By purchasing, receiving and/or redeeming a www.catperkins.com e-gift card (“e-gift card”), the purchaser and authorized users or beneficiaries of the e-gift card, including their respective agents, predecessors in interest, successors and assigns (collectively referred to herein as “you”) agree to be bound by the www.catperkins.com E-Gift Card Terms and Conditions (the “Agreement”). The Agreement contains an arbitration provision (Section 6 Dispute Resolution by Binding Arbitration) and this provision may substantially limit your rights in the event of a dispute. You should carefully read the Agreement before purchase and/or use of the e-gift card. Cat Perkins, Inc., a Delaware corporation, is the issuer of the e-gift card. Cat Perkins, Inc. and its parent, subsidiaries, affiliates, agents, employees, officers, directors, predecessors in interest are collectively referred to herein as “CPI”. CPI reserves the right to change the Agreement from time to time in its sole discretion.
CPI reserves the right to refuse to redeem your e-gift card and to close your MyAccount if a fraudulently obtained e-gift card is redeemed and/or used to make a purchase on www.catperkins.com.
Limitation of Liability
CPI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE E-GIFT CARDS. IN THE EVENT AN E-GIFT CARD CODE IS NON-FUNCTIONAL, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH E-GIFT CARD.
DISPUTE RESOLUTION BY BINDING ARBITRATION
The purchaser and/or user of the e-gift card agree that if a dispute, claim or controversy of any kind arises out of, concerns or relates to the e-gift card, or this Agreement, or its breach, you and CPI agree to resolve those disputes exclusively and finally through binding arbitration. You should review this provision carefully. This arbitration provision limits your and our ability to litigate claims in court and you and CPI each agree to waive our respective rights to a jury trial. Any arbitration under this provision shall take place on an individual basis; class arbitrations and class actions are not permitted. You will not have the right to participate as a class representative, private attorney general, or as a member of any class of claimants for any claim subject to arbitration. A claim by, or on behalf of, other persons will not be considered in, joined with, or consolidated with, the arbitration proceedings between you and CPI. Any dispute regarding the prohibitions in the prior sentence shall be resolved by the arbitrator in accordance with this Agreement. Arbitration is usually an informal proceeding in which disputes are decided by one or more neutral arbitrators who receive the evidence at a hearing and then issue a binding ruling in the form of an award. You and CPI understand that in an arbitration, discovery is more limited than in a court and review by a court is very limited. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to CPI should be addressed to Attn: E-Gift Card Department, Cat Perkins,Inc. 120 East 23rd Suite 5022, New York, NY 10010 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If you and CPI do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or CPI may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by CPI or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or CPI are entitled. You and CPI agree, upon written demand made by you or CPI, to submit to binding arbitration all disputes, controversies, and claims, whether based on contract, tort, fraudulent misrepresentation, statute (including, but not limited to the Truth-in-Savings Act, Truth-in-Lending Act, Federal Trade Commission Act or the Fair Debt Collection Practices Act), regulation, constitution, common law, equity, or any other legal basis or theory, and whether pre-existing, present, or future, that arise out of, concern, or relate to the e-gift card, or this Agreement, or its breach, or any advertisements, promotions, or oral or written statements related to the e-gift card, or the relationships that result from the purchase and/or use of the e-gift card (including, to the fullest extent permitted by applicable law, relationships with third parties who are not parties to this Agreement or this arbitration provision), or the scope or enforceability of this Agreement, including the determination of the applicability of this agreement to arbitrate (collectively, a “Claim”). All parties retain the right to seek relief in a small claims court for disputes or claims within the jurisdictional limits of the small claims court. At the option of the first to commence an arbitration, you or CPI may choose to have the arbitration conducted by JAMS ADR (“JAMS”) or the American Arbitration Association (“AAA”), or you and CPI may agree upon a different arbitrator. In any event, any arbitration under this Agreement shall be conducted in accordance with the Streamlined Arbitration Rules and Procedures of JAMS if JAMS conducts the arbitration, or the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes if AAA or other arbitrator conducts the arbitration (hereinafter “Rules”). You agree that this arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the “FAA”) shall apply to the construction, interpretation, and enforceability of this Agreement notwithstanding any other choice of law provision contained in this Agreement. Either you or CPI may initiate arbitration by giving written notice of the intention to arbitrate to the other party and by filing notice with JAMS or the AAA in accordance with the Rules in effect at the time the notice is filed. CPI may be given notice at the Notice Addresses above. The AAA Rules are available online at www.adr.org or by calling AAA at 1-800-778-7879. The JAMS rules are available online at www.jamsadr.com or by calling 1-800-352-5267. In the event of any inconsistency between this Agreement and the Rules to be used for an arbitration, such inconsistency shall be resolved in favor of this Agreement.
