Applicability of Dispute Resolution Agreement. This Dispute Resolution Agreement (this “Agreement”) applies to any and all Claims between you (“You”) and Cellular Sales of Knoxville, Inc. and/or any of its subsidiaries (each, a “Cellular Sales Entity,” and collectively, “Cellular Sales”). “Claim” means any dispute of any nature whatsoever between You and Cellular Sales including both Product Claims and Non-Product Claims. “Product Claim” means any dispute which arises from or is otherwise related to the purchase or receipt by You of products and/or services provided by or received from a Cellular Sales Entity. “Non-Product Claim” means any dispute which is not a Product Claim including, without limitation, (i) a Forum Claim, (ii) a Statutory Claim, and (iii) a Tort Claim. “Forum Claim” means any dispute as to arbitrability or the validity, formation, interpretation, scope, or enforceability of this Agreement, including the arbitration clause, or whether a particular Claim is subject to arbitration pursuant to this Agreement. “Statutory Claim” means any dispute alleging a federal or state statutory violation which includes a private cause of action including, without limitation, any statute related to marketing activities such as promotional telephone calls, e-mails, and text messaging and any statute related to accommodations such as the Americans with Disability Act and Title II of the Civil Rights Act of 1964. “Tort Claim” means any dispute alleging a tort including, without limitation, negligence, negligent hiring/training, defamation, invasion of privacy, infliction of mental distress, or any intentional tort.
Agreement to Arbitrate Claims. Except for Exempt Claims (as defined below), You and Cellular Sales (each, a “Party,” and collectively, the “Parties”) agree to arbitrate, pursuant to the Arbitration Guidelines set forth below (the “Arbitration Guidelines”), any and all Claims either Party may have against the other. The Parties also agree to arbitrate, pursuant to the Arbitration Guidelines, any and all Claims You have against any officer, director, employee, or representative of any Cellular Sales Entity (each, a “Cellular Sales Representative”) for acts and/or omissions allegedly occurring within the course and scope of the Cellular Sales Representative’s employment with Cellular Sales.
Agreement to Negotiate. Prior to instituting any arbitration proceeding, or in the case of an Exempt Claim, prior to instituting any action in small claims court, the Party asserting any Claim (the “Claimant”) shall give written notice to the other Party of the Claim (the “Claim Notice”) which shall include (i) a reasonable description of the facts giving rise to the Claim; (ii) a proposed resolution to the Claim; and (iii) the Claimant’s contact information (e.g., e-mail, telephone, and/or street address) including the preferred method and best time of day to be contacted. Claim Notices from You must be mailed or delivered to Cellular Sales Management Group, LLC, 9040 Executive Park Drive, Knoxville, Tennessee 37923 ATTN: General Counsel. Claim Notices from Cellular Sales must be mailed or delivered to You at the address given to Cellular Sales in conjunction with your most recent transaction with Cellular Sales. Upon receipt of a Claim Notice, the receiving Party may, at its sole discretion, contact the Claimant in an effort to resolve the Claim.
Arbitration Guidelines. If the Claim is not resolved within 30 days following delivery of the Claim Notice and provided the Party wishes to pursue the Claim, the Party must initiate arbitration proceedings with the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules (the “AAA Consumer Arbitration Rules”); provided, however, in the case of an Exempt Claim, the Party may alternatively initiate an action in any small claims court possessed of requisite jurisdiction. The applicable AAA Consumer Arbitration rules are available at www.adr.org.
Arbitrator’s Authority to Make Award. Consistent with Rule 44 of the AAA Consumer Arbitration Rules, the arbitrator may grant any remedy, relief, or outcome that the Parties could have received in court, including awards of attorney’s fees and costs, in accordance with the law(s) that applies to the arbitration, except that the arbitrator shall not permit either Party to bring any Claim as part of a class or collective action.
Applicability of FAA. Each Party acknowledges and agrees that this Agreement affects interstate commerce and that the Federal Arbitration Act and federal arbitration law applies to the arbitration proceedings provided hereunder.
Venue. The location for the arbitration (the “Arbitration Venue”) shall be determined in accordance with the following:
Governing Law. The Parties acknowledge and agree that for Product Claims, the laws of the state of the Arbitration Venue shall apply without regard or reference to choice or conflict of law rules. For Non-Product Claims, the Parties acknowledge and agree that the laws of the state in which all or a substantial part of the events or omissions giving rise to the Non-Product Claim occurred, as determined by the arbitrator.
Exempt Claims. As provided in Rule 9 of the AAA Consumer Arbitration Rules, if a Claim is within the jurisdiction of a small claims court (an “Exempt Claim”), either Party may choose to have the Claim adjudicated by that court instead of by arbitration.
Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable (the “Rejected Provision”), the remainder of this Agreement shall remain in full force and effect. If the Rejected Provision may be made enforceable by limitation thereof, then the Rejected Provision shall be deemed to be so limited and shall be enforceable to the maximum extent permitted by applicable law.
WAIVER OF CLASS AND COLLECTIVE STANDING OR ACTION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY EXPRESSLY WAIVES THE RIGHT TO FILE, BRING OR JOIN ANY CLASS OR COLLECTIVE ACTION AGAINST THE OTHER PARTY (A “CLASS ACTION”), AND THIS AGREEMENT PROHIBITS THE ARBITRATION OF CONSOLIDATED, CLASS, OR REPRESENTATIVE DISPUTES. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS UNLESS ALL PARTIES AFFIRMATIVELY AGREE IN WRITING.
JURY TRIAL WAIVER. WHETHER ANY CLAIM IS IN ARBITRATION OR IN COURT, EACH PARTY WAIVES ANY RIGHT THE PARTY MAY HAVE TO A JURY TRIAL TO RESOLVE SUCH CLAIM.