Our philosophy is to treat all consumers, including our customers, honestly and reasonably. If a concern, complaint, or claim of any kind arises between you and HelloFresh, you and HelloFresh agree to work diligently and in good faith to reach a resolution that is fair and equitable to both sides using the informal settlement process described below. On occasion, despite our respective best efforts, a third party may be necessary to help resolve problems that may arise between you and HelloFresh.
YOU AND HELLOFRESH AGREE THAT ALL DISPUTES BETWEEN YOU AND HELLOFRESH THAT ARE NOT RESOLVED INFORMALLY SHALL BE RESOLVED ON AN INDIVIDUAL BASIS THROUGH BINDING ARBITRATION OR IN SMALL CLAIMS COURT ONLY. YOU AND HELLOFRESH ALSO AGREE TO WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY AND TO WAIVE ANY AND ALL RIGHTS TO PARTICIPATE IN ANY WAY IN A CLASS ACTION IN CONNECTION WITH ANY SUCH DISPUTES OR TO MAKE OR PROCEED WITH ANY CLAIM ON A COLLECTIVE OR CONSOLIDATED BASIS.
24.1 All Disputes Covered. You and HelloFresh agree that this agreement covers all concerns, complaints, demands for relief, disputes, and claims of any kind and in the broadest possible sense that may arise between you and HelloFresh (each a “Dispute,” and, collectively, the “Disputes”). Disputes covered by this agreement include, but are not limited to, those arising out of or related in any way to these Terms, including HelloFresh’s privacy policy; the operation and content of the Site and App; your use of the Site and App; communications and interactions between you and HelloFresh; promotions by HelloFresh; and all purchases of, requests for, and uses by you of all products and services offered by HelloFresh (including all Offerings and Supplemental Offerings). You and HelloFresh further agree that this mutual obligation to arbitrate encompasses Disputes of every kind and description, including, but not limited to, statutory, regulatory, constitutional, and common law Disputes, including, but not limited to, those involving allegations of negligence and intentional wrongdoing (including fraud and misrepresentation) and tax controversies, and irrespective of the source or origin of the law which may govern or give rise to such Disputes and irrespective of whether other parties may be involved in such Disputes.
24.2 All Persons and Entities Covered. You and HelloFresh agree that this agreement applies to all agents, attorneys, contractors, subcontractors, service providers, employees, and all others acting for, or on behalf of, you and HelloFresh, or under your or HelloFresh’s direction or control, and all companies affiliated with HelloFresh (including, but not limited to, parents, subsidiaries, and sibling corporations, if any). This arbitration agreement is binding not only on you and HelloFresh, but also your and HelloFresh’s respective heirs, successors, and assigns.
24.3 Governing Law. You and HelloFresh agree that all arbitrations between you and HelloFresh under this agreement are governed by the Federal Arbitration Act (“FAA”) and federal law, notwithstanding any state or local laws, or the laws of other countries, concerning or purporting to place limits on the availability or scope of arbitration or imposing obligations greater than, or inconsistent with, the FAA. In all other respects, the laws of the State of New York shall control to the fullest extent permitted, without giving effect to any principles that provide for the application of the laws of another jurisdiction, but only to the extent that the laws of New York are consistent with the FAA. With regard to dispute resolution between you and HelloFresh (including arbitration), if there is a conflict between this provision and any other provision of the Terms regarding governing law, this provision shall control.
24.4 The Informal Settlement Process. Before you or HelloFresh can file a claim in arbitration or small claims court, you and HelloFresh are each required first to participate in an informal settlement process for a period of sixty (60) days for the purpose of resolving all Disputes. To initiate the informal settlement process, the claiming party must send to the other party a short, written statement (a “Claim Statement”) providing the claimant’s name and address; explaining the Dispute in sufficient detail for the other party to understand and investigate it; and presenting a proposal for resolving it (including any amount of money being claimed and how that amount was calculated). You agree to send Claim Statements by email to arbitrationoptout@hellofresh.com or by certified mail, return receipt requested to HelloFresh, Attn: Legal Department, 28 Liberty Street, 10th Floor, New York, NY 10005. If applicable, HelloFresh agrees to send Claim Statements by email to an email address you have previously provided to HelloFresh or by certified mail, return receipt requested to an address you have previously provided to HelloFresh. You and HelloFresh will then, upon receipt of any Claim Statement, attempt in good faith to resolve each Dispute described in the Claim Statement on an individual basis. If any such Dispute is not resolved within sixty (60) days following the receipt of a Claim Statement, you and HelloFresh thereafter have the right to resolve any such Dispute either in small claims court or by individual arbitration, subject to the requirements described below. Any statutes of limitations applicable to such Disputes shall be suspended for the sixty (60) day period during which you and HelloFresh attempt to resolve such Disputes informally. You and HelloFresh may agree to extend the period for informally resolving such Disputes beyond sixty (60) days, and, if so, any applicable statutes of limitation will be suspended for that additional period as well.
