Sun Day CW Holdings LLC, a Delaware limited liability company, by and through its subsidiaries doing business as Sun Day Carwash (collectively “SDCW”), offers membership in its SDCW Carwash Membership Program (the “Membership Program”) that allows members to subscribe for a Membership Plan per Vehicle (each, a “Membership Plan”) for car wash services at SDCW’s network of car wash locations for each applicable Member automobile (each, a “Vehicle”). These Membership Terms and Conditions (“Terms”) contain the exclusive and binding terms and conditions of purchase of and Membership in the Membership Program, by and between SDCW and the party listed as the Member (“Member” or “you” or “your”) in the applicable Membership Agreement Sign-Up (the “Agreement”) executed by you. As used in these Terms, the “Service” or the “Services” means the car wash services provided to the identified Member Vehicle in the Agreement under the applicable Membership Plan.
By providing SDCW with a Payment Method (defined below), and either accepting these Terms or otherwise utilizing the Services, you agree that you have read, agree to and understand these Terms. If you do not agree with these Terms, you may cancel your Membership Plan per the procedure outlined below; provided, that upon cancellation, you may not use the Services. These Terms contain an arbitration agreement, class action waiver and jury trial waiver. BY AGREEING TO THESE TERMS, EACH MEMBER AGREES TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED BELOW TO RESOLVE ANY DISPUTES REGARDING THE THESE TERMS, THE MEMBERSHIP PLAN, OR MEMBERSHIP PROGRAM (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT).
(A) Agreement; Membership Plan Perks. In exchange for the payment of the applicable Fees (as further set forth in the Agreement and these Terms) and your adherence to all of the terms and conditions herein, SDCW hereby agrees to permit you access to and utilization of the Membership Plan in connection with the Services provided by SDCW. The Membership Plan specifically grants you the right to unlimited carwash services for one (1) Vehicle. A Member may have more than one Membership Plan applicable to its Member account with SDCW (a “Membership Account” or “Account”). You shall abide by the rules, regulations and policies of SDCW set forth herein and any other written policies of SDCW that SDCW may issue from time to time. To the furthest extent permitted by applicable law, SDCW reserves the right to modify or terminate the Membership Program and these Terms at any time upon prior written notice to you.
(B) RFID Tags. SDCW shall provide you the number of RFID Vehicle Tags (“RFID Tags”) as set forth in the Agreement. Only a pre-registered Vehicle may use a RFID Tag. You shall not directly or indirectly permit any other vehicle, person, business or entity to use any RFID Tags. You shall be solely and exclusively responsible for the RFID Tags, and shall promptly report to SDCW if an RFID Tag is lost, damaged or destroyed. You shall be solely and exclusively responsible for the payment of any fees or charges for the replacement of any RFID Tag. Upon termination of the Agreement or a Membership Plan for any reason, you shall return to SDCW all RFID Tags in its possession. RFID Tags remain the exclusive property of SDCW and must be surrendered upon request.
(C) Member Eligibility. Each purchased Membership Plan is for a single, personal, non-commercial Vehicle only. Resale or transfer of a Membership Plan or RFID Tag to another vehicle or person is expressly prohibited. You represent and warrant that you are: (i) not under the age of 18; (ii) not subscribing under a false name or with false information; (iii) are authorized to use the form of payment submitted for Membership; (iv) will not use other Members’ accounts and will not let others use your Account; (v) will not attempt to or actually override any security component included in any website provided by SDCW for access to your Account, including, without limitation www.sundaycarwash.com/membership; and (vi) will comply with these Terms at all times. If a Vehicle identified with a Membership Plan is lost or stolen, you must promptly deactivate the Vehicle’s Membership Plan, or others may access the Services through a Member Account and may be able to access certain information form your Account. To deactivate in the event of theft or loss, go online at www.sundaycarwash.com/membership, visit any SDCW location, or email email@example.com.
