Effective Date: April 11, 2023
1. ACCEPTANCE OF TERMS
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE WEBSITE, AS IT CONTAINS IMPORANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND OBLIGATIONS INCLUDING MANDATORY ARBITRATION, NO CLASS RELIEF, DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY, INDEMNITY TO US, AND WAIVER OF YOUR RIGHT TO A JURY TRIAL. BY ACCESSING AND/OR USING THE WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS. PLEASE DISCONTINUE USE OF THE WEBSITE IF YOU DO NOT AGREE.
If any provision of these Terms is determined by a court to be unlawful, void, or for any reason unenforceable, then that provision is deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
2. AUTHORIZED USER OF WEBSITE. WBD DISTRIBUTION AFFILIATE AGREEMENT
Access to this Website is intended solely for WBD-authorized representatives of distribution affiliates that have entered into a distribution affiliation agreement (each a “Distribution Affiliation Agreement”) with WBD (a “Distribution Affiliate”). If your organization has not entered into a Distribution Affiliation Agreement, or if you are not authorized to act on behalf of a Distribution Affiliate that has signed a Distribution Affiliation Agreement, you may not access this Website. These Terms relate solely to your use of this Website and do not replace the terms of your Distribution Affiliation Agreement.
3. YOUR ACCESS AND USE OF THE WEBSITE
(A) When using this Website, you agree to comply with all applicable laws, including, without limitation, copyright law. Except as expressly permitted in these Terms, or your Distribution Affiliation Agreement, you may not use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit Website Content (as defined below) for any purpose whatsoever without obtaining prior written consent from us or, in the case of third-party content, its respective owner.
(B) In certain instances, we may permit you to download or print Website Content. In such event, subject to your compliance with these Terms and your Distribution Affiliation Agreement, you may download (temporary storage only), display, view use, play and/or or print (as applicable) one (1) copy of the Website Content (excluding source and object code in raw form or otherwise, other than as made available to access and use via a standard web browser to enable display on your Computer) on a single computer or device for your limited, non-exclusive, revocable, non-assignable and non-transferable use only. In some instances, we may permit you to have greater access to and use of Website Content, subject to your Distribution Affiliation Agreement thereto.
(C) Except as expressly permitted in these Terms or your Distribution Affiliation Agreement, you may not:
(i) remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notices on the Website Content;
(ii) circumvent, disable or otherwise interfere with security-related features of the Website, including, without limitation, any features that prevent or restrict use or copying of any content or enforce limitations on the use of the Website or Website Content;
(iii) use an automatic device (such as a robot or spider) or manual process to copy or "scrape" the Website or Website Content for any purpose without the express written permission of WBD, frame the Website or Website Content except to the extent we have given you explicit written permission to do so, or use any of our trademarks as meta tags.
(iv) collect or harvest any personally identifiable information from the Website, including, without limitation, user names, passwords, e-mail addresses;
(v) attempt to or interfere with the proper working of the Website or impair, overburden, or disable the same;
(vi) decompile, reverse engineer, disassemble, modify or attempt to discover any Website source or object code or any software or other products, services or processes accessible through any portion of the Website;
(vii) use network-monitoring software to determine architecture of or extract usage data from the Website;
(viii) encourage conduct that violates any local, state or federal law, either civil or criminal, or impersonate another user, person, or entity;
(ix) violate U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce;
(x) engage in any conduct that restricts or inhibits any other user from using or enjoying the Website or that violates these Terms, or your Distribution Affiliation Agreement; or
(xi) use the Website or Website Content to advertise, or to solicit anyone to buy or sell, products or services, nor to solicit anyone to make donations of any kind, without our express written approval.
4. INTELLECTUAL PROPERTY
Unless otherwise explicitly specified, the Website (including past, present and future versions) and included content (and any derivative works or enhancements of the same), including, but not limited to, all layout, text, illustrations, instructions, files, images, designs, software, scripts, graphics, photos, sounds, music, videos, information, advertising copy, content, materials, products, services, URLs, technology, documentation, interactive features, the "look and feel" of the Website, the compilation, assembly and arrangement of the materials of the Website, as well as all trademarks, service marks, trade names, trade identities and trade dress that may appear on the Website and any and all copyrightable material (including source and object code) and all intellectual property rights to the same (collectively, the "Website Content") are owned or controlled by WBD, our licensors, or both. Except for the limited use rights granted to you in these Terms or your Distribution Affiliation Agreement, you shall not acquire any right, title or interest in this Website or any Website Content therein. Any rights not expressly granted in these Terms or your Distribution Affiliation Agreement are expressly reserved by WBD.
5. AUTHORIZED USER REGISTRATION
In order to access or use this Website, you may have to become a registered user. In such event, you will provide true, accurate, current and complete registration information about you as may be prompted by any registration forms and, if such information changes, you will promptly update us with the relevant information. During registration, you may be required to create a username and password (a "Registration"). You are responsible for safeguarding and maintaining the confidentiality of your Registration and for restricting access to your Registration so that others may not access the Website using your Registration in whole or in part. If you register with us, you agree to accept sole responsibility for all activities that occur under your Registration, whether or not you have authorized the activity. You agree you will not sell, transfer or assign your Registration or any Registration rights. You agree to notify us immediately at dpo@WBD.com of any breach of security or unauthorized use of your Registration. We reserve the right to terminate your Registration or otherwise deny you access to the Website in our sole discretion.
