The websites www.dierbergs.com and shop.dierbergs.com (individually a “Site” and collectively, the "Sites") are produced, owned and hosted by Dierbergs Markets, Inc., operating as Dierbergs.com (Dierbergs Markets, Inc. and Dierbergs.com are sometimes referred to herein collectively as “Dierbergs”, “we” or “us”). 

 

THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.

 

Dierbergs provides the Sites to you for your convenience. Your use of the Sites is subject to the following terms and conditions. Please take a few moments to review. If you browse, shop, create an account, or perform other activities via the Sites, you agree to accept these terms and conditions. If you do not agree with any of these terms and conditions, please do not use the Sites.

 

Single Sign-On (SSO) Across Platforms: If you have a Dierbergs Rewards Loyalty Program (the “Loyalty Program”) account, you may use your Loyalty Program account credentials (phone number or email address and password) to sign in to the Sites. By using SSO, you agree that your account activity across both Sites may be linked and that you are responsible for maintaining the confidentiality of your login credentials and for all activities that occur under your account on either of the Sites.

 

General Site Use: The content of the Sites are solely for your personal, noncommercial use. You may download, print and store selected portions of the content, provided you (1) only use these copies of the content for your own personal, non-commercial use, (2) do not copy or post the content on any network computer or broadcast the content in any media, and (3) do not modify or alter the content in any way, or delete or change any copyright or trademark notice. No right, title or interest in any downloaded materials is transferred to you as a result of any such downloading. Dierbergs reserves complete title and full intellectual property rights in any content you download from the Sites. Except as noted above, you may not copy, download, reproduce, modify, publish, distribute, transmit, transfer or create derivative works from the content without first obtaining written permission from Dierbergs.

 

When using the Sites, you may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, copy, upload, distribute, or in any way exploit any of Site content, in whole or in part, except as expressly provided. By your use of the Sites, you represent and warrant that you are at least eighteen (18) years of age. By your use of the Sites to purchase alcoholic beverages, or items containing alcoholic beverages (such as certain gift baskets), you represent and warrant that you are at least twenty-one (21) years of age.

 

Your Account: If you use the Sites, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer or mobile device. You agree to accept responsibility for all activities that occur under your account or password. If you use single sign-on (SSO) with your Loyalty Program account, you are responsible for all activities on the Sites using those credentials.

 

You warrant to us that your use of any credit card to buy products or services through the Sites is authorized and legal. If you create an account through the Sites, you authorize us to automatically enroll you in other client services, loyalty, or rewards programs, including the Loyalty Program, provided by Dierbergs. Depending on the program, you may have the opportunity to opt-out of participation in these programs by following the opt-out instructions on the Sites, in your account or in other correspondence provided by Dierbergs.

 

It is your responsibility to notify us of any changes to your registration details, including credit card details. You are also responsible to notify your bank of any loss, theft or unauthorized use of your credit card.

 

Access and Termination: You agree that we may, in our sole discretion, terminate your password, account or access to the Sites, and remove and discard any Site content, for any reason. We may also discontinue providing the Sites, or any part of it, with or without notice. You agree that any termination of your access to the Sites may be affected without prior notice and acknowledge and agree that we may immediately deactivate or delete your account and password and all related information and files or bar further access to such files. Further, you agree that we shall not be liable to you or any third party for any termination of your access to the Sites. Notwithstanding termination of your access to the Sites, you will still be liable for the payment of any amounts due or other obligations incurred before termination, whether your use of the Sites is terminated by you or us. Termination of your access to the Sites does not terminate the applicability of these terms and conditions, the appropriate provisions of which shall survive in perpetuity (as modified).

 

These Terms and Conditions May Change: Dierbergs reserves the right to update or modify these terms and conditions at any time without prior notice. By using the Sites following such changes, you agreed to accept the modified terms and conditions. For this reason, we encourage you to review these terms and conditions whenever you use the Sites and if you do not agree with any of the modified terms and conditions, please do not use the Sites.

 

Privacy: Please also review our Privacy Policy as it provides a summary of what personal information we collect from you and how we use it.

