WELCOME TO NBA.COM!
TABLE OF CONTENTS
1. Ownership and Use Restrictions
3. Message Features
5. Votes, Contests and Sweepstakes
7. Modular Content
8. Mobile Content & Text Message Campaigns
9. NBA Statistics
10. NBA Store on NBA.com
11. Disclaimer of Warranties and Damages; Limitation of Liability
14. Termination of Service
15. Compliance with Applicable Laws/Regulations
16. Notice of Copyright Infringement
17. Dispute Resolution; Small Claims Court; Agreement to Arbitrate
18. Class Action Waiver; Jury Trial Waiver
19. Choice of Law; Forum Selection
20. Injunctive Relief
1. OWNERSHIP AND USE RESTRICTIONS
NBA.com is operated by NBA Media Ventures, LLC (“NBAMV”), NBA TV, LLC (“NBATV”), NBA Properties, Inc. (“NBAP”) (NBAMV, NBATV, and NBAP collectively referred to as the “NBA Entities”), and Turner Digital Basketball Services, Inc. (“Turner”) (Turner and the NBA Entities shall each, and collectively, be referred to herein as the “Operator,” “we,” “our,” and/or “us”).
The Operator maintains the Services for your personal entertainment, information, education, and communication. Where the function is available, you may download material displayed on the Services to any single computer only for your personal, noncommercial use, provided you also maintain all intellectual property, including copyright and other proprietary notices contained on or associated with the materials. You may not, however, distribute, reproduce, republish, upload, display, modify, transmit, reuse, repost, link to, or use any materials of the Services for public or commercial purposes on any other Website, social media platform, or otherwise without the written permission of the Operator. Modification of any materials displayed on the Services is a violation of the Operator’s intellectual property, including copyright and other proprietary rights.
Registration Data: If you create an account while using the Services or otherwise opt to register for any portion of the Services (including, mobile alerts and other mobile entertainment content, such as news, scores, videos, and other information or data via SMS, MMS, WAP, BREW, and other means of mobile content delivery to certain compatible mobile devices (together, the “Mobile Service”)), you agree to: (i) provide true, accurate, and complete information about yourself as prompted by the registration form (“Registration Data”) and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If the Operator has reasonable grounds to suspect that the Registration Data is untrue, inaccurate, or incomplete, the Operator shall have the right to suspend or terminate your account and refuse any and all current or future use of the Services or the Mobile Service (or any portion thereof). You acknowledge and agree that the Operator shall have no liability associated with or arising from your failure to maintain accurate Registration Data, including, but not limited to, your failure to receive critical information about the Services or the Mobile Service or your account. You further agree that the Operator is authorized to verify such Registration Data.
You acknowledge and agree that the Operator may rely on the Registration Data to send you important information and notices regarding your account and the Services. From time to time, we may send you newsletters and other promotions by email or SMS. You can unsubscribe from our newsletters and other promotions through the unsubscribe mechanism contained in the applicable message. For more information about our text message campaigns, please see Section 8 below (titled “Mobile Content and Text Message Campaigns”).
- Access Without Registration: The Services may provide you with access to some products and services without you having to register as a user. In each such case your identification is based on means of identification that the Operator deems appropriate.
You must use Message Features in a responsible manner. You must not transmit any message (“Message”) in connection with any Message Feature that: (i) restricts or inhibits any other user from using and/or enjoying the Services; (ii) is unlawful, threatening, abusive, bigoted, hateful, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit, or indecent; (iii) constitutes, advocates, or encourages conduct that would constitute or give rise to a criminal offense, civil liability, or other violation of any local, state, national, or international law; (iv) violates, plagiarizes, or infringes the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity, or any other proprietary right; (v) contains or introduces a virus, a worm, a time bomb, a time lock, or any other malicious or harmful component; (vi) contains any information, software, or other material of a commercial nature; (vii) contains advertising, promotions, or commercial solicitations of any kind; (viii) constitutes or contains false or misleading indications of origin or statements of fact; or (ix) contains material irrelevant to the subject matter of the Message Feature.
