These terms and conditions (“Terms and Conditions”) apply to the DAOU Vineyards Rewards Program (“Loyalty Program”). Please read these Terms and Conditions carefully. If you have any questions, please contact [email protected].

By participating in the Rewards Program, you agree to be subject to these Terms and Conditions. Joining the Rewards Program constitutes your unconditional agreement to comply with these Terms and Conditions.

I.              DEFINITIONS

A.    Loyalty Club Points (“Points”) are a Rewards Program-specific currency with no cash value. Points are redeemable only for Rewards offered through the Rewards Program. Point values are defined below and subject to change at DAOU’s sole discretion.

B.    “Rewards” means discounts on items, merchandise, or other services obtainable via redemption of Points by a Loyalty Club Member.

II.             OVERVIEW

A.    The Rewards Program is offered and sponsored by DAOU Vineyards, LLC (“DAOU”) in all 50 United States and the District of Columbia except for AL, AR, CT, DE, HI, IN, ME, MS, NJ, NC, OH, OR, PA, RI, SD, UT, VT and WV (“Eligible Jurisdictions”). Eligible Jurisdictions are subject to change at any time, without notice.

B.    Rewards Program Membership, Points, and Rewards, if any, are offered for promotional purposes only and solely at the discretion of DAOU.

C.    The Rewards Program replaces all other DAOU loyalty/rewards programs prior to the Effective Date referenced above. The Terms and Conditions set forth herein supersede all prior Rewards Program terms and conditions. The Terms and Conditions incorporate by reference DAOU’s Terms of Use, available at https://daouvineyards.com/daou-plus-terms-conditions.

D.   In its sole discretion, DAOU may add to, delete from, or modify these Terms and Conditions, with or without notice, and without regard to any effect on the value of Points already accumulated or the way in which Points may be accumulated or redeemed.

E.    The Terms and Conditions are governed by the laws of the State of California, without effect to any choice of law or conflict of law rules.

III.           GENERAL RULES

A.    Eligibility.

1.    Only legal residents of the United States who are (a) at least 21 years old and (b) use the Rewards Program for personal purposes (not commercial or business purposes) are eligible to enroll as a Member in the Rewards Program (“Eligible Applicant,” or “Member” once successfully enrolled in the Rewards Program). Residency will be determined by the Eligible Applicant or Member’s primary shipping address. It is the responsibility of the Eligible Applicant and/or Member to maintain a current primary shipping address on file with DAOU and to update Member’s primary shipping address and account accordingly. DAOU is not responsible for any errors or modifications relating to the Eligible Applicant or Member’s primary shipping address, as specified in Member’s Rewards Program account. All Members must consent to these Terms and Conditions.

2.    Eligible Applicant may apply for, and each Member may receive, only one Loyalty Club membership (“Membership”) per person, and per phone number and email address.

3.    An Eligible Applicant may enroll (i) online at daouvineyards.com, (ii) through the DAOU+ mobile app, (iii) in person at the DAOU Vineyards tasting room, or (iv) by contacting the Customer Experience Team at [email protected].

4.    A Membership is not effective until the Eligible Applicant has been accepted and the Membership has been activated by DAOU. If a Member is determined to be ineligible after enrollment, the Member’s Membership will be terminated immediately, and no compensation, Points, or other benefits will be paid.

5.    Employees of DAOU and its affiliates are eligible to participate in the Rewards Program.

6.    Eligibility in the Rewards Program is void where prohibited by law.

7.    To the extent that any part of the Rewards Program is determined to be invalid in any Eligible Jurisdiction, that part shall be void in that jurisdiction.

B.    Rewards Program Membership.

1.    No purchase is necessary to participate in the Rewards Program, which is free and voluntary.

2.    Member may not transfer Points or Rewards. Member cannot combine Points or Rewards from multiple Rewards Program accounts for redemption, or any other purpose. Points do not constitute property of Member. Points may be revoked at any time by DAOU as set forth herein. Points may not be transferred or assigned, and are not transferable upon death, as part of a domestic relations matter, or otherwise by operation of law.

3.    In the event of a dispute over ownership of the Rewards Program Membership, the account will belong to the authorized account holder of the email address submitted at the time of enrollment. For purposes of these Terms and Conditions, the “authorized account holder” for the email address is the natural person who is over the age of 21 and is assigned to the submitted email address by an internet provider, online service provider, or other organization (e.g., business, educational institution, etc.) that is responsible for assigning email addresses for the domain associated with the submitted email address.

