MBD Arbitration Agreement
Keeping in mid the high cost of legal disputes, both financially and in time and energy, both you and Moments By Design, LLC (“MBD”) agree that any controversy, claim, action, or dispute in any way related to your use of MBD website, any purchase from MBD, or to any products or services sold or distributed by MBD (“Dispute”) will be resolved by this dispute resolution procedure and arbitration agreement (“Arbitration Agreement”).
Informal Dispute Resolution
A party who intends to seek arbitration must first send a
Either party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”).
describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Notice shall be sent
(1) to Moments By Design at: Moments By Design Legal Department, 14068 Stevens Point Drive, Frisco, TX 75033, Attn: General Counsel, or
(2) to you at: your last-used billing address or the billing and/or shipping address in your online profile or electronic mail.
The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or MBD may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or MBD shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, and the arbitrator issues you an award that is greater than the value of MBD’s last written settlement offer, then MBD will instead pay you either the amount of the award or $500, whichever is greater. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.
Both you and MBD agree that this dispute resolution procedure is a condition precedent which must be satisfied prior to initiating any arbitration or filing any claim against the other party.
Scope of Arbitration Agreement
To the extent you cannot resolve any Dispute through the informal dispute resolution procedure described above, a Dispute shall be resolved through binding individual arbitration. Accordingly, you and MBD agree to give up the right to go to court to assert or defend rights under this Arbitration Agreement and with respect to any Dispute. You and MBD expressly delegate to the arbitrator the authority to determine the arbitrability of any Dispute, including the scope, applicability, validity, and enforceability of this Arbitration Agreement.
How Arbitration Works
Either party may initiate arbitration, which shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (“AAA Rules”), as modified by this Arbitration Agreement. The AAA Rules are available on the AAA’s website www.adr.org, or by calling the AAA at (800) 778-7879. Any arbitration hearings will take place in the county (or parish) of MBDs physical address, provided that if the claim is for $5,000 or less, you may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of MBDs physical address.
In the event the AAA is unavailable or unwilling to hear the Dispute, the parties shall agree to another arbitration provider. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s applicable rules. MBD will reimburse those fees in an amount up to $500. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where MBD’s physical address is located at or at another mutually agreed location.
Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
Waiver of Right to Bring Class Actions and Representative Claims.
All arbitrations shall proceed on an individual basis. The arbitrator is empowered to resolve the Dispute with the same remedies available in court, however, any relief must be individualized to you and shall not affect any other customer. You and MBD agree that each may bring claims against the other in arbitration only in your or their respective individual capacities and in so doing you and MBD hereby waive the right to a trial by jury, to assert or participate in a class action lawsuit or class action arbitration (either as a named-plaintiff or class member), and to assert or participate in any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular cause of action, then that cause of action (and only that cause of action) must remain in court and be severed from any arbitration.
This Arbitration Agreement shall be governed by, and interpreted, construed, and enforced in accordance with the Federal Arbitration Act and, where applicable, the law of the State of Texas. The terms of the Arbitration Agreement provisions shall survive after your relationship with MBD and/or use of our websites or other services and products ends. Except as set forth above, if any portion of this Arbitration Agreement is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Agreement.