10. Dispute Resolution – Arbitration Agreement and Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS.
This section (the “Arbitration Agreement”) provides for the resolution of most claims, disputes, or controversies that arise between you and Sponsor. This section also includes a jury trial waiver, governing law and venue provisions, and a waiver of any and all rights to proceed in a class, collective, consolidated, private attorney general, or representative action in arbitration or litigation to the fullest extent permitted by applicable law.

In the event we are unable to resolve any dispute through an informal process as outlined below, you and Sponsor agree that, except as provided below, any dispute, claim, or controversy arising out of or relating in any way to the Sweepstakes or these Official Rules (a “Dispute”) will be determined by binding arbitration or small claims court, instead of in courts of general jurisdiction, and any such Disputes will be resolved on an individual basis rather than as a class action.

The term “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and Sponsor, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory. The term “Dispute” specifically includes, but is not limited to, any disputes, actions, claims, or controversies between you and Sponsor that arise from or in any way relate to or concern the Sweepstakes, and any disputes relating to telephonic, text message, or any other communications either of us received from the other.

The rules and procedures governing resolution of any Disputes are as follows:

1. Informal Resolution Process

You and Sponsor agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective, and mutually beneficial outcome. Therefore, if either you or Sponsor wants to bring or resolve a Dispute, you or Sponsor must follow the below mandatory informal dispute resolution process as a precondition to the ability to file an arbitration demand or lawsuit:

1. 1. Notice

      You and Sponsor agree that before either you or Sponsor commence arbitration or file a claim in small claims court against the other, you or Sponsor must first send to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the nature and basis of the Dispute; and set forth the specific relief sought, including damages, if any. The Notice also must contain your email address and (if different) the email address associated with your Sponsor account (if you have an account with Sponsor).

      You and Sponsor must include in any Notice to each other a personally signed statement (not by counsel) verifying the accuracy of the contents of the Notice, and if you are represented by counsel, your signed statement authorizing Sponsor to disclose your Sponsor account details to your attorney while seeking to resolve your claim. You and Sponsor must each individualize any such Notice, meaning it can concern only the Dispute involving you and no other person’s Dispute.

      You must send any Notice to Sponsor by email to 200 Forge Way – Suite 205, Rockaway, New Jersey 07866 or by mail to: support@truvaga.com. If Sponsor sends a Notice, it will send it to the email address used for your Sponsor account (if you have an account with Sponsor) and you consent to receive any such Notice as part of these dispute resolution terms. If you do not have a Sponsor account, Sponsor may send the Notice by mail to any address where you reside or have the Notice personally delivered to you. In the case of a Dispute initiated by you or Sponsor, it is the sender’s responsibility to prove that the sender provided the Notice in the manner that is required in this paragraph.

   2. Good Faith Effort to Informally Resolve Dispute

      After receipt of a valid Notice, the parties shall engage in a good faith effort to resolve the Dispute for a period of 60 days (which can be extended by agreement). You and Sponsor agree that, after receipt of the valid Notice, we will personally meet, via telephone or videoconference, in a good-faith effort to confer with each other and try to resolve informally any Dispute covered by this Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference as well, but you agree to also fully participate in the conference. Likewise, if Sponsor is represented by counsel, its counsel may participate in the conference as well, but Sponsor agrees to have a representative also fully participate in the conference. You and Sponsor agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually convenient time and to seek to reach a resolution.

      If you and Sponsor do not reach an agreement to resolve the issues identified in the Notice within 60 days after a valid Notice is received (or a longer time if agreed to by the parties), you or Sponsor may commence a proceeding as provided in the remainder of this Section 11.

      The statute of limitations and any filing deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.

2. Binding Arbitration

   If you and Sponsor do not resolve the Dispute within 60 days of the submission of the Notice in accordance with the procedures in this Section 11, you and Sponsor, including its affiliates, agents, employees, predecessors in interest, successors, and assigns, agree that any Dispute between you and Sponsor, regarding any aspect of your relationship with Sponsor, will be resolved in a binding, confidential, individual, and fair arbitration process, and not in court, subject to any exceptions provided herein. You agree that you may not commence any arbitration unless you and Sponsor are unable to resolve the Dispute within sixty (60) days after we receive your completed Notice and you have made a good faith effort to resolve your Dispute directly with Sponsor during that time.

   Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, typically allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award and nothing in this Section shall be interpreted as limiting any non-waivable statutory rights. You agree that, by agreeing to these Official Rules, the U.S. Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of this provision, and that you and Sponsor are each waiving the right to a trial by jury or to participate in a class action. This Arbitration Agreement shall survive termination of this Arbitration Agreement and the termination of this Sweepstakes.

   1. 1. Governing Body

         The parties agree that any and all Disputes, including the performance, breach, termination, interpretation, existence, or validity thereof and the scope, applicability, or enforceability of this Arbitration Agreement, including but not limited to the arbitrability of any and all Disputes, shall be finally resolved by binding arbitration administered by the American Arbitration Association (“AAA”). The arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, except with respect to the Class Action Waiver provisions described below.

         You may download or copy a form of notice and a form to initiate arbitration at www.adr.org or by calling 1-800-778-7879. The arbitration will be conducted by the AAA before a single AAA arbitrator under the AAA’s rules, which are available at www.adr.org or by calling 1-800-778-7879, except as modified by this Arbitration Agreement.

         If AAA is unavailable, unwilling, or otherwise unable to administer an arbitration in accordance with this Arbitration Agreement, then the parties agree that JAMS or any other mutually agreeable arbitration administration service may administer the arbitration. If any administration service other than AAA administers the arbitration, this Arbitration Agreement shall apply except to the extent the administrator finds such provision(s) fundamentally inconsistent with the administration’s applicable rules, in which case the administration’s rules shall apply.

