Agreement to Arbitrate and Class Action Waiver Binding Individual Arbitration; No Class Actions

This Agreement and Waiver applies to any Dispute regarding Your Weather Shield Products except as explained in Section 4.

You and Weather Shield agree that notwithstanding the obligation to arbitrate Disputes, Disputes that otherwise qualify for small-claims court in the county where the Weather Shield Product is installed may, but are not required, to be brought as individual actions in a small-claims court in that county.

In addition, the following actions are not subject to this Agreement and Waiver and do not require arbitration: (a) lien and/or collection actions by Weather Shield to collect unpaid invoices or debts; (b) disputes relating to the enforcement or validity of any intellectual property rights; (c) an action to compel or uphold any prior arbitration decision; (d) Your or Weather Shield ’s right to seek injunctive relief in a court of law to preserve the status quo while an arbitration proceeds and (e) Sufficiency of the Notice if Dispute as described in the Arbitration Agreement. (See Section 6.).

To the maximum extent permitted by applicable law, disputes, claims, and controversies not subject to the requirement to arbitrate (including, but not limited to, claims filed in small claims court and other claims that are deemed not subject to the requirement to arbitrate) may not be aggregated together in a class action, except that (as set forth above in Section 11) if a formerly arbitrable Dispute is brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in the Coordinated Cases who provided compliant Notices of Dispute, and Weather Shield and/or any other Party to the Arbitration reserves the right to contest class certification at any stage of the litigation and on any available basis. Accordingly, to the maximum extent permitted by applicable law, You will only bring disputes, claims, or controversies between You and Weather Shield in an individual capacity only and shall not:

• seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity, including but not limited to the general public (like private attorney general actions), other homeowners, buildings owners, or purchasers of Weather Shield Products, or other persons similarly situated; or
• consolidate or combine individual proceedings or permit another to do so without the express consent of all parties to these terms.

The prohibition on proceeding as a member or representative in a Class Action shall apply notwithstanding any rules now or in the future to the contrary promulgated by NAM or ICDR.

If You have a Dispute regarding Your Weather Shield Products, You must provide Weather Shield with a written Notice of Dispute at least 30 days prior to beginning Your Arbitration (a “Notice of Dispute”) in accordance with these Terms.

You must send any Notice of Dispute to the following address:

LegalTeamNotifications@Pella.com
Subject line: Notice of Dispute

OR
Legal Team Notifications
Weather Shield
102 Main Street
Pella, Iowa, Iowa 50219
Attn: Notice of Dispute

Weather Shield will send any Notice of Dispute to the address to which the Weather Shield Products were delivered and/or installed.

The Notice of Dispute must include the sender’s (a) name, (b) address, (c) information about how best to contact, (d) the name of the Parties against which it has a dispute, a (e) description of the Dispute (including if available the vintage and name of the Weather Shield Product at issue), and (f) what resolution is sought.

The Notice of Dispute allows the receiving Party the opportunity to make a fair, fact-based offer of settlement. If Weather Shield sends You a Notice of Dispute, You are not required to make a settlement offer to Weather Shield.

The more information You include with Your Notice of Dispute the better opportunity Weather Shield has to assess Your situation. If You are agreeable to informal dispute resolution prior to Arbitration, You are encouraged to provide pictures, reports, investigation notes, contracts, or other documents and information to support the resolution You seek. After Weather Shield receives Your Notice of Dispute and accompanying information, Weather Shield may ask for additional information or additional time to review the information. It will be Your decision if You want to provide that information or additional time or instead proceed to arbitration. Weather Shield will respond to Your Notice of Dispute within 30 days of receipt unless You agree to additional time.

You cannot proceed to arbitration regarding Your Weather Shield Products unless the Notice of Dispute has been provided. If a Party should proceed to arbitration without providing a compliant Notice of Dispute, the sufficiency of a Notice of Dispute is an issue to be decided by a court. A court may enjoin the filing of an arbitration demand that has not been preceded by a compliant Notice of Dispute and may order a Party that has filed an arbitration demand without having provided a compliant Notice of Dispute to reimburse the others for any arbitration fees, courts costs, and attorney fees already incurred.

THE ARBITRATION PROCEEDINGS IN THIS SECTION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY. Under no circumstances does Weather Shield consent to have any Disputes arbitrated using class action procedures, even if the arbitration provider has rules permitting class arbitrations.

Binding and Individual Arbitration. Disputes will be resolved through binding individual arbitration to be administered by NAM (https://www.namadr.com/), according to the FAA and federal arbitration law and according to NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time such claim is filed, as modified this Agreement and Waiver. These terms affect interstate commerce, and the enforceability of this Section will be substantively and procedurally governed by the FAA, 9 U.S.C. § 1, et seq., to the extent permitted by law.