6. THIRD PARTY LINKS
The Website may include third party links as well as content posted of a third-party. We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement made on the Website by anyone other than authorized employees or spokespersons while acting in their official capacities. You assume sole responsibility for your use of third-party links. WBD is not responsible for on the accuracy, copyright compliance, legality, decency, or other aspects of these third-party sites and WBD is not liable to you for any loss or damage of any sort incurred as a result of your dealings with any third-party or their website.
You agree to defend, indemnify and hold harmless WBD and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, and their related companies from and against any and all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys’ fees and costs) arising out of, related to, or that may arise in connection with: (i) your access to or use of the Website; (ii) any actual or alleged violation or breach by you of these Terms ; or (iii) your acts or omissions. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations hereunder.
8. GEOGRAPHIC RESTRICTIONS & LOCAL REGULATIONS
WBD is based in the state of New York in the United States. WBD makes no claims that the Website or any Website Content therein is accessible, appropriate or available for use outside of the United States. If you access the Website from outside the United States, you do so on your own initiative and at your own risk and are responsible for compliance with local laws if and to the extent local laws are applicable. You specifically agree to comply with all applicable laws concerning the transmission of technical data exported from the United States or the country you reside in.
9. DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY
YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE AND THE WEBSITE CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, "WITH ALL FAULTS," AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WBD AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (1) WARRANTIES THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS; (2) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE WEBSITE OR THE WEBSITE CONTENT, AS APPLICABLE; (3) WARRANTIES OF TITLE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, CUSTOM, TRADE, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (4) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON OUR WEBSITE OR ACCESSED THROUGH THE WEBSITE; (5) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE; (6) WARRANTIES THAT YOUR USE OF THE WEBSITE WILL BE SECURE OR UNINTERRUPTED, TIMELY OR ERROR-FREE; (7) WARRANTIES THAT DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED; AND (8) WARRANTIES THAT THE WEBSITE (OR THE SERVER THAT MAKES IT AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UNDER NO CIRCUMSTANCES WILL WBD OR ITS AFFILIATES, AGENTS OR LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DAMAGES ARISING OUT OF USE OF THE WEBSITE, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT OR SIMILAR DAMAGES, EVEN IF WE ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. (BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF THE WBD AND ITS AFFILIATES, AGENTS AND LICENSORS IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.) YOU AGREE THAT THE LIABILITY OF, WBD AND ITS AFFILIATES, AGENTS AND LICENSORS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM IN ANY WAY CONNECTED TO THE WEBSITE WILL NOT EXCEED THE AMOUNT, IF ANY, YOU PAID TO WBD FOR THE USE OF THE WEBSITE. YOU AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF THESE TERMS ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF, OR ANY PERSON’S ABILITY TO ACCESS, ANY PORTION OF THE WEBSITE.
In some jurisdictions limitations of liability or of warranties are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you. These limitations shall apply to the fullest extent permitted by law.
(A) We reserve the right in our sole discretion and at any time to terminate or suspend and/or block your access to the Website for any reason, including, without limitation, if you have failed to comply with these Terms. You agree that WBD shall not be liable to you or any third party for any termination or suspension or blocking your access to the Website.
(B) Any suspension or termination shall not affect your obligations to us under these Terms. The provisions of these Terms which by their nature should survive the suspension or termination of your use of this Website or these Terms shall survive, including, but not limited to, the rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, dispute resolution, no class action, no trial by jury and all of the miscellaneous provisions in Section 19. Upon suspension or termination you will immediately discontinue use of the Website, including any Website Content and destroy any copies of Website Content in your possession, including deleting any downloaded Website Content.
11. DISPUTE RESOLUTION
We endeavor to resolve customer concerns as quickly as possible. Please contact Warner Bros. Discovery at https://corporate-discovery.zendesk.com/hc/en-us.
In the unlikely event that you’re not satisfied with customer service’s solution, and you and WBD are unable to resolve a dispute through the Informal Dispute Resolution Procedures below, we each agree to resolve the dispute through binding arbitration or small claims court instead of in courts of general jurisdiction.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Unless expressly limited by this arbitration provision, arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. In arbitration you may be entitled to recover attorneys’ fees from us to the same extent as you would be in court.
12. ARBITRATION AGREEMENT
(1) Claims Subject to Arbitration: To the fullest extent permitted by applicable law, WBD and you agree to arbitrate all disputes and claims between us, except for claims arising from bodily injury or that pertain to enforcing, protecting, or the validity of your or our intellectual property rights (or the intellectual property rights of any of our licensors, affiliates and partners). This Arbitration Agreement is intended to be broadly interpreted. It includes, but is not limited to:
• 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 that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
• 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
• claims that may arise after the termination of this Agreement.