Although the Operator may from time to time monitor or review Messages submitted in the Message Features on the Services, the Operator is under no obligation to do so and assumes no responsibility or liability arising from the content of any Message nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained therein. The display of any Message in any Message Feature does not constitute approval or endorsement by the Operator.
By transmitting any Message (see Section 3 above regarding “Messages”) or submitting creative ideas, concepts, know-how, techniques, suggestions, opinions, votes, or materials (collectively, “Submissions”), you are automatically granting the Operator a perpetual, royalty-free, non-exclusive, unrestricted, worldwide, and irrevocable right and license to use, reproduce, modify, publish, translate, prepare derivative works based upon, distribute, perform, or display such Messages and Submissions, in whole or in part, in any form, media, or technology now known or hereafter developed for any purpose, including, but not limited to, advertising and promotional purposes, and to sublicense such rights to others (collectively, “Rights”). All Submissions, whether solicited or unsolicited, shall become and remain the property of the Operator. This means that anything submitted by you through the Services may be used by the Operator for any purpose, now or in the future, without any attribution or payment to, or further authorization by, you. The Operator also has the right, but not the obligation, to use your name in connection with the broadcast, print, online, or other use or publication of your Submission.
- Solicited Submissions: Occasionally, the Operator may solicit Submissions from visitors to the Services, including, but not limited to, information, ideas, artwork, creative materials or input, or other materials. For information on how solicited Submissions will be used, please review any notices of planned use posted where we solicit the Submission. Your provision of information in response to such a solicitation is a grant by you to the Operator of the Rights described above
- Unsolicited Submissions: Although we are pleased to hear from you and welcome your comments regarding the Services and the NBA, unfortunately, the Services’ policy does not permit it to accept or consider unsolicited Submissions. We hope you will understand that it is the intent of this policy to avoid the possibility of future misunderstandings, legal or otherwise, when creative ideas, concepts, or materials developed by the Operator or the NBA might appear to be similar to your Submission(s). Accordingly, we must ask that you do not send us any unsolicited Submissions, we assume no responsibility for reviewing such Submissions, and we will not incur any liability as a result of any similarities between your Submissions and future NBA products or programs. In the event you do submit unsolicited Submissions, such Submissions shall be deemed, and shall remain, the property of the Operator. As is the case with solicited Submissions, the submission of any unsolicited Submission shall constitute a grant by you to the Operator of all the Rights described above.
5. VOTES, CONTESTS AND SWEEPSTAKES
The following restrictions (“Linkage Restrictions”) apply to all links to the Services from any online, cable, wireless, or other website, service, or browser:
- Online, cable, wireless, or other websites, services, or browsers created by, licensed by, or substantially associated with any entity that regularly promotes any product (e.g., apparel), brand (e.g., Nike or Gatorade), or service (e.g., Internet service providers or ticket sellers) (a “Commercial Site”) may not link to any of the Services without the written permission of the Operator, even if the page and/or area where the link originates does not promote a product, brand, or service.
- Sites, services, or browsers other than Commercial Sites (e.g., fan sites, chamber of commerce sites, search engines, widely available Internet browsers) (“Permissible Sites”) may link to the Services without the express written permission of the Operator if such link is: (i) a “word” (as opposed to a “logo”) link (e.g., “NBA.com,” “The Official Services of the National Basketball Association,” or “The Official Services of the Lakers”); and (ii) spatially separated from, and not otherwise associated with, any sponsorship advertising, or other commercial text or graphics that may be on the page and/or area containing such word link.
- The NBA.com logo or any other logo of the Leagues their teams (a “logo” link) may not be used to link to NBA.com without the written permission of the Operator.
- No link to the Services may be “framed” by the Permissible Site where the link originated if such “frame” contains any sponsorship, advertising, or other commercial text or graphics.
