(1) Fox, including its Fox Affiliates, agents, employees, predecessors in interest, successors, and assigns, and you agree that any Dispute (as defined herein) between you and Fox, regarding any aspect of your relationship with Fox, will be resolved in a binding, confidential, individual and fair arbitration process, and not in court. Each of you and Fox agrees to give up the right to sue in court.
(2) The term “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and Fox, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory. The term “Dispute” specifically includes, but is not limited to, any disputes, actions, claims, or controversies between you and the Fox that arise from or in any way relate to or concern any Content, products or services provided by Fox including but not limited to any Fox services, this Arbitration Agreement, any other aspect of these Terms of Use (including their applicability and their conformance to applicable law), any billing disputes, and any disputes relating to telephonic, text message, or any other communications either of us received from the other. The only exceptions to this Arbitration Agreement are that (i) each of you and Fox retains the right to sue in small claims court and (ii) each of you and Fox may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights. Disputes over whether these exceptions apply shall be resolved by the court in which such action has been brought; all other disputes over arbitrability shall be resolved by the arbitrator.
(3) Each of you and Fox also agrees to give up the ability to seek to represent, in a class action or otherwise, anyone but each of you and Fox (see paragraph 9 below).
(4) There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow this Arbitration Agreement. The arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages); provided that they are recoverable under these Terms of Use.
(5) These Terms of Use evidence a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive termination of the Terms of Use.
(6) Any arbitration between you and Fox will be conducted by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”), as modified by this agreement to arbitrate. The arbitration shall be conducted by a single, neutral arbitrator, and if you and Fox cannot agree on who that single arbitrator will be, the arbitrator will be appointed pursuant to the JAMS Rules, with the participation and involvement of Fox and you pursuant to JAMS Rule 12. The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration/. The Consumer Arbitration Minimum Standards are available at https://www.jamsadr.com/consumer-minimum-standards/. The arbitrator is bound by these Terms of Use.
(7) If either you or Fox wish to arbitrate a claim, you or Fox must first send by mail to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the Fox service to which the Notice relates, and the relief requested. Your Notice to Fox must be sent by mail to: Arbitration Notice of Dispute, 2121 Avenue of the Stars, 12th Floor, Los Angeles, California, 90067. Fox will send any Notice to you at the contact information we have for you or that you provide. It is the sender’s responsibility to ensure that the recipient receives the Notice. During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute.
(8) If you and we do not resolve the Dispute within 45 days, either you or we may initiate arbitration in accordance with the JAMS Rules. Further instructions on submitting a Demand for Arbitration may be found at http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf. In addition to filing this Demand for Arbitration with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration to Fox at the address listed above to which you sent your Notice of Dispute.
(9) You and Fox acknowledge and agree to abide by the following rules for arbitration:
(a) YOU AND FOX MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF; (b) Fox will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with paragraph 10 below; (c) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law and these Terms of Use; and (d) each side pays his, her or its own attorneys’ fees, except as otherwise provided in paragraph 12 below.
(10) JAMS charges filing and other fees to conduct arbitrations. Ordinarily, the claimant has to pay the filing fee to initiate arbitration, but if you wish to commence an arbitration against Fox, you and Fox acknowledge and agree to abide by the following:
- If you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), Fox will pay the filing fee on your behalf or reimburse your payment of it.
- If you are seeking to recover $10,000 or more, you will have to pay the filing fee charged by JAMS, but Fox will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator.
- Fox and you agree that, if the claims to be arbitrated total less than $10,000 (inclusive of attorneys’ fees), the claim ordinarily should be decided on written submissions only, without a telephonic or in-person hearing. Fox will not request a hearing for any claims totaling less than $10,000. This provision shall not be construed by the arbitrator to deprive you of any rights you may have to a telephonic or in-person hearing in your hometown area pursuant to the JAMS Rules.
- Fox and you agree that, if the claims to be arbitrated total $10,000 or more, the arbitration will occur in a manner and place consistent with the JAMS Rules.
(11) Regardless of how the arbitration proceeds, each of you and Fox shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance with the JAMS Rules, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions.
(12) Each of you and Fox may incur attorneys’ fees during the arbitration. Each side agrees to pay his, her or its own attorneys’ fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys’ fees, and in such instance, the fees awarded shall be determined by the applicable law(s). In addition to whatever rights you may have to recover your attorneys’ fees under applicable law, if you prevail in the arbitration, and if Fox failed to make a settlement offer to you before the arbitration or the amount you win is at least 25% greater than Fox’s highest settlement offer, then Fox will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded. If Fox wins the arbitration, you will be responsible for your own attorneys’ fees. In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a claim or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by applicable law.
(13) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief, only to the extent necessary to provide relief warranted by that party’s individual claim, only as permitted by applicable law, and only to the extent that declaratory and injunctive relief are permitted by these Terms of Use. The arbitrator shall have no authority to award punitive, exemplary, multiplied or consequential damages or any other relief not allowed under this Arbitration Agreement. The arbitrator also may not order Fox to pay any monies to or take any actions with respect to persons other than you, unless Fox explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. Further, unless Fox expressly agrees, the arbitrator may not consolidate other persons’ claims with yours, and may not otherwise preside over any form of a representative, multi-claimant or class proceeding.
(14) You and Fox agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation, proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, an order confirming the award, or unless otherwise required by law or court order. In keeping with the confidential nature of the arbitration, You and Fox agree that an order confirming award is only necessary if the obligations of the award have not been performed. Therefore, before taking any steps to confirm the arbitration award, the party seeking confirmation of the award must give the other party notice of its intention to confirm the award. If the party who would be the respondent in any such confirmation proceeding performs its obligation under the terms of the arbitration award within 15 business days of such notice, the party who gave notice of its intent to confirm the award shall not seek to confirm or otherwise enforce the award.
(15) With the exception of subpart (a) in paragraph (9) (i.e., the waiver of the ability to proceed on behalf of multiple claimants or a purported class), if any part of this Arbitration Agreement is deemed invalid, unenforceable, or illegal, then the balance of this Arbitration Agreement shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in paragraph (9) is found invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, but the rest of these Terms, including the provisions governing where actions against Fox must be pursued, the choice of governing law, and our mutual waiver of the right to a trial by jury, will remain in effect and apply to any claim that, for this or any other reason, proceeds in court rather than in arbitration.