TERMS AND POLICIES

These Spoiled Cabbage Terms and Policies (the “Spoiled Cabbage Terms and Policies”) were last updated on: December 21, 2019. When we say “our”, “us”, “we” or “Spoiled Cabbage” in these Spoiled Cabbage Terms and Policies, we mean Music Monster, LLC or its subsidiaries. These Spoiled Cabbage Terms and Policies apply to websites and applications operating under the Spoiled Cabbage brands or other brands that we own, as well as those of our websites, applications, emails and other communications that link to or reference these Spoiled Cabbage Terms and Policies, or the other services provided through any of these means (the “Services”).

From time to time, we may revise these Spoiled Cabbage Terms and Policies. You can determine when these Spoiled Cabbage Terms and Policies were last revised by referring to the top of this page. Any changes to the Spoiled Cabbage Terms and Policies will become effective upon posting of the revised Spoiled Cabbage Terms and Policies on the Internet, accessible through Services, unless otherwise noted. By continuing to use Services following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of these Spoiled Cabbage Terms and Policies, as they may be amended from time to time, please do not continue using the Services. To the extent that an arbitrator or court of applicable jurisdiction determines that applying any changes to these Spoiled Cabbage Terms and Policies would render this an illusory or unenforceable contract, such changes shall be applicable on a prospective basis only, with respect to events or circumstances occurring after the date of such changes.

The Spoiled Cabbage Terms and Policies consist of:

NOTICE OF ARBITRATION PROVISIONS:

All the above Terms and Policies and your use of the Services are subject to binding individual arbitration of any disputes which may arise. Please read the arbitration provisions carefully and do not use the Services if you are unwilling to arbitrate any disputes you may have with us as provided below.

BINDING ARBITRATION OF ALL DISPUTES

We believe that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to these Terms, if you have any dispute or disagreement with us regarding or relating to (i) your use of or interaction with the Services, (ii) any purchases or other transactions or relationships with Spoiled Cabbage, or (iii) any data or information you may provide to Spoiled Cabbage or that Spoiled Cabbage may gather in connection with such use, interaction or transaction (collectively, "Spoiled Cabbage Transactions or Relationships"), you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the Services, or engaging in any other Spoiled Cabbage Transactions or Relationships with us, you agree to binding arbitration as provided below. Our rights and obligations under this arbitration provision shall inure to the benefit of each of Spoiled Cabbage's Owners (as defined in the Privacy Policy regardless of whether any of them are named as a co-defendant with us or named individually in a claim that would otherwise be subject to this arbitration provision if brought against us.

We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us. If those efforts fail, by using our Services, you agree that any complaint, dispute, or disagreement you may have against Spoiled Cabbage, and any claim that Spoiled Cabbage may have against you, arising out of, relating to, or connected in any way with our Terms of Use, our Privacy Policy, our Terms and Policies, or any Spoiled Cabbage Transactions or Relationships shall be resolved exclusively by final and binding arbitration ("Arbitration") administered by JAMS or its successor ("JAMS") and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the "Applicable Rules"). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the "AAA") instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the "Applicable Rules" in such circumstances). If JAMS (or, if applicable, AAA) at the time the arbitration is filed has Minimum Standards of Procedural Fairness for Consumer Arbitrations in effect which would be applicable to the matter in dispute, Spoiled Cabbage agrees to provide the benefit of such Minimum Standards to you to the extent they are more favorable than the comparable arbitration provisions set forth herein, provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (e) or (i) below. Furthermore, nothing herein shall prevent any party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. You further agree that:

  • the Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and Spoiled Cabbage (the "Arbitrator");

  • the Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms and/or these arbitration provisions hereof, including but not limited to any claim that all or any part of these Terms is void or voidable;

  • the Arbitration shall be held either: (i) at a location determined by JAMS (or, if applicable, AAA) pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and Spoiled Cabbage; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.

  • except for claims involving gift cards, the Arbitrator (i) shall apply internal laws of the State of New York consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the United States, irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with New York or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;

  • the Arbitration can resolve only your and/or Spoiled Cabbage's individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;

  • the Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator's complete determination of the dispute and the factual findings and legal conclusions relevant to it (an "Award"). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;

  • in the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, Spoiled Cabbage will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;

  • in the event you recover an Award greater than Spoiled Cabbage's last written settlement offer, the Arbitrator shall also have the right to include in the Award Spoiled Cabbage's reimbursement of your reasonable and actual out-of-pocket attorneys' fees associated with the Arbitration, but Spoiled Cabbage shall in all events bear its own attorneys' fees; and

  • with the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Spoiled Cabbage shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction.

  • Spoiled Cabbage may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after Spoiled Cabbage has given notice of such modifications and only on a prospective basis for claims arising from Spoiled Cabbage Transactions and Relationships occurring after the effective date of such notification.

  • Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against Spoiled Cabbage in your local small claims court within the United States, if your claim is within such court's jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.

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