24.5 Disputes Not Settled Informally May Only Be Resolved in Small Claims Court or By Individual Arbitration. At the conclusion of the sixty (60) day informal settlement period, Disputes presented in a Claim Statement, but not resolved, may be asserted on an individual basis in either (1) small claims court in: (a) the county or parish where you live, if such a court is available and has jurisdiction to hear the Dispute; or (b) another location you and HelloFresh agree on, but only if the Disputes (and the relief sought) qualify to be brought in that court; or (2) binding individual arbitration as provided for in this agreement, below.
24.6 ARBITRATION RULES AND REQUIREMENTS: While there is no judge or jury in an arbitration, the arbitrator has the power to hear and resolve all claims and to award all the relief that a court can award to an individual litigant, and must interpret and apply this agreement as a court would. Court review of an arbitration decision is limited. To the extent that any cause of action or claim for relief cannot for any reason be addressed in arbitration, you and HelloFresh agree that any court proceedings shall be stayed pending the final resolution in arbitration of all arbitrable causes of action and claims for relief. In the event you and HelloFresh disagree on whether a Dispute must be arbitrated or disagree concerning the scope of the arbitrator’s powers, the arbitrator shall have, but only to the extent permitted by law, the sole authority to address all such disagreements, including, but not limited to, arguments concerning or related to the formation, legality, interpretation, and enforceability of this agreement, the scope of the arbitration agreement, the applicability of this agreement to you and HelloFresh, and the arbitrability of any Dispute arising between you and HelloFresh. Any court of competent jurisdiction will have the authority to enforce these arbitration requirements (including those related to Mass Arbitration set forth below) and, if necessary, enjoin the filing or prosecution of any arbitrations and the assessment of fees by the American Arbitration Association (“AAA”) or any other organization, arbitrator, or mediator in a manner inconsistent with this agreement.
24.7 General Arbitration Rules. The arbitration process and dispute resolution process will differ depending on whether your claim is pursued individually or as part of a Mass Arbitration (which is defined below). In the case of a Mass Arbitration, if there is a conflict between these General Arbitration Rules and the rules described below pertaining to Mass Arbitration, the Mass Arbitration Rules will control. Otherwise, these rules (the “General Arbitration Rules”) shall, alone, control. All arbitrations shall be before a single arbitrator. Arbitrations involving consumer Disputes shall be governed by this agreement and the then-current AAA Consumer Arbitration Rules and the AAA Consumer Due Process Protocol, which you can find here: https://www.adr.org/consumer. All other arbitrations shall be governed by this agreement and the then-current AAA Commercial Arbitration Rules and the AAA Optional Appellate Rules, which you can find here: https://www.adr.org/commercial. To the extent there is a conflict between this agreement and any applicable AAA rules and protocols, this agreement shall control except to the limited extent necessary to preserve the mutual obligation to arbitrate Disputes on an individual basis. Disputes that involve an individual claim for less than $25,000 (US) in actual or statutory damages (but not including any amounts claimed for attorneys’ fees and incidental, consequential, punitive, or exemplary damages, and excluding any damage multipliers), must be resolved exclusively through binding non-appearance-based arbitration based solely on the written submissions of the parties, including affidavits. All other arbitrations will be conducted, at your election, either by telephone, online, or based solely on written submissions, including affidavits, and will not involve any personal appearances by parties or witnesses unless you and HelloFresh agree otherwise. Any personal appearances agreed to by you and HelloFresh must be at a location convenient to you. Judgment on an arbitrator’s award may be entered in any court that has jurisdiction to do so. For individual arbitrations (including bellwether arbitrations only under the Mass Arbitration Rules, below), the AAA shall be the arbitration administrator. To begin an arbitration proceeding, the party initiating the arbitration must send a letter requesting arbitration and describing the Dispute(s) to the American Arbitration Association Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043, or by filing such a request online through the AAA’s website: https://www.adr.org/Support. For requests for arbitration initiated against HelloFresh, a copy of the arbitration request shall also be sent to HelloFresh by email to arbitrationoptout@hellofresh.com or by certified mail, return receipt requested to HelloFresh, Attn: Legal Department, 28 Liberty Street, 10th Floor, New York, NY 10005. If the AAA is, for any reason, unavailable, unable, or unwilling to administer any arbitration which it is required to administer under these rules, you and HelloFresh shall negotiate in good faith on the substitution of another organization or individual to handle the arbitration in a manner that is consistent with the requirements of our agreement. If such an alternative cannot be agreed upon, you or HelloFresh may petition a court of competent jurisdiction to appoint an organization or individual to conduct the arbitration in a manner consistent with the requirements of this agreement.
