Mindful of the high cost of legal disputes, not only in dollars but also in time and energy, both you and Market Mark, Inc. and its subsidiaries (“Market Mark”) agree that any controversy, claim, action, or dispute in any way related to your use of any Market Mark website, any purchase from Market Mark, or to any products or services sold or distributed by Market Mark (“Dispute”) will be resolved by this dispute resolution procedure and arbitration agreement (“Arbitration Agreement”).
Informal Dispute Resolution. Either party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by first class or registered mail) 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 Market Mark at: Market Mark Legal Department, 2512 Collins St. Philadelphia, PA 19125, Attn: General Counsel, or
(2) to you at: your last-used billing address or the billing and/or shipping address in your online profile.
Both you and Market Mark 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 Market Mark 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 (except small claims, as described below). You and Market Mark 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.
Right to Bring Small Claims in Court. Instead of arbitration, either you or Market Mark may bring any individual claim in small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual claim.
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. 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. Market Mark will reimburse those fees in an amount up to $10,000. Market Mark also waives its own right to seek attorneys’ fees and costs in arbitration. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
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 Market Mark 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 Market Mark 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.
Other Terms. 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 Commonwealth of Pennsylvania. The terms of the Arbitration Agreement provisions shall survive after your relationship with Market Mark 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.