(D) Membership Plan Discounts or Promos. From time to time, SDCW may elect to offer discounts and promotions to its Members. If a discount or promotion is available to you, then it will be specified at the time of purchase. As a result, the availability, duration, and any other terms for any discount or promotion may vary as determined by SDCW at its sole discretion. At the expiration of any discounted or promotional period, SDCW shall charge the then-current fee for a Member’s Membership Plan on the Plan’s next billing cycle to the applicable Payment Method. SDCW hereby reserve the right to revoke any discount or promotion at any time, and charge a Member the then-standard Fee for its Membership Plan, and/or suspend a Membership Plan if SDCW determines that a Member is not eligible for the applicable discount or promotion.
(E) Compliance with Laws. You hereby agree that you shall use your Membership Account and applicable Membership Plans solely in accordance with all applicable laws, rules and regulations. SDCW may cancel a Membership Account or Membership Plan if you violate or breach these Terms or it is determined by SDCW in its reasonable discretion that you are engaged in illegal or fraudulent use of the Services, the Membership Account or the Membership Plan.
You represent and warrant that you have access and control over your Membership Account and you are responsible for: (a) any activity that occurs through the Membership Account; and (b) updating and maintaining the accuracy of the information in the Account. To register an Account, a Member must be not less than 18 years of age. If you submit personal information of any person other than yourself in connection with registering for an Account or purchasing additional Membership Plans, you represent and warrant that you have all applicable rights, permissions and consents to provide SDCW with that information. To update an Account, please go online to www.sundaycarwash.com/membership, visit any SDCW location, or e-mail: firstname.lastname@example.org.
The Membership Plan for each Vehicle will commence with a Member’s delivery of a current, valid, accepted debit or credit card, or an otherwise approved or accepted digital form of payment (e.g., Venmo, CashApp, Apple Pay, Zelle) as may be updated and/accepted from time to time (“Payment Method”) to SDCW (either in person or via the SDCW website) and a Member’s acceptance of the Terms as set forth herein. Each Membership Plan will automatically renew monthly, such that a Member’s Payment Method will automatically be charged on a recurring monthly basis until cancelled by the Member or terminated by SDCW in accordance with these Terms. The Member will receive a receipt via email from the Payment Method, Third Party Payment Processor or from SDCW. You retain the right, without additional cost or penalty, to terminate the Membership Plan if you cancel your Membership Plan or Account, as described below.
(A) Billing. To purchase a Membership Plan, you must provide a Payment Method. You hereby authorize SDCW (or its Third Party Payment Processor, as defined below) to charge the current Payment Method associated with the applicable Membership Plan for all Membership Plan fees (each, a “Fee”), which will be automatically charged on a monthly basis commencing on the day you sign up for a Membership Plan. The period of time between each billing date shall be the “Billing Cycle”. You shall remain responsible and liable for any uncollected amounts due to SDCW. If a payment is not successfully settled due to expiration, insufficient funds, or otherwise, and you have not otherwise cancelled your Membership Plan, SDCW may suspend your access to the Services until SDCW has successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you additional fees. SDCW shall have no responsibility or liability if your Payment Method is declined by your applicable financial institution. Payments are processed by our PCI-compliant third-party payment processor (the “Third Party Payment Processor”). For a Member to update its Payment Method, please go online to www.sundaycarwash.com/membership, visit any SDCW location, or email email@example.com. SDCW may also update a Member’s information on a Member’s Payment Method using information provided by a Member’s payment service provider or financial institution, such as the expiration date of a Member’s Payment Method. Following any update to such information, you hereby authorize SDCW to continue to charge the applicable Payment Method for each Membership Plan associated with your Account.
(B) Fees. The Fees for a Member’s Membership Plan, and any other charges a Member may incur in connection with its Membership Plan and use of the Services, such as taxes and possible transaction fees, will be charged monthly to the Payment Method on the day of month on which the Member signed up for the Membership Plan. Fees are fully earned upon payment and non-refundable unless otherwise set forth in these Terms. SDCW offers no refunds or credits for partially-used or non-used Membership Plans. Any refund, discount, or other consideration to you shall be determined in the sole and absolute discretion of SDCW in accordance with applicable law.