24.8 Mass Arbitration Rules. If and only if twenty-five (25) or more consumers (each a “Mass Arbitration claimant”) or their lawyers file, threaten to file, or indicate an intention to file demands for arbitration against HelloFresh raising substantially identical Disputes, and counsel for the claimants are the same or coordinated across such Disputes (a “Mass Arbitration”), these special rules shall apply (the “Mass Arbitration Rules”). In the case of a Mass Arbitration, to the extent there is a conflict between these Mass Arbitration Rules and any other provisions of the Terms, these Mass Arbitration Rules will control. These Mass Arbitration Rules shall not apply to you unless you qualify as a Mass Arbitration claimant. Each Mass Arbitration claimant must complete the informal settlement process before that Mass Arbitration claimant can proceed to arbitration. Counsel for claimants and HelloFresh shall agree to the submission of a single Claim Statement for all Mass Arbitration claimants, but only if that Claim Statement identifies all Mass Arbitration claimants by name and mailing address. Once the sixty (60) day informal settlement process has ended for all Mass Arbitration claimants, the Mass Arbitration claimants must then follow the “bellwether procedure” described below in which a group of ten (10) selected claimants proceed to arbitration (each a “bellwether arbitration”), followed by a mandatory mediation process through which the Disputes of Mass Arbitration claimants may be settled. Any statutes of limitations applicable to Disputes in a Mass Arbitration shall be stayed until the informal settlement process has been completed for all Mass Arbitration claimants. Counsel for the Mass Arbitration claimants and HelloFresh’s counsel shall each select five (5) claimants for bellwether arbitrations (ten (10) in total) to be each promptly decided individually as a bellwether arbitration conducted pursuant to the General Arbitration Rules, with each case assigned to a separate arbitrator. HelloFresh reserves the right, at its sole discretion, to permit counsel for claimants to select all ten (10) bellwether cases. Each bellwether arbitration shall be completed within one-hundred-twenty (120) days from the date by which all ten (10) Mass Arbitration claimants have been selected for bellwether arbitrations unless the parties agree to a different deadline. In the meantime, no other demands for arbitration may be filed, processed, or in any way deemed filed by the arbitration administrator or arbitrator, but instead shall be stayed until the ten bellwether arbitrations and the subsequent mediation process required by the Mass Arbitration Rules (and described below) has ended. No fees or arbitrator compensation shall be assessed regarding such stayed cases while the bellwether arbitrations are arbitrated and until the mediation required by the Mass Arbitration Rules is concluded. For such stayed Disputes, all applicable statutes of limitation shall be stayed until the mediation process required by these Mass Arbitration Rules has ended. Upon the resolution of the ten (10) bellwether cases, counsel for HelloFresh and counsel for the Mass Arbitration claimants shall participate promptly and in good faith in non-binding confidential mediation for a period of sixty (60) days in a good faith effort to resolve all the Disputes of the Mass Arbitration claimants. This mediation shall be conducted by the AAA under the then-current Mediation Procedures of the AAA. https://www.adr.org/sites/default/files/Mediation%20Procedures%20of%20the%20American%20Arbitration%20Association%20Oct%2001%2C%202009.pdf. If, prior to or during the mediation required by these Mass Arbitration Rules, HelloFresh presents a written settlement offer seeking to resolve the claims of some or all Mass Arbitration claimants, counsel for those claimants shall, to the extent allowed by law, present that written settlement offer to each Mass Arbitration claimant to which it is directed. If the bellwether arbitrations and the subsequent mediation are unsuccessful in resolving the Disputes of all Mass Arbitration claimants, then, after the conclusion of the bellwether arbitrations and mediation, those Mass Arbitration claimants whose Disputes have not been resolved may each pursue those Disputes on an individual basis with FairClaims, Inc. (“FairClaims”) only (and not with AAA or any other arbitration or organization or arbitrator), https://www.fairclaims.com, to be arbitrated not under the General Arbitration Rules above (which shall be inapplicable), but under FairClaims’s then-current Small Claims Rules & Procedures, https://s3.amazonaws.com/arbi-website/fairclaims-rules/FairClaims-Small-Claims-Rules.pdf. You and HelloFresh agree to split FairClaims’ fees equally, while reserving the right to ask the arbitrator to allocate the fees differently, which the arbitrator may do to the extent permitted by applicable law or if fairness so requires. Any arbitrations initiated by Mass Arbitration claimants and pending at the conclusion of mediation with arbitration organizations or arbitrators other than FairClaims shall promptly be dismissed without prejudice. To the extent that any cause of action or claim for relief cannot for any reason be addressed by FairClaims under its Small Claims Rules & Procedures, you and HelloFresh agree that any court proceedings involving Mass Arbitration claimants and HelloFresh concerning their Disputes shall be stayed pending the final resolution in arbitration with FairClaims of all arbitrable causes of action and claims for relief.