 

Loyalty Program: If you participate in the Loyalty Program, your participation is also governed by the Loyalty Program Terms & Conditions, which are incorporated herein by reference. In the event of any conflict between these Terms & Conditions and the Loyalty Program Terms & Conditions with respect to the Loyalty Program, the Loyalty Program Terms & Conditions shall control.

 

Electronic Communications: When you visit the Sites, post material to the Sites or send e-mails to us, you are communicating with us electronically. By using the Sites or creating an account, you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Sites. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You may unsubscribe from such electronic communications by following the instructions on the email itself, or by contacting us.

 

Ordering Items: By submitting an order on the Sites, you offer to purchase products or services selected and submitted to us. If products are in stock and otherwise available, we will accept your order and provide confirmation of such order. Your payment for products, services, shipping or sales tax relating to your order is due upon the submission of your order. Upon submission of your order and acceptance of the order by Dierbergs, Dierbergs will charge your credit card for these products and services. You should receive a system-generated email confirmation upon submission. If your order fails to process, we will not charge you for the products or services. In the event an order cannot be fulfilled by Dierbergs after acceptance, your sole remedy is a refund of the payment for the order and all applicable shipping costs and sales tax.

 

Online Orders Through shop.dierbergs.com: When you place an order through our online shopping platform at shop.dierbergs.com, your order will be processed and fulfilled with the assistance of our service provider, Instacart, Inc. Please note that your use of shop.dierbergs.com may also be subject to Instacart's own terms of service and privacy policy, which are available at https://www.instacart.com/terms and https://www.instacart.com/privacy. Dierbergs is not responsible for Instacart's separate terms or privacy practices. By placing an online order, you acknowledge and agree that:

• Your order and delivery are subject to product availability and delivery capacity.

• Instacart reserves the right to substitute items that are out of stock with comparable alternatives unless you indicate otherwise in your order preferences.

• Delivery times are estimates and may be subject to change based on demand, weather, or other factors beyond our control.

• You must be present to receive delivery of any orders containing age-restricted items (such as alcohol) and provide valid identification.

• Title and risk of loss for purchased items pass to you upon delivery or pickup.

 

Order Cancellations and Returns - Grocery delivery orders placed through shop.dierbergs.com:

 

Cancellations: 

• You can cancel an order for a full refund without any additional fees before shopping begins.

• If you cancel an order during the shopping or delivery process, you may be charged a $15 cancellation fee.

 

For more information on cancellations, you can click  this Instacart help link.

 

If you are dissatisfied with your order:

• You can self-report any problems with your order within 3 days of your delivery, for a credit or refund. Let us know as soon as possible if your order—

  • Is missing items that you were charged for on the final receipt

  • Contains damaged, spoiled, or otherwise unusable items

  • For missing or damaged items, we can issue a refund or credit towards a future order up to the amount you paid for an item. Instacart may issue a partial refund or credit for an item if only a portion of an item is missing or damaged.

 

For more information on refunds and returns, you can click  this Instacart help link.

 

Alcohol Delivery Return Policy: 

Alcohol items purchased for delivery cannot be returned or refunded under any circumstances. Once alcohol leaves the store for delivery, it is considered a final sale and cannot be returned or refunded. By placing an order for alcohol delivery, the customer acknowledges and agrees to these terms and assumes responsibility for being available and able to complete lawful delivery requirements at the scheduled delivery time.

 

For more information on the alcohol delivery policies, please click this  Instacart Policy Link.

 

Order Cancellations and Returns - Online Orders placed on www.dierbergs.com or the Dierbergs App:

 

Order Changes – Food Products: Dierbergs requires 48 hours' notice prior to the scheduled pick-up date and time to process order changes for orders placed on dierbergs.com. To ensure we can accommodate your changes in a timely manner, please speak directly to a Store Associate by phone or in person in the department where your item was ordered at the store where your order was placed. Store locations and departments are available via your order confirmation email. If your confirmation email is not available, you can find store location and phone information under the “Store Locations” link on www.dierbergs.com.

