Pre-Arbitration Claim Resolution

For all disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve the dispute which is first done by emailing us at info@performancekitchen.com the following information:

(1)Your name, (2) Your address, (3) A written description of your claim, and (4) A description of the specific relief you seek. If we do not resolve the dispute within 45 days after receiving your notification, then you may pursue your dispute in arbitration. You may pursue your dispute in a court only under the circumstances described below.

Exclusions from Arbitration/Right to Opt Out

Notwithstanding the above, you or we may choose to pursue a dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing us at info@performancekitchen.com the following information: (1) Your name; (2) Your address; (3) A clear statement that you do not wish to resolve disputes with us through arbitration. Either way, we will not take any decision you make personally. In fact, we promise that your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with us. But, we do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.

Arbitration Procedures

If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.

For arbitration before AAA, for disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.

Because the Applications and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitration – You or we may initiate arbitration in either Illinois or the federal judicial district that includes your billing address. In the event that you select the latter, we may transfer the arbitration to Illinois so long as we agree to pay any additional fees or costs which the arbitrator determines you incur as a result of the transfer.

Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, we will pay all arbitration fees and associated costs and expenses. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

Class Action Waiver

Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and we specifically agree to do so following initiation of the arbitration. If you choose to pursue your dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Applications can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

Jury Waiver

You understand and agree that by accepting this Provision in these Terms, you and we are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g.,, the rights to both appeal and certain types of discovery) may be more limited or may also be waived.

Severability

If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.

Miscellaneous:Your use of this site shall be governed in all respects by the laws of the state of Illinois, without regard to such state’s choice of law provisions, and not by the U.N. Convention on Contracts for the International Sale of Goods. Any cause of action or claim you may have with respect to the site must be commenced within one (1) year after the claim or cause of action arises. The Company’s failure to insist upon or enforce strict performance of any provision of these Terms and Conditions shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any of these Terms and Conditions. We control and operate this website from the United States of America and the entirety of this website may not be appropriate or available for use in other locations. If you use this website outside the United States of America, you are solely responsible for following applicable local laws. The Company may assign its rights and duties under these Terms and Conditions to any party at any time without notice to you.

California Consumer Notice: Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This website and Service are provided by Performance Kitchen, PMB 4600 250 H St Blaine, Washington 98230 USA. If you have a question or complaint regarding the website products purchased from the website, please contact Customer Service at info@performancekitchen.com.