Dispute Resolution

General
We believe that arbitration offers a prompt, efficient way to resolve any dispute, controversy, or other claim that may arise between you and us (whether arising under any legal or equitable theory, and given the broadest meaning enforceable under law, a “Dispute”).

To the maximum extent permitted by law, you and we agree that any and all Disputes arising out of or relating in any way to these Terms and prior versions of these Terms, any communications you receive from Simply, any products sold or distributed through the Platform, your account, your access to or use of the Platform (including for the purchase of Simply products), your Submissions, and any Personal Rights contained therein, including claims and disputes that arose between us before the effective date of these Terms, will be resolved exclusively and finally by a single arbitrator using binding arbitration pursuant to the Consumer Arbitration Rules of the American Arbitration Association (“AAA”), as further detailed in this Section 15 (“Arbitration Agreement”). DISPUTES WILL ONLY BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, REPRESENTATIVE, OR SIMILAR ACTION, EXCEPT AS PROVIDED BELOW. There is no judge or jury in arbitration. The discovery and other procedures are more limited and less formal, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court in an individual proceeding (including attorneys’ fees).

The only exceptions to the Arbitration Agreement are: (i) you and Simply may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Simply may seek equitable relief in court for infringement or other misuse of intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms, as well as claims that may arise after the termination of these Terms.

Waiver of Jury Trial
YOU AND SIMPLY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Simply are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in this Arbitration Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

Waiver of Class and Other Non-Individualized Relief
YOU AND SIMPLY AGREE THAT, EXCEPT AS OTHERWISE PROHIBITED BY LAW, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, 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 the party's individual claim. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Simply agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or provincial (as applicable) or federal courts located in either the State of Washington if arising the United States or in the Province of British Columbia if arising in Canada. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Simply from participating in a class-wide settlement of claims.

Pre-Arbitration Claim Resolution
If a Dispute arises between you and Simply, Simply is committed to working with you to reach a reasonable resolution. You and Simply agree to make good faith, informal efforts to resolve Disputes to seek a prompt, low‐cost and mutually beneficial outcome. Before initiating any proceeding, you and we must first give the other an opportunity to resolve the Dispute. We will reach out to you via your information on file and you will reach us by emailing us at INFO@SIMPLY.COM with the following information: (i) your name; (ii) your address; (iii) a written description of our claim in the Dispute; and (iv) a description of the specific relief you seek. If you and we do not resolve the Dispute within forty-five (45) days after receiving said notification, then you or we may pursue the Dispute in arbitration, as detailed below, or, if you have opted out of arbitration as provided under “30-Day Right to Opt Out”, in court.

30-Day Right to Opt Out
Notwithstanding the above, you have the right to opt out of the provisions of this Arbitration Agreement within thirty (30) days from the date that you first consent to these Terms (the “Opt-Out Deadline”). To opt out of arbitration, simply email us at INFO@SIMPLY.COM with the following information: (i) your name; (ii) your address; and (iii) a clear statement that you do not wish to resolve Disputes with us through arbitration. Any decision to opt out of arbitration will have no adverse effect on your relationship with us, but we do have to enforce the Opt-Out Deadline. Any opt-out request received after the Opt-Out Deadline will not be valid, and you will be required to pursue any Dispute in arbitration. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

Arbitration Procedures
If the Dispute is not resolved as provided under “Pre-Arbitration Claim Resolution” within forty-five (45) days, either you or we may initiate arbitration proceedings. The AAA will administer all Disputes, and the arbitration will be conducted before a single arbitrator, in accordance with the Consumer Arbitration Rules and the Mass Arbitration Supplementary Rules, as applicable, then in effect, except as modified by this Arbitration Agreement. The AAA rules are available at www.adr.org. These Terms govern in the event of any conflict with the applicable arbitration rules.

The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (i) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void, or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (ii) all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (iii) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (iv) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (i) the name, telephone number, mailing address, and email address of the party seeking arbitration and the account username (if applicable), as well as the email address associated with any applicable account; (ii) a statement of the legal claims being asserted and the factual bases of those claims; (iii) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (iv) a statement certifying completion of the Pre-Arbitration Claim Resolution process as described above; and (v) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

The arbitration will be conducted in English, closed to the public, and confidential. You and we agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential. All related records shall be kept confidential, except as necessary to obtain court confirmation of the arbitration award.

The Terms evidence a transaction which may involve interstate commerce; notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings.

Nothing herein will preclude us from seeking provisional remedies in aid of arbitration (such as orders to stay a court action or compel arbitration), temporary restraining orders or similar relief, or redress for potential violations of our intellectual property rights, from any court of competent jurisdiction.

Attorneys’ Fees and Costs
Subject to the “last-best offer” section below, The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules. If you or we need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

Last-Best Offer
Simply may serve you with a written “last-best” settlement offer at least 14 days before the arbitration date. If the final award does not exceed that offer, you must (i) bear your own lawyer’s fees and expenses incurred after the offer date and (ii) reimburse Simply for AAA/arbitrator fees it advanced after that date.

Arbitration Award
The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law. 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 and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitration
Unless you and Simply otherwise agree, the arbitration will be conducted in Miami, Florida. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum.

Invalidity, Expiration
Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Simply as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time-barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

Modification
Notwithstanding any provision in these Terms to the contrary, you and we agree that if Simply makes any future material change to this Arbitration Agreement, it will notify you as set forth above. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Simply at INFO@SIMPLY.COM, your continued use of the Simply Site and/or Services, including the acceptance of products and services offered on the Site following the posting of changes to this Arbitration Agreement, constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes as of the date you first accepted the Terms (or accepted any subsequent changes to these Terms), those agreements to arbitrate remain in full force and effect. Simply will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.