      2. Applicable Rules

         The arbitration will be governed by the Consumer Arbitration Rules of the AAA, including their Mass Arbitration Supplementary Rules and Mass Arbitration and Mediation Fee Schedule, as applicable (the “AAA Rules”), as modified by this Arbitration Agreement, and the arbitrator will be bound by the AAA Rules and the terms of this Arbitration Agreement. The AAA Rules are available online at www.adr.org/consumer.

      3. Mass Arbitration

         If your Notice involves claims similar to those of at least 25 other customers, and if you and those other customers are represented by the same lawyers, or by lawyers who are coordinating with each other, or if Sponsor asserts 25 or more similar demands for arbitration or counterclaims against similarly-situated parties, within a period of 60 days or otherwise close in proximity, you and Sponsor agree that these claims will be related (“Related Cases”), shall be considered a “Mass Arbitration”, and that the AAA Mass Arbitration Supplementary Rules shall apply. If the parties disagree as to whether a series of filings fits within the definition of Mass Arbitration, AAA shall resolve such disagreement.

      4. Form of Arbitration

         Subject to the AAA Rules, if the Dispute concerns claims that, in the aggregate, are for US$25,000 or less, the arbitration will be conducted by the submission of documents, but the parties shall have the right to request a hearing. If you or Sponsor request a hearing or the arbitrator decides a hearing is necessary, unless Sponsor and you agree otherwise, any such arbitration hearing will be held remotely via Zoom or other similar video-conference platform so that you may participate from the county (or parish) of your residence, or any other place of your choosing. If the arbitrator decides that an in-person hearing is necessary, the arbitration shall take place in the city or state where you reside, unless you and Sponsor agree otherwise, in which case the arbitration shall take place at another mutually agreed upon location. If the Dispute concerns claims that, in the aggregate, exceed US$25,000, the right to a hearing will be determined by the AAA Rules, but any such hearing will be conducted consistent with this section concerning the form and location of such arbitration.

         The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law.

         The arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of New Jersey or the state of your residence and will be selected by the parties from the AAA’s National Roster of Arbitrators. The arbitrator will be selected using the following procedure: (a) the AAA will send the parties a list of five candidates meeting this criteria; (b) if the parties cannot agree on an arbitrator from the list, each party shall return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator.

         You and Sponsor agree that an administrative conference with the AAA shall be conducted in each arbitration proceeding, and you and a Sponsor representative shall appear at the administrative conference via telephone or video conference. If you fail to appear at the administrative conference, regardless of whether your counsel attends, the AAA will administratively close the arbitration proceeding without prejudice, unless you show good cause as to why you were not able to attend the conference.

      5. Fees

         Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. You are required to pay AAA’s initial filing fee, but if your claim is for less than US$25,000, Sponsor will reimburse you for this filing fee at the conclusion of the arbitration, unless the arbitrator finds that either the substance of the Dispute or the relief sought was filed for purposes of harassment or is patently frivolous, then the payment of all fees will be governed by the AAA Rules and Sponsor will not reimburse your initial filing fee; if your claim is for greater than US$25,000, you will be responsible for filing fees.

         Sponsor agrees to pay all expenses and fees of the arbitrator, including required travel and other expenses, and any AAA expenses, as well as the costs relating to proof and witnesses produced at the direction of the arbitrator (but specifically excluding any travel or other costs of entrant to attend the arbitration hearing).

         The parties agree that the AAA has discretion to modify the amount or timing of any administrative or arbitration fees due under the AAA Rules where it deems appropriate, provided that such modification does not increase the AAA fees to you or Sponsor, and you and Sponsor waive any objection to such fee modification. The AAA has the discretion to relocate administration and arbitrator fees and expenses if required by applicable law or upon determination by the arbitrator that a claim was filed for purposes of harassment or is patently frivolous.

         Except as otherwise expressly set forth herein, the payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules.

      6. Discovery

         Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

      7. Decision and Award

         Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon both you and us. If the arbitrator issues you an award that is greater than the value of Sponsor’s last written settlement offer made before an arbitrator was selected (or if Sponsor did not make a settlement offer before an arbitrator was selected), then Sponsor will pay you the amount of the award or US $5,000, whichever is greater.

         Under no circumstances will you be permitted to obtain an award for, and you hereby waive all rights to claim, punitive, incidental, or consequential damages, or any other damages, including attorneys’ fees, other than your actual out-of-pocket expenses (i.e., amounts paid to Sponsor) and you further waive all right to have damages multiplied or increased.

         The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party except as may be determined by the AAA in a Mass Arbitration. Sponsor will not seek to recover its attorneys’ fees and costs in arbitration from you unless the arbitrator finds that either the substance of your claim or the relief sought was filed for purposes of harassment or is patently frivolous.

         Judgment on any award may be entered in any court having jurisdiction. This Arbitration Agreement shall not preclude any party to the arbitration from at any time seeking injunctions or other forms of equitable relief in aid of arbitration from a court of appropriate jurisdiction including whether a demand for arbitration is filed in violation of this Arbitration Agreement.

         The arbitrator shall determine all issues of liability on the merits of any Dispute asserted by you or Sponsor and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or Sponsor prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual Disputes in arbitration. Before a court of competent jurisdiction issues any public injunctive relief, it shall review the factual findings of the arbitration award on which any injunction would issue with no deference to the arbitrator.

          

      8. Intellectual Property Rights

         You and Sponsor agree that either party may bring suit in court to seek to enjoin infringement or other misuse of intellectual property rights.

      9. Survival of Arbitration Agreement

         If any portion of this Arbitration Agreement is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Agreement.