(C) Cancellation; Reactivation. You may cancel an applicable Membership Plan and/or your Membership Account at any time by providing written notice to SDCW via e-mail to firstname.lastname@example.org or by visiting any SDCW location (each, a “Cancellation Notice”). A Member may also cancel their account by replying to the email receipt received from SDCW or the Third Party Payment Processor from time to time. Receipt of a Cancellation Notice shall terminate your Membership Plan (or entire Account, as applicable) at the end of the then-current Billing Cycle for the applicable Membership Plan; or, if you have more than one Membership Plan, on the last day of the then-current Billing Cycle for the latest-to-expire Membership Plan. Upon receipt of your Cancellation Notice, SDCW shall use its commercially reasonable efforts to promptly terminate your Membership Plan or Account, as applicable. After receipt of a Cancellation Notice, you have the right to continue to utilize the Services until the end of your applicable Billing Cycle. To reactivate a closed Membership Account, a Member must go online to www.sundaycarwash.com/membership, e-mail email@example.com, or visit any SDCW location.
(D) Termination. To the maximum extent permitted by applicable law, SDCW may, for any reason and in its sole discretion, refuse, suspend, deactivate, or terminate a Member’s Membership Plan, an Account, or use of the Services, without notice or liability. If SDCW refuses, suspends, deactivates, or terminates a Membership Account, such Member may not register another Account or purchase a separate Membership Plan without SDCW’s prior written consent, which may be withheld in its reasonable discretion. Except as required by applicable law, SDCW shall not be obligated to credit or discount a Member’s account for any such refusals, suspensions, deactivations, or terminations.
SDCW may send information relating to your Account or Membership Plan (e.g. payment authorizations, changes in password or access of an Account, changes to a Payment Method, confirmation messages, notices, etc.), via email to the email address you provide to SDCW or via text message to the cellphone number you provide to SDCW in any form. You hereby agree that any notices, agreements, disclosures, invoices, comments or other communications that SDCW sends to you electronically are hereby voluntarily and knowingly accepted by you and such communications do not violate any applicable law, rule, regulation or order.
You hereby further authorize that SDCW may communicate with you via text message. Each Member’s cellphone carrier’s (each, a “Carrier”) standard message rates will apply to any message sent by a Member to SDCW, a Member’s receipt of texts from SDCW, and all subsequent text messages. Other charges may apply. You shall be solely and exclusively responsible for all charges billed by and payable to your mobile Carrier. SDCW assumes to responsibility or liability for any delays in the receipt of any text messages or other communications. Delivery of communications, including, without limitation, text messages, is subject to Carrier data requirements, connectivity and a Member’s device settings. Data obtained from a Member in connection with any text messaging correspondence may include a Member’s mobile phone number, a Member’s Carrier’s name, and the date, time and content of a Member’s messages and other information a Member provides to SDCW. SDCW may use all or any portion of this information to contact you and provide Services to you. SDCW shall not send you any promotional messages via text unless you expressly opt-in to receiving such messages, either through these Terms or otherwise. Consent to receive such messages is not a condition of making any purchase. The maximum number of messages per month from SDCW to you will vary. You can unsubscribe from text message communications at any time by texting STOP to the number that appears from SDCW in your text message. If you no longer have the original text message, you may email firstname.lastname@example.org to opt out of transactional messages and promotional messages, and SDCW will use its reasonable efforts to answer your opt out message in a timely manner.
You acknowledge the scope of the Services contemplated herein may include your visitation to and/or accessing one or more car washing properties owned, operated and/or licensed by SDCW (collectively, the “Property”). By signing up for a Membership Account, you hereby accept the applicable Property in its condition on each visit by you (or any Vehicle), AS-IS, WHERE-IS, WITH ALL FAULTS AND DEFECTS, and assume all risks, whether known or unknown, arising out of or relating to the Property. SDCW makes no representations or warranties, either express or implied, either in fact or by operation of law, statutory or otherwise, to you regarding the Property, or any building, dwelling or structure locating thereon, including, without limitation, the condition of any building, structure, accessory, dwelling, fixture, equipment, installation (whether temporary or permanent) on or around the Property, and hereby expressly disclaims all representations and warranties related thereto. You shall repair any damages to the Property and any resulting injury arising from or relating to you or your Vehicle, or from visitation and/or access to the Property (whether by you or those under your direction and control) at your sole and exclusive expense.