4.    The Rewards Program is provided to individuals only. Corporations, associations, or other groups may not participate in the Rewards Program. It is fraudulent for any individual or company, association, or group to direct, encourage, or allow individuals to use a single account for the purpose of accumulating Points for combined use.

5.    If Member becomes aware of any fraudulent activity, including unauthorized use of Member account or benefits, Member must report the fraudulent activity to DAOU in writing to [email protected] as soon as possible but no later than seven calendar days after Member’s discovery of the fraudulent activity or misuse. DAOU reserves the right, in its sole discretion and without notice or liability to Member, to restrict, suspend and/or discontinue the Membership of any Member who DAOU believes has engaged in any fraudulent activity or has used the Rewards Program in a manner inconsistent with these Terms and Conditions or any federal, state, provincial, municipal, territorial or local laws, statutes or ordinances. In addition to discontinuance of Membership, DAOU shall have the right to take appropriate administrative and/or legal action, including criminal prosecution, as it deems necessary in its sole discretion.

6.    If Member cancels Member’s Membership, DAOU will pause Member’s Membership and Loyalty Club account for 24 months, or until Member rejoins the Rewards Program. During this time, Member’s Points will not be deleted unless Member deletes their account. After 24 months without an eligible Member purchase, DAOU will delete the account and Member’s Points will be permanently lost.

7.    Members who do not activate their Rewards Program account with an eligible purchase for 24 months are subject to deactivation and cancelation of accumulated Points and Rewards, in the sole discretion of DAOU. Rewards cannot be redeemed by Member after Member’s account has been deleted. After deactivation, Member is eligible, in the discretion of DAOU, to open a new account.

8.    DAOU may, at its discretion send correspondence to Member to remind Member of the Rewards Program’s Terms and Conditions, available Rewards, or the expiration of Points or Rewards. DAOU shall not be liable for any failure to do so, or for any incorrect, inaccurate, or failed communication with Member.

9.    Member is responsible for ensuring the accuracy of Member’s Rewards Program account and is encouraged to check the Rewards Program account regularly and to update the information associated with the account when necessary. Member is solely responsible for maintaining the confidentiality and security of the account, including without limitation, the password associated with Member’s account. Member is also responsible for maintaining Member’s current contact information and updating Member’s account profile through the online platform.

10. DAOU will not be responsible for any losses arising from any fraudulent and/or unauthorized use of Member’s account, or for any incorrect or inaccurate information supplied by Member while participating in the Rewards Program.

11. All questions or disputes regarding eligibility for the Rewards Program, collecting or redemption of Points, or Member’s compliance with these Terms and Conditions will be resolved by DAOU in its sole discretion.

C.    Termination.

1.    Member may cancel his or her Membership at any time by contacting DAOU as described herein or by accessing Member’s account via the DAOU website.

2.    The Rewards Program has no termination date and may continue until DAOU decides to terminate the Rewards Program, which may occur at any time, for any or no reason, and with or without notice to Member. In the event of such termination and unless prohibited by law, Member will have 30 days from the Rewards Program’s termination to redeem any received Points, Rewards, or other benefits.

3.    DAOU reserves the right, in its sole discretion, to discontinue Membership for any Member who uses the Rewards Program in any manner inconsistent with the Terms and Conditions, or who violates or acts in any manner that is inconsistent with federal, state or local laws. If DAOU determines, in its sole discretion, that any Points or Rewards have been obtained in an impermissible manner, the Points and Rewards will be deemed to have been fraudulently obtained and, therefore, immediately void. The Membership of any Member attempting to cause any such sale, auction, barter, brokerage, purchase, or transfer may be terminated at any time, in DAOU’s sole discretion.

IV.           POINTS

A.    To receive Points, Member must meet all conditions described herein and make a qualified purchase (i) onsite at DAOU’s tasting room (2777 Hidden Mountain Rd, Paso Robles, CA 93446), (ii) online via the DAOU website, (iii) through the DAOU+ mobile app, (iv) via telephone or internet through DAOU inside sales, (v) through Member wine club allocations from DAOU (applicable only to scheduled allocations), or (vi) pursuant to a promotional offer or during specified promotional periods. Points cannot be earned on purchases made from retailers or any other sources not specified herein. Qualifying purchases must be made directly through DAOU.

B.    Points and Rewards received by Member may not be sold, auctioned, bartered, brokered, purchased, or otherwise transferred.

C.    Points are calculated on a per-item basis. The Points awarded are calculated at DAOU’s discretion before tax and Member discounts are applied.  The current Loyalty Program Points schedule is published on the DAOU website and/or in the DAOU+ mobile app. Points conversion will be determined by DAOU and Points will be rounded up to the nearest whole point value.

