Terms & Conditions

TERMS OF SERVICE

Welcome to the Internet sites of Obvious Wines LLC ("Obvious Wines"). Each Obvious Wines Site is operated by Obvious Wines LLC, and its affiliates (collectively referred to herein as "we," "us," or "our").

 

PLEASE NOTE THAT YOUR USE OF THE OBVIOUS WINES SITE IS SUBJECT TO THE FOLLOWING TERMS ("TERMS OF SERVICE"). IF YOU DO NOT AGREE WITH ANY OF THESE TERMS OF SERVICE, DO NOT ACCESS OR OTHERWISE USE THIS OBVIOUS WINES SITE OR ANY INFORMATION OR MATERIALS CONTAINED ON THE SITE. YOUR USE OF THE OBVIOUS WINES SITE SHALL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW. THE TERMS OF SERVICE MAY BE UPDATED BY OBVIOUS WINES FROM TIME TO TIME WITH OR WITHOUT NOTICE TO YOU. YOUR CONTINUED USE OF THE OBVIOUS WINES SITE INDICATES ACCEPTANCE OF ANY MODIFICATIONS TO THE TERMS OF SERVICE.

 

 

 

USER OBLIGATIONS

You agree not to do any of the following while using the Obvious Wines Site:

 

Intentionally or unintentionally violate any applicable law or regulation.

Access, tamper with, or use nonpublic areas of the Obvious Wines Site or Obvious Wines's computer systems. Unauthorized individuals attempting to access or tamper with these areas may be subject to prosecution.

You will not access the Obvious Wines Site with any manual or automated process for any purpose other than to purchase Obvious Wines products and services as expressly allowed by these terms and conditions. Use of any automated system or software to extract data from the Obvious Wines Site (“data scraping”) is prohibited, regardless whether such use is for commercial or noncommercial purposes.

Frame or link to the Obvious Wines Site except as permitted in writing by Obvious Wines.

 

 

THE SALE OF ALCOHOLIC BEVERAGES

Obvious Wines does not sell alcohol to persons under the age of 21. By using this site you swear and affirm that you are over the age of 21. Obvious Wines makes every effort to ensure that alcoholic beverages are not delivered to anyone who is under the age of 21. By using this site you are acknowledging that the person receiving a shipment of alcoholic beverages from Obvious Wines is over the age of 21. You also agree that any alcohol purchased from Obvious Wines is intended for personal consumption and not for resale. If you do not agree with these conditions of use please do not use this site. If you intentionally or unintentionally misrepresent your age in order to provide alcohol to a person under the age of 21 Obvious Wines will prosecute you fully to the extent allowable by law.

WARNING: Drinking distilled spirits, beer, coolers, wine and other alcoholic beverages may increase cancer risk, and, during pregnancy, can cause birth defects. For more information go to https://www.p65warnings.ca.gov

 

 

TITLE AND OWNERSHIP

Title to, and ownership of, all wine passes from Obvious Wines to the purchaser at the warehouse and state it is purchased in and the purchaser takes all responsibility for shipping it from the warehouse to his/her home state. By arranging for transportation of the wine, Obvious Wines is providing a service to, and acting on behalf of the purchaser. By utilizing this service from Obvious Wines, the purchaser is representing that he/she is acting in a fashion compliant with his/her local and state laws regarding the purchase, transportation and delivery of wine. The purchaser represents that he/she has obtained any required permission, paid any required fees, is working through properly licensed intermediaries where required, is legally entitled to take possession of wine and is legally entitled to take quantities ordered and once again authorizes that he/she is 21 years of age.

 

 

 

THIRD PARTY CONTENT AND MONITORING

Any opinions, advice, statements, services, offers, events or other information or content expressed or made available on this Obvious Wines Site by third parties (including information providers and users) are those of the respective author(s) or distributor(s) and not of Obvious Wines. Obvious Wines neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on this Obvious Wines Site by anyone other than authorized Obvious Wines employees acting in their official capacities.

 

 

 

PARENTAL CONTROL PROTECTIONS

As required by the Communications Decency Act of 1996, Obvious Wines hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to Content that may be harmful to minors. Among the many companies that provide Internet blocking and screening software are CyberPatrol, NetNanny, SurfWatch, and GuardOne. Obvious Wines does not sponsor or endorse any of these companies or their services.

 

 

 

RETURNS

10 DAY RETURN POLICY – UNUSED PRODUCTS ONLY AND CANCELLATIONS

Returns and cancellations are only accepted within 10 days of the date of purchase. To be eligible for a return, your item must be unused and in the same condition that you received it. It must also be in the original packaging.

 

To return your wine, please contact us at wecare@obviouswines.com. If the product is received by us in unused and undamaged condition and in its original packaging, we will refund your purchase.