In the event that you provide SDCW with any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Services (collectively “Feedback”), you agree that SDCDW may use the Feedback to: (a) improve the Services or any products and (b) promote the Services, and that you will not be due any compensation for your Feedback. To the extent that SDCDW has your name, likeness, photographs, or voice, this will be part of the Feedback and you hereby agree that SDCW may use your name, likeness, photographs and voice in the same manner that SDCW can use other Feedback. You grant to SDCW a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, export, upload, download sell, offer for sale, make, have made, make derivative works of and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Services or through any other method of communication with SDCW, unless SDCW has entered into a separate agreement with you that provides otherwise.
For so long as Member is a part of a Membership Plan, Member shall, at its own expense, maintain and carry Comprehensive Automobile Liability Insurance insuring bodily injury and property damage arising from all owned, non-owned and hired vehicles, if any, including, without limitation, all Vehicles. Upon SDCW’s request, you shall provide SDCW with a certificate of insurance from your insurer evidencing the insurance coverage specified in these Terms. You hereby agree to indemnify, defend, and hold harmless SDCW and its officers, directors, employees, agents, Affiliates, successors, and assigns (collectively, “SDCW Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Account, any Membership Plan, the Services, your Vehicle, or a Member’s breach of these Terms.
(A) No Warranties. TO THE FURTHEST EXTENT PERMITTED BY APPLICABLE LAW, SDCW HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, EITHER IN FACT OR BY OPERATION OF LAW, CONCERNING ANY GOOD OR ANY SERVICES PROVIDED BY SDCW, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
(B) Limitation of Liability. TO THE FURTHEST EXTENT PERMITTED BY APPLICABLE LAW, SDCW AND ANY SDCW PARTIES (INCLUDING, WITHOUT LIMITATION, SUN DAY CAR WASH, INC.), WILL NOT BE LIABLE TO MEMBER, OR ANY OTHER PERSON FOR ANY INJURY TO OR LOSS OF GOODWILL, BUSINESS, OR OPPORTUNITIES (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHERWISE (INCLUDING THE ENTRY INTO, PERFORMANCE, OR BREACH OF THESE TERMS), REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR THE PARTY AGAINST WHOM SUCH LIABILITY IS CLAIMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITATION TO THE FOREGOING, SDCW WILL HAVE NO LIABILITY WHATSOEVER TO MEMBER OR ANY OTHER PERSON FOR OR ON ACCOUNT OF ANY INJURY, LOSS, OR DAMAGE, OF ANY KIND OR NATURE, SUSTAINED BY OR ANY DAMAGE ASSESSED OR ASSERTED AGAINST MEMBER, ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM ANY INJURY CAUSED TO ANY PERSON OR PROPERTY BY ANY OTHER MEMBER OR VEHICLE.
WITHOUT LIMITING THE FOREGOING, MEMBER ACKNOWLEDGES AND AGREES THAT, TO THE FURTHEST EXTENT PERMITTED BY APPLICABLE LAW: (I) SDCW SHALL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR: ANY DAMAGE TO ANY AFTER-MARKET ACCESSORIES (“AMA”) THAT ARE A PART OF ANY VEHICLE, OR THE EXACERBATION OF ANY PRE-EXISTING DAMAGE TO ANY VEHICLE, WHETHER OR NOT SDCW HAS BEEN INFORMED OF THE AMA OR PRE-EXISTING DAMAGE, AND (II) SDCW’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT, THE MEMBERSHIP PROGRAM, THE SERVICES OR THESE TERMS SHALL NOT EXCEED THE GREATER OF: $1,000; OR THE FAIR MARKET VALUE AS DETERMINED BY KELLEY BLUE BOOK FOR SIMILAR YEAR, MAKES AND MODELS OF THE VEHICLE INVOLVED IN THE APPLICABLE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO A MEMBER.