- All links to Services from a Permissible Site must be to the Services’ home page or to the homepage of a particular team — links to internal pages within the Services (e.g., a player page, a photo gallery, or a feature article) other than to the home page of a League’s team are not permitted.
- The posting or creation of any link to the Services signifies that you have
By using Modular Content or incorporating it within or associating it with a website or other online, cable, wireless, or other service other than the Services, you agree not to: (i) obscure the Operator’s branding of the Modular Content, assert or imply ownership or authorship of the Modular Content, facilitate another party’s assertion or implication of ownership or authorship of the Modular Content, or remove any trademark, copyright, or other proprietary notations on the Modular Content; (ii) excerpt or edit the Modular Content, except as specifically permitted by the Operator; or (iii) publish, place, or utilize the Modular Content in a setting or manner in which it may be associated with content or other material that (a) is or may be considered unlawful, threatening, abusive, bigoted, hateful, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit, or indecent; (b) may constitute, advocate, or encourage conduct that would constitute or give rise to a criminal offense, civil liability, or other violation of any local, state, national, or international law; (c) violates, plagiarizes, or infringes the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity, or any other proprietary right; (d) contains, introduces, or may be associated with a computer virus, worm, time bomb, time lock, or any other malicious or harmful component; (e) constitutes or contains false or misleading indications of origin or statements of fact; (f) contains any information, software, or other material of a commercial nature; or (g) contains advertising, promotions, or commercial solicitations of any kind.
Although the Operator is under no obligation to do so and assumes no responsibility or liability arising from any use of Modular Content, the Operator may monitor the websites or other online, cable, wireless, or other services with which Modular Content is used. You agree that you will promptly, and in any event within 24 hours, remove the Modular Content from any website or other online, cable, wireless, or other service if the Operator or its agent requests that you do so, and that you will maintain the ability to remove Modular Content from any website or online, cable, wireless, or other service on which you cause it to be placed or with which you cause it to be affiliated. You agree that the Operator has exclusive discretion to direct that the Modular Content be removed from websites or other online, cable, wireless, or other services at any time and for any reason, including, but not limited to, the prohibited uses of Modular Content described above; that the Operator may implement and use protections to limit the websites or other online, cable, wireless, or other services in conjunction with which Modular Content may be used or the manner in which Modular Content may be used; and that the Operator may not specifically advise you of the existence or nature of these protections.
The Operator provides Modular Content, if at all, on a voluntary basis. The Operator expressly disclaims any obligation to provide or update Modular Content, to maintain its availability, or to ensure its accuracy.
8. MOBILE CONTENT & TEXT MESSAGE CAMPAIGNS
- Access to the Mobile Service. In order to use the Mobile Service, you must have a mobile communications subscription with a participating wireless service provider (a “Carrier”), or otherwise have access to a mobile communications network for which we make the Mobile Service available, as well as any Carrier services necessary to download content to your Mobile Device. There may be service fees associated with certain Carrier services necessary to download content. Please contact your participating Carrier for details. In addition, you are responsible for ensuring that your equipment and/or software do not disturb or interfere with the Operator’s operations. Any equipment or software causing interference with the Operator’s operations and/or the Mobile Service shall be subject to immediate disconnection from the Mobile Service by the Operator. If any upgrade in or to the Mobile Service requires changes in your equipment or software, you must effect these changes at your own expense.
- Your Electronic Agreement to Receive Text Messages; E-Sign Disclosure. When you agree to receive text messages, you also consent to the use of an electronic record to document your agreement. To view and retain a copy of this disclosure or any information regarding your enrollment in this program, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device
- Cancellation of Text Messages. To stop receiving text messages from a specific Operator text message program, simply text “STOP” to the short code provided in the text messages that you no longer wish to receive. After doing so, you will receive confirmation of your opt-out via text message. If you have signed up for more than one Operator text message program, you will need to text “STOP” to the short code provided for each program from which you no longer wish to receive text messages. You understand and agree that texting “STOP” does not constitute a “do not call” request. You understand and agree that terms other than “STOP” may not be recognized as a cancellation request and the Operator bears no responsibility for not processing an opt-out that uses a term other than “STOP.”
