbitration on such a basis. Notwithstanding anything in this Agreement, any disputes concerning the validity of this multi-plaintiff, class, collective, and representative action waiver will be decided by a court of competent jurisdiction, not by the arbitrator. In the event a court determines that this waiver is unenforceable with respect to any claim or portion of a claim, this waiver shall not apply to that claim or portion of the claim, which may then only proceed in court as the exclusive forum.
IV. Authority to Determine Arbitrability
Except as provided in subsection III of this Dispute Resolution Covenant, the arbitrator shall have the exclusive authority to resolve any dispute relating to the enforceability or formation of this Dispute Resolution Covenant, or any portion or application of any of it such as, for example, any of the Mandatory Arbitration Covenants, (including all defenses to contract enforcement such as, for example, waiver and unconscionability) or the arbitrability of any claim. Enforcement of this Dispute Resolution Covenant may not be precluded or delayed on the grounds that (1) a party to this Agreement also is a party to a pending court action or special proceeding with a third party arising out of the same transaction or series of related transactions, or (2) a party to this Agreement asserts arbitrable and non-arbitrable claims.
The demand for arbitration must be in writing. To initiate arbitration, User must deliver the written demand to the Company at 6155 N. Ocean Blvd., Ocean Ridge, FL 33435, Attn: Legal Department to give Company or the Company Entities with whom you have a dispute the opportunity to resolve the dispute informally. For the Company to initiate arbitration, it must deliver the written demand for arbitration to User at the last known address recorded in Company’s records. The party initiating arbitration also must, within the limitations period (discussed below), submit the written demand to the arbitration service that will administer the claim (as explained below). The Company shall pay all arbitration fees and costs that would not be incurred in a court proceeding (for example, the arbitrator’s or the arbitration administration fees).
The arbitration shall be before a single neutral arbitrator. The arbitration will be an individual arbitration and shall in no event be commenced as a multi-plaintiff, class, collective, or representative arbitration. Unless the parties otherwise agree, the American Arbitration Association (“AAA”) shall administer the arbitration and the hearing shall take place in the county in which the dispute arose (or if User so chooses in Palm Beach County, Florida). The American Arbitration Association’s Consumer Arbitration Rules (“AAA Rules”), or the consumer rules of the arbitration service used, shall govern the arbitration proceedings, but to the extent the rules conflict with this Agreement, the provisions of this Agreement shall apply. User may obtain a copy of the AAA rules before signing this Agreement at www.adr.org or by contacting the AAA directly (toll-free 800-778-7879). Consistent with the expedited and streamlined nature of arbitration contemplated hereby, each party shall have the right to conduct discovery adequate to fairly present the claims, counterclaims and defenses and, in furtherance thereof, upon the written request of a party, the arbitrator may direct the other party to provide the requesting party with copies of documents relevant to the issues raised by any claim, counterclaim or defense or on which the producing party may rely in support of or in opposition to any claim, counterclaim or defense, with due regard for eliminating undue burden and expense and the expedited and lower-cost nature of arbitration. The arbitrator shall exclude, from discovery, documents, and, from arbitration proceedings, evidence, that the arbitrator decides is cumulative or not relevant. Any dispute regarding discovery, or the relevance or scope thereof, shall be determined by the arbitrator.
The arbitrator shall apply the substantive law relating to all claims and defenses to be arbitrated in the same manner as if the matter had been heard in court, including the award of any remedy or relief on an individual basis and any award of costs and attorneys’ fees to the prevailing party. Otherwise, the parties shall each bear their own costs and attorneys’ fees. Unless otherwise permitted by applicable law, the costs unique to arbitration (for example, the arbitrator’s or the arbitration administration fees) will not be shifted to User. The arbitrator’s award shall be in writing, with factual findings, reasons given, and evidence cited to support the award. Any authorized decision or award of the arbitrator shall be final and binding on the parties. Any court of competent jurisdiction may enter judgment upon the award, either by (i) confirming the award or (ii) vacating, modifying, or correcting the award on any ground permitted by applicable law.
VI. Time to file limitation
IMPORTANT – LIMITATION ON TIME TO FILE CLAIMS – PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BEFORE SIGNING
User and Company agree that any claim covered by this Dispute Resolution Covenant must be filed no more than twelve (12) months after the date of the action or incident that is the subject of the claim. User understands that the statute of limitations for claims arising out of a contract, tort or statutory action may be longer than twelve (12) months and agrees to be bound by the twelve (12) month period of limitations. User AND COMPANY WAIVE ANY STATUTE OF LIMITATIONS TO THE CONTRARY. This paragraph does not limit the time period for bringing a claim that is not covered by this Agreement (see subsection II).
VII. Governing Law, Consideration, Severability, Survival, Final Agreement, Acknowledgement
The Federal Arbitration Act (9 U.S.C. Sections 1, et seq.) (“FAA”) shall govern this Dispute Resolution Covenant. State arbitration statutes shall apply only to the extent they are not preempted by the FAA. The Parties agree that the mutual promises to arbitrate Covered Claims serve as adequate consideration. To the extent permitted by applicable law, mutual covenants in this Agreement, User’s right to the benefits set forth in this Agreement and the Company’s agreement to pay all fees and costs unique to arbitration (for example, the arbitrator’s or the arbitration administration fees) each serve as additional consideration.
If any part of this Dispute Resolution Covenant is held to be invalid, void, or unenforceable, it shall be interpreted in a manner or modified to make it enforceable. If that is not possible, it shall be severed and the remaining provisions of this Dispute Resolution Covenant shall remain in full force and effect.
This Dispute Resolution Covenant shall survive any termination of this Agreement. This Dispute Resolution Covenant sets forth the final agreement of the parties regarding dispute resolution and supersedes all prior negotiations, representations or agreements, whether written or oral, pertaining to arbitration of claims covered by the Dispute Resolution Covenant.
BY ACCEPTING THESE TERMS AND CONDITIONS, I ACKNOWLEDGE THAT I HAVE RECEIVED AND READ OR HAVE HAD THE OPPORTUNITY TO READ THIS DISPUTE RESOLUTION COVENANT. I UNDERSTAND THAT THIS DISPUTE RESOLUTION COVENANT REQUIRES THAT, AMONG OTHER THINGS, DISPUTES THAT INVOLVE THE MATTERS SUBJECT TO THIS DISPUTE RESOLUTION COVENANT BE SUBMITTED TO INDIVIDUAL ARBITRATION PURSUANT TO THIS DISPUTE RESOLUTION COVENANT RATHER THAN TO A JUDGE AND JURY IN COURT.