D.   The selection of items eligible for Points may vary by Eligible Jurisdiction. Points are awarded only if allowed by the laws of the Eligible Jurisdiction, and are void where prohibited by law. Points are subject to revocation at DAOU’s sole discretion.

E.    If Member fails to associate Member’s Rewards Program account number with eligible charges before the time that payment is tendered, no Points will be received on the purchase. DAOU reserves the right to decline any transaction, including the accrual of Points, that it suspects, in its sole discretion, may involve an individual under age 21, or is otherwise fraudulent or in violation of applicable law. DAOU may close Member Rewards Program accounts, and void all Points accrued.

F.    No Points will be received for taxes, container deposits, or purchases made with a gift card. If Member returns a purchase made with Member’s Rewards Program account, DAOU will deduct the Points that Member was awarded for that purchase.

G.   If Member believes the correct number of Points for eligible charges was not received, Member must submit a written request for a Points adjustment to [email protected], together with a legible copy of Member’s receipt, and Member’s name, account number, mailing address, email address, and telephone number. Failure to supply adequate documentation may result in denial of Points. Requests must be received by DAOU within 6 months from the date the eligible charges were incurred to receive consideration.

V.             REWARDS

A.    Points may not be purchased or redeemed for cash. Points have no cash value. Points are used only to determine Member’s qualification for different Rewards. To the extent a face or cash value is required, the value is $0.

B.    Rewards are determined at the sole discretion of DAOU and can be modified at any time. Any other use, transfer, or redemption of Points is prohibited.

C.    Rewards Program Rewards:

1.    Are offered solely at DAOU’s discretion;

2.    Are valid only on purchases made directly through DAOU, whether in person or online. Points may be redeemed for discounts on limited items, including wine and non-alcoholic merchandise while supplies last. Points may not be redeemed for “free” goods. Any other use, transfer, or redemption of Points is prohibited;

3.    May be subject to minimum purchase requirements as required by applicable law;

4.    Cannot be combined with other discounts or promotional offers, rebates or coupons, unless otherwise specified in writing by DAOU;

5.    Are not redeemable for cash, and no change or monetary reimbursement will be provided;

6.    Will not be replaced, reissued, or credited if lost, stolen, or otherwise destroyed;

7.    Are void where copied, fraudulently obtained or transferred, derived from Points fraudulently obtained or transferred, prohibited, or restricted by law;

8.    Cannot be retroactively applied to previous purchases;

9.    Are not exchangeable; and

10. Are subject to the redemption terms and procedures specified on the individual Rewards.

D.   All Point redemptions for Rewards are final. If Member does not receive redeemed Rewards within 12 weeks of redemption or Member believes such Rewards arrived damaged, Member must notify DAOU by contacting [email protected] within 60 days of Member’s receipt of the applicable Reward(s).

E.    Any applicable taxes associated with or arising from the shipment of any Reward to Member are not included and are Member’s responsibility.

F.    DAOU reserves the right to modify the available Rewards and their corresponding Point totals at any time and for any reason in DAOU’s sole discretion.

G.   All Rewards are redeemable only in conjunction with the designated monetary purchase price. No Rewards shall result in free goods.

VI.           REWARDS - RELEASE OF LIABILITY AND ASSUMPTION OF RISK

A.    To the extent that Member redeems a Reward for an activity that is potentially dangerous and involves risk of personal or psychological injury, pain, suffering, temporary or permanent disability, death, property damage, and/or financial loss, Member expressly assumes such risk and shall waive and release any and all claims against DAOU and its affiliates related to such activity and any injury, disability, death, or damage arising therefrom. The foregoing release by Member do not extend to claims for gross negligence, intentional or reckless misconduct, or any other liabilities that California law does not permit to be released by agreement.

B.    Member further understands and agrees that all rights under Section 1542 of the Civil Code of California (“Section 1542”) and any similar law of any state or territory of the United States that may be applicable with respect to the foregoing releases are hereby expressly and forever waived. Member acknowledges that Section 1542 provides that: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASED PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” The releases herein are intended to apply to all claims not known or suspected to exist with the intent of waiving the effect of laws requiring the intent to release future unknown claims.

VII.          PRIVACY INFORMATION

A.    DAOU and its affiliates may collect, process, and/or use Member’s personal information in accordance with the DAOU Privacy Policy (the “Privacy Policy”), available at https://daouvineyards.com/privacy-policy.