If the AAA is, for any reason unavailable, unwilling, or unable to handle the bellwether arbitrations and mediation called for by these Mass Arbitration Rules, HelloFresh and counsel for claimants shall negotiate in good faith for the substitution of another organization or individual to carry out these functions in a manner that is cost effective to both parties and proceeds in accordance with the requirements of these Mass Arbitration Rules. If such an agreement cannot be reached for any reason, HelloFresh or counsel for claimants may petition a court of competent jurisdiction to appoint an organization or individual to conduct the bellwether arbitrations and mediation consistent with the requirements of these Mass Arbitration Rules. In the event that the Mass Arbitration Rules are determined to be unenforceable for any reason in a decision of any arbitrator or court as to which further review is foreclosed and all motions, appeals, and petitions for review have been resolved fully (a “Final Determination”), then you and HelloFresh agree that all unresolved Disputes between Mass Arbitration claimants and HelloFresh must be filed in and resolved by a court of competent jurisdiction only (including on a class action basis if the Dispute so qualifies), and shall not be filed in, pursued further, or resolved through arbitration or otherwise be subject to any contractual obligation to arbitrate. To the extent that any arbitrations filed by or on behalf of Mass Arbitration claimants remain pending upon the event of a Final Determination, they shall immediately be dismissed without prejudice. A finding that these Mass Arbitration Rules are unenforceable for any reason, including any Final Determination, shall have no effect on the validity or enforceability of any other provisions of these Terms, including, but not limited to, the General Arbitration Rules and all provisions of this agreement applicable to Disputes which do not involve Mass Arbitration claimants.
24.9 No Class Actions. Except as expressly provided for in the Mass Arbitration Rules in the event of a Final Determination, you and HelloFresh agree that all Disputes must be resolved on an individual basis only. This means that in such circumstances: (a) neither you nor HelloFresh can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action; (b) an arbitrator cannot combine multiple claimant’s claims into a single case (or preside over any consolidated, class, or representative action); and (c) an arbitrator’s decision or award in one person’s case can only decide the Disputes of that claimant, not other claimants. Nothing in this agreement, including this section, is intended to limit the relief available to either you as an individual or HelloFresh in arbitration or small claims court, including equitable relief that an arbitrator may be required to make available by applicable law. Nor does anything in this section limits your or HelloFresh’s rights to resolve a Dispute by mutual agreement through a class-wide settlement of claims whether through mediation or otherwise.
24.10 Fees and Costs. You and HelloFresh will each bear their own costs and attorneys’ fees in the event of a Dispute, provided, however, that either party may recover attorneys’ and arbitral fees and costs to the extent permitted by applicable law or under applicable arbitration rules. If an arbitrator determines that an arbitration has been brought in bad faith, for an improper purpose, or to exert unfair pressure greatly disproportionate to the harm alleged, or that the demand was entirely frivolous, the arbitrator may award costs, arbitration fees, and attorneys’ fees to the party defending itself in connection with any such Disputes.
24.11 Rules of Construction. The requirements of the Terms related to dispute resolution shall be interpreted, to the maximum extent permitted by law, to facilitate the resolution of all Disputes in arbitration in a way that is cost-effective to all parties.
24.12 Severability. If for any reason any provision of the Terms related to dispute resolution shall be held to be unenforceable, the remaining provisions of the Terms shall remain in effect to the maximum extent permitted by law in a manner that facilitates resolution of Disputes in arbitration in a way that is cost effective to all parties. To the extent that any provision of the Terms is found to be inconsistent with rights, duties, and requirements of the arbitration agreement, or where the application of such a provision would change or render unenforceable any provision of the arbitration agreement, such provision shall be null, void, and of no effect for purposes of dispute resolution and the dispute resolution provisions shall control.
24.13 Survival. All provisions of the Terms relating to dispute resolution shall survive the termination, cancellation, or expiration of the Terms or of your customer relationship with HelloFresh.
24.14 Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: arbitrationoptout@hellofresh.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your HelloFresh username (if any), the email address you used to set up your HelloFresh account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement 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.