GENERAL PROVISIONS; DISPUTE RESOLUTION, ARBITRATION, AND APPLICABLE LAW

A. Arbitration Agreement.
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, YOU AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND SAM’S CLUB, INCLUDING ANY PRODUCTS OR SERVICES OFFERED OR SOLD BY SAM’S CLUB, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A SINGLE NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS AND CONDITIONS, YOU AND SAM’S CLUB AGREE THAT EACH IS WAIVING THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BY A JURY. This paragraph may be referred to as the Arbitration Agreement in these Terms and Conditions.

B. Class Action and Mass Action Waiver.
YOU AND SAM’S CLUB AGREE THAT ANY ARBITRATION REQUIRED BY THE ARBITRATION AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS. You and Sam’s Club each agree to waive the right to have any dispute or claim subject to the Arbitration Agreement brought, heard, administered, resolved, or arbitrated as a class arbitration, class action, collective action, or Mass Action to the maximum extent permitted by law. “Mass Action” means a situation in which a party is represented by a law firm or other representative, or a collection of law firms or other representatives, that has initiated more than one hundred (100) arbitration Demands with common questions of law or fact against Sam’s Club within 180 days of initiating your arbitration Demand. This paragraph may be referred to as the “Class Action and Mass Action Waiver” in these Terms and Conditions. Nothing in these Terms and Conditions precludes you from bringing issues to the attention of federal, state, or local government agencies and, if the applicable law allows, such agencies may seek relief against Sam’s Club for you.

C. Initiating a Demand for Arbitration.
Any arbitration required by the Arbitration Agreement shall be initiated by You or Sam’s Club by sending the other a written demand for arbitration (“Demand”) only via first-class mail, FedEx, or UPS within the statute of limitations period. Your Demand shall be delivered to: Sam’s Club Legal Department, 702 SW 8th Street, Mailstop 0215, Bentonville, AR 72716. The Demand must include (i) the name, telephone number, mailing address, and email address of the person or entity seeking arbitration; (ii) a statement of the legal claims asserted and the factual basis for those claims; (iii) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy; (iv) the original personal signature of the party seeking arbitration; and (v) the original personal signature of any legal counsel or other representative purporting to represent the party seeking arbitration. For purposes of this paragraph, “original personal signature” does not include any digital, scanned, electronic, copied, or facsimile signature. An original personal signature on the Demand certifies the following: (i) the Demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (ii) the claims and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. The original personal signature by the party seeking arbitration shall verify under penalty of perjury that the factual statements contained in the Demand are true and correct. Compliance with this paragraph tolls any applicable statute of limitations as to any dispute or claim subject to the Arbitration Agreement that is stated in the Demand.

D. Filing a Demand for Arbitration.
A party seeking arbitration of any dispute or claim subject to the Arbitration Agreement shall submit a copy of the Demand to the American Arbitration Association (“AAA”) sixty (60) or more days after the Demand is initiated pursuant these Terms and Conditions. The arbitration will be administered by the AAA pursuant to the current AAA Consumer Arbitration Rules, except to the extent modified by these Terms and Conditions. The AAA rules and instructions are available on the AAA website at www.adr.org/consumer.

E. Conduct of Arbitration.
In any arbitration of a dispute or claim that is subject to the Arbitration Agreement:

You or Sam’s Club may file such dispositive motions as would be permitted by the Federal Rules of Civil Procedure without obtaining permission from the arbitrator. Upon the filing of any dispositive motion, the arbitrator may stay all further action and deadlines in the arbitration until deciding such motion.
The parties shall have the right to conduct such discovery from the opposing party or any third party that is proportional to the needs of the claim or dispute, considering the importance of the issues at stake, the amount in controversy, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Proportionality shall be decided by the arbitrator when requested by either party.
The arbitrator shall conduct any calls, conferences, or hearings by teleconference or videoconference, unless the arbitrator determines that an in-person hearing is appropriate. Any in-person hearing will be held at a location that is reasonably convenient. You and an employee of Sam’s Club shall attend all arbitrator calls, conferences, and hearings.
A party may make a written offer of judgment at least seven (7) days before the date set for the arbitration hearing.
If the arbitrator finds that a party’s claim, counterclaim, or appeal was frivolous, asserted in bad faith, or pursued for purposes of harassment, the arbitrator shall award the opposing party its attorneys’ fees, costs, and expenses and all amounts charged by AAA for the arbitration.
The arbitrator will follow these Terms and Conditions and the law. The arbitrator shall not have the authority to commit errors of law or legal reasoning. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual party’s claim. The arbitrator may not award relief for or against anyone who is not a party, though the individual relief awarded by the arbitrator may incidentally affect non-parties.
You or Sam’s Club may appeal an arbitration award that manifestly disregards the law by filing a notice of appeal with the AAA within 30 days after an award is rendered and delivered to the parties. The appeal shall be heard by a single arbitrator unless the parties agree to a multi-arbitrator appellate panel. The arbitrator(s) assigned to the appeal shall be selected by agreement of the parties from among those on the AAA Appellate Panel. If the parties are unable to agree, AAA shall appoint the arbitrator(s) from among those on the AAA Appellate Panel. An arbitrator who previously presided over any aspect of a case shall be ineligible from serving as an appellate arbitrator in that same case. The appeal, including briefing, shall be conducted pursuant to the parties’ agreement or the appellate arbitrator(s)’ orders if the parties are unable to agree.

F. Process for Arbitration Bellwether Demands.
If twenty-five (25) or more Demands for arbitration of a dispute or claim subject to the Arbitration Agreement are initiated (i) that involve common questions of law or fact and (ii) where the initiating parties are represented by the same law firm, the same group of coordinated law firms, or the same representative, then such Demands shall be coordinated pursuant to this paragraph. The group of claimants and group of respondents shall each select five (5) Demands, for a total of ten (10), to be filed with AAA (collectively the “Bellwether Demands”). Each of the Bellwether Demands shall be assigned by AAA to a different arbitrator chosen from its national roster. After ninety (90) days from the date all Bellwether Demands have been arbitrated and any appeals exhausted, any remaining Demands subject to this paragraph may be filed with AAA. The AAA Supplementary Rules for Multiple Case Filings shall apply to the extent they are not inconsistent with this paragraph. Notwithstanding any other provision in the Terms and Conditions, You and Sam’s Club agree that a court of competent jurisdiction shall have authority to enforce the terms of this paragraph with injunctive or other relief.

G. Severability.
If (i) any dispute or claim subject to the Arbitration Agreement is filed as a class arbitration, class action, collective action, representative action, or Mass Action and (ii) if the Class Action and Mass Action Waiver is held invalid or unenforceable as to such dispute or claim, then the Arbitration Agreement does not apply to that dispute or claim and such dispute or claim must be brought in a court of competent jurisdiction. If any provision other than the Class Action and Mass Action Waiver is held invalid or unenforceable as to a particular dispute or claim, then such provision shall be severed from the Terms and Conditions, and the remainder of the Terms and Conditions shall be enforceable to the maximum extent permitted by law.

H. Applicable Law.
The Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of these Terms and Conditions. If the FAA is found not to apply to any portion of these Terms and Conditions, then the applicable laws of the State of Arkansas shall apply without regard to choice-of-law principles.

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