Terms of Use

BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER

 

PLEASE READ THIS APPENDIX CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS. EXCEPT FOR THE LIMITED EXCEPTIONS DESCRIBED BELOW, THIS APPENDIX REQUIRES YOU AND VIVANT & VOW LLC, DOING BUSINESS AS VIVANT & VOW™ (“VIVANT & VOW,” “WE,” “US,” OR “OUR”), TO RESOLVE DISPUTES THROUGH FINAL AND BINDING INDIVIDUAL ARBITRATION RATHER THAN IN COURT. IT ALSO INCLUDES A WAIVER OF JURY TRIALS AND CLASS, COLLECTIVE, CONSOLIDATED, AND REPRESENTATIVE PROCEEDINGS.

 

A.1 Agreement to Binding Individual Arbitration

Except as provided in Section A.4, you and Vivant & Vow™ agree that any dispute, claim, or controversy arising out of or relating to these Terms, the Service, your membership, your account, any purchase or subscription, communications between you and Vivant & Vow™, or the relationship between you and Vivant & Vow™—whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory—will be resolved through final and binding individual arbitration rather than in court.

 

This Appendix and its interpretation and enforcement are governed by the Federal Arbitration Act, 9 U.S.C. §§ 1–16.

 

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules and Mediation Procedures then in effect, as modified by this Appendix. If there is a conflict between this Appendix and the AAA rules, this Appendix will control to the extent permitted by applicable law.

 

Unless the parties agree otherwise, the arbitration may be conducted by video conference. At your election, and where permitted by the AAA rules, the arbitration may instead be conducted by telephone, through written submissions, in Lee County, Florida, or in the county where you reside.

 

If the AAA is unavailable or declines to administer the arbitration for reasons unrelated to Vivant & Vow’s failure to comply with the AAA’s requirements or pay required fees, the parties will attempt in good faith to select another nationally recognized arbitration provider. If the parties cannot agree, either party may ask a court of competent jurisdiction to appoint an arbitration provider or arbitrator as permitted by applicable law.

 

The arbitrator will have the authority to award any individual remedy or relief that would be available in a court of competent jurisdiction, including damages, statutory relief, declaratory relief, injunctive relief, and attorneys’ fees where authorized by applicable law. The arbitrator will issue a written decision explaining the essential findings and conclusions on which the award is based.

 

Judgment on the arbitration award may be entered and enforced in any court having jurisdiction.

 

A.2 Class Action and Representative Action Waiver

YOU AND VIVANT & VOW™ AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF, CLAIMANT, OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, COORDINATED, MASS, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE PROCEEDING.

 

Unless you and Vivant & Vow™ both agree in writing, the arbitrator may not consolidate or join the claims of more than one person and may not preside over any form of class, collective, consolidated, or representative proceeding.

 

The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to resolve that party’s individual claim.

 

Any question concerning the enforceability, validity, or scope of this Section A.2, including whether a claim may proceed on a class, collective, consolidated, coordinated, mass, or representative basis, will be decided by a court of competent jurisdiction rather than by an arbitrator.

 

If this Section A.2 is found unenforceable with respect to a particular claim or request for relief, then that claim or request for relief must proceed in a court of competent jurisdiction and not in class or representative arbitration. The remaining portions of this Appendix will continue to apply to any claims that may lawfully be resolved through individual arbitration.

 

A.3 Jury Trial Waiver

FOR ANY DISPUTE THAT IS PERMITTED TO PROCEED IN COURT RATHER THAN IN ARBITRATION, YOU AND VIVANT & VOW™ EACH KNOWINGLY AND VOLUNTARILY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY.

 

A.4 Exceptions to Arbitration

Notwithstanding the provisions above, either party may:

 

a. Small Claims Court. Bring an individual action in a small claims court of competent jurisdiction, provided that the action remains within that court’s jurisdiction and proceeds only on an individual basis.

b. Intellectual Property and Service Protection. Seek temporary, preliminary, or other injunctive or equitable relief in a court of competent jurisdiction when reasonably necessary to protect intellectual property rights, confidential information, the security or integrity of the Service, or to prevent unauthorized access to or misuse of the Service.

c. Claims That Cannot Be Arbitrated. Pursue any claim or request for relief that applicable law provides may not be compelled to arbitration.

d. Government and Regulatory Agencies. Report suspected unlawful conduct to, communicate with, cooperate with, or file a complaint with an appropriate federal, state, or local governmental or regulatory agency. Nothing in this Appendix prevents such an agency from investigating a complaint or seeking relief to the extent authorized by law.