These Terms shall be governed by and construed in accordance with the domestic laws of the state of California without giving effect to any choice of law or conflict of laws provision or rule (whether of the state of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the state of California. Subject to Section 13, below, each Member hereby agrees that the exclusive jurisdiction and venue for any action brought between the Parties under these Terms shall be the state and federal courts residing in the County of San Francisco, California, and each of the Parties hereby agrees and submits itself to the exclusive jurisdiction and venue of such courts for such purpose. In the event of any litigation between the Parties hereto arising out of these Terms, the prevailing Party shall be allowed all reasonable attorneys’ fees, court costs and expenses incurred in such litigation, including all such expenses incurred on appeal, together with all reasonable costs and disbursements necessary to enforce these Terms.
In the unlikely event that SDCW and a Member have a legal dispute, here is how the Parties agree to proceed, except where prohibited by applicable law.
(A) INFORMAL DISPUTE RESOLUTION PROCESS.
(i) If you are dissatisfied with the Services for any reason, you hereby agree to contact SDCW first in accordance with these terms in a good faith effort to attempt to resolve your concerns without the need of outside assistance. If you choose to pursue a dispute, claim or controversy against SDCW or any SDCW Party arising from your use of the Services or these Terms, these Terms will apply. For purposes of this Dispute Resolution Process and Arbitration Procedures set forth in Section 14, “SDCW” shall include all SDCW Parties. SDCW values its relationship with you and appreciates the mutual benefit realized from informally resolving Disputes (as defined below). Before formally pursuing a Dispute in arbitration or small claims court, you agree to first send a detailed notice (“Notice”) to email@example.com, and via mail to the following address: 225 Cabrillo Hwy South #115B, Half Moon Bay, CA 94019. If SDCW has a Dispute with you, SDCW agrees to first send a Notice to you at your most recent email address on file with your Account, or if no email address is on file, other contact information associated with your Account. Your Notice must contain all of the following information: (1) your full name; (2) information that enables SDCW to identify your Account; and (3) a detailed description of your Dispute, including the nature and factual basis of your claim(s) and the relief you are seeking with a corresponding calculation of your alleged damages (if any). You must personally sign this Notice for it to be effective. SDCW’s Notice must also describe its Dispute, which shall include the nature and factual basis of its claim(s) and the relief it is seeking, with a corresponding calculation of our damages (if any).
(ii) You and SDCW agree to negotiate in good faith in an effort to resolve the Dispute. As part of these good faith negotiations, if SDCW requests a telephone conference with you to discuss your Dispute, you agree to personally participate, with your attorney, if you’re represented by counsel. If you request a telephone conference to discuss the Dispute, SDCW agrees to have one representative participate. If the Dispute is not resolved within 60 days after receipt of a fully completed Notice and the Parties have not otherwise mutually agreed to an extension of this informal dispute resolution time period, you or SDCW may initiate an arbitration (subject to a Party’s right to elect small claims court as provided below).
(iii) Completion of this informal dispute resolution is a condition precedent to filing any demand for arbitration or small claims court action. Failure to do so is a breach of these Terms. The statute of limitations and any filing fee deadlines will be tolled while you and SDCW engage in this informal dispute resolution process. Unless prohibited by applicable law, the arbitration provider, Judicial Arbitration and Mediation Services (“JAMS”), shall not accept or administer any demand for arbitration and shall administratively close any arbitration unless the Party bringing such demand for arbitration can certify in writing that the terms and conditions of this informal dispute resolution process were fully satisfied. A court of competent jurisdiction shall have authority to enforce this provision and to enjoin any arbitration proceeding or small claims court action.