- What If I Want More Information? To request more information, simply text “HELP” to the short code provided in the Operator text message program about which you have questions.
- How Many Text Messages Will I Receive? The number of text messages you receive from an Operator text message program may vary significantly, depending in part on the specific text message program for which you sign up. Details regarding the type and frequency (or recurring nature) of text messages are included in the description of each Operator text message program. To the maximum extent permitted by applicable law, you and the Operator agree that text messages may be sent between you and the Operator at any time of day.
- Who Are the Participating Carriers? Content is not available through all Carriers and Carrier participation could change. Consult with your Carrier to see if it participates in a particular text message program. The content is not compatible with all mobile phone models. The Operator will not be liable for any delays in the receipt of any text messages or changes to participating Carriers, as delivery is subject to effective transmission from your Carrier with active participation at that time.
- How Are the Text Messages Sent? The Operator and/or its vendor may use automated or non-automated technology to send the text messages described above to the mobile phone number you provide when you request to receive the text messages. Consent is not a condition of the purchase of any goods or services
The Operator of the Services may make available through the Services statistics, including statistics generated and/or calculated by the Operator using proprietary calculations and analyses, relating to or arising out of the performance of players during or in connection with League and/or Women’s National Basketball Association (“WNBA”) games, competitions, or events (collectively, “NBA Statistics”). By using such NBA Statistics, you agree that: (i) any use, display, or publication of the NBA Statistics shall include a prominent attribution to NBA.com in connection with such use, display, or publication; (ii) the NBA Statistics may only be used, displayed, or published for legitimate news reporting or private, non-commercial purposes; (iii) the NBA Statistics may not be used in connection with any sponsorship or commercial identification; (iv) the NBA Statistics may not be used in connection with any gambling activity (including legal gambling activity); (v) the NBA Statistics may not be used in connection with any fantasy game or other commercial product or service; (vi) the NBA Statistics may not be used in connection with any product or service that presents a live, near-live, or other real-time or archived play-by-play account or depiction of any NBA game; and (vii) the NBA Statistics may not be used in connection with any website, product, or service that features a database (in any medium or format) of comprehensive, regularly updated statistics from NBA, WNBA or G-League games, competitions, or events without the Operator’s express prior consent.
- The NBA Store on NBA.com (the “Store”) allows you to order products (the “Merchandise”) supplied and managed by an independent merchandise vendor, Fanatics Retail Group North, LLC, or one of its subsidiaries or affiliates (together, “Fanatics”). By placing an order through the Store, you acknowledge that Fanatics is exclusively responsible for the fulfillment and shipment of all Merchandise ordered. Fanatics can be reached by using the contact information provided below.
By placing an order on the Store, you agree to pay Fanatics all amounts accrued in your account, including sales tax and shipping and handling charges, when due. Your ability to purchase Merchandise is subject to limits established by the Operator, Fanatics, or your credit card issuer. Fanatics may bill your credit card at the time Merchandise is ordered. Fanatics may, in its sole discretion, decline service to or terminate your Store account without notice.
- The Operator reserves the right, in its sole discretion, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer.
- You may have the option to personalize certain Merchandise ordered through the Store (e.g., jerseys). The Operator reserves the right, in its sole discretion, without prior notice, to refuse to fulfill any order for Merchandise containing personalized content which the Operator deems to be illegal, offensive, or inappropriate.
- Questions relating to the Store, Merchandise, and its fulfillment should be directed to Fanatics either by: (i) email to email@example.com or (ii) telephone at 1-866-SHOP-NBA. You may also refer to the Contact Us section of the Store for more information
11. DISCLAIMER OF WARRANTIES AND DAMAGES; LIMITATION OF LIABILITY
While the Operator uses reasonable efforts to include accurate and up to date information in the Services, the Operator makes no warranties or representations as to its accuracy. The information contained in or made available through the Services (including, but not limited to information contained in Message Features or text files) cannot replace or substitute for the services of trained professionals in any field, including, but not limited to, financial, medical, or legal matters. The Operator assumes no liability or responsibility for any errors or omissions in the content of the Services.