 

DAMAGED IN SHIPMENT

If you receive your wine and it has been damaged during shipment, please email us at wecare@obviouswines.com within 3 days of receiving the shipment. Include a description of the damages and include pictures if possible. This information is extremely helpful to us in making sure that our products are packaged and shipped properly. We will arrange for the damaged products to be replaced.

 

REFUNDS

Once your return is received and inspected, we will send you an email to notify you that we have received your returned item. We will also notify you of the approval or rejection of your refund. If you are approved, then your refund will be processed, and a credit will automatically be applied to your credit card or original method of payment, within a certain amount of days.

 

EXCHANGES

We only replace items if they are defective or damaged. If you need to exchange it for the same item, send us an email at wecare@obviouswines.com.

 

 

 

PROTECTION OF CONTENT PROVIDED BY OBVIOUS WINES AND ITS LICENSORS

All text, prices, graphics, logos, icons, images, audio clips and software on the Obvious Wines Site ("Site Content") are copyrighted materials owned by or licensed to Obvious Wines. The Site Content may contain trademarks, service marks and trade names which are owned by Obvious Wines and its affiliates, and may also contain brand and product names which are trademarks, service marks or trade names which are owned by certain third parties. Any Events described in the Site Content may be subject to other intellectual property rights, the exercise of which rights are expressly reserved by Obvious Wines, its affiliates, or third parties. "Obvious Wines" is a trademark of Obvious Wines LLC. Unless authorized in writing by an officer of Obvious Wines, Obvious Wines's trademarks may not be used in connection with any product or service that is not Obvious Wines's, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Obvious Wines. You may not sell, reproduce, distribute, copy, duplicate, resell, modify, display, publicly perform, prepare derivative works based on, frame, mirror, repost, exploit for any commercial purpose, or otherwise use any of the Site Content in any way for any public or commercial purpose without prior written consent of Obvious Wines or the rights holder. You may not use the Site Content on any other web site or in a networked computer environment for any purpose. If you violate any of these terms, your permission to use the Site Content will automatically terminate, you must immediately destroy any copies you have made of the Site Content, and we may end your authorization to use the Obvious Wines Site. Nothing contained in the Obvious Wines Site shall be construed as conferring any license or right under any copyright, trade secret, patent, trademark or other intellectual property rights ("IP Rights") of Obvious Wines, its affiliates, or any third party, and, except as provided in these Terms of Service, the exercise of all such IP Rights in the services, products, processes or technologies described in the Site Content are expressly reserved to Obvious Wines, its affiliates, and/or any third party, as applicable.

 

 

 

COPYRIGHTS AND DESIGNATED AGENT FOR NOTIFICATION OF CLAIMS OF INFRINGEMENT

Obvious Wines respects the intellectual property of others, and we ask our users to do the same.

 

Written Notice of Copyright Claims.

Claims of infringement should be in writing and should be directed to Obvious Wines's designated agent as specified below. Please include the following information:

 

A signature of a person authorized to act on behalf of the owner of the copyright interest that is allegedly infringed;

A description of the copyrighted work that you claim has been infringed;

A description of where the material that you claim is infringing is located on the site;

Your address, telephone number, and email address;

A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

 

 

NOTICES

OBVIOUS WINES will give you any necessary notices by posting them on the Obvious Wines Site. You authorize OBVIOUS WINES to send notices via electronic mail as well if OBVIOUS WINES decides, in its sole discretion, to do so. You agree to check the Obvious Wines Site for notices, and that you will be considered to have received a notice when it is made available to you by posting on the Obvious Wines Site.

 

 

 

DISCLAIMER OF WARRANTIES

ALTHOUGH OBVIOUS WINES ENDEAVORS TO PROVIDE CURRENT, ACCURATE AND RELIABLE INFORMATION ON THE OBVIOUS WINES SITE, IT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE EVENTS OR THE ACCURACY, RELIABILITY OR ANY USE OF INFORMATION ON THE OBVIOUS WINES SITE. OBVIOUS WINES DOES NOT WARRANT THAT YOUR USE OF THE OBVIOUS WINES SITE, OR THE OPERATION OR FUNCTION OF THE OBVIOUS WINES SITE, ANY COMPONENT THEREOF, OR ANY PRODUCTS, SOFTWARE OR SERVICES OFFERED IN CONNECTION THEREWITH, WILL BE UNINTERRUPTED OR ERROR FREE; OR THAT DEFECTS THEREWITH WILL BE CORRECTED; OR THAT THIS SITE OR ITS SERVER IS FREE OF VIRUSES OR OTHER HARMFUL ELEMENTS.