 

Order Cancellations – Food Products: For fresh prepared food products purchased at www.dierbergs.com, Dierbergs does not offer credits or refunds for orders that are cancelled less than 48 hours prior to the scheduled delivery/pickup date and time. If you must cancel your order, please speak directly to a Store Associate by phone or in person in the department where your item was ordered at the store where your order was placed. Store locations and departments are available via your order confirmation email. If your confirmation email is not available, you can find store location and phone information under the “Store Locations” link on www.dierbergs.com.

 

Order Changes or Cancellations – Florist and Gifts: If you must change or cancel your Florist or Gift item purchased on www.dierbergs.com, please call 314-692-2000 or 1-800-844-6007.

 

Payment: All online payments will be processed using a third-party payment provider. Dierbergs does not collect or store your payment information. All payments will be governed by the terms of use of the third-party payment provider which can be accessed here:  https://stripe.com/legal. For orders placed through shop.dierbergs.com, payment processing is facilitated by Instacart, Inc. pursuant to its own terms of service.

 

Product Information: Most products displayed on the Sites are also available in select Dierbergs supermarkets. Dierbergs and its vendors attempt to be as accurate as possible with the information available on the Site. Despite our efforts, neither Dierbergs nor its affiliates claim that product or service descriptions or other content on the Sites are accurate, complete, reliable, current, or error-free.

 

The prices displayed on the Sites are quoted in U.S. Dollars and are valid and effective only in the United States. You will be charged the prices provided at the time you submit your order to Dierbergs. Prices on shop.dierbergs.com may differ from in-store prices and from prices on www.dierbergs.com.

 

Copyright: All of the content you see on the Sites, including, but not limited to all of the page headers, images, graphics, typefaces, video clips, recipes and text are copyright and/or other intellectual property rights or licenses held by Dierbergs, one of its affiliates or by third parties who have licensed their materials to us. All software, services, products, resources, information and data are property of Dierbergs.

 

Health and Wellness Information: The health and wellness information on the Sites is for informational purposes only.

 

YOU ACKNOWLEDGE THAT THE INFORMATION ON THE SITE IS PROVIDED “AS-IS” FOR GENERAL INFORMATION ONLY. THE INFORMATION CONTAINED ON THE SITES IS NOT INTENDED AND SHALL NOT BE CONSTRUED AS MEDICAL ADVICE, DIAGNOSIS OR TREATMENT AND IS NOT A SUBSTITUTE FOR CONSULTATIONS WITH QUALIFIED HEALTH PROFESSIONALS. THE INFORMATION AND VIEWS PROVIDED BY INDIVIDUAL CONTRIBUTORS ON THE SITE SHALL NOT BE ATTRIBUTED TO DIERBERGS.

 

THE SITES ARE NOT INTENDED OR DESIGNED TO PROVIDE A RESPONSE IN A MEDICAL EMERGENCY. IF THIS IS A MEDICAL EMERGENCY, PLEASE IMMEDIATELY CALL EMERGENCY SERVICES (911) TO GET PROMPT MEDICAL ATTENTION. DO NOT RELY ON THE SITE OR ELECTRONIC COMMUNICATIONS FOR ASSISTANCE IN REGARD TO YOUR EMERGENCY MEDICAL NEEDS.

 

Third Party Information and Links: Certain information from third parties is available to you as part of the Sites. Unless expressly stated, Dierbergs does not represent, endorse or guarantee the accuracy, completeness, timeliness, reliability or suitability of any information provided by third-parties. The Sites may contain links to other third-party websites. Such third-party websites are maintained by persons or organizations over which Dierbergs exercises no control. Your use of these third-party websites is governed by the terms of use and privacy policy of such websites. Dierbergs expressly disclaims any responsibility for any content provided by third parties or the content or results from your use of such third-party websites.