Neither Turner, the NBA Entities, the Leagues, nor any of their respective parents, subsidiaries, affiliates, owners, employees, directors, officers, licensors, suppliers, or shareholders (collectively, the “Operator Parties”) make any representation that the materials contained in the Services are appropriate or authorized for use in all countries, states, provinces, counties, or any other jurisdictions. If you choose to access the Services, you do so on your own initiative and at your own risk and are responsible for compliance with all applicable laws.
THE MATERIALS IN THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATIONS AND/OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE OPERATOR PARTIES DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE OPERATOR PARTIES DO NOT WARRANT OR REPRESENT THAT THE INFORMATION CONTAINED IN THE SERVICES ARE ACCURATE, COMPLETE, CORRECTLY SEQUENCED, RELIABLE OR TIMELY, OR THAT THE SITE WILL BE UNINTERRUPTED OR FREE OF ERRORS AND/OR VIRUSES. YOU SPECIFICALLY ACKNOWLEDGE THAT THE OPERATOR PARTIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OF THE SERVICES OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU USE THE SERVICES AT YOUR SOLE RISK..
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE OPERATOR PARTIES SHALL HAVE NO LIABILITY FOR ANY DAMAGES OR INJURY CAUSED, IN WHOLE OR IN PART, BY CONTINGENCIES OR ISSUES BEYOND THEIR REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO: THE ACTS OF THIRD PARTIES, ERRORS IN THE CONTENT OR SERVICES, NETWORK FAILURES, INTERNET FAILURES, SOFTWARE AND HARDWARE FAILURES, VIRUSES AND OTHER SYSTEM ATTACKS, LABOR STOPPAGES, RIOTS, ACTS OF GOVERNMENT OR GOD, NATURAL DISASTERS, ACTS OF TERRORISM, COMMUNICATION LINE FAILURE, OR THEFT, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORDS.
THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER (I) LIABILITY OR DAMAGE IS ALLEGED FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER THEORY OR CAUSE OF ACTION, AND/OR (II) THE PARTY AGAINST WHICH LIABILITY OR DAMAGES IS SOUGHT WAS ADVISED OF THE POSSIBILITY THEREOF.
The Services may contain links and pointers to other websites, resources, and advertisers of the Services. Links to and from the Services to other sites, maintained by third parties, do not constitute an endorsement by the Operator or any affiliate of any third-party site or content. The Operator is not responsible for the availability of these third-party resources, or their contents. The Operator has not reviewed any or all of the sites linked to the Services and is not responsible for the content of any off-Services pages or any other sites linked to the Services. Your linking to the Services, off-Services pages, or other sites is at your own risk. By clicking on any such link, you acknowledge that the Services have no control over, and make no representations of any kind with respect to, such other sites or any content contained within such other sites, and you hereby revoke any claim against the Operator with respect to such other sites. You should direct any concerns regarding any external link to its site administrator.
We use YouTube API Services and by using the Services, you agree to be bound by the YouTube Terms of Service located here.
The Operator may give notice to users of the Services by means of a general notice on the Services, electronic mail to a user’s email address if on record in the Operator’s account information, or by written communication sent by first class mail to a user’s address if on record in the Operator’s account information. You may give notice to the Operator (such notice shall be deemed given when received) at any time by any of the following means:
- email to FanRelations@NBA.com;
- letter delivered by first class postage prepaid mail or courier to NBA Account Relations, at the following address:
NBA Account Relations
645 Fifth Avenue
New York, NY 10022
Attn: Legal Department
Note: This Section 12 does not apply to a Notice of Copyright Infringement (Section 16) or a Notice of Dispute (Section 17).