 

YOUR USE OF THE OBVIOUS WINES SITE IS AT YOUR OWN RISK AND YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIR OF ANY EQUIPMENT YOU USE IN CONNECTION WITH YOUR USE OF THE WEBSITE. OBVIOUS WINES AND ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE OBVIOUS WINES SITE. THE OBVIOUS WINES SITE CONTENT PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY EXPRESS, IMPLIED OR STATUTORY WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR FITNESS FOR ANY PARTICULAR PURPOSE.

 

 

 

LIMITATION OF LIABILITY

IN NO EVENT SHALL OBVIOUS WINES AND/OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE OBVIOUS WINES SITE, THE USE OR PERFORMANCE OF THE OBVIOUS WINES SITE, THE DELAY OR INABILITY TO USE THE OBVIOUS WINES SITE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY EVENTS, INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE OBVIOUS WINES SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE OBVIOUS WINES SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF OBVIOUS WINES OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

 

IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE OBVIOUS WINES SITE, OR WITH ANY OF THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE OBVIOUS WINES SITE. THIS SOLE AND EXCLUSIVE REMEDY IS SEPARATE AND INDEPENDENT OF ANY OTHER PROVISION THAT LIMITS OBVIOUS WINES'S LIABILITY OR YOUR REMEDIES.

 

 

 

PRIVACY POLICY

Your use of the Obvious Wines Site is governed by the Obvious Wines Privacy Policy.

 

 

NO RESPONSIBILITY TO SELL MISPRICED PRODUCTS OR SERVICES

Obvious Wines shall have the right to refuse or cancel any orders placed for products and/or services listed at an incorrect price, rebate or refund, or containing any other incorrect information or typographical errors. Obvious Wines shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, Obvious Wines shall immediately issue a credit to your credit card account in the amount of the charge.

 

 

 

MODIFICATIONS TO PRICES OR BILLING TERMS

OBVIOUS WINES RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR PRODUCTS OR SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SITE OR BY E-MAIL DELIVERY TO YOU.

 

 

 

FORCE MAJEURE

Obvious Wines shall be excused from performance under this Terms of Service if Obvious Wines is prevented, forbidden or delayed from performing, or omits to perform, any act or requirement under this Terms of Service by reason of: (a) any provision of any present or future law or regulation or order of the United States of America, or any state thereof, (b) any act or omission of a third party, or (c) any act of God, emergency condition, war, computer or telecommunications failure or other circumstance beyond the control of Obvious Wines.

 

 

 

SURVIVAL

The following provisions shall survive any termination of these Terms of Service: No Warranty from Obvious Wines, Limitation of Liability, Indemnity and General Provisions.

 

 

 

GENERAL PROVISIONS

You agree that Obvious Wines and its licensors may make improvements and/or changes in the Site Content and services or events described in this Site, if any, at any time without notice and without liability to you of any kind. You are responsible for compliance with applicable local laws, keeping in mind that access to the Obvious Wines Site may not be legal by certain persons or in certain countries. If any provision of these Terms of Service is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties, with all other provisions remaining in full force and effect. The failure of Obvious Wines to enforce any right or provision in these Terms of Service shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Obvious Wines in writing. The Terms of Service, along with the Obvious Wines Privacy Policy, comprises the entire agreement between you and Obvious Wines and supersede all prior or contemporaneous negotiations, discussions or agreements, if any, between the parties regarding the subject matter contained herein. These Terms of Service are personal to you and you may not transfer, assign, or delegate these Terms of Service to anyone without the express written permission of Obvious Wines. Any attempt by you to assign, transfer, or delegate these Terms of Service without the express written permission of Obvious Wines shall be null and void. These Terms of Service will inure to the benefit of Obvious Wines's successors, assigns, and licensors. The paragraph headings in these Terms of Service, shown in boldface type, are included to help make the agreement easier to read and have no binding effect.

 

DISPUTES

Any dispute or claim relating in any way to your use of any Obvious Wines Service, or to any products or services sold or distributed by Obvious Wines will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.

 

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.

 

To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Obvious Wines c/o Legal Department 212 Marine Street, Suite #100, Santa Monica CA 90405. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Obvious Wines will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. 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.

 

We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

 

APPLICABLE LAW

By using any Obvious Wines Service, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and Obvious Wines.

 

If you have any questions about these Terms of Service, please contact us:
Obvious Wines LLC

212 Marine Street, Suite #100

Santa Monica

CA 90405

info@obviouswines.com

 

SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS

Obvious Wines (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.

User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.

YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.

Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at brice@obviouswines.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.

MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.

Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

  • Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
  • Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
  • Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
  • Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
  • Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
  • Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Los Angeles, California before one arbitrator.

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Obvious Wines’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.