arbitration and class action waiver agreement

Arbitration:
By using or purchasing Freshpet products or services, you agree that any controversy, claim, action, or dispute between you and Freshpet arising out of or relating to: (a) these SMS Terms of Service, or the breach thereof; or (b) your access to or use of Freshpet ’s website or the services or the materials; or (c) any alleged violation of any federal or state or local law, statute or ordinance (each such controversy or claim, a “Claim”), shall be resolved exclusively through binding individual arbitration administered by the American Arbitration Association in accordance with its applicable rules.

Arbitration is a form of dispute resolution in which parties agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial. The arbitrator is obligated to issue a reasoned award in writing, including all findings of fact and law upon which the award was made. The arbitrator shall not have the power to commit errors of law, and the arbitrator’s award may be vacated or corrected through judicial review by a court of competent jurisdiction. Each party’s attorneys’ fees, expert costs, and other costs and expenses incurred in connection with arbitration will be borne by the party incurring such costs and expenses.

Arbitration Procedures:
Claims shall be heard by a single arbitrator. Arbitrations shall be held in New York County, New York State, USA, but the parties may choose whether to appear in person, by phone, or through the submission of documents. The arbitration shall be governed by the Federal Arbitration Act (“FAA”) and by the internal laws of New York State, without regard to conflicts of laws principles. Any disputes in this regard shall be resolved exclusively by an arbitrator. If, but only if, the arbitrator determines the FAA does not apply, New York law governing arbitration agreements will apply. All disputes with respect to whether the foregoing mutual arbitration provisions are unenforceable, unconscionable, applicable, valid, void or voidable shall be determined exclusively by an arbitrator, and not by any court.

Exclusion from Arbitration:
Notwithstanding the terms of this Arbitration Agreement, you may choose to pursue a Claim in court and not by arbitration if you opt-out of these arbitration procedures within 30 days from the date that you first purchase any of Freshpet’s products or services (the “Opt-Out Deadline”). You may opt out by mailing a written notification to Freshpet Attn: Personal Information Records 1545 US 206, Bedminster NJ 07921. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes through arbitration. Your decision to opt-out will have no adverse effect on your relationship with Freshpet. You are responsible for ensuring Freshpet’s receipt of your opt-out notice, and you therefore may wish to send a notice by means that provide a written receipt. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Claim in arbitration.

Class Action Waiver:
You and Freshpet agree that you may bring or participate in Claims against

Freshpet only in your respective individual capacity, and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Unless both you and
Freshpet agree otherwise in writing, the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated and may not otherwise preside over any form of a representative or class proceeding.

Notwithstanding any other clause contained in this Agreement, any Claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.