15.SOFTWARE/COMPLIANCE WITH APPLICABLE LAWS/REGULATIONS
16. NOTICE OF COPYRIGHT INFRINGEMENT
If you believe in good faith that your copyrighted work has been reproduced on or linked from the Services without authorization in a way that constitutes copyright infringement, please provide our designated copyright agent with the following information:
- identification of the copyrighted work claimed to have been infringed;
- identification of the allegedly infringing material on the Site that is requested to be removed;
- your name, address and daytime telephone number, and an e-mail address if available, so that we may contact you if necessary;
- a statement that you have a good-faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law;
- a statement that the information in the notification is accurate, and under penalty of perjury, that the signatory is authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed; and
- an electronic or physical signature of the copyright owner or someone authorized on the owner’s behalf to assert infringement of copyright and to submit the statement
The copyright agent for notice of claims of infringement on the Site is:
NBA Media Ventures, LLC
645 Fifth Avenue
New York, NY 10022
17. DISPUTE RESOLUTION; SMALL CLAIMS COURT; AGREEMENT TO ARBITRATE
PLEASE READ THIS SECTION 17 CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. YOU HAVE THE LIMITED RIGHT TO OPT OUT OF THE ARBITRATION AGREEMENT IN THIS SECTION 17 AS SET FORTH BELOW.
Definition of Dispute
For purposes of this Section 17, “Dispute” is defined as a dispute, claim, or controversy arising out of or in connection with your access to, and/or use of, the Site, and/or the provision of content, services, and/or technology on or through the Site, and/or your relationship with us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory. Dispute shall be interpreted broadly and include, without limitation:
- claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud, misrepresentation, or any other statutory or common-law legal theory;
- claims for mental or emotional distress or injury not arising out of physical bodily injury;
- claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
Notwithstanding the foregoing, Dispute shall not encompass disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Site or disputes, claims, or controversies related to bodily injury, which are not subject to the Mandatory Pre-Dispute Resolution Process, small claims court, and arbitration provisions set forth below.
Mandatory Pre-Dispute Resolution Process
Before initiating a proceeding in arbitration or small claims court, you or the Operator must give the other party notice of the Dispute by providing a written “Notice of Dispute” that is personally signed by you (if you are initiating the Notice of Dispute) or by an Operator representative (if we are initiating the Notice of Dispute). The Notice of Dispute must contain all of the following information: (i) name, contact information (address, telephone number, and email address), and account information if applicable; (ii) a description of the nature and basis of the Dispute; and (iii) a description of the nature and basis of the relief sought, including a calculation for it. Except as specifically provided in Section 16 (Notice of Copyright Infringement), you must send any such Notice of Dispute to the Operator via email at firstname.lastname@example.org. The Operator must send any such Notice of Dispute to you at the contact information the Operator has on file for you via email. The Operator and you will attempt to resolve the Dispute through informal negotiation within sixty (60) days from the date that the Notice of Dispute is received (or a longer period, if agreed to by the parties).
The Operator and you shall use reasonable, good faith efforts to resolve the Dispute through consultation, cooperation, and good faith negotiations. If the party receiving the Notice of Dispute requests a telephonic or video settlement conference as part of this informal process, you and the Operator agree to participate in an effort to resolve the Dispute. Should the Operator make the request, you agree to attend this conference (with your counsel, if you are represented). Should you make the request, the Operator agrees to have a representative attend this conference (with counsel, if the Operator is represented). Neither you nor the Operator may initiate an arbitration or small claims court proceeding absent full compliance with this Mandatory Pre-Dispute Resolution Process. If the sufficiency of a Notice of Dispute or compliance with this Mandatory Pre-Dispute Process is at issue, it may be decided by a court of competent jurisdiction at either party’s election, and any formal dispute resolution proceeding shall be stayed. Such court has the authority to enforce this condition precedent to an arbitration and a small claims court proceeding, which includes the power to enjoin the filing or prosecution of a demand for arbitration. Notwithstanding the foregoing, either party retains the right to raise non-compliance with this condition precedent and seek related damages in arbitration. Any applicable limitations period (including statutes of limitations) and any filing fee deadlines shall be tolled while you and the Operator engage in this informal process.
