11. Dispute Resolution; Arbitration Agreement
These Terms of Use provide that all disputes between you and Company that in any way relate to these Terms of Use or your use of the Site will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Use (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action.
We will try work in good faith to resolve any issue you have with Site, including products ordered or purchased through the Site, if you bring that issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer's satisfaction.
You and Company agree that any dispute, claim, or controversy arising out of or relating in any way to these Terms of Use or your use of the Site, including products ordered or purchased through the Site, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. You agree that, by agreeing to these Terms of Use, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Company are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Use and any other contractual relationship between you and Company.
If you desire to assert a claim against Company, and you therefore elect to seek arbitration, you must first send to Company, by certified mail, a written notice of your claim. The notice to Company should be addressed to:
WK Kellogg Co Consumer Affairs
1 Kellogg Square,
Battle Creek, MI 49016
If Company desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written notice to the most recent address we have on file or otherwise in our records for you. A notice sent must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If Company and you do not reach an agreement to resolve the claim within 30 days after the notice is received, you or Company may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by Company or you shall not be disclosed to the arbitrator. You may download or copy a form notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org. If you are required to pay a filing fee, after Company receives notice at the address in this section above that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than US $10,000. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Use, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the address indicated in this section above. The arbitrator is bound by the terms of these Terms of Use. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Use, including this arbitration agreement. Unless Company and you agree otherwise, any arbitration hearings will take place in Chicago, Illinois. If your claim is for US $10,000 or less, we agree 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 as established by the AAA Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules. 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. If the arbitrator issues you an award that is greater than the value of Company’s last written settlement offer made before an arbitrator was selected (or if Company did not make a settlement offer before an arbitrator was selected), then Company will pay you the amount of the award or US $1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys' fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator 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.
If this agreement to arbitrate provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for the State of Michigan.
12. Applicable Law
These Terms will be governed by and construed in accordance with, and any dispute and will be resolved in accordance with, the laws of the State of Michigan without regard to its conflicts of law provisions that might apply the laws of another jurisdiction.
13. Investigations; Cooperation with Law Enforcement; Termination; Survival
You agree that Company shall, as permitted by applicable law, have the right, without limitation and without any obligation, to: (i) investigate any suspected breaches of its Site security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms of Use or any potential harm to our users or third parties, (iii) use any information obtained by Company in connection with reviewing law enforcement databases or complying with applicable laws and use and/or disclose any information obtained by Company to comply with law enforcement requests or legal requirements, (iv) involve and cooperate with law enforcement authorities in connection with any of the foregoing matters, (v) prosecute violators of these Terms of Use, and (vi) discontinue the Site, in whole or in part, or suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Company under these Terms of Use. Upon suspension or termination of your access to the Site, or upon notice from Company, all rights granted to you under these Terms of Use will cease immediately, and you agree that you will immediately discontinue use of the Site. The provisions of these Terms of Use, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Company in these Terms of Use, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, jury waiver, and mandatory arbitration.
14. Assignment
Company may assign its rights and obligations under these Terms of Use, in whole or in part, to any party at any time without any notice. These Terms of Use may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Company.
15. International Issues
Company controls and operates the Site from its U.S.-based offices in the U.S.A., and Company makes no representation that the Site is appropriate or available for use beyond the U.S.A. If you use the Site from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Site may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Use or to any sale of goods carried out as a result of your use of the Site.
16. Revisions
Company reserves the right, in its sole discretion, to terminate your access to all or part of the Site, with or without cause, and with or without notice. In the event that any of the Terms of Use are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect. These Terms of Use constitute the entire agreement between Company and you pertaining to the subject matter hereof. In its sole discretion, Company may from time-to-time revise these Terms of Use by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound. Your continued use of the Site after revisions to these Terms of Use shall constitute your agreement to the revised Terms of Use. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages within the Site.
17. Severability; Interpretation
If any provision of these Terms of Use is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms of Use and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms of Use (which will remain in full force and effect). To the extent not prohibited by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms of Use, the word will be deemed to mean “including, without limitation.” The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms of Use.
