NUTS ARBITRATION AND DISPUTE RESOLUTION AGREEMENT

 

This Arbitration and Dispute Resolution Agreement (this “Arbitration Agreement”) is incorporated into, and form an integral part of, the NUTS Terms of Service "https://www.nutstechnologies.com/terms-of-service". Unless otherwise defined herein, capitalized terms shall have the meaning ascribed them in the Terms of Service. Any breach of the terms below will be deemed a material breach of the Terms.

 

  1. By using the Software and accepting the Terms, you agree that you are required to resolve any claim that you may have against NUTS on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against NUTS, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against NUTS by someone else.

  2. YOU AND NUTS MUTUALLY AGREE TO WAIVE EACH OF YOUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This Arbitration Agreement is governed, if applicable, by the Federal Arbitration Act and survives after the Terms terminate or your relationship with NUTS ends. ANY ARBITRATION UNDER THIS ARBITRATION AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided herein, this Arbitration Agreement applies to all Claims (defined below) between you and any Covered Persons.  All Covered Persons shall be considered intended third party beneficiaries of this Arbitration Agreement.  The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes hereunder, and the arbitration will be conducted before a single arbitrator.

  3. Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN YOU AND ANY COVERED PERSON (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND THE APPLICABLE COVERED PERSON(S).  These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: the Terms and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Software, your relationship with any Covered Person, the threatened or actual suspension, deactivation or termination of your Account or the Terms, payments made by you or any payments made or allegedly owed to you, any promotions or offers made or allegedly made by or on behalf of a Covered Person, any Applicable Law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by NUTS and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims.  All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of this Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided herein.

  4. BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND NUTS ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.

  5. YOU UNDERSTAND AND AGREE THAT YOU AND NUTS MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND NUTS BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SECTION SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST NUTS, WHICH ARE ADDRESSED SEPARATELY HEREINBELOW.  The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims.  Notwithstanding any other provision of the Terms, this Arbitration Agreement or the applicable rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator.  In any case in which: (a) the dispute is filed as a class, collective, or representative action and (b) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining claims and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.

  6. Any arbitration pursuant to this Arbitration Agreement will take place exclusively in Chicago, Illinois.  This Arbitration Agreement shall not require arbitration of actions brought in small claims court, or any action to seek injunctive or other equitable relief.  Without limiting the foregoing, you acknowledge that in the event of any breach or threatened breach of the Terms by you, NUTS would suffer irreparable injury not compensable by money damages and for which NUTS would not have an adequate remedy available at law.   You acknowledge that NUTS, in addition to any other remedies it may have, shall, in the event of any such breach or threatened breach, be entitled to equitable relief, including, without limitation, temporary and permanent injunctive relief, without posting of any security or bond and without proof of actual damages or loss.  The foregoing shall be in addition to and without prejudice to such other rights as the NUTS may have under the Terms or applicable law.