 

A request for temporary or preliminary relief under this Section does not waive either party’s obligation to arbitrate any underlying claim that is otherwise subject to arbitration.

 

A.5 Informal Resolution Before Arbitration

Before initiating arbitration, the party raising the dispute must provide the other party with a written Notice of Dispute and allow sixty (60) days for informal resolution.

 

The Notice of Dispute must include:

 

• The notifying party’s name and contact information;

• The email address associated with the applicable Vivant & Vow™ account, if any;

• A reasonably detailed description of the facts and circumstances giving rise to the dispute;

• The legal or contractual basis of the claim, if known;

• A description of the specific relief or resolution being requested.

 

A Notice of Dispute to Vivant & Vow™ must be sent by email to members@vivantandvow.com with the subject line “Notice of Dispute.”

 

Vivant & Vow™ may send a Notice of Dispute to the email address associated with your account or to another contact address you have provided to us.

 

During the sixty-day informal-resolution period, the parties will attempt in good faith to resolve the dispute. Either party may request a telephone or video conference to discuss a potential resolution.

 

Neither party may initiate arbitration until the sixty-day informal-resolution period has expired, unless the parties agree otherwise in writing or immediate relief is permitted under Section A.4. Any applicable statute of limitations will be tolled during the informal-resolution period to the extent permitted by applicable law.

 

If the parties do not resolve the dispute during the sixty-day period, either party may initiate arbitration in accordance with this Appendix and the applicable AAA rules.

 

A.6 Right to Opt Out of Arbitration

You may opt out of this Appendix by sending written notice to Vivant & Vow™ within thirty (30) days after the date you first accept Terms that include this Appendix.

 

Your opt-out notice must:

 

• Be sent by email to members@vivantandvow.com;

• Use the subject line “Arbitration Opt-Out”;

• Include your full name;

• Include the email address associated with your Vivant & Vow™ account; and

• Clearly state that you are opting out of the Binding Arbitration Agreement and Class Action Waiver contained in Appendix A of the Vivant & Vow™ Terms of Service.

 

An opt-out notice applies only to the individual who submitted it and may not be submitted on behalf of another person unless legally authorized to do so.

 

If you timely opt out, neither you nor Vivant & Vow™ will be bound by this Appendix. Opting out will not affect any other provision of the Terms, your membership, your account, or your ability to access or use the Service. Vivant & Vow™ will not deny, restrict, or adversely change your access to the Service because you properly exercised your right to opt out.

 

If you do not submit a valid opt-out notice within the thirty-day period, you and Vivant & Vow™ will be bound by this Appendix.

 

A.7 Arbitration Costs, Attorneys’ Fees, Severability, and Survival

Payment of filing, administration, case-management, hearing, and arbitrator fees will be governed by the applicable AAA Consumer Arbitration Rules and fee schedule, subject to any protections or limitations imposed by applicable law.

 

Vivant & Vow™ will pay all arbitration fees and arbitrator compensation that the AAA rules require the business to pay. If applicable law requires Vivant & Vow™ to pay an additional portion of your arbitration costs for this Appendix to be enforceable, Vivant & Vow™ will pay that additional amount.

 

Each party will otherwise bear its own attorneys’ fees and expenses unless applicable law, these Terms, or the arbitrator’s award provides otherwise.

 

If the AAA declines to administer a dispute because Vivant & Vow™ failed to comply with the AAA’s requirements or failed to pay fees that Vivant & Vow was required to pay, you may elect to pursue the dispute in a court of competent jurisdiction to the extent permitted by applicable law.

 

Except as specifically provided in Section A.2, if any portion of this Appendix is found invalid, unlawful, or unenforceable, that portion will be severed to the minimum extent necessary, and the remaining provisions will continue in full force and effect.

 

This Appendix will survive the suspension, cancellation, expiration, or termination of your account, membership, subscription, relationship with Vivant & Vow™, or use of the Service.