B. INDIVIDUAL RELIEF: CLASS ACTION AND JURY TRIAL WAIVER. TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, YOU AND SDCW EACH WAIVE THE RIGHT TO A JURY TRIAL AND THE RIGHT TO LITIGATE DISPUTES IN COURT IN FAVOR OF INDIVIDUAL ARBITRATION (EXCEPT FOR SMALL CLAIMS COURT AS PROVIDED ABOVE). YOU AND SDCW EACH WAIVE THE RIGHT TO FILE OR PARTICIPATE IN A CLASS ACTION AGAINST THE OTHER OR OTHERWISE TO SEEK RELIEF ON A CLASS BASIS, INCLUDING ANY CURRENTLY PENDING ACTIONS AGAINST SDCW. TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, CONSOLIDATED, OR PRIVATE ATTORNEY GENERAL BASIS. THE ARBITRATOR CAN AWARD THE SAME RELIEF AVAILABLE IN COURT PROVIDED THAT THE ARBITRATOR MAY ONLY AWARD FINAL RELIEF (INCLUDING INJUNCTIVE OR DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE FINAL RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT AWARD FINAL RELIEF FOR, AGAINST, OR ON BEHALF OF ANYONE WHO IS NOT A PARTY TO THE ARBITRATION ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL BASIS. IF A COURT DETERMINES THAT ANY OF THESE PROHIBITIONS IN THIS PARAGRAPH ARE UNENFORCEABLE AS TO A PARTICULAR CLAIM OR REQUEST FOR RELIEF (SUCH AS A REQUEST FOR PUBLIC INJUNCTIVE RELIEF), AND ALL APPEALS OF THAT DECISION ARE EXHAUSTED OR THE DECISION IS OTHERWISE FINAL, THEN YOU AND SDCW AGREE THAT THAT PARTICULAR CLAIM OR REQUEST FOR RELIEF SHALL PROCEED IN COURT BUT SHALL BE STAYED PENDING INDIVIDUAL ARBITRATION OF THE REMAINING CLAIMS FOR RELIEF THAT YOU HAVE BROUGHT. IF THIS SPECIFIC PARAGRAPH IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION PROVISION (EXCEPT FOR THE JURY TRIAL WAIVER AND THE INFORMAL DISPUTE RESOLUTION PROCESS) SHALL BE NULL AND VOID. THIS PARAGRAPH IS AN ESSENTIAL PART OF THIS ARBITRATION AGREEMENT.
C. DISPUTE RESOLUTION THROUGH ARBITRATION OR SMALL CLAIMS COURT.
(i) Any dispute, claim, or controversy between you and SDCW (that is not resolved informally by SDCW or as provided above) that arises from or relates in any way to these Terms (including any alleged breach of these Terms), the Services, or our relationship with you (collectively, “Dispute”), shall be exclusively resolved through BINDING INDIVIDUAL ARBITRATION except as specifically provided otherwise in this Dispute Resolution Section. “Dispute” as used in these Terms shall have the broadest possible meaning and include claims that arose before the existence of this or any prior Agreement and claims that arise during the term of these Terms or after the termination of these Terms. Notwithstanding the foregoing, either you or SDCW may elect to have an individual claim heard in small claims court. If the request to proceed in small claims court is made after an arbitration has been initiated but before an arbitrator has been appointed, such arbitration shall be administratively closed. Any controversy over the small claims court’s jurisdiction shall be determined by the small claims court. All other issues (except as otherwise provided herein) are exclusively for the Arbitrator to decide, including but not limited to scope and enforceability of this Dispute Resolution Section, as well as any request to proceed in small claims court that is made after an arbitrator has been appointed. If you or SDCW challenges the small claims court election in your Dispute, and a court of competent jurisdiction determines that the small claims court election is unenforceable, then such election shall be severed from these Terms as to your Dispute. However, such court determination shall not be considered or deemed binding with respect to our other contracting parties.
(ii) Any court proceeding to enforce this Section 14, including any proceeding to confirm, modify, or vacate an arbitration award, must be commenced in accordance with Section 13. In the event Dispute Resolution Section 14 is for any reason held to be unenforceable, any litigation against SDCW (except for small claims court actions) may be commenced only in accordance with Section 13.
