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Stored Credential Consent Agreement

STORED CREDENTIAL CONSENT AGREEMENT

This Stored Credential Consent Agreement (the “Agreement”) is by and between DiBella’s Old Fashioned Submarines, Inc. (“DiBella’s” or “we”) and you, the cardholder who desires to store your credit card information, including, but not limited to, your credit card number, expiration date and associated contact information (collectively, “Credit Card Credentials”), in or through certain programs and services offered by DiBella’s that can be used by you to complete future transactions.  This Agreement describes each party’s respective rights and obligations relating to the subject matter hereof.

1. INCORPORATION OF RELATED TERMS.  This Agreement incorporates by reference DiBella’s Terms of Use, Terms of Sale and Privacy Policy.  Additionally, certain programs and services offered by DiBella’s may be governed by additional terms and conditions presented in conjunction with them.  This Agreement, including DiBella’s Terms of Use, Terms of Sale and Privacy Policy, together with any such additional terms and conditions, constitute the entire agreement between you and DiBella’s related to this Agreement.  This Agreement, DiBella’s Terms of Use, Terms of Sale and Privacy Policy, and any such additional terms and conditions shall apply equally to you.  However, in the event there is any conflict or inconsistency between the terms of this Agreement and the terms of such other agreements relating to your Credit Card Credentials, the terms of this Agreement relating to your Credit Card Credentials shall govern and control.

2. CONSENT TO STORE AND USE CREDIT CARD CREDENTIALS.  You have requested to store your Credit Card Credentials in or through certain programs and services offered by DiBella’s.  By clicking “I Agree” and/or saving your Credit Card Credentials in or through such programs and services,  you acknowledge that DiBella’s, its third party partners and payment processors will store your Credit Card Credentials for the purpose of processing future transactions, whether an individual transaction, recurring transaction or a transaction that is triggered upon the occurrence of a certain event, on those programs and services offered by DiBella’s in which the Credit Card Credentials are stored (“DiBella’s Credential Programs and Services”).  You hereby consent to the storage of all such Credit Card Credentials in or through the applicable DiBella’s Credential Programs and Services. 

3. TRANSACTIONS USING STORED CREDIT CARD CREDENTIALS.  For a transaction made through DiBella’s Credential Programs and Services using stored Credit Card Credentials, the total amount for such transaction will be inclusive of the retail cost of the products ordered, all applicable taxes, and all applicable service fees in USD (United States Dollar).  By selecting a fixed interval or date on which such transaction will recur, or by scheduling such transaction upon the occurrence of a certain event, you are thereby providing your consent for DiBella’s, its third party partners and payment processors to process such transaction in accordance with your selections.

4. UPDATING AND REMOVING STORED CREDIT CARD CREDENTIALS.  It is your responsibility to update your Credit Card Credentials on all applicable DiBella’s Credential Programs and Services.  You may remove your stored Credit Card Credentials at any time by accessing your account with the applicable DiBella’s Credential Programs and Services and removing the stored Credit Card Credentials thereon, or contacting the DiBella’s Customer Relations Team by phone at 585-262-3630.

5. CANCELLATION AND REFUNDS.  You shall be subject to those certain transaction cancellation, refund and other sales policies as set forth in the DiBella’s Terms of Sale. 

6. CHANGES TO THIS AGREEMENT.  DiBella’s may change the terms of this Agreement, with or without notice at any time.  DiBella’s will post the revised Agreement on the DiBella’s Credential Programs and Services, and any such change will become effective at the time DiBella’s posts the revised Agreement.

7. DISPUTE RESOLUTION AND ARBITRATION AGREEMENT. 

(a)  YOU AND DIBELLA’S AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.

(b) Any claim or dispute between you and DiBella’s, its affiliated companies and its respective officers, directors, employee, agents or contractors arising from or relating to this Agreement, will be resolved by binding arbitration before a sole arbitrator in the State of New York administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules as supplemented by AAA Supplementary Procedures for Consumer-Related Disputes.  YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO SUE OR GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS AGREEMENT.  However, either you or DiBella’s may bring any individual claim in small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual claim.

(c) Prior to initiating any arbitration, you must first present any claim or dispute to DiBella’s by contacting the DiBella’s Customer Relations Team at 585-262-3630 to allow for an opportunity to resolve the dispute. You or we may initiate arbitration if your claim or dispute cannot be resolved within sixty (60) days. 

(d) All administrative fees and expenses of an arbitration will be divided equally between you and DiBella’s. In all arbitrations, each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration.

(e) An arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, or award punitive damages or any other damages aside from the prevailing party’s actual damages, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder will still be given full force and effect.

(f) WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS OF ANY NATURE OR IN ANY FORUM WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THIS MEANS THAT YOU MAY NOT PURPORT TO ACT ON BEHALF OF A CLASS OR ANY OTHER PERSON. LIKEWISE, AN ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.

(g)  This Section 7 shall be governed by, and interpreted, construed, and enforced in accordance with, the United States Federal Arbitration Act and other applicable federal law.  DiBella’s will provide notice of any material changes to this Section 7. If for any reason this arbitration clause is deemed inapplicable or invalid, you and we both waive, to the fullest extent allowed by law, any claims to recover punitive or exemplary damages and any right to pursue any claims on a class or consolidated basis or in a representative capacity. Only the arbitrator is authorized to make determinations as to the scope, validity, or enforceability of this Section 7, including whether any dispute falls within its scope.  However, the parties agree that any issue concerning the validity of the class action/representative waiver above must be decided by a court, and an arbitrator does not have authority to consider the validity of the waiver.

8. GOVERNING LAW.  This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws provisions.

9. MISCELLANEOUS.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, it will not impact the validity and enforceability of any other provision of this Agreement, all of which will remain in full force and effect. Failure of DiBella’s to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision in that or any other instance.