12. DISPUTE RESOLUTION AND BINDING ARBITRATION
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. THIS SECTION WILL NOT APPLY WHERE PROHIBITED BY APPLICABLE LAW.
For purposes of these Sections 12-13, “HBSE” shall include HBSE (as defined herein) and its respective employees, directors, officers, agents and representatives. Notwithstanding any other provision in these Terms of Use, you and HBSE agree and acknowledge that these Terms of Use evidence a transaction involving interstate commerce and that the Federal Arbitration Act will govern their interpretation and enforcement and any proceedings relating to such interpretation or enforcement.
Unless you and HBSE agree otherwise, to the fullest extent permitted by applicable law, the state and federal courts of Essex County, New Jersey shall have exclusive jurisdiction over any Claims between you and HBSE (except for Claims brought in small claims court) that are not subject to arbitration or over any action involving the applicability or enforceability of any provisions of these Terms of Use (including the arbitration provisions and class action waiver). You and HBSE consent to the exclusive jurisdiction of those courts and waive any objections as to personal jurisdiction or as to the laying of venue in such courts due to inconvenient forum or any other basis to seek transfer or change venue of such action to another court.
“Claim” shall be defined as any dispute, claim, or controversy arising out of or relating to the Services or these Terms of Use, the Privacy Policy, other applicable terms or policies, or your relationship with HBSE, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory. Claim shall be interpreted broadly. Claim shall also include any dispute, claim, or controversy that arose before you assented to these Terms of Use or after termination. Notwithstanding the foregoing, Claim shall not include disputes, claims, or controversies concerning patents, copyrights, trademarks, trade secrets, and claims of piracy or unauthorized use of the Services. You or HBSE may seek interim or preliminary relief from a court of competent jurisdiction as needed to protect the status quo pending completion of arbitration.
In order to expedite and control the cost of disputes, you and HBSE agree that any Claim will be resolved as follows:
- MANDATORY INFORMAL PRE-DISPUTE RESOLUTION PROCESS: Before initiating an arbitration proceeding, you or HBSE must give the other party notice of the Claim by providing a written “Notice of Claim” that is personally signed by you (if you are initiating the Notice of Claim) or a HBSE representative (if we are initiating the Notice of Claim). The Notice of Claim must contain the following information: (1) name, contact information (address, telephone number, and email address), and account information if applicable; (2) a detailed description of the nature and basis of the Claim; and (3) a detailed description of the nature and basis of the relief sought, including a calculation for it. You must send any such Notice of Claim to: Devils Arena Entertainment LLC, Attn: General Counsel, 25 Lafayette Street, Newark, New Jersey 07102. We must send any such Notice of Claim to you at the email address we have on file for you. You and HBSE agree to attempt to resolve the Claim through informal, good faith negotiations for a sixty (60)-day period from the date that a completed Notice of Claim is received (or a longer period, if agreed to by the parties). If the party receiving the Notice of Claim requests a telephone settlement conference as part of this informal process, you and HBSE agree to participate in an effort to resolve the Claim. Should HBSE make this request, you agree to attend this conference (with your counsel, if you are represented). Should you make this request, HBSE agrees to have a representative attend this conference (with counsel, if HBSE is represented).
Compliance with this “Mandatory Informal Pre-Dispute Resolution Process” is a condition precedent to initiating arbitration. Neither you nor HBSE may initiate an arbitration proceeding absent such compliance. If the sufficiency of a Notice of Claim or compliance with this process is at issue, it may be decided by a court of competent jurisdiction at either party’s election, and any arbitration proceeding shall be stayed. Such court shall have the authority to enforce this condition precedent to an arbitration proceeding, which includes the power to enjoin the filing or prosecution of a demand for arbitration and the assessment and collection of arbitration administrative fees.
Notwithstanding the foregoing, either party may elect to raise non-compliance with this Mandatory Informal Pre-Dispute Resolution Process and seek relief in arbitration.
Any applicable limitations period (including the statute of limitations) and any filing fee deadlines shall be tolled while you and HBSE engage in this Mandatory Informal Pre-Dispute Resolution Process in an effort to resolve the Claim.