After completion of this Mandatory Informal Pre-Dispute Resolution Process, you and the Operator may resort to the other alternatives described in this Section 17.
Small Claims Court
Any Dispute that falls within the jurisdictional scope and limits of the small claims court where you reside must be brought in that court on an individual basis. Such Disputes must remain in small claims court and may not be removed or appealed to a court of general jurisdiction.
The party initiating the small claims court proceeding shall submit a certification of compliance with the Mandatory Pre-Dispute Resolution Process referenced above to that court. The certification shall be personally signed by that party (and counsel, if represented).
Except as otherwise provided herein, any Dispute that is not resolved through the Mandatory Pre-Dispute Resolution Process shall be resolved by binding arbitration to be held in the county or parish in which you reside.
For residents outside the United States, arbitration shall be initiated in New York, New York, and the Operator and you, consistent with the venue provisions below, agree to submit to the personal jurisdiction of any state or federal court in New York County, New York to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
The party seeking to initiate arbitration must provide the other party with the demand for arbitration as specified in the NAM Rules and this Section 17. You may obtain a form to initiate arbitration at “https://www.namadr.com/content/uploads/2020/09/Comprehensive-Demand-for-Arb-revised-9.18.19.pdf” or by contacting NAM. If you are initiating arbitration, you shall serve the demand on the Operator via email at email@example.com. If the Operator is initiating arbitration, the Operator shall serve the demand via email at the contact information the Operator has on file for you. The demand for arbitration must be personally signed by the party initiating arbitration (and their counsel, if represented). By signing the demand for arbitration, a party (and their counsel, if represented) certifies that they have complied with (i) the Mandatory Pre-Dispute Resolution Process and (ii) all of the requirements of Federal Rule of Civil Procedure 11(b), including that the claims and relief sought are neither frivolous nor brought for an improper purpose. The arbitrator is authorized to award any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or applicable federal or state law against all appropriate persons (including counsel) as a court would.
The NAM Rules shall govern the payment of all arbitration fees. Notwithstanding the foregoing, the Operator will consider a request to reimburse your portion of the arbitration fees upon a showing of hardship in its sole discretion and assuming you do not qualify for a waiver from NAM. You and the Operator agree that arbitration is designed to be cost-effective for all parties. Either party may engage with NAM to discuss fee reductions and deferred payments.
All issues are for the arbitrator to decide except the following items (which are for a court of competent jurisdiction to decide): (i) issues that are specifically reserved for a court in this Section 17; (ii) issues related to the scope and enforceability of the arbitration provisions; and (iii) whether a Dispute can or must be brought in arbitration.
The decision of the arbitrator will be in writing and binding and conclusive on the Operator and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction, however, any award that has been satisfied may not be filed or entered in court. The decision of the arbitrator shall have no preclusive effect in any proceeding involving non-identical parties.
The Operator and you agree that dispositive motions, including, without limitation, motions to dismiss and motions for summary judgment, will be allowed in the arbitration.
Each party reserves the right to request a telephonic, video, or in-person hearing in arbitration. Should either party make such a request, a hearing shall be held. You and the Operator’s representative shall personally appear at any hearing requested by a party or otherwise ordered by the arbitrator (along with your and the Operator’s counsel, if represented). If an in-person hearing is held, it shall be conducted at a location reasonably convenient to you or at another mutually agreed-upon location.
Additional Procedures for Mass Filings
The following provisions set forth additional procedures that apply to mass filings. If twenty-five (25) or more similar claims are asserted against the Operator by the same or coordinated counsel or are otherwise coordinated, consistent with the definition and criteria of Mass Filings set forth in the NAM Rules, you and we understand and agree that these additional procedures shall apply and the resolution of your Dispute might be delayed. The parties agree that throughout this process, their counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing.