 

User Posts; Standards of Conduct: You are responsible for all communications and material you download, submit, publish, post, upload, distribute or transmit (collectively, “Posts”) with respect to the Site, and for any consequences thereof. By way of example, and not as a limitation, you agree that when using the Sites, you will not: (1) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others; (2) post any topic, name, material, information, software or other content that is unlawful, harmful, threatening, abusive, tortuous, infringing, libelous, inappropriate, profane, vulgar, obscene, sexually explicit, pornographic, indecent, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (3) post information, software or other material that you do not have a right to make available under any law (including patent, trademark, trade secret or copyright law) or under contractual or fiduciary relationships (unless you are the owner or have permission from the owner); (4) post any material that contains viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (5) post, conduct or forward contests, advertisements for goods or services, pyramid schemes, chain letters, junk mail, spam or any other form of solicitation; (6) impersonate any person or entity or falsely state or otherwise misrepresent Users affiliation with a person or entity (7) falsify, forge or delete any author attribution, legal or other proper notice or proprietary designation or label of the origin or source of software or other material contained in a file that is posted, (8) interfere with or disrupt the Site or servers or networks serving the Site; (9) use any robot, spider or other automatic or manual device (other than those generally available to third party web browsers) to copy or monitor the Sites; (10) violate any applicable local, state, national or international law; or (11) engage in any activity that violates these Terms or any other Dierbergs policy.

 

Dierbergs’ Responsibility; License: You understand that Dierbergs is not responsible for the content of materials Posted on the Sites, and therefore, accepts no responsibility or liability for any communication, material or content that may reside in or is accessed by the Sites other than Dierbergs’ information. However, by Posting communication, material or content to the Site, you agree to grant and hereby grant, and you represent and warrant that you have the right to grant, Dierbergs a royalty-free, perpetual, irrevocable, non-exclusive, worldwide license to use, publish, distribute and display such communication, material or content in connection with the operation of the Site or to use such communication, material or content for any commercial purpose. All concepts, ideas, comments, manuscripts, illustrations, and other materials disclosed or offered to Dierbergs by you on or in connection with the Site are Posted without any restrictions or expectation of confidentiality.

 

Dierbergs’ Rights: Dierbergs expressly disclaims any obligation to monitor any materials Posted to the Site. Notwithstanding anything to the contrary herein, Dierbergs reserves the right (in its sole discretion) to (1) monitor any message board, e-mail or other communication on the Site at any time, (2) disclose any information as necessary to satisfy any applicable policy, law, regulation, legal process, government request, or similar request, (3) edit, refuse to post or remove any information or material, in whole or in part, that does not conform to these terms and conditions without notice or liability to you, or (4) prevent any user of the Site who has engaged in prohibited conduct under these terms and conditions from further access to the Site, without notice or liability to such user.

 

Links to Dierbergs.com: Anyone linking to the Sites must comply with all applicable laws, the following guidelines and these terms and conditions. A third-party site may link to the Sites, but may not replicate any content contained therein. In addition, any third-party site that links to the Sites may not:

• create a border or browser environment around Site content,

• imply that Dierbergs is endorsing it or its products,

• misrepresent its relationship with Dierbergs,

• present false information about Dierbergs, its products or services,

• use the Dierbergs logo or name or phrase without prior written permission from Dierbergs, or

• contain illegal content, or content that could be construed as distasteful, offensive or controversial and should only contain content that is appropriate for all age groups.

 

DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY: THE SITES AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITES ARE PROVIDED BY DIERBERGS ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. DIERBERGS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITES OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITES, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITES IS AT YOUR SOLE RISK.

 

THE SITES COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS AND WE DO NOT WARRANT THAT THE SITES WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED OR THAT THE SITES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT MAKE ANY WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OR EXPERIENCE OF THE SITES.

 

UNDER NO CIRCUMSTANCES SHALL WE, OUR OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES OR RELATED COMPANIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER TYPE OF DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO OR USE OF THE SITES (OR INABILITY TO DO SO) IN ANY MANNER. YOU AGREE THAT OUR TOTAL LIABILITY FROM OR RELATED TO YOUR USE OF AND ACCESS TO THE SITES, WHETHER THE FORM OF ACTION OR CLAIM IS IN CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE IS LIMITED TO THE PURCHASE PRICE OF ANY PRODUCTS AND SERVICES YOU PURCHASED FROM US IN THE APPLICABLE TRANSACTION.

