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. YOU HAVE THE LIMITED RIGHT TO OPT OUT OF THE ARBITRATION AGREEMENT IN THIS SECTION AS SET FORTH BELOW. THIS SECTION WILL NOT APPLY WHERE PROHIBITED BY APPLICABLE LAW.
For purposes of this Section 12, references to References to “we,” “our,” “us” and the “Devils” shall have the same meaning ascribed to them in the first full paragraph of these Terms of Use. References to “you” and “your” include you and all authorized or unauthorized users or beneficiaries of the Website under these or prior Terms of Use.
Notwithstanding any other provision in these Terms of Use, you and the Devils agree and acknowledge that these Terms of Use affect interstate commerce and that the Federal Arbitration Act will govern the interpretation and enforcement of the arbitration provisions.
“Claim” shall be defined as any dispute, claim, or controversy arising out of or in connection with your access to, and/or use of, the Websites, and/or the provision of content, services, and/or technology on or through the Website, or your relationship with the Devils, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory. Claim shall be interpreted broadly and include, without limitation, any dispute, claim, or controversy that: arose before these Terms of Use or any prior agreement (including, but not limited to, claims relating to advertising), or that may arise after the termination of these Terms of Use, claims for mental or emotional distress or injury not arising out of physical bodily injury, and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class. Notwithstanding the foregoing, Claim shall not encompass disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks and trade secrets, claims of piracy or unauthorized use of the Website, and 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.
In order to expedite and control the cost of disputes, you and the Devils agree that any Claim will be resolved as follows:
- A. MANDATORY PRE-DISPUTE RESOLUTION PROCESS: Before initiating an arbitration or small claims court proceeding, you or the Devils 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 Devils representative (if we are initiating the Notice of Claim). The Notice of Claim must contain all of the following information: (1) name, contact information (address, telephone number, and email address), and account information if applicable; (2) a description of the nature and basis of the Claim; and (3) a description of the nature and basis of the relief sought, including a calculation for it. You must send any such Notice of Claim either via email to legal@hbse.com or to: Prudential Center c/o New Jersey Devils LLC, Attn: General Counsel, 25 Lafayette Street, Newark, New Jersey 07102. We must send any such Notice of Claim to you via email to the email address we have on file for you.
You and the Devils 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 or video settlement conference as part of this informal process, you and the Devils agree to participate in an effort to resolve the Claim. Should the Devils make this request, you agree to attend this conference (with your counsel, if you are represented). Should you make this request, the Devils agrees to have a representative attend this conference (with counsel, if the Devils is represented).
Full compliance with this Mandatory Pre-Dispute Resolution Process is a condition precedent to initiating an arbitration or small claims court proceeding. Neither you nor the Devils may initiate an arbitration or small claims court proceeding absent such compliance. If the sufficiency of a Notice of Claim or compliance with this Mandatory Pre-Dispute Resolution 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 shall have 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 may elect to raise non-compliance with this Mandatory Pre-Dispute Resolution Process and seek related damages in arbitration. Any applicable limitations period (including the 1 year statute of limitations in Section 14 herein) and any filing fee deadlines shall be tolled while you and the Devils engage in this Mandatory Pre-Dispute Resolution Process in an effort to resolve the Claim.
- B. 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. 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).
