Thank you for your interest in Picadeli US Inc. (“Picadeli”) and the Picadeli promoter program (the “Program”). Picadeli operates the Program subject to these terms and conditions. By signing up for the Program, you (“you” or the “Promoter”) accept and agree to the following terms and conditions (the “Agreement”). Picadeli and Promoter may be referred to herein collectively as “Parties” and individually as a “Party.”
PLEASE NOTE: SECTION 18 OF THIS AGREEMENT IS A DISPUTE RESOLUTION SECTION WITH AN ARBITRATION PROVISION, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER THAT AFFECT YOUR RIGHTS. THE DISPUTE RESOLUTION SECTION AFFECTS HOW DISPUTES WITH PICADELI ARE RESOLVED. YOU AGREE TO BE BOUND BY THE DISPUTE RESOLUTION SECTION, INCLUDING THE ARBITRATION PROVISION. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT. PLEASE READ THIS AGREEMENT CAREFULLY.
Promoter agrees that as a spokesperson for Picadeli and the Program, Promoters shall continue to endorse Picadeli and the Program during the Term (as defined in Section 5 herein). Promoter understands that commercial materials that Promoter may prepare or that are prepared by Picadeli for Promoter’s execution or production may attribute statements to Promoter to the effect that Promoter endorses Picadeli and the Program. Promoter warrants and represents that such statements will represent Promoter’s actual belief and experience, provided that Promoter will have prior reasonable approval over such statements, it being agreed that Promoter’s failure to disapprove the same within seventy-two (72) hours of receipt thereof will be deemed an approval.
Promoter further agrees to promptly reply to SMS and text messages sent from Picadeli to Promoter in order to be approved for the Program and be eligible for the Fees (as defined in Section 2 herein). Promoter further agrees that in order to be eligible for the Fees, the Promoter agrees to all text message correspondence from Picadeli.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR A MANDATORY AND BINDING ARBITRATION, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER.
Any dispute or claim arising out of or relating to the Program or this Agreement, or your relationship with Picadeli, and any of its subsidiaries, divisions or affiliates, related or parent companies, or the present, future, or former employees, managers, shareholders, attorneys, agents, officers, directors, or successors of Picadeli, whether based on contract, tort, statute, fraud, misrepresentation, or any other legal theory (each a “Dispute”) will be resolved through binding individual arbitration as set forth in this Agreement, except that either you or Picadeli may initiate a Dispute in or take a Dispute to small claims court on an individual basis, so long as the Dispute is not removed or appealed to a court of general jurisdiction. Whether a Dispute falls within the jurisdiction of small claims court is for a small claims court to decide in the first instance and for a court of competent jurisdiction to otherwise decide. The term “Dispute” shall be interpreted broadly and includes, but is not limited to: (a) any dispute or claim that arose before the existence of these or any prior Agreement (including, but not limited to, claims relating to advertising); (b) any dispute or claim that is currently the subject of purported class action litigation in which you are not a member of a certified class; and, (c) any dispute or claim that may arise after termination of this Agreement. “Dispute,” however, does not include disagreements or claims concerning patents, copyrights, trademarks, trade secrets, or other intellectual property, and claims of piracy or unauthorized use of intellectual property.
In any Dispute, the arbitrator shall decide all issues except the following (which are for a court of competent jurisdiction to decide): (a) issues that are reserved for a court in this Agreement; (b) issues that relate to the scope, validity, and/or enforceability of the arbitration provision, class action waiver, or any of the provisions of this Dispute Resolution clause; and, (c) issues that relate to the arbitrability of any Dispute. This Agreement and its arbitration provision does not prevent you from bringing a Dispute to the attention of any government agency. You and Picadeli agree that this Agreement evidences a transaction in interstate commerce and that the arbitration provision herein will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law.
Early Resolution Process
You and Picadeli agree to work together in a good-faith effort to informally resolve any Dispute that might arise using the early resolution process described herein (“Early Resolution Process”).
The Party initiating a Dispute must first send the other a written notice (the “Dispute Notice”) that includes all of the following information: (a) information sufficient to identify any transaction and/or account at issue in the Dispute; (b) contact information (including your name, address, telephone number, and email address); and, (c) a detailed description of the nature and basis of the Dispute and the relief sought, including a calculation for such relief. The Dispute Notice must be personally signed by the Party initiating the Dispute (and their counsel, if represented). If you are the Party initiating a Dispute, you must send Picadeli the Dispute Notice via mail to Picadeli US Inc., PO Box 69, Pacific Palisades, CA 90272. If Picadeli has a Dispute with you, we will send a Dispute Notice to you at the most recent contact information we have on file for you.
For a period of sixty (60) days from receipt of a completed Dispute Notice (which can be extended by agreement of the Parties), you and Picadeli agree to negotiate in good faith in an effort to informally resolve the Dispute. The Party receiving the Dispute Notice may request a telephone settlement conference to aid in the early resolution of the Dispute. If such a conference is requested, you and a Picadeli representative will personally attend such a telephone settlement conference (with counsel, if represented). The conference will be scheduled for a mutually convenient time, which may be outside of the sixty (60) day period following receipt of a Dispute Notice. This informal Early Resolution Process is a condition precedent to you or Picadeli commencing a formal proceeding in arbitration or small claims court. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of arbitrations, and to enjoin the assessment or collection of arbitration fees. Nothing in this paragraph limits the right of a Party to seek damages for non-compliance with this process in arbitration or to raise non-compliance with an arbitrator. All applicable limitations periods (including statutes of limitations) will be tolled from the date of receipt of a completed Dispute Notice through the conclusion of this Early Resolution Process. You or Picadeli may commence arbitration or a small claims court proceeding if a Dispute is not resolved through this Early Resolution Process.