 

THE LIABILITY OF DIERBERGS AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES AND THIRD-PARTY SERVICE PROVIDERS WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF YOUR USE OF THE SITE, THE PRODUCTS, THE CONTENT OR SERVICES OBTAINED THROUGH THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF THE PRICE OF THE PRODUCTS PURCHASED BY YOU THROUGH THE SITE IN THE SIX MONTHS PRIOR TO THE EVENT WHICH ALLEGEDLY GAVE RISE TO SUCH CLAIM, OR FIFTY DOLLARS ($50).

 

Indemnification: You agree to indemnify, defend and hold harmless Dierbergs and its affiliates, employees, agents, representatives and third-party service providers, for any and all claims, demands, actions, liability, fines, penalties and expenses (including reasonable legal fees) that may arise from any of your acts through the use of the Site. Such acts may include but are not limited to: providing content to or communicating with Dierbergs or its Affiliates, unauthorized use of material obtained through the Site, engaging in a prohibited activity, or any other action that breaches these terms of use.

 

Geographic Limitation: We are based in Chesterfield, Missouri, in the United States of America. The Site is intended to support our retail store operations in the states of Missouri and Illinois and to provide online shopping and delivery services to customers in those states. Delivery and fulfillment services are available only to addresses located within our designated service areas in Missouri and Illinois.

 

While we do not specifically target individuals located outside of Missouri and Illinois, we recognize that persons located elsewhere, including residents of California, may access the Site to place orders for delivery to a Missouri or Illinois address. If you are a California resident accessing or transacting on this Site, certain rights and protections under California law, including the California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA), may apply to your interactions with us. Please refer to our Privacy Policy for information regarding your privacy rights.

 

European Union: This Site is not directed to residents of the European Union, and we do not offer products or services to persons located in the European Union. If you access this Site from the European Union, you do so at your own risk, and we make no representation that the Site or its content complies with the laws or regulations of the European Union, including the General Data Protection Regulation (GDPR). We reserve the right to restrict or terminate access to the Site by EU residents at any time.

 

Copyright Complaints: Dierbergs respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Dierbergs’s copyright agent with the following information.

• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

• Description of the copyrighted work that you claim has been infringed;

• The location on the Site of the material that you claim is infringing;

• Your address, telephone number and e-mail address;

• A statement that your claim of infringement is based on a good faith belief; and

• A statement made under penalty of perjury that the information you have provided is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

 

Dierbergs’s agent for notice of claims of copyright infringement on the Site can be reached as follows:

 

Dierbergs Markets Inc. 
ATTN: Corporate Counsel
16690 Swingley Ridge Rd., Chesterfield, MO 63017
636-532-8884

 

Dierbergs Markets Inc. 
ATTN: VP of Marketing
16690 Swingley Ridge Rd., Chesterfield, MO 63017
636-532-8884

 

Miscellaneous Provisions

 

Assignment. Dierbergs may freely assign its obligations and rights under these terms of use, including all Personal Information in its possession which it has collected during your use of the Sites.

 

Severability. If any term or provision in these terms of use is found to be void, against public policy, or unenforceable by a court of competent jurisdiction and such finding or order becomes final with all appeals exhausted, then the offending provision shall be deemed modified to the extent necessary to make it valid and enforceable. If the offending provision cannot be so modified, then the same shall be deemed stricken from these terms of use in its entirety and the remainder of these terms of use shall survive with the said offending provision eliminated.

 

Website Availability. DIERBERGS CANNOT GUARANTEE THE SITE WILL BE AVAILABLE 100% OF THE TIME BECAUSE PUBLIC NETWORKS, SUCH AS THE INTERNET, OCCASIONALLY EXPERIENCE DISRUPTIONS. ALTHOUGH DIERBERGS STRIVES TO PROVIDE THE MOST RELIABLE WEBSITE REASONABLY POSSIBLE, INTERRUPTIONS AND DELAYS IN ACCESSING THE SITE ARE UNAVOIDABLE AND DIERBERGS DISCLAIMS ANY LIABILITY FOR DAMAGES RESULTING FROM SUCH PROBLEMS.

