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\n 15. Disputes & Arbitration
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This Section 15 (the “Arbitration Agreement”) applies to and\n governs any dispute, controversy, or claim between you and Cherry Valley, including\n but not limited to those that arise out of or relate to: (a) these Terms,\n including the formation, existence, breach, termination, enforcement,\n interpretation, validity, scope, or enforceability thereof; (b) access to or use\n of the Services, including receipt of any advertising or marketing\n communications or any information contained on the Services; (c) any\n transactions through, by, or using the Services, including any goods or services\n purchased or sold through, by, or using the Services or your consumption or use\n of those goods or services; or (d) any other aspect of your relationship or\n transactions with Cherry Valley as a consumer. You and Cherry Valley agree that the\n Retailers from which orders may be placed and goods may be purchased through the\n Services and/or through white label sites that are powered by Cherry Valley are\n intended third party beneficiaries of this Arbitration Agreement.
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Informal Dispute Resolution: You and Cherry Valley agree that\n good-faith informal efforts to resolve disputes often can result in a prompt,\n low-cost and mutually beneficial outcome. Therefore, before initiating formal\n proceedings, you and Cherry Valley agree to first attempt to work out any such\n dispute amicably. The initiating party must give notice to the other party in\n writing of its, his, or her dispute, including a written description of the\n dispute. For any dispute you initiate, you agree to provide written notice to:\n
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Cherry Valley
ATTN: Legal Department
155 Thomaston Ave
Waterbury, CT 06702
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Your written description must be on an individual basis and personally signed,\n and also provide at least the following information: your name; the email\n address associated with your account; a detailed description of the nature and\n basis of the dispute, including any transaction details; and the specific relief\n sought and how it was calculated. For any dispute that Cherry Valley raises, we will\n send our written description of the dispute (including the information listed\n above), signed by an authorized Cherry Valley representative, to the most recent\n delivery address associated with your account. The initiating party must allow\n the other party 60 days to respond and attempt to resolve the dispute amicably\n before initiating an arbitration or other proceeding per the terms set forth\n below.
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You and Cherry Valley agree that this informal dispute resolution process is a\n requirement that must be fulfilled prior to initiating an arbitration\n proceeding. The applicable statute of limitations period and any filing fee\n deadlines shall be tolled from the time the initiating party sends their written\n notice through the 60 day period set forth above.
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For residents of the United States, you agree to the following mandatory\n arbitration provisions:
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Mandatory Arbitration: If we’re unable to work out a solution amicably, both you\n and Cherry Valley agree to resolve through binding arbitration, rather than in\n court, any dispute, controversy, or claim arising at any time, including but not\n limited to those arising out of or relating to: (i) these Terms, including the\n formation, existence, breach, termination, enforcement, interpretation,\n validity, scope, or enforceability thereof; (ii) access to or use of the\n Services, including receipt of any advertising or marketing communications\n and/or any information contained on the Services; (iii) any transactions\n through, by, or using the Services, including any goods or services purchased or\n sold through, by, or using the Services and any consumption or use of those\n goods and services; or (iv) any other aspect of your relationship or\n transactions with Cherry Valley as a consumer. A Claim under this Section also\n includes all claims or disputes between you and any Retailer arising out of or\n related to the Services performed under this Agreement and/or services in\n connection with any white label sites that are powered by Cherry Valley. Any\n disputes or claims in this regard shall be resolved exclusively by an\n arbitrator.
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Notwithstanding this mandatory arbitration provision, (a) you may assert claims\n in small claims court, if your claims qualify and so long as the matter remains\n in such court and advances only on an individual (non-class, non-representative)\n basis, and (b) you and Cherry Valley each retain the right to seek injunctive or\n other equitable relief in a court of competent jurisdiction to prevent the\n actual or threatened infringement of a party’s intellectual property\n rights.
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This Arbitration Agreement shall apply, without limitation, to all claims that\n arose or were asserted before the Effective Date of these Terms.