D. INDIVIDUAL ARBITRATION AND WAIVER OF CLASS ACTION PROTOCOLS. This subsection applies to Disputes that are submitted to JAMS after fully completing the informal Notice and Dispute resolution process described above and when no small claims court election is made by either Party. Any arbitration between you and SDCW shall be administered by JAMS in accordance with JAMS’ then-current comprehensive dispute resolution rules and procedures (the “JAMS Rules”) in effect at the time any demand for arbitration is filed with JAMS, as modified by this Section 14. For a copy of the JAMS Rules, please visit https://www.jamsadr.com/rules-comprehensive-arbitration/. If JAMS is unable or unwilling to perform its duties under these Terms, the parties shall mutually agree on an alternative administrator that will replace JAMS and assume JAMS role consistent with these Terms. If the parties are unable to agree, they will petition a court of competent jurisdiction to appoint an administrator that will assume JAMS; duties under these Terms. The Parties agree that the following procedures will apply to any Arbitrations initiated under this Dispute Resolution Section:
1. Commencing an Arbitration. To initiate an arbitration, you or SDCW shall send to JAMS a demand for arbitration (“Demand for Arbitration”) that describes the claim(s) and request for relief in detail, consistent with the requirements in these Terms and JAMS Rules. If you send a Demand for Arbitration, you shall also send it to SDCW at the contact address at the end of these Terms, within 10 days of delivery of the Demand for Arbitration to JAMS. If SDCW sends a Demand for Arbitration, SDCW will also send it to your mailing address on file with SDCW within the same 10-day period. If your mailing address is unavailable, SDCW will send it to your email address on file, or if no email address is on file, other contact information associated with your account. The arbitration provider shall not accept or administer any demand for arbitration and shall administratively close any such demand for arbitration that fails to certify in writing that the Party meets the requirements of Section 14 or if either Party elects small claims court as set forth above.
2. Fees. The payment of all fees shall be governed by the JAMS Rules, except to the extent that the case is a part of a Mass Filing (as defined below) or the JAMS fees and costs (including Arbitrator fees) paid by either Party are reallocated upon order of the Arbitrator following a determination that (a) either Party breached Section 14 of these Terms, (b) such reallocation is called for under these Terms, or (c) reallocation is otherwise permitted under applicable law.
4. Confidentiality. Upon either Party’s request, the Arbitrator will issue an order requiring that confidential information of either Party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal.
5. Arbitration Hearing. You and SDCW are entitled to a fair evidentiary hearing (i.e. trial) before the Arbitrator. Arbitration proceedings are usually simpler, less costly, and more streamlined than trials and other judicial proceedings. The Parties agree to waive all oral hearings and instead submit all disputes to the Arbitrator for an award based on written submissions and other evidence as the Parties may agree, unless a Party requests an oral hearing within 10 days after the Respondent files a response. If an oral evidentiary hearing is requested, both Parties must be personally present at the hearing, regardless of whether either Party has retained counsel. Both Parties must personally attend the hearing. Either Party’s failure to personally attend the hearing, without a continuance ordered by the Arbitrator for good cause, will result in a default judgment taken against that Party.
6. Arbitration Award. Regardless of the format of the arbitration, the Arbitrator shall provide a reasoned decision, in writing within 30 days after the hearing or, if no hearing is held, within 30 days after any rebuttal or supplemental statements are due. The decision must clearly specify the relief, if any, awarded and contain a brief statement of the reasons for the award. The arbitration award is binding only between you and SDCW and will not have any preclusive effect in another arbitration or proceeding that involves a different Party. The Arbitrator may, however, choose to consider rulings from other arbitrations involving a different Party. The Arbitrator may award fees and costs as provided by the JAMS Rules or to the extent such fees and costs could be awarded in court. This includes but is not limited to the ability of the Arbitrator to award fees and costs if the Arbitrator determines that a claim or defense is frivolous or was brought for an improper purpose, for the purpose of harassment, or in bad faith.