If You have a question about the arbitration process or to obtain a current copy of the Comprehensive Dispute Resolution Rules and Procedures and/or fee schedule, NAM’s Commercial Dept. can be contacted at (800) 358-2550 or by NAM’s website at www.namadr.com.

Individual means that the arbitrator may award the same remedies to You or to Weather Shield and/or any other Party to the Arbitration as a court could, but only to satisfy individual claims. To the fullest extent allowed by applicable law, the arbitrator may not award money or other relief for the benefit of any person that is not a Party to the Arbitration.

Binding means that all Parties to the arbitration will have to live with the arbitrator’s decision of any award of less than $500,000, except to the limited extent appeals to a court are permitted under the FAA. Any award of the Arbitrator of $500,000 or greater will be subject to an appeal under NAM’s Appellate Dispute Resolution Rules and Procedures. Any award of the Arbitrator of less than $500,000, and any award of the Appellate Panel, is final and binding and may be confirmed, entered, and enforced as a judgment in any court having jurisdiction. As limited by the FAA, the terms of this Agreement and Waiver, and the rules applicable to the arbitration, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these terms, but (as provided above) only to the extent necessary to provide relief to a Party in arbitration warranted by the individual claim before the arbitrator.

Commencement of Arbitration. For arbitrations commenced in the United States, arbitration of any Disputes commenced 30 or more days after filing a Notice of Dispute may be initiated by filing a Demand for Arbitration with NAM in accordance with its Comprehensive Dispute Resolution Rules and Procedures. Instructions for filing a Demand for Arbitration are available at www.namadr.com.

For arbitrations commenced in Canada, arbitration of any Disputes commenced 30 or more days after filing a Notice of Dispute may be initiated by filing a Demand for Arbitration with the ICDR under the Canadian Arbitration Rules and subject to the laws of the applicable province. Instructions for filing a Demand for Arbitration are available at https://www.icdr.org/.

For arbitrations commenced in the United States or in Canada, You must send a copy of any Demand for Arbitration to the following address:

LegalTeamNotifications@Pella.com
Subject line: Commencement of Arbitration

OR
Legal Team Notifications
Weather Shield
102 Main Street
Pella, Iowa, Iowa 50219
Attn: Commencement of Arbitration

Weather Shield will send any Demand for Arbitration to the address to which the Weather Shield Products were delivered and/or installed.

Arbitration Administration and Arbitrator. Any Arbitration commenced shall be administered by NAM (or the ICDR where applicable) according to its Comprehensive Dispute Resolution Rules and Procedures, (or the ICDR Canadian Arbitration Rules where applicable) in effect at the time the Notice of Dispute was received, except as modified by this Agreement and Waiver.

The arbitration will be conducted by a single arbitrator unless otherwise agreed by the Parties. The arbitrator must have experience or expertise in construction and building science and/or engineering unless otherwise agreed to by the Parties. You and Weather Shield agree that the arbitration will be conducted in the English language and that the arbitrator will be bound by these terms unless otherwise required by law.

Type of Proceeding. For Disputes in which the claimant seeks less than $25,000, the arbitrator will decide the matter solely on the basis of written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For matters in which the claimant seeks $25,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings that do not involve witnesses shall be conducted virtually (such as Zoom or Teams), unless the arbitrator determines an in-person hearing to be necessary, or it is agreed to by all Parties. All hearings with witnesses will be conducted in person unless otherwise agreed to by the Parties and arbitrator. If an in-person hearing is required, and You reside in the United States, the hearing will take place in Des Moines, Iowa, unless the Parties agree otherwise or the arbitrator determines that this would pose a hardship for You, in which case the in-person hearing may be conducted in Your state of residence or other location convenient for all Parties. If You reside outside the United States, the site of any in-person hearing will be determined by the applicable Rules.

Arbitration Decisions. The arbitrator (not a judge or jury) will resolve the Dispute. Unless You and Weather Shield agree otherwise, any decision or award will include a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.

To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are Individual to You, Weather Shield, or other Parties to the arbitration to satisfy a Party’s individual claims that the arbitrator determines are supported by credible relevant evidence.

An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent or for any type of preclusive effect in any other case except to enforce the award itself or as consistent with the Agreement and Waiver.
The arbitration award and all rulings and opinions of the arbitrator shall remain unpublished and confidential to the extent allowed by law, except as necessary to enforce a final judgment.

As set forth above, any decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.

As part of the arbitration process, and regardless of the award sought, You agree to allow the Parties to arbitration, including their representatives and experts, to inspect Your Weather Shield Products and the premises in which Your Weather Shield Products are/were installed. This may involve inspecting both the outside and inside of premises. The Parties shall have the right to inspect during conditions of its choosing, so that it may assess the allegations regarding the Weather Shield Products. The Parties shall coordinate on scheduling the inspection. Such inspection may require the removal of materials adjacent to the Weather Shield Products and the inspection may take more than one day. This right to inspect applies regardless of whether or not Weather Shield, a Weather Shield Dealer, or any other Party already inspected the Weather Shield Products.