 

Typographical Errors. Information on the Site may contain technical inaccuracies or typographical errors. We attempt to make the Site’s postings as accurate as possible, but Dierbergs does not warrant the content of the Site is accurate, complete, reliable, current, or error-free.

 

Headings. Condition and section headings are for convenience of reference only and shall not affect the interpretation of these terms of use.

 

Controlling Law and Venue. It is understood and agreed that all the construction and interpretation of these terms of use and the relationship between the parties shall at all times and in all respects be governed by the internal laws of the State of Missouri, without giving effect to the conflict of laws provisions thereof. 

 

California Privacy Rights. Nothing in these Terms waives or limits any rights you may have under the California Consumer Privacy Act (CCPA) or any other applicable privacy law. For information about your privacy rights, please see our Privacy Policy.

 

Disputes. PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF.

 

MANDATORY ARBITRATION AND CLASS ACTION AND JURY TRIAL WAIVER

 

Most concerns can be resolved quickly and to your satisfaction by contacting us at 314-916-1811.

 

In the event that we are not able to resolve a dispute, and with the exception of the claims for injunctive relief by us as described above and to the extent allowed by law, you hereby agree that either you or we may require any dispute, claim, or cause of action ("Claim") between you and us or any third parties arising out of use of the Sites, the Services, and any other actions with us (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) to be arbitrated on an individual (non-class) basis. Claims also include, except as otherwise provided herein, disputes related to the coverage, applicability, arbitrability, enforceability, formation, scope, or validity of these Terms, including this Arbitration provision, all of which shall be subject to the sole power of the arbitrator as described herein. Notwithstanding anything else herein, the enforceability of the Class Action Waiver shall be determined by a court. In addition, both parties retain the right to seek relief in a small claims court (or a state court equivalent) for a Claim within the scope of its jurisdiction so long as the small claims action does not seek to certify a class, combine the claims of multiple persons, recover damages in excess of the limit for a small claim AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION OR MULTIPLE-PARTY ARBITRATION.

 

You and we agree that your use of the Services involves interstate commerce, and that this arbitration agreement shall be interpreted and enforced in accordance with the Federal Arbitration Act (FAA) set forth in Title 9 of the U.S. Code to the fullest extent possible, notwithstanding any state law to the contrary, regardless of the origin or nature of the Claims at issue. The arbitrator must follow, to the extent applicable: (1) the substantive law of the state in which we entered into the transaction giving rise to this arbitration agreement; (2) the applicable statutes of limitations; and (3) claims of privilege recognized at law. The arbitrator will not be bound by federal, state or local rules of procedure and evidence or by state or local laws concerning arbitration proceedings.

 

If either you or we elect to arbitrate a Claim, the dispute shall be resolved by binding arbitration administered under the applicable rules of the American Arbitration Association ("AAA"). Either you or we may elect to resolve a particular Claim through arbitration, even if the other party has already initiated litigation in court related to the Claim, by: (a) making written demand for arbitration upon the other party, (b) initiating arbitration against the other party, or (c) filing a motion to compel arbitration in court.

 

If this is a consumer-purpose transaction, the applicable rules will be the AAA's Consumer Arbitration Rules. The applicable AAA rules and other information about arbitrating a claim under AAA, including how to submit a dispute to arbitration, may be obtained by visiting its website at https://www.adr.org/ or by calling 1-800-778-7879. Arbitration shall be conducted in the county and state where you accepted these Terms, you reside, or another reasonably convenient place to you as determined by the arbitrator. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Except as provided in applicable statutes, the arbitrator's award is not subject to review by the court and it cannot be appealed.

 

If you elect to file the arbitration, and this is a consumer-purpose transaction, you will pay the filing fee to the extent required by AAA's Consumer Arbitration Rules but not to exceed the cost of filing a lawsuit. Any amount above what it would cost you to file a lawsuit, we will pay. All other arbitration fees and expenses shall be allocated to us according to AAA rules. Except for the arbitration fees and expenses, each party shall pay its own costs and fees incurred (including attorneys' fees), unless the arbitrator allocates them differently in accordance with applicable law.