Demand for arbitration under this Agreement must be made before the date when any judicial action upon the same Claim would be barred under any applicable statute of limitations; otherwise, the Claim also is barred in arbitration. Any dispute as to whether any statute of limitations, estoppel, waiver, laches, or other doctrine bars the arbitration of any Claim shall be decided by arbitration in accordance with the provisions of this Agreement. Nothing in this arbitration provision shall limit the right of you or CPI, whether before, during, or after the pendency of any arbitration proceeding, to exercise any self-help remedies, such as set off, or to obtain provisional or ancillary remedies or injunctive or other traditionally equitable relief, such as filing an interpleader action. You and CPI agree that the taking of these actions or any other participation in such litigation by you or CPI does not waive any right that either you or CPI has to demand arbitration at any time with respect to any subsequent or amended Claim filed against you or CPI after commencement of litigation between you and CPI. A single arbitrator shall decide the Claims. The arbitrator shall be an active member in good standing of the bar for any state in the continental United States and shall be either actively engaged in the practice of law for at least 5 years, or a retired judge. You and CPI agree that the arbitrator: i) shall limit discovery to non-privileged matters directly relevant to the arbitrated dispute; ii) shall grant only relief that is based upon and consistent with substantial evidence and applicable substantive law; iii) shall have authority to grant relief only with respect to Claims asserted by or against you individually; and iv) shall provide a written statement stating the disposition of each claim and a concise written explanation of the basis for the award and shall make specific findings of fact and conclusions of law to support any arbitration award. Unless inconsistent with applicable law, and except as otherwise provided herein, each party shall bear the expense of its respective attorney, expert, and witness fees, regardless of which party prevails in the arbitration. Upon request by you, CPI will pay to JAMS or the AAA the portion of the arbitration filing fee that exceeds the cost of filing a lawsuit in the federal court where you live. If you are unable to pay the filing fee, CPI will pay it directly upon receiving a written request. CPI will pay all of the remaining administration fees and other costs, including the arbitrator’s fees, for any non-frivolous claim (measured by the standards set forth in Federal Rule of Civil Procedure 11(b)) that does not exceed $25,000. For all other claims, the arbitrator will decide whether CPI or you ultimately will be responsible for paying any fees or other costs in connection with the arbitration under the applicable Rules. Any arbitration proceedings shall be conducted in the federal judicial district of your residence, and you will be given the opportunity to attend the proceeding and be heard. If your claim is for $7,500 or less, CPI agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing in accordance with the arbitration Rules. If your claim exceeds $7,500, the right to a hearing will be determined by the arbitration Rules. Judgment upon any award rendered in arbitration may be entered in any court having competent jurisdiction. If CPI made a written offer to settle the dispute before an arbitrator was selected, and the arbitrator awards you any relief on the merits that is greater than the value of our last settlement offer, then CPI will: i) pay you the amount of the arbitrator’s award or $7,500 (the “alternative award”) whichever is greater; and ii) pay your attorney twice the amount of attorneys’ fees, plus reimbursement for expenses (including expert witness fees and costs), that your attorney reasonably accrues for investigating, preparing and pursuing your claims in arbitration (the “attorney premium”). If CPI did not make a written offer to settle the dispute before an arbitrator was selected, and the arbitrator awards you any relief on the merits, you and your attorney will be entitled to receive the alternative award and the attorney premium, respectively. If any portion of this arbitration provision is deemed invalid or unenforceable, the remaining portions of this arbitration provision will remain valid and enforceable. This arbitration provision shall survive termination of this Agreement.