- C. ARBITRATION PROCEDURES: READ THE FOLLOWING ARBITRATION PROVISION CAREFULLY, AS IT LIMITS YOUR RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION.Except as otherwise provided herein, any Claim 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 Essex County, New Jersey, and the Devils and you, consistent with the venue provisions in Section 15, agree to submit to the personal jurisdiction of any state or federal court in Essex County, New Jersey to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
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. The Devils and you understand that, absent this mandatory arbitration provision, the Devils and you would have the right to sue in court and have a jury trial. The Devils 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. If you and we cannot agree on who the single arbitrator should be, then the AAA shall appoint an arbitrator with significant experience resolving the type of Claim at issue. The AAA shall administer the arbitration in accordance with its rules applicable to the nature of the Claim (including any applicable supplementary rules) (“AAA Rules”), as modified by these Terms of Use. The AAA Rules and fee information are available at www.adr.org. 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. 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 alternate 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 this Section. You may obtain a form to initiate arbitration at https://www.adr.org/Most-Viewed-Forms. If you are initiating arbitration, you shall serve the demand on the Devils either via email to legal@hbse.com or to: Prudential Center c/o New Jersey Devils LLC, Attn: General Counsel, 25 Lafayette Street, Newark, New Jersey 07102. If the Devils is initiating arbitration, the Devils shall serve the demand via email to 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 Pre-Dispute Resolution Process (and they shall attach the Notice of Claim) and (2) 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 AAA Rules shall govern the payment of all arbitration fees. Notwithstanding the foregoing, we may 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 AAA. You and the Devils 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, (2) issues related to the scope and enforceability of the arbitration provisions, and (3) whether a dispute can or must be brought in arbitration.
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 the Devils 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 the Devils 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. The decision of the arbitrator will be final, binding and conclusive on the Devils and you. A judgment to enforce the decision 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.
The Devils 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. You and the Devils’ representative shall personally appear at any hearing ordered by the arbitrator (along with your and the Devils’ counsel, if represented). Should either party make such a request, a hearing shall be held. The parties can agree to waive a hearing. 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.
- D. ADDITIONAL PROCEDURES FOR MULTIPLE CASE FILINGS: The following provisions set forth additional procedures that apply to mass or multiple case filings. If twenty-five (25) or more similar claims are asserted against the Devils by the same or coordinated counsel or are otherwise coordinated consistent with the definition and criteria of Mass Filings set forth in the AAA Rules (and your claim is one of them), you and we understand and agree that these additional procedures shall apply and the resolution of your Claim 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: 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 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 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 Devils 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 the Devils 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 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 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 Devils shall pay the mediator’s fee.
If your claim is not resolved as part of the staged process set forth above, either:
- Option One: You and the Devils 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 the Devils within thirty (30) days after the conclusion of Stage Two either via email to legal@hbse.com or to: Prudential Center c/o New Jersey Devils LLC, Attn: General Counsel, 25 Lafayette Street, Newark, New Jersey 07102. The Devils may opt your claim out of arbitration by sending an individual, personally signed notice of its intention to opt out to your counsel via email at the earliest possible time and no more than thirty (30) 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 the Devils 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 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. 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 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 two hundred (200) 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.
You and the Devils agree that each values the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and sincere disputes between the parties. You and the Devils 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 Multiple Case Filing procedures have been reasonably designed to result in an efficient and fair adjudication of claims.
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.
- E. OPT OUT OF ARBITRATION: You have the right to opt out of arbitration by sending the Devils a personally signed, written notice of your decision to opt out via email to legal@hbse.com within thirty (30) days of your first access or use of the Website. 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 opt out of arbitration. As referenced above, this notice must be sent within thirty (30) days of your first access or use of the Site, otherwise you shall be bound to arbitrate any disputes in accordance with the terms of these provisions. If you opt out of arbitration, the Devils also will not be bound to arbitrate. If you do not affirmatively elect to opt out as described above, your access or use of the Site will be deemed to be your irrevocable acceptance of this Section 12. By opting out of arbitration, you agree to resolve any disputes consistent with these Terms of Use.
- F. Opt Out of Future Changes. In addition, if the Devils 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 the Devils a personally signed, written notice of your decision to opt out of those changes within thirty (30) days of notice of the change either to legal@hbse.com or via mail to Prudential Center c/o New Jersey Devils LLC, Attn: General Counsel, 25 Lafayette Street, Newark, New Jersey 07102, which notice must include (i) your full name, mailing address, telephone number, email address and, if applicable, the username associated with any account or newsletter, and (ii) a description of when and how you interacted with the Devils. 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.
- G. Severability; Application to Parent and Affiliates. Except as specifically provided herein, if any clause within this Section 12 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 Devils to the extent that any such Claims arise out of your access to, and/or use of the Website, and/or the provision of content, services, and/or technology on or through the Website.