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The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), governs the\n interpretation and enforcement of this Arbitration Agreement and preempts all\n state laws to the fullest extent permitted by law. If the FAA is found to not\n apply to any issue that arises from or relates to this Arbitration Agreement,\n then that issue shall be resolved under and governed by the law of the\n claimant’s state of residence.
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TRIAL BY JURY WAIVER: BY ENTERING INTO THESE TERMS, YOU\n ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY CLAIM(S) WITHIN THE SCOPE OF\n THIS ARBITRATION AGREEMENT, YOU AND Cherry Valley ARE EACH WAIVING THE RIGHT TO A\n TRIAL BY JURY.
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CLASS, COLLECTIVE, REPRESENTATIVE ACTION WAIVER: BY ENTERING\n INTO THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY CLAIM(S)\n WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT, YOU AND Cherry Valley ARE EACH\n WAIVING THE RIGHT TO BRING, JOIN, OR PARTICIPATE IN, EITHER AS A PLAINTIFF OR\n CLASS MEMBER, IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION OR\n PROCEEDING. YOU ALSO ACKNOWLEDGE AND AGREE THAT, UNLESS YOU AND Cherry Valley\n OTHERWISE AGREE IN WRITING, ANY ARBITRATION OF ANY CLAIM(S) WITHIN THE SCOPE OF\n THIS ARBITRATION AGREEMENT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT\n IN A CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. YOU FURTHER\n ACKNOWLEDGE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY IN YOUR FAVOR AND ONLY TO\n THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY YOUR INDIVIDUAL CLAIM(S),\n AND ANY RELIEF AWARDED CANNOT AFFECT OTHER Cherry Valley USERS. THE ARBITRATOR MAY\n NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR ENGAGE IN ANY CLASS,\n COLLECTIVE, OR REPRESENTATIVE ARBITRATION.
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Opt-out of Mandatory Arbitration: You can reject and opt-out of this Arbitration\n Agreement within 30 days of first accepting these Terms by emailing Cherry Valley at\n arbitration-opt-out@CherryValley.com with your first and\n last name and the email address associated with your account and stating your\n intent to opt-out of the Arbitration Agreement. Note that opting out of this\n Arbitration Agreement does not affect any other part of these Terms, including\n the provisions regarding controlling law or in which courts any disputes must be\n brought. \n
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Changes to Agreement to Arbitrate: If Cherry Valley changes this Section after the\n date you last accepted these Terms (or accepted any subsequent changes to these\n Terms), you may reject that change by sending us written notice via email as set\n forth above, within 30 days of the date the change is effective. Rejecting a new\n change, however, does not revoke or alter your prior consent or any earlier\n agreements to arbitrate any dispute between you and Cherry Valley and/or its\n Retailers.
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Except as described below for California\n residents, the arbitration shall be administered\n by the American Arbitration Association (“AAA”) under its Consumer Arbitration\n Rules (the “Rules”) in effect at the time the arbitration demand is made. The\n Rules are available at www.adr.org. In the event of any conflict between the\n Rules and this Arbitration Agreement, this Arbitration Agreement shall\n apply.
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The Parties agree to submit to the jurisdiction of a single neutral arbitrator\n (the “Arbitrator”) selected in accordance with the Rules. The Arbitrator will\n decide the rights and liabilities, if any, of you and Cherry Valley. The Arbitrator\n will have the authority to award the same damages and relief on an individual\n basis that a judge in a court of law can award to an individual. The Arbitrator\n shall follow the applicable law. The Arbitrator’s decision is final and binding\n on you and Cherry Valley.
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You and Cherry Valley agree that the Arbitrator, and not any federal, state, or local\n court or agency, shall have exclusive authority to resolve any disputes relating\n to the interpretation, applicability, enforceability or formation of this\n Arbitration Agreement, including any claim that all or any part of this\n Arbitration Agreement is void or voidable. The Arbitrator shall also be\n responsible for determining all threshold arbitrability issues, including issues\n relating to whether the Terms are unconscionable or illusory and any defense to\n arbitration, including waiver, delay, laches, unconscionability, or\n estoppel.