- SMALL CLAIMS COURT: Any Claim 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 Claim must remain in small claims court and may not be removed or appealed to a court of general jurisdiction.
- ARBITRATION PROCEDURES: READ THE FOLLOWING ARBITRATION PROVISION CAREFULLY, IT LIMITS YOUR RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION.Except as otherwise provided herein, any Claim arising out of or relating to these Terms of Use, the applicability of these Terms of Use as to the use of any Service, or to breach or enforcement, interpretation or validity of these Terms of Use, or the determination of the scope or applicability of arbitration, in each case that is not resolved through the Mandatory Informal Pre-Dispute Resolution Process or small claims court, shall be resolved by binding arbitration to be held in the county or parish in which you reside.
ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. The rules in Arbitration are different. There is no judge or jury, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations stated in these Terms of Use as a court would. HBSE and you understand that, absent this mandatory arbitration provision, HBSE and you would have the right to sue in court and have a jury trial. HBSE and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
The Arbitration shall be administered by the American Arbitration Association (“AAA”) and heard by a single neutral arbitrator. The AAA shall administer the arbitration in accordance with the AAA’s applicable rules including the supplementary rules (“AAA Rules”), as modified by these Terms of Use. If you and we cannot agree on who that single arbitrator should be, then the AAA shall appoint an arbitrator with significant experience resolving the type of Claim at issue. If there is a conflict between the AAA Rules and the rules set forth in these Terms of Use, the rules set forth in these Terms of Use will govern. The AAA Rules are available at www.adr.org. If the AAA is unable or unwilling to administer the arbitration consistent with these Terms of Use, the parties shall agree on an alternative provider that will do so. If the parties cannot agree, they shall jointly petition a court of competent jurisdiction to appoint an arbitration provider that will do so.
The party seeking to initiate arbitration must provide the other party with the demand for arbitration as specified in the AAA Rules and these arbitration provisions. If you are initiating arbitration, you shall serve the demand on HBSE as follows: Devils Arena Entertainment LLC, Attn: General Counsel, 25 Lafayette Street, Newark, New Jersey 07102. If HBSE is initiating arbitration, HBSE shall serve the demand at the email address that we have 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, that party (and their counsel, if represented) certifies that they have complied with (1) the Mandatory Informal Pre-Dispute Resolution Process (and they shall attach the Notice of Claim) and (2) 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 AAA Rules shall govern the payment of all arbitration fees. You and HBSE agree that arbitration is designed to be cost-effective for all parties. Either party may engage with the AAA to discuss fee reductions and deferred payments. All issues are for the arbitrator to decide except the following, which are for a court of competent jurisdiction to decide: (1) issues that are specifically reserved for a court in these Terms of Use and (2) issues related to the scope and enforceability of the arbitration provisions.
The arbitrator may award relief, including, but not limited to, monetary, declaratory, injunctive, or other equitable relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. The arbitrator must follow these Terms of Use and can award the same individualized damages and relief as a court, including injunctive or other equitable relief necessary to provide relief as to the individualized claim. The arbitrator shall apply the cost-shifting provisions of Federal Rule of Civil Procedure 68 after entry of an award. Unless you and HBSE otherwise agree, one person’s claims may not be consolidated with those of any other person. If a court determines that a claim or request for public injunctive relief may not be waived and all appeals from that decision have been exhausted (or it is otherwise final), you and HBSE agree that any claim or request for public injunctive relief shall be stayed and resolved by a court pending arbitration of the remaining claims and requests for relief.
The decision of the arbitrator shall be in writing and shall set forth the essential findings of fact and legal analysis. A judgment to enforce the award may be entered by a 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.
Each party reserves the right to request a telephonic, video, or in-person hearing from the arbitrator. You and HBSE representative shall personally appear at any hearing ordered by the arbitrator (along with your and HBSE counsel, if represented). For claims of more than $25,000 (and for claims seeking individualized injunctive, equitable, or declaratory relief that are not subject to small claims court as set forth above), a telephone, virtual, or in-person hearing shall be held and you and the HBSE representative shall personally appear (along with your and HBSE counsel, if represented). The parties can agree to waive a hearing.