Arbitration Procedures
The arbitration of any Dispute shall be conducted in accordance with the rules of the American Arbitration Association (“AAA”), including the AAA’s Commercial Arbitration Rules, as applicable (“AAA Rules”), as modified by this arbitration provision and this Agreement. The AAA Rules are available online at www.adr.org. You and Picadeli understand and agree that the AAA’s administrative determination that this arbitration provision comports with Due Process is final, and that neither a court nor an arbitrator has the authority to revisit it. If the AAA is unavailable or unwilling to conduct the arbitration consistent with this arbitration provision and this Agreement, the Parties shall agree on a replacement arbitration administrator that will do so. If the Parties cannot agree on a replacement arbitration administrator, they shall petition a court of competent jurisdiction to appoint an arbitration administrator that will conduct the arbitration consistent with this arbitration provision and this Agreement.
An arbitration demand must: (a) include all of the information required to be provided in the Dispute Notice above; (b) be accompanied by a certification of compliance with the Early Resolution Process above; and, (c) be personally signed by the Party initiating arbitration (and counsel, if represented). When initiating arbitration, you shall personally certify to Picadeli and to AAA that you are a Party to this arbitration provision and provide a copy or link to it. By submitting an arbitration demand, the initiating Party and counsel represent, as in court, that they are complying with the requirements of Federal Rule of Civil Procedure 11(b). The arbitrator is authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 on represented Parties and their counsel. You may choose to have the arbitration conducted by a phone, video, or in-person hearing, or through written submissions, except any Dispute seeking more than Ten Thousand Dollars ($10,000.00 USD) or injunctive relief shall have an in-person or video hearing unless the Parties agree otherwise. You and Picadeli reserve the right to request a hearing in any matter from the arbitrator. You and a Picadeli representative shall personally appear at any hearing (with counsel, if represented). Any in-person hearing shall be held in Los Angeles County or at another mutually agreed-upon location. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. To the fullest extent allowable by applicable law, you and Picadeli agree that each may bring claims against the other only in your or our individual capacity and not as a plaintiff or class member in any purported class, collective, consolidated, private attorney general, or representative proceeding. Further, unless both you and Picadeli agree otherwise, an arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of class, collective, consolidated, private attorney general, or representative proceeding. You agree that you shall personally participate, along with your counsel if represented, in the initial conference with the arbitrator unless the Parties agree otherwise. An arbitrator must follow and enforce this Agreement as a court would.
IF, AFTER EXHAUSTION OF ALL APPEALS, ANY OF THESE PROHIBITIONS ON NON-INDIVIDUALIZED INJUNCTIVE OR DECLARATORY RELIEF AND CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE PROCEEDINGS ARE FOUND TO BE UNENFORCEABLE WITH RESPECT TO A PARTICULAR CLAIM OR REQUEST FOR RELIEF (SUCH AS A REQUEST FOR PUBLIC INJUNCTIVE RELIEF), THEN SUCH A CLAIM OR REQUEST FOR RELIEF WILL BE DECIDED BY A COURT OF COMPETENT JURISDICTION, AFTER ALL OTHER CLAIMS AND REQUESTS FOR RELIEF ARE ARBITRATED.
The arbitrator shall issue a reasoned written decision sufficient to explain essential findings and conclusions. The arbitrator shall apply the cost-shifting provisions of Federal Rule of Civil Procedure 68 after entry of an award. Judgment on any arbitration award may be entered in any court of competent jurisdiction, except an award that has been satisfied may not be entered. An award shall have no preclusive effect in any other arbitration or proceeding in which you are not a named party.
Costs of Arbitration
Payment of arbitration fees will be governed by the AAA Rules and fee schedule. You and Picadeli agree that the Parties have a shared interest in reducing the costs and increasing the efficiencies associated with arbitration. Therefore, you or Picadeli may elect to engage with the AAA regarding arbitration fees, and you and Picadeli agree that the Parties (and counsel, if represented) shall work together in good faith to ensure that arbitration remains cost-effective for all Parties.
YOU AND PICADELI EACH AGREE THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION. YOU AND PICADELI AGREE TO WAIVE ANY RIGHT TO BRING OR TO PARTICIPATE IN SUCH AN ACTION IN ARBITRATION OR IN COURT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, THE PARTIES RETAIN THE RIGHT TO PARTICIPATE IN A CLASS-WIDE SETTLEMENT.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND PICADELI WAIVE THE RIGHT TO A JURY TRIAL.
OPT-OUT OF AGREEMENT TO ARBITRATE: You can decline this agreement to arbitrate by mail addressed to Picadeli US Inc., PO Box 69, Pacific Palisades, CA 90272 and providing the requested information as follows: (1) your name; (2) your address; (3) your phone number; (4) the URL containing the Arbitration and Class Action Waiver provision for this Agreement; and, (5) a clear statement that you wish to opt out of this arbitration provision. This opt-out notice must be mailed no later than thirty (30) days after the date you first accept this Agreement.
By enrolling in the Program and clicking “Join” on the Picadeli Perks Promoter Registration Form, you acknowledge that you have read and agree to the terms of this Agreement and Picadeli’s privacy policy as outlined below.
By enrolling in the Program, Promoter has opted-in to receiving text messages and agrees that message & data rates may apply and that message frequency varies. View Picadeli’s terms: www.picadeli.us/terms and privacy policy: www.picadeli.us/privacy-policy for more information.