EXHIBIT A
SITE TERMS & CONDITIONS ARBITRATION AGREEMENT/CLASS ACTION WAIVER/DISPUTE RESOLUTION
Both you and LaserAway waive the right to a trial by jury and the right to bring or resolve any dispute as a class, consolidated, representative, collective, or private attorney general action arising under or relating to the LaserAway Website Terms & Conditions (“the Terms” or “these Terms”), including without limitation claims relating to LaserAway’s advertising and business practices (the “Covered Disputes”). All capitalized terms in this Exhibit A shall have the meaning given to them in the Terms. Both you and LaserAway waive the right to participate in a class, consolidated, representative, collective, or private attorney general action related any dispute that is brought by anyone else. Notwithstanding any provision in the JAMS rules to the contrary, the arbitrator will not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, collective, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding.
Except for disputes relating to the infringement of your or LaserAway’s intellectual property (such as trademarks, trade dress, copyright and patents) or where LaserAway is seeking injunctive relief (the “Excluded Disputes”), you and LaserAway each agree to finally settle all Covered Disputes only through arbitration. In arbitration, there is no judge or jury and review is limited. The arbitrator’s decision and award is final and binding, with limited exceptions, and judgment on the award may be entered in any court with jurisdiction. The parties agree that, except as set forth above, any claim, suit, action or proceeding arising out of or relating to these Terms or your use of the Sites (including purchasing products or services through the Sites) will be resolved solely by binding arbitration before a sole arbitrator under the Streamlined Arbitration Rules & Procedures of JAMS Inc. (“JAMS”) or any successor to JAMS. In the event JAMS is unwilling or unable to set a hearing date within thirty (30) days of the filing of a “Demand for Arbitration,” then either party can elect to have the arbitration administered by another mutually agreeable arbitration administration service that will hear the case. 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. The federal or state law that applies to these Terms will also apply during the arbitration. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other proceedings that involve any claims or controversy of another party, including any class actions or class arbitrations; provided, however, if for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, or for any Excluded Disputes, then the agreement to arbitrate does not apply and the dispute must be brought in a court of competent jurisdiction as set forth in the next paragraph.
By visiting the Sites, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without giving effect to any conflict of law provisions, together with the JAMS (defined below) rules, shall govern any proceeding that occurs in arbitration. In the event any claim is found not to be arbitrable, such claim shall be brought in a court of competent jurisdiction in New York, New York and the normal choice-of-law rules shall apply to such proceeding.
Subject to you demonstrating that the costs of arbitration will be prohibitive as compared to the costs of litigation, LaserAway will pay as much of the administrative and arbitrator’s fees charged to you by JAMS (or an alternate arbitration service) as the arbitrator deems necessary to prevent the arbitration from being cost prohibitive to you as compared to litigation. Either party may, notwithstanding this provision, bring qualifying claims in small claims court. In no event will you seek or be entitled to rescission, injunctive or other equitable relief or to enjoin or restrain the operation or exploitation of the Services or any other property of LaserAway (provided that nothing in these Terms will restrain a California resident’s right (if any) under applicable law to seek public injunctive relief in accordance with this dispute-resolution provision).
You and LaserAway agree that, in the event that there are fifty (50) or more individual requests for arbitration of a similar nature filed against LaserAway within an approximately thirty-day period (or otherwise in close proximity), JAMS will administer all such similarly situated arbitration demands on a collective basis as a single, consolidated arbitration (subject to a single set of fees, proceeding schedule, and, if required, hearing) before a single arbitrator in accordance with the requirements outlined elsewhere in this section, provided that – in the event that the arbitrator deems it impracticable or inequitable to administer all such claims collectively in a single arbitration – (s)he may group demands for arbitration into groups of not fewer than twenty (20) matters, plus a remainder group as needed (or as otherwise deemed by the arbitrator to be practicable, equitable, and in best keeping with the spirit of this provision) and arbitrate each group of matters as a single, consolidated arbitration (either structure a “Batch Arbitration”). You and LaserAway agree (a) to work with JAMS in good faith to facilitate the resolution of disputes on a Batch Arbitration basis and (b) that requests for arbitration are of a “similar nature” if they arise out of the same event, agreement, or factual scenario and raise the same or similar legal issues and seek the same or similar relief. Disagreements over the applicability of this Batch Arbitration process will be settled in a single, consolidated arbitration proceeding that includes all affected parties and is resolved by a single arbitrator subject to the requirements of this section. This Batch Arbitration provision will in no way be interpreted as authorizing a class or collective arbitration or action of any kind, or any suit or arbitration involving joint or consolidated claims, under any circumstances other than those expressly set forth in this section.
The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.