 

Additional Procedures for Mass Arbitration. If twenty-five (25) or more similar Claims (including yours) are asserted against us by the same or coordinated counsel or are otherwise coordinated ("Mass Arbitration"), you and we agree that these Additional Procedures for Mass Arbitration (in addition to the other provisions of this arbitration agreement) shall apply. The parties agree that as part of these procedures, their counsel shall meet and confer in good faith in an effort to resolve the Claims, streamline procedures, address the exchange of information, modify the number of Claims to be adjudicated, and conserve the parties' and the AAA's resources. If your Claim is part of a Mass Arbitration, any applicable limitations periods (including statutes of limitations) shall be tolled for your Claim from the time that your Claim is first submitted to the AAA until your Claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration pursuant to this provision.

 

Stage One: In Stage One, if at least fifty (50) Claims are submitted as part of the Mass Arbitration, claimants' counsel and Dierbergs will each select an equal number of Claims to be filed in arbitration and resolved individually by different arbitrators. For example, claimants' counsel and Dierbergs will each select 25 Claims (50 Claims total). The number of Claims to be selected to proceed in Stage One can be modified by agreement of counsel for the parties provided that, if there are fewer than 50 Claims, all shall proceed individually in Stage One. The remaining Claims shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed or collected in connection with those claims. If a case is withdrawn before the issuance of an arbitration award, another Claim shall be selected to proceed as part of the first stage. After this initial set of proceedings, the parties must engage in a single mediation of all remaining Claims, and we will pay the mediation fee.

 

Stage Two: If the parties cannot agree how to resolve the remaining Claims (if any) after mediation, claimants' counsel and Dierbergs will each select an equal number of Claims per side-not to exceed 50 Claims total-to be filed and to proceed as cases in individual arbitrations as part of Stage Two. The number of Claims to be selected to proceed as part of Stage Two can be modified by agreement of counsel for the parties provided that if there are fewer than 50 Claims remaining, all shall proceed individually in Stage Two. The remaining Claims shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed or collected in connection with those claims. If a case is withdrawn before the issuance of an arbitration award, another Claim shall be selected to proceed as part of the second stage. After Stage Two is completed, the parties must engage in a single mediation of all remaining Claims, and we will pay the mediation fee.

 

Upon the completion of the mediation in Stage Two, each remaining Claim (if any) that is not settled or not withdrawn shall be opted out of arbitration and may proceed in a court of competent jurisdiction consistent with the remainder of these Terms. Notwithstanding the foregoing, counsel for the parties may mutually agree in writing to proceed with the adjudication of some or all of the remaining Claims in individual arbitrations consistent with the process set forth in Stage Two or through another mutually agreeable process. A court of competent jurisdiction shall have the authority to enforce the Procedures for Mass Arbitration, including the power to enjoin the filing or prosecution of arbitrations and the assessment or collection of arbitration fees.

 

Notwithstanding anything to the contrary in these Terms, and except as otherwise set forth in this paragraph, the agreement to arbitration may be amended by us only upon advance notice to you. If we make any amendment to this agreement to arbitration (other than renumbering the agreement to align with any other amendment to the Terms) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding or action against us prior to the effective date of the amendment.

 

If any part of this arbitration provision is invalid, all other parts of it remain valid. However, if the class action limitation is invalid, then this arbitration provision is invalid in its entirety, provided that the remaining Terms shall remain in full force and effect. This arbitration provision will survive the termination of your use of the Sites, the Services, and any other actions with us.

 

You may reject this arbitration provision within thirty (30) days of accepting the Terms by emailing us at [email protected] and including in the subject line "Rejection of Arbitration Provision."

 

Questions: If you have any questions or comments about these terms of use or the Sites, please contact us by mail or email at

 

Dierbergs Markets, Inc.
16690 Swingley Ridge Road
Chesterfield, MO 63017

 

[email protected]