The plain version: before either of us can sue, we first try to work it out informally. If that fails, disputes are resolved by individual binding arbitration, not in court and not as a class action — except small-claims cases and a few other carve-outs. You can opt out of arbitration entirely within 30 days of your first purchase.
PLEASE READ THIS SECTION CAREFULLY. IT REQUIRES YOU AND WINKS TO ARBITRATE DISPUTES ON AN INDIVIDUAL BASIS AND WAIVES THE RIGHT TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS ACTION.
15.1 Informal Resolution First
Before starting arbitration or any court proceeding, the party with the dispute must send the other a written notice describing the dispute and the relief sought ("Notice of Dispute"). Send yours to Winks Sleep, Inc., Attn: Legal — Dispute Notice, 9321 East Willis Road, Suite 125 Building 2, Mesa, Arizona 85212, or by email to support@getwinks.com with the subject "Notice of Dispute." The parties will try in good faith to resolve the dispute for 30 days after the notice is received. Most concerns can be resolved this way — please give us the chance.
15.2 Agreement to Arbitrate
If we cannot resolve a dispute informally, you and Winks agree that any dispute, claim, or controversy arising out of or relating to these Terms, the Site, or the products (a "Dispute") will be resolved exclusively by final and binding arbitration administered by JAMS under its Streamlined Arbitration Rules and Procedures and, where applicable, its Consumer Arbitration Minimum Standards. The Federal Arbitration Act governs this agreement to arbitrate. Arbitration will be conducted by a single arbitrator, in the county where you live or remotely by videoconference, at your election. The arbitrator's award may be entered in any court with jurisdiction.
15.3 Carve-Outs
Either party may (a) bring an individual claim in small claims court instead of arbitrating, and (b) seek injunctive or other equitable relief in court to protect its intellectual property. Nothing in this section prevents you from reporting issues to, or seeking relief from, a federal, state, or local government agency.
15.4 Class Action and Jury Waiver
ALL DISPUTES MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE CLAIMS OR PRESIDE OVER ANY FORM OF REPRESENTATIVE PROCEEDING. YOU AND WINKS EACH WAIVE THE RIGHT TO A TRIAL BY JURY.
15.5 Mass Arbitration
If 20 or more similar demands for arbitration are filed against either party within a 90-day period, presented by the same or coordinated counsel, the demands will be administered in batches of up to 20 under JAMS's mass-arbitration procedures, with one set of filing and administrative fees per batch per side, before a single arbitrator per batch, sequenced by mutual agreement or by JAMS. Statutes of limitation are tolled for demands awaiting their batch.
15.6 Your Right to Opt Out
You may opt out of this arbitration agreement entirely by emailing [ARBITRATION-OPT-OUT-EMAIL] within 30 days of your first purchase (or of first accepting these Terms, whichever is earlier), with your name, address, order email, and a clear statement that you opt out of arbitration. Opting out does not affect any other part of these Terms. If we materially change this Section 15, you may reject the change by the same method within 30 days of the change; rejecting the change means the prior version applies to you.
15.7 Delegation and Severability
The arbitrator has exclusive authority to resolve disputes about the interpretation, applicability, or enforceability of this arbitration agreement, except that a court decides issues concerning the class action waiver. If any part of this Section 15 is found unenforceable, the rest remains in effect — except that if the class action waiver in Section 15.4 is found unenforceable as to a particular Dispute, this entire arbitration agreement is void as to that Dispute.