B.    By participating in the Rewards Program, Member agrees that DAOU, its affiliates, and its vendors may collect, process, and/or use information from and about Member, and DAOU and its affiliates may share Member’s personal information for purpose of administering the Rewards Program and other business purposes, including updating and enhancing the quality and content of the Rewards Program and information DAOU maintains about Member.

C.    Member authorizes DAOU to send periodic communications by email or phone. Member may discontinue such communications in accordance with the DAOU Privacy Policy.

D.   DAOU may modify these Terms and Conditions from time to time by posting the revised Terms and Conditions on our website. DAOU may also modify the Privacy Policy from time to time as described in the Privacy Policy. Member’s continued participation in the Rewards Program indicates Member’s acceptance of the changes.

VIII.        PARTICIPATION IN THE LOYALTY PROGRAM

A.    DAOU reserves the right to interpret and apply the policies and procedures communicated in these Terms and Conditions. All determinations by DAOU shall be final and conclusive in each case.

B.    Without limitation of any of the foregoing disclaimers, Member hereby waives and will not assert any claims, allegations, complaints, or causes of action of any nature whatsoever against DAOU, or any parent, subsidiaries or affiliated entities, or any of their respective officers, directors, employees, and agents (the “Released Parties”) arising out of, or in any way relating to, use of the Rewards Program or Rewards.

MEMBER UNDERSTANDS AND ACKNOWLEDGES THAT: (I) NO RELEASED PARTY IS AN INSURER OF PERSON, LIFE, LIMB, OR PROPERTY AND THAT INSURANCE, IF ANY, COVERING PERSONAL INJURY, LIFE LOSS, AND PROPERTY LOSS OR DAMAGE WILL BE OBTAINED BY MEMBER IN SUCH AMOUNTS AND COVERING SUCH PERILS AS MEMBER MAY DETERMINE IN MEMBER’S SOLE DISCRETION; (II) MEMBER’S USE OF THE CONTENT, REWARDS AND THE LOYALTY PROGRAM IS AT MEMBER’S OWN RISK; (III) THE AMOUNT MEMBER PAY FOR THE LOYALTY PROGRAM REWARDS IS BASED ONLY ON THE VALUE PROVIDED AND NOT ON THE VALUE OF ANY PROPERTY OR ITS CONTENTS; (IV) IT IS DIFFICULT TO DETERMINE IN ADVANCE THE VALUE OF ANY PROPERTY THAT MIGHT BE LOST, STOLEN OR DESTROYED IF THE LOYALTY PROGRAM FAILS TO OPERATE PROPERLY; (V) IT IS DIFFICULT TO DETERMINE IN ADVANCE HOW FAST EMERGENCY RESPONDERS WILL RESPOND AND RELEASED PARTIES BEAR NO RESPONSIBILITY FOR EMERGENCY RESPONSE; AND (VI) IT IS DIFFICULT TO DETERMINE IN ADVANCE THE DAMAGES THAT WOULD BE PROXIMATELY CAUSED BY A FAILURE TO PERFORM, ANY NEGLIGENCE IN PERFORMANCE, OR A FAILURE OF THE LOYALTY PROGRAM OR REWARDS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ANY RELEASED PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, CONSORTIUM OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE LOYALTY PROGRAM OR REWARDS.  

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RELEASED PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY: (I) ERRORS, MISTAKES, OR INACCURACIES OF THE LOYALTY PROGRAM; (II) LIFE LOSS, BOLDILY INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM EITHER (A) MEMBER’S ACCESS TO OR USE OF THE LOYALTY PROGRAM OR REWARDS OR (B) THE ACTIONS OR ACTIONS NOT TAKEN BY THE RELEASED PARTIES OR ANY THIRD PARTY IN CONNECTION WITH THE LOYALTY PROGRAM OR REWARDS; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF DAOU’S SERVERS, ANY ACCOUNT AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE LOYALTY PROGRAM; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE LOYALTY PROGRAM BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE LOYALTY PROGRAM; AND/OR (VII) USER INFORMATION OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.  

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LIABILITY OF THE RELEASED PARTIES TO MEMBER, MEMBER’S SUCCESSORS AND PERMITTED ASSIGNS FOR DAMAGES OR OTHER MONETARY RELIEF WILL BE LIMITED IN THE AGGREGATE TO AMOUNTS ACTUALLY PAID TO DAOU IN COSTS RELATED TO THE LOYALTY PROGRAM AND REWARDS IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE CLAIM FIRST AROSE.  