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The arbitration will be held in the United States county where you live or use\n the Services, or a location you and Cherry Valley mutually agree upon in writing. If\n your claim does not exceed $10,000, then the arbitration will be conducted\n solely on the basis of documents you and Cherry Valley submit to the arbitrator,\n unless the arbitrator determines that a hearing is necessary. If your claim\n exceeds $10,000, your right to a hearing will be determined by the Rules. \n
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The Rules will govern the payment of all filing, administrative or arbitrator\n fees (“Arbitration Fees”) and each party will be responsible for their own\n Arbitration Fees under those Rules or to the maximum extent permitted by\n law.
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For California residents, the arbitration shall be\n administered by ADR Services, Inc. (“ADR Services”) under its Arbitration Rules\n (the “ADR Services Rules”) in effect at the time the arbitration demand is made.\n The ADR Services Rules are available at:\n https://www.adrservices.com/services/arbitration-rules/. In the event of any\n conflict between the ADR Services Rules and this Arbitration Agreement, this\n Arbitration Agreement shall apply.
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For California residents, the Parties agree to submit to the jurisdiction of a\n single neutral arbitrator selected in accordance with the ADR Services Rules\n (the “ADR Arbitrator”). The ADR Arbitrator will decide the rights and\n liabilities, if any, of you and Cherry Valley. The ADR Arbitrator will have the\n authority to award the same damages and relief on an individual basis that a\n judge in a court of law can award to an individual. The ADR Arbitrator shall\n follow the applicable law. The ADR Arbitrator’s decision is final and binding on\n you and Cherry Valley.
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For California residents, you and Cherry Valley agree that the ADR Arbitrator, and\n not any federal, state, or local court or agency, shall have exclusive authority\n to resolve any disputes relating to the interpretation, applicability,\n enforceability or formation of this Arbitration Agreement, including any claim\n that all or any part of this Arbitration Agreement is void or voidable. The ADR\n Arbitrator shall also be responsible for determining all threshold arbitrability\n issues, including issues relating to whether the Terms are unconscionable or\n illusory and any defense to arbitration, including waiver, delay, laches,\n unconscionability, or estoppel.
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For California residents, the arbitration will be held in the California county\n where you live or use the Services, San Francisco, California, or any other\n location you and Cherry Valley mutually agree upon in writing.
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For California residents, the ADR Services Rules will govern the payment of all\n filing, administrative or arbitrator fees (“ADR Services Arbitration Fees”), but\n in no event will you be responsible for any portion of those fees in excess of\n the initial filing fee. After you pay your portion of any initial filing fee,\n Cherry Valley shall pay any remaining costs and expenses unique to arbitration,\n including, without limitation, the arbitrator’s fees and any ADR Services\n administrative or case management expenses.
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SEVERANCE OF ARBITRATION AGREEMENT
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If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in\n whole or in part, the void, unenforceable, or unlawful provision, in whole or in\n part, shall be severed. Severance of the void, unenforceable, or unlawful\n provision, in whole or in part, shall have no impact on the remaining provisions\n of the Arbitration Agreement, which shall remain in force, or the parties’\n ability to compel arbitration of any remaining claims on an individual basis\n pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the\n Class, Collective, Representative Action Waiver above is found to be void,\n unenforceable, or unlawful, in whole or in part, because it would prevent you\n from seeking public injunctive relief, then any dispute regarding the\n entitlement to such relief (and only that relief) must be severed from\n arbitration and may be litigated in a civil court of competent jurisdiction. All\n other claims for relief subject to arbitration under this Arbitration Agreement\n shall be arbitrated under its terms, and the parties agree that litigation of\n any dispute regarding the entitlement to public injunctive relief shall be\n stayed pending the outcome of any individual claims in arbitration.
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SURVIVAL OF ARBITRATION AGREEMENT
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Except as otherwise provided in this Section 15, this Arbitration Agreement will\n survive any termination of the Terms or of your access to the Services,\n including under Section 16 or otherwise. This Arbitration Agreement will\n continue to apply even if you or we close your Cherry Valley account.
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