MICHAEL KELLY GUITAR CO. DISPUTE RESOLUTION POLICY AND WAIVER OF CLASS ACTIONS
At Michael Kelly Guitar Co. (“MKG”) we are committed to make our customers, website visitors, and store visitors happy. Rarely, despite or best efforts, disputes may arise regarding our products, services, or activities that require resolution. For that reason, we have established the following dispute resolution procedure intended to resolve disputes in the most rapid, efficient, and cost-effective manner possible. This policy applies to any and all disputes (“Disputes”) arising out of, affecting, or relating to your use of our website, purchase of products or services from us, statutory rights or violations, and any offers made or rescinded, by us, and any other aspect of your relationship with MKG.
When you use our website, shop in our stores, or order by phone, you and we both agree to resolve all disputes according to this policy. That means,
- DISPUTES WILL NOT BE RESOLVED IN COURT
- DISPUTES WILL NOT BE SUBMITTED TO A JUDGE OR JURY
- THERE WILL BE NO CLASS ACTIONS OR CLASS ARBITRATIONS
- YOU AND WE WILL ATTEMPT TO RESOVE ANY DISPUTE AMICABLY
- FAILING AMICABLE RESOLUTION, ALL DISPUTES WILL BE RESOLVED BY INDIVIDUAL, BINDING, NON-CLASS ARBITRATION
Before any dispute is submitted to a formal procedure, we and you will attempt to resolve it through good faith negotiations. Even if you haven't been able to come to a satisfactory resolution with our stores or our customer service representatives, we require you to submit your dispute to our senior management in our main office. Negotiations may be started by written notice, telephone, or e-mail, addressed as follows:
Michael Kelly Guitar Co.
278B Duffy Avenue
Hicksville, NY 11801
Attention: Legal Department
In the very unlikely event that we can't reach a mutually satisfactory agreement through our informal discussions, either you or we may choose to resolve the Dispute through binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its applicable rules and procedures for consumer disputes (“Rules”), whether such Disputes arise in contract, tort, statute, or otherwise. US policy and the policies of many States, including California, New York, and New Jersey among others, favor settlement of disputes by arbitration rather than by use of courts.
The Rules can be obtained on the AAA website free of charge at www.adr.org. Either you or we may elect to resolve a particular Dispute through arbitration, even if one of us has already initiated litigation in court related to the Dispute, by: (a) making written demand for arbitration upon the other party, (b) initiating arbitration against the other party, or (c) filing a motion to compel arbitration in court.
IF EITHER YOU OR WE ELECT TO RESOLVE A PARTICULAR DISPUTE THROUGH ARBITRATION, WE BOTH GIVE UP THE RIGHT TO GO TO COURT TO ASSERT OR DEFEND THE DISPUTE (EXCEPT FOR DISPUTES BROUGHT INDIVIDUALLY WITHIN SMALL CLAIMS COURT JURISDICTION, SO LONG AS THE DISPUTE REMAINS IN SMALL CLAIMS COURT). This Arbitration Agreement will be interpreted and enforced in accordance with the Federal Arbitration Act set forth in Title 9 of the U.S. Code to the fullest extent possible, notwithstanding any state law to the contrary, regardless of the origin or nature of the Disputes at issue. This Arbitration Agreement does not prevent you from submitting any issue relating to the Dispute for review or consideration by a federal, state, or local governmental agency or entity, nor does it prevent such agency or entity from seeking relief on your behalf.
- Selection of Arbitrator. The Dispute will be resolved by a single neutral arbitrator selected in accordance with the Rules, who must have experience in the types of transactions at issue in the Dispute. In the event of a conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall supersede the conflicting Rules only to the extent of the inconsistency. If AAA is unavailable to resolve the Disputes, and if you and we do not agree on a substitute forum, then you can select the forum for the resolution of the Disputes.
- Arbitration Proceedings. The arbitration will be conducted at the option of either party as a
Desk/Documents-Only Arbitration or as an In-Person or Telephonic Hearing Arbitration as permitted by
the Rules. Any Dispute and defenses that can be asserted in court can be asserted in the arbitration
and the Arbitrator will consider all applicable Federal, State, and local law in rendering an award.
The Arbitrator shall be entitled to award the same remedies that a court can award, including public
injunctive relief. Discovery will be available for non-privileged information to the fullest extent
permitted under the Rules. The Arbitrator will render a written award, which can be entered as a
judgment in court. Except as provided in applicable statutes, the arbitrator’s award is not subject
to review by the court and it cannot be appealed. MKG will pay for any filing, administration, and
arbitrator fees imposed on you by the AAA. However, you will be responsible for your own attorneys’
fees, unless you prevail on your Dispute in the arbitration, in which case, MKG will pay your
attorneys’ fees. However, if MKG prevails, then you will not be required to pay its attorneys’ fees
Any determination as to whether this Arbitration Agreement is valid or enforceable in part or in its entirety will be made solely by the arbitrator, including without limitation any issues relating to whether a Dispute is subject to arbitration; provided, however, the enforceability of the Class Action Waiver set forth below shall be determined by the Court.
- Class Action Waiver. ANY ARBITRATION OF A DISPUTE WILL BE ON AN INDIVIDUAL BASIS. YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN A CLASS ACTION LAWSUIT.
- Severability. In the event the Class Action Waiver in this Arbitration Agreement is found to be unenforceable for any reason, the remainder of this Arbitration Agreement shall also be unenforceable. If any provision in this Arbitration Agreement, other than the Class Action Waiver, is found to be unenforceable, the remaining provisions shall remain fully enforceable.
FOR MORE DETAILS or if you have questions, you may call us at 516-686-4138. If you have questions about AAA procedures, you should check AAA’s website, www.adr.org.
END DISPUTE RESOLUTION POLICY
Last updated: May 21, 2018
Doing business with our stores or your use of this Site signifies your acceptance of this Dispute Resolution Policy and Waiver of Class Actions.