Arbitration

Most customer concerns can be quickly and satisfactorily resolved by calling Energy Monger at (833)-8MONGER. In the unlikely event that Your matter is not resolved or if We have been unable to resolve a dispute We have with You after attempting to do so informally, You and We each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court, it uses a neutral arbitrator instead of a judge or jury, it allows for more limited discovery than in court, and is subject to very limited review by courts.


ARBITRATION AGREEMENT
(1) Energy Monger and you agree to arbitrate ALL DISPUTES AND CLAIMS between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

•claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;

•claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);

•claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and

•claims that may arise after the termination of this Contract.

References to “Energy Monger,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior Agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Trade Commission. Such agencies can, if the law allows, seek relief against us on your behalf. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND ENERGY MONGER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.

(2) A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Energy Monger should be addressed to: Legal Department, Energy Monger, LLC, 1452 Hughes Road Suite 200 Grapevine, TX 76051(“Notice Address”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). If Energy Monger and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Energy Monger may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Energy Monger or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Energy Monger is entitled.

(3) After Energy Monger receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than $75,000. (The filing fee currently is $200 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, Energy Monger will pay it directly upon receiving a written request at the Notice Address). The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at (800) 778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless Energy Monger and you agree otherwise, any arbitration hearings will take place in the county of your billing address. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as otherwise provided for herein, Energy Monger will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Energy Monger for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.

(4) If, after finding in your favor in any respect on the merits of your claim, the arbitrator issues you an award that is greater than the value of Energy Monger’s last written settlement offer made before an arbitrator was selected, then Energy Monger will:

•pay you the amount of the award or $10,000 (“the alternative payment”), whichever is greater; and

•pay your attorney, if any, twice the amount of attorney’s fees, and reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration (“the attorney premium”).

If Energy Monger did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the alternative payment and the attorney premium, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.

(5) The right to attorney’s fees and expenses discussed in paragraph (4) supplements any right to attorney’s fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorney’s fees or costs. Although under some laws Energy Monger may have a right to an award of attorney’s fees and expenses if it prevails in an arbitration, Energy Monger agrees that it will not seek such an award.

(6) The arbitrator may award declaratory or injunctive 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. YOU AND ENERGY MONGER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Energy Monger agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.

(7) Notwithstanding any provision in this Agreement to the contrary, we agree that if Energy Monger makes any future change to this arbitration provision (other than a change to the Notice Address) during the term of your Agreement, you may reject any such change by sending Energy Monger written notice within thirty (30) days of change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between Energy Monger in accordance with this provision.



Stages of the Arbitration Process

American Arbitration Association or AAA
The stages below contain information about the various stages of the arbitration process that you can expect to experience as you proceed through the case with the AAA. While each case is different and may have unique circumstances that can change the usual procedures, arbitrations usually proceed through the following general stages:

1. The Case Initiation Stage:

• The AAA sends out a letter or email notifying the parties that the case has been filed. This communication will also provide information regarding the arbitration process.

• Dates for when the respondent should file an answer to the claimant’s Demand for Arbitration and for all parties to provide any other needed information will be set at this time as well.

• Further, if there are any fees required from any party at this time, the AAA will also request said fees.

2. Arbitrator Invitation Stage:

• Depending on what process is set forth in the Rules that govern your arbitration, the AAA invites an arbitrator or arbitrators to serve on the case.

• As part of this process, the arbitrator reviews case information, checks for conflicts and returns a signed oath document, along with any relevant disclosures, if applicable.

3. Arbitrator Appointment Stage:

• Parties are notified of the appointed arbitrator and provided the opportunity to object to this arbitrator serving on the case.

• A due date for any objections is set and if any objections are received, the AAA will conduct a process to decide if the arbitrator should be kept on or removed from the case.

• If the AAA decides to remove the arbitrator, the case returns to the arbitrator invitation stage, as previously described.

• If the Arbitrator is kept on the case, the case continues to the next stage.

4. Preliminary Hearing and Information Exchange Stage:

• After appointment and confirmation of the Arbitrator, the preliminary hearing conference call with the parties and the arbitrator will be scheduled and held.

• During this call, preliminary issues are addressed, the exchange of information between the parties is scheduled and a hearing date is set.

• After the call is held, the Arbitrator will issue a written document called a “scheduling order”, which confirms all important dates and specifics discussed on the call.

5. Hearing Stage:

• During this stage, the parties present their case to the arbitrator.

• This process can take place in person, over the telephone, or by the parties submitting written documents. The parties’ arbitration agreement and the applicable Rules that govern the case will dictate the process.

• Sometimes, parties will also submit written arguments after the hearing at the direction of the arbitrator.

6. Award Stage:

• After the hearing is completed and the arbitrator determines no more evidence will be presented, the hearing(s) is closed and a date for the issuance of the award is set.

• The arbitrator renders a written award which decides the outcome of the case and is sent to the parties. At this point the case is over and AAA closes its file.

Again, these are the general stages of most arbitration cases. As the arbitration progresses through these stages, the AAA will communicate specific directions and information about each. It is important to read this information carefully, and respond and participate appropriately throughout the process.