7. Offer of Settlement. The Respondent may, but is not obligated to, make a written settlement offer to the opposing Party any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the Arbitrator until after the Arbitrator issues an award on the claim. If the award is issued in the opposing Party’s favor and is less than the Respondent’s settlement offer or if the award is in the Respondent’s favor, the opposing Party must pay the Respondent’s costs incurred after the offer was made, including any attorney’s fees.
E. FUTURE CHANGES AND RETROACTIVE APPLICATION. This Section 14 applies to all Disputes between the Parties, including for any claims that accrued against you or SDCW prior to the time of your consent to these Terms and to any claims that accrue against you or SDCW after your consent to these Terms. Notwithstanding any provision in these Terms to the contrary, you may elect to opt out of the retroactive application of this Dispute Resolution Section 14 as to claims that have accrued against you or against SDCW prior to the time of your consent to these Terms. You may opt out by sending SDCW written notice, within 30 days of the time you consent to these Terms, to the following email address: firstname.lastname@example.org. You must include information sufficient to identify your account(s), such as the email address or phone number associated with your account(s), and should include a statement that you are opting out of the retroactive application of this Dispute Resolution Section 14. Please note: if you opt out of the retroactive application of this Dispute Resolution Section 14, you will still be subject to and bound by any Dispute Resolution Sections and Arbitration Procedures you previously agreed to, including any arbitration provisions, class action waivers, and retroactive application sections. Also, regardless of whether you opt out of the retroactive application of these changes, the Parties will resolve any claims that accrue against you or SDCW after your consent to these Terms in accordance with this Dispute Resolution Section.
SDCW shall be excused from the performance of its applicable obligation(s) under these Terms to the extent that such performance is made commercially impracticable, illegal, or impossible by an event of Force Majeure that is beyond SDCW’s reasonable control. Such excuse of performance shall be continued for so long as the condition constituting Force Majeure continues and SDCW takes reasonable efforts to remove the condition or otherwise perform the affected obligation(s). For purposes of these Terms, “Force Majeure” shall mean acts of God, strikes, civil disturbances, fires, earthquakes, governmental order or proclamation, outbreak or pandemic, inclement weather, equipment failure, acts of terrorism, floods, explosions, riots, war, rebellion, sabotage or failure or default of public utilities or common carriers.
These Terms, as amended, altered or revised by SDCW, shall apply for so long as the Member has a Membership Plan with SDCW. These Terms and the Agreement, collectively represent the full, final and comprehensive agreement and understanding of the Parties regarding the subject matter contained herein. Any prior or contemporaneous agreements, whether oral or written, relating to the subject matter discussed herein have been merged into these Terms. Each provision of these Terms shall be considered severable such that if any one provision or clause conflicts with existing or future applicable law, or may not be given full effect because of such law, this shall not affect any other provision of these Terms that can be given effect without the conflicting provision of clause; provided however, that such provision shall be modified, to the minimum extent possible and necessary, to be enforceable to the fullest extent and in compliance with any such applicable laws, prior to it being severed from these Terms in its entirety. No waiver by any party of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and signed by both parties. Except as otherwise set forth in the Agreement or these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Agreement or these Terms shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Member may not assign these Terms without the prior written consent of SDCW. These Terms are for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of these Terms. Any notice required or permitted by these Terms shall be in writing and delivered in person, sent by documented overnight delivery service, mailed by certified or registered mail, postage prepaid, or sent via email to the appropriate designated address of the intended recipient, transmission verification required, to the appropriate party or parties at the addresses referenced in the applicable Agreement, or to such other address as the Parties may hereafter designate to the other in writing. The provisions contained herein shall not be construed or interpreted for or against any Party hereto because that Party drafted or caused that Party’s legal representative to draft any of its provisions. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the FAA including, but not limited to, the following provisions: No Warranties; Limitations of Liability; and all General Provisions.
SDCW may, from time to time in its reasonable discretion, change, alter, revise or amend these Terms. Such revisions, alterations or amendments shall be effective immediately; provided; however, for existing Members, such revisions, alterations or amendments shall, unless otherwise stated, be effective for that Member’s next Billing Cycle after being posted on SDCW’s website or emailed to a Member.