THIS LIMITATION OF LIABILITY SECTION WILL BE THE SOLE AND EXCLUSIVE REMEDY AND APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, MALPRACTICE, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF A RELEASED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

Member further understands and agrees that all rights under Section 1542 and any similar law of any state or territory of the United States that may be applicable with respect to the foregoing releases are hereby expressly and forever waived.  The releases herein are intended to apply to all claims not known or suspected to exist with the intent of waiving the effect of laws requiring the intent to release future unknown claims.

C.    Member agrees to defend, indemnify, and hold harmless the Released Parties, from and against any and all claims, causes of action, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees and costs) arising from: (i) Member’s use of and access to the Rewards Program, including any data, or other content transmitted or received by Member; (ii) Member’s violation of any term of these Terms and Conditions, including without limitation Member’s breach of any of the representations and warranties above; (iii) Member’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) Member’s violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of Member’s use of a Rewards Program account or other submissions made via Member’s Rewards Program account; or (vi) any other party’s access and use of the Rewards Program with Member’s unique login, password, or other appropriate security code. Member shall control the defense and/or settlement of the claim—unless DAOU elects to defend the claim, in its sole discretion—provided that Member shall not, without DAOU’s prior written approval, agree to any settlement of the claim that imposes a financial obligation or admission of liability on DAOU.

D.   DAOU can delay enforcing its rights under these Rewards Program Terms without losing them. In addition, DAOU’s failure to exercise its rights on any one occasion, or even on more than one occasion, does not constitute a waiver of DAOU’s rights for any future occasion. All waivers must be in writing.

E.    Member agrees that: (i) the Rewards Program will be deemed solely based in the State of California, USA. Member agrees to submit to the personal jurisdiction of the federal and state courts having jurisdiction in San Francisco County for any actions for which DAOU retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of intellectual property rights, as set forth in Section VIII below.

For U.S. federal government entities, these Terms and Conditions and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of California (excluding choice of law).

F.    Member agrees to comply with all applicable laws in connection with Member’s use of the Rewards Program. Member further agrees not to collect or distribute content or data that violates the privacy, intellectual property rights or other proprietary rights of any third party, or for any purposes that DAOU reasonably determines to be harassing, obscene, unlawful, defamatory, threatening, coercive, fraudulent, abusive or otherwise objectionable. Member is solely responsible for all user information and all other content and information that Member collects, uploads, stores, shares, maintains, or transmits through the Rewards Program. In addition to the other restrictions outlined in these Terms and Conditions, Member will not use the Rewards Program for any purpose that is illegal or otherwise prohibited in these Terms and Conditions. Member will not use the Rewards Program in any manner that could disrupt, negatively affect, or inhibit other Rewards Program Members from using the Rewards Program, or that could damage or impair the Rewards Program in any manner. Member will not reverse engineer any aspect of the Rewards Program or bypass or circumvent measures employed to prevent or limit access to any area, content, or code of the Rewards Program, or attempt to circumvent any content-filtering techniques DAOU employs. Member will not remove, circumvent, disable, damage or interfere with security-related features of the Rewards Program. Member will not use or attempt to use another Member’s account without authorization. Member will not engage in any harassing, intimidating, predatory, or stalking conduct, or create false identities or impersonate any person, entity or Member, or misrepresent Member’s relationship with DAOU. Member will not indicate in any manner that Member has a relationship with DAOU or is endorsed by DAOU without DAOU’s express written consent. Member will not develop any third-party applications that interact with the Rewards Program without DAOU’s prior written consent. Member will not buy, sell, rent, lease, or offer access to a Rewards Program account without DAOU’s prior written consent.

IX.           ARBITRATION

READ THIS SECTION CAREFULLY. IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH MEMBER CAN SEEK RELIEF UNDER THESE TERMS AND CONDITIONS.

A.    Any dispute, claim or controversy arising out of or relating to these Terms and Conditions or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, CA before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The Terms and Conditions and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California, exclusive of conflict or choice of law rules. Notwithstanding the provision in the preceding sentence with respect to applicable substantive law, any arbitration conducted pursuant to the Terms and Conditions of this Program shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). The parties acknowledge that the Rewards Program evidences a transaction involving interstate commerce. In any arbitration arising out of or related to these Terms and Conditions, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.  

B.    ALL CLAIMS MUST BE BROUGHT IN MEMBER’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS DAOU AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER MEMBERS. MEMBER AGREES THAT, BY ENTERING INTO THESE TERMS, MEMBER AND DAOU EACH WAIVE THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in San Francisco, California for such purpose.

X.             NOTICE

Legal notices should be directed to [email protected]

XI.           INTERPRETATION

No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, these Terms and Conditions.

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