October 13, 2023
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- Limitation of Liability
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- Arbitration Agreement and Class Action Waiver
(a) FBC, including FBC Affiliates, agents, employees, predecessors in interest, successors, and assigns, and you agree that any Dispute (as defined herein) between you and FBC, regarding any aspect of your relationship with FBC, will be resolved in a binding, confidential, individual and fair arbitration process, and not in court. Each of you and FBC agrees to give up the right to sue in court.
(c) Each of you and FBC also agrees to give up the ability to seek to represent, in a class action or otherwise, anyone but each of you and FBC (see paragraph i below).
(d) There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow this 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 this Agreement.
(e) This Agreement evidences 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 this Agreement.
(f) Any arbitration between you and FBC 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 FBC 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 FBC and you pursuant to JAMS Rule 12. The JAMS Rules are available on its website at https://www.jamsadr.com/consumer-minimum-standards/. The Consumer Arbitration Minimum Standards are available at https://www.jamsadr.com/consumer-minimum-standards/. The arbitrator is bound by the terms of this Agreement.
(g) If either you or FBC wants to arbitrate a claim, you or FBC 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 FBC Service to which the Notice relates, and the relief requested. Your Notice to the FBC must be sent by mail to: Arbitration Notice of Dispute, 2121 Avenue of the Stars, 12th Floor, Los Angeles, California, 90067. The FBC 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.
(h) 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 the FBC at the address listed above to which you sent your Notice of Dispute.
(i) You and the FBC acknowledge and agree to abide by the following rules for arbitration:
(i) YOU AND FBC 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; (ii) the FBC will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with paragraph f above; (iii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law and the terms of this Agreement; and (iv) each side pays his, her or its own attorneys' fees, except as otherwise provided in paragraph l below.
(j) 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 FBC, you and the FBC acknowledge and agree to abide by the following:
If you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), FBC 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 FBC will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator.
FBC 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. FBC 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.
FBC 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.
(k) Regardless of how the arbitration proceeds, each of you and FBC 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.
(l) Each of you and FBC 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 FBC failed to make a settlement offer to you before the arbitration or the amount you win is at least 25% greater than FBC’s highest settlement offer, then FBC will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded. If FBC 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.
(m) 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 this Agreement. The arbitrator shall have no authority to award punitive, exemplary, multiplied or consequential damages or any other relief not allowed under this Agreement. The arbitrator also may not order FBC to pay any monies to or take any actions with respect to persons other than you, unless FBC explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. Further, unless FBC 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.
(n) You and FBC 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 FBC 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.
(o) With the exception of subpart (i) in paragraph (i) (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 (i) in paragraph (i) is found invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, but the rest of this Agreement, including the provisions governing where actions against FBC 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.
The failure of FBC to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The Section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. Except as otherwise expressly provided herein, if any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
You agree that any notices FBC may be required by Applicable Law to send to you will be effective upon FBC sending an e-mail message to the e-mail address you have on file with FBC or publishing such notices on the informational page(s) of FOXFLASH.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and FBC as a result of this Agreement or your use of Material. A printed version of this Agreement and of any notice related to it shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other business documents and records originally generated and maintained in printed form.
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FOR AVOIDANCE OF DOUBT, YOUR USE OF THE MATERIAL AFFIRMS YOUR ACCEPTANCE OF, AND AGREEMENT TO, THE TERMS AND CONDITIONS OF THIS AGREEMENT.