- Stage One. Counsel for the claimants and counsel for the Operator shall each select fifty (50) claims per side to be filed and to proceed in individual arbitrations as part of a staged process. Each case shall be assigned to a different arbitrator unless the parties agree otherwise. If there are fewer than one hundred (100) claims, all will be filed in individual arbitrations. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall engage in a global mediation session of all remaining claims with a retired federal or state court judge to be jointly selected by counsel for the parties, and the Operator shall pay the mediation fee.
- Stage Two. If the remaining claims are not resolved at this time, counsel for the claimants and counsel for the Operator shall each select one hundred (100) claims per side to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agree to in writing following mediation or through continuing, good faith discussions. No more than two (2) cases may be assigned to a single arbitrator unless the parties agree otherwise. If there are fewer than two hundred (200) claims, all will be filed in individual arbitrations. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall engage in a global mediation session of all remaining claims with a retired federal or state court judge to be jointly selected by counsel for the parties, and the Operator shall pay the mediation fee.
The parties are encouraged to meet and confer throughout this staged process and to discuss potential ways to modify procedures, increase efficiencies, and resolve claims.
Upon the conclusion of the second global mediation session (should the parties be unable to resolve the remaining claims), either
- Option Two. If neither you nor the Operator elect to have your claim heard in court consistent with Option One, then you agree that your claim will be resolved through continuing staged proceedings as set forth below. Assuming the number of remaining claims exceeds two hundred (200), then two hundred (200) claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than two hundred (200), then all of those claims shall be filed and proceed in individual arbitrations. No more than five (5) cases within any set of two hundred (200) cases may be assigned to the same arbitrator to proceed individually, unless the parties agree otherwise in writing. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of two hundred (200) claims are adjudicated, settled, withdrawn, or otherwise resolved, this staged process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and NAM to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims.
Any relevant limitations period (including statutes of limitations) and filing fee or other deadlines shall be tolled subject to these Additional Procedures for Mass Filings from the time the first cases are selected for a staged process until your claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.
You and the Operator agree that we each value the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and sincere disputes between us. You and the Operator acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of claims.
Opt Out of Arbitration
You have the right to opt out of arbitration by sending the Operator a personally signed, written notice of your decision to opt out via email to firstname.lastname@example.org within thirty (30) days of your first access or use of the Site.
Opt Out of Future Changes
If the Operator makes any future change to the arbitration provisions (other than a change to the notice address), you may reject any such change by sending the Operator a personally signed, written notice of your decision to opt out of those changes via email to email@example.com. This notice must be sent within thirty (30) days of notice of the change and include: (i) your full name; (ii) your mailing address; (iii) your phone number; (iv) if applicable, the username and email address associated with any account or newsletter; and (v) when and how you interacted with the Operator. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement that you wish to reject the change to the arbitration provisions. This is not an opt out of arbitration altogether.
Severability; Application to Parent and Affiliates
Except as specifically provided herein, if any clause within this Section 17 is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect.
The terms of these arbitration provisions will also apply to any claims asserted by you against any present or future parent or affiliated company of the Operator to the extent that any such claims arise out of your access to, and/or use of the Site, and/or the provision of content, services, and/or technology on or through the Site.
18. CLASS ACTION WAIVER; JURY TRIAL WAIVER
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
You and the Operator agree that, to the fullest extent permitted by law, each party may bring claims (whether in court or in arbitration) against the other only in an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding. This means that you and the Operator may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. This also means that you and the Operator may not participate in any class, collective, consolidated, private attorney general, or representative proceeding brought by any third party. Notwithstanding the foregoing, you or the Operator may participate in a class-wide settlement.
To the fullest extent permitted by law, you and the Operator waive any right to a jury trial.
The terms of this provision will also apply to any claims asserted by you against any parent or affiliated company of the Operator to the extent that any such claims arise out of your access to, and/or use of the Services, and/or the provision of content, services, and/or technology on or through the Services.
LAST UPDATED: February 20, 2023
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