- SPECIAL RULES IN THE ARBITRATION PROCEEDING: (i) The arbitrator has no authority to make errors of law and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator’s decision is final and binding on all parties and may be enforced in any Federal or State court that has jurisdiction. (ii) Neither you nor HBSE shall be entitled to join or consolidate claims in Arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity. THIS MEANS THAT YOU WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN ANY CLASS OR CONSOLIDATED ACTION WHATSOEVER.Accordingly, you and HBSE agree that the AAA Rules for Class Arbitrations do not apply to our Arbitration. A court may sever any portion of this dispute resolution provision if it finds such unenforceable, except for the prohibition on class, representative and private attorney general arbitrations.
- ADDITIONAL PROCEDURES FOR MULTIPLE CASE FILINGS: The following provisions set forth additional procedures that apply to multiple case filings. If fifty (50) or more similar claims are asserted against HBSE by the same or coordinated counsel or are otherwise coordinated (and your claim is one of them), you understand and agree that these additional procedures shall apply and the resolution of your Claim might be delayed.
- Stage One: Counsel for the claimants and counsel for HBSE shall each select fifty (50) claims per side to be filed and to proceed in individual arbitrations as part of an initial staged process. Any 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 unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. If a claim is withdrawn prior to adjudication, another claim shall be randomly selected to be filed and to proceed in this set. 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 and HBSE shall pay the mediator’s fee.
- Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for HBSE shall each select seventy-five (75) 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. Any 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 unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. If a claim is withdrawn prior to adjudication, another claim shall be randomly selected to be filed and to proceed in this set. 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, and HBSE shall pay the mediator’s fee.
Each case within any given stage shall be assigned to a different, single arbitrator, unless the parties agree otherwise in writing. If your claim is not resolved as part of the staged process set forth above, either:
- Option One: You and HBSE may, separately or by agreement, opt out of arbitration and elect to have your claim heard in a court of competent jurisdiction consistent with these Terms. You may opt out of arbitration by providing your individual, personally signed notice of your intention to opt out to HBSE within thirty (30) days after the conclusion of Stage Two as follows: Devils Arena Entertainment LLC, Attn: General Counsel, 25 Lafayette Street, Newark, New Jersey 07102. HBSE may opt your claim out of arbitration by sending an individual, personally signed notice of its intention to opt out to your counsel within fourteen (14) days following the expiration of your thirty (30) day opt-out period. Counsel for the parties may agree to adjust these deadlines.
OR
- Option Two: If neither you nor HBSE elect to have your claim heard in court consistent with Option One, then you agree that your claim will be resolved through continued staged proceedings as set forth below. Assuming the number of remaining claims exceeds two hundred (200), then 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 200, then all of those claims shall be filed and proceed in individual arbitrations. Each of these 200 cases shall be assigned to a single, different arbitrator. Any 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 unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of claims are adjudicated, settled, withdrawn, or otherwise resolved, this 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 the AAA 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 and filing fee or other deadlines shall be tolled subject to these Additional Procedures for Multiple Case 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.
A court of competent jurisdiction shall have the authority to enforce these Additional Procedures for Multiple Case Filings and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment and collection of arbitration fees. If these Additional Procedures for Multiple Case Filings apply to your claim, and a court of competent jurisdiction determines they are not enforceable as to your claim, then your claim shall proceed in a court of competent jurisdiction consistent with these Terms of Use.
- OPT OUT OF FUTURE CHANGES: If HBSE makes any future change to the arbitration provisions in this Section 12 (other than a change to the notice address), you may reject any such change by sending HBSE a personally signed, written notice of your decision to opt out of those changes within thirty (30) days of notice of the change to Devils Arena Entertainment LLC, Attn: General Counsel, 25 Lafayette Street, Newark, New Jersey 07102, which notice must include your full name, mailing address, telephone number, email address, and a description of when and how you interacted with HBSE. Such opt out 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.