To the fullest extent permitted by applicable law, the arbitration of a Dispute must be commenced within two (2) years from when the Dispute first arose. If applicable law, including any applicable Statute of Repose or Statute of Limitations, requires a claim for a Dispute to be brought sooner than two years after the Dispute arose, that shorter deadline applies. The failure to begin arbitration regarding a Dispute within the time frames described above in this section shall bar the Dispute, which means that to the fullest extent permitted by applicable law, You and Weather Shield will not have the right to assert the Dispute.

If 25 or more Disputes are initiated with the arbitrator that raise similar claims, and counsel for the claimants are the same or coordinated, these will be considered “Coordinated Case(s).” Weather Shield will pay only its share of arbitration fees for Coordinated Cases; the claimants will be responsible for their share of those fees as set by NAM’s Rules and NAM’s fee schedule for mass arbitrations. Applicable statutes of limitations will be tolled for all claimants who provided compliant Notices of Dispute to Weather Shield but demands for arbitration in Coordinated Cases shall only be filed with the arbitration provider as permitted by the bellwether process set forth below, and Weather Shield shall not be required to pay any fees associated with cases that this agreement does not allow to be filed.

Once all Notices of Dispute have been provided to Weather Shield for Coordinated Cases, all Parties shall confer in good faith regarding the number of cases that should proceed as bellwethers, to allow each Party to test the merits of its arguments before the remainder of claims may be filed with NAM. Any number chosen must allow each Party to designate a proportional number of cases selected for bellwether Arbitration processes. If the Parties do not agree on the number of bellwethers, the number shall be chosen by NAM as an administrative matter (or, in NAM’s discretion, by an arbitrator). Factors that may be considered in making this decision include the complexity of the dispute and differences in facts or applicable laws among various claims. Once the number of bellwethers is determined, each Party shall select its proportional share from among the claimants who provided compliant Notices of Dispute, and only those chosen claims may be filed with NAM. You agree that if Your case is among the Coordinated Cases filed, resolution of Your personal claim might be delayed by this bellwether process. Nothing in this paragraph shall be construed to delay the resolution of uncoordinated Disputes based on similar claims to Coordinated Cases filed against Weather Shield.

A single arbitrator shall preside over each Coordinated Case chosen for a bellwether proceeding, and only one Coordinated Case may be assigned to each arbitrator as part of a bellwether process unless the Parties agree otherwise.

Once all bellwether Disputes have concluded (or sooner if the Parties agree), the Parties must make a good-faith effort to resolve all remaining cases that were not chosen for a bellwether proceeding by engaging in a single mediation of all remaining cases. Each Party shall pay their proportional share of the applicable mediation fee, with claimants treated as one party for the purposes of the mediation of the Coordinated Cases.

The Parties must agree on a mediator within 30 days after the conclusion of the last bellwether Dispute. If the Parties cannot agree to a mediator within 30 days, NAM will appoint a mediator as an administrative matter. All Parties subject to the Arbitration will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.

If the mediation does not yield a global resolution, then claimants in Coordinated Cases who provided compliant Notices of Dispute but whose claims were not resolved in bellwether proceedings or in mediation shall no longer have the right to arbitrate their Dispute. Instead, outstanding claims from such cases may be filed only in the state courts in Marion County, Iowa or if federal jurisdiction exists, in the United States District Court for the Southern District of Iowa, and You consent as part of these terms to venue such cases exclusively in these courts. Nothing in this paragraph shall be construed as prohibiting any Party from removing a case from state to federal court if removal is allowed under applicable law.

To the extent You are asserting the same claims as other persons and are represented by common or coordinated counsel, You agree to waive any objection that the joinder of all such persons is impracticable. If a formerly arbitrable Dispute is brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in the Coordinated Cases who provided compliant Notices of Dispute, and Company reserves the right to contest class certification at any stage of the litigation and on any available basis.

A court shall have authority to enforce this bellwether process and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.

Although Weather Shield may revise these dispute resolution terms in its discretion, Weather Shield does not have the right to alter this Agreement and Waiver, or the arbitration rules specified herein, with respect to any Dispute once that Dispute arises if such change would make arbitration procedures materially less favorable to the claimant. The question of whether a change is materially less favorable to the claimant shall be decided by NAM as an administrative matter.

If all or any provision of this agreement is found invalid, unenforceable, or illegal, then You and Weather Shield agree that the provision will be severed, and the rest of these terms shall remain in effect and be construed as if any severed provision had not been included.