References to “WBD,” “you,” “we” and “us” in this Arbitration Agreement include our respective predecessors in interest, successors, and assigns, as well as our respective past, present, and future parents, subsidiaries and affiliates (including Warner Bros. Discovery, Inc. and its affiliates); those entities and our respective agents, employees, licensees, licensors, and providers of content as of the time your or our claim arises; and all authorized or unauthorized users or beneficiaries of services under this or prior Agreements between us. Notwithstanding the foregoing, either party may elect to have claims heard in small claims court seeking only individualized relief, so long as the action is not removed or appealed to a court of general jurisdiction. This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies. You agree that, by entering into this Agreement, you and we are each waiving the right to participate in a class action and to a trial by jury to the fullest extent permitted by applicable law. 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 provision. This Arbitration Agreement shall survive termination of this Agreement.
(2) Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures: You and we agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, a party who intends to initiate arbitration or file a claim in small claims court must first send to the other a written Notice of Dispute (“Notice”). A Notice from you to WBD must be emailed to firstname.lastname@example.org (“Notice Address”). Any Notice must include (i) the claimant’s name, address, and email address; (ii) a description of the nature and basis of the claim or dispute; (iii) if you are submitting the Notice, any relevant facts regarding your use of the Sites, including whether you have created an account with or receive any newsletters associated with any of the Sites; (iv) a description of the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation for them; and (v) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person’s dispute.
After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this Arbitration Agreement. All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and WBD have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.
(3) Arbitration Procedure: The arbitration will be governed by applicable rules of National Arbitration & Mediation (“NAM”) (including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) (“NAM Rules”)), as modified by this Arbitration Agreement, and will be administered by NAM. (If NAM is unavailable or unwilling to do so, another arbitration provider shall be selected by the parties that will do so, or if the parties are unable to agree on an alternative administrator, by the court pursuant to 9 U.S.C. §5.) The NAM Rules are available online at www.NAMADR.org, by calling NAM at 1-800-358-2550, or by requesting them in writing at the Notice Address. 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.
You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements referenced in the Arbitration Agreement and that they are a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).
All issues are for the arbitrator to decide, except as otherwise expressly provided herein and except as to issues relating to the scope and enforceability of the Arbitration Agreement or whether a dispute can or must be brought in arbitration (including whether a dispute is subject to this Arbitration Agreement or a previous arbitration provision between you and WBD), which are for a court of competent jurisdiction to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers.
Unless we and you agree otherwise, or the applicable NAM Rules dictate otherwise, any arbitration hearings will take place in the county (or parish) of your billing address and you and a WBD representative will be required to attend in person. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s decision is binding only between you and WBD and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
As in court, you and WBD agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in the Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys’ fees and costs, in accordance with applicable law. Unless otherwise provided by applicable law, the parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
(4) Arbitration Fees: The payment of arbitration fees (the fees imposed by the arbitration administrator including filing, arbitrator, and hearing fees) will be governed by the applicable NAM Rules, unless you qualify for a fee waiver under applicable law. If after exhausting any potentially available fee waivers, the arbitrator finds that the arbitration fees will be prohibitive for you as compared to litigation, we will pay as much of your filing, arbitrator, and hearing fees in the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or brought for an improper purpose or asserted in bad faith. You and we agree that arbitration should be cost-effective for all parties and that any party may engage with NAM to address the reduction or deferral of fees.
(5) Confidentiality: Upon either party’s request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.
(6) Offer of Settlement: In any arbitration between you and WBD, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award is issued in the other party’s favor and is less than the defending party’s settlement offer or if the award is in the defending party’s favor, the other party must pay the defending party’s costs incurred after the offer was made, including any attorney’s fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the claim may be entitled for the cause of action under which it is suing.
(7) Requirement of Individualized Relief: The arbitrator may award declaratory or injunctive 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. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief; class, representative, and private attorney general claims; and consolidation are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), then the parties agree such a claim or request for relief shall be decided by a court of competent jurisdiction, after all other arbitrable claims and requests for relief are arbitrated. You agree that any arbitrations between you and WBD will be subject to this Arbitration Agreement and not to any prior arbitration agreement you had with WBD, and, notwithstanding any provision in this Agreement to the contrary, you agree that this Arbitration Agreement amends any prior arbitration agreement you had with WBD, including with respect to claims that arose before this or any prior arbitration agreement.
(8) Opt Out of Future Changes: Notwithstanding any provision to the contrary, if WBD makes any future change to this Arbitration Agreement (other than a change to the Notice Address), you may reject any such change by sending WBD an email to email@example.com within 30 days of the posting of the amended arbitration agreement that provides: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number, (iv) if applicable, the username or email address associated with any potential account or newsletter; and (v) the approximate date of your initial use of the relevant Site. 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, personally signed by you, that you wish to reject the change to the Arbitration Agreement. This is not an opt out of arbitration altogether.
(9) Mass Filing:
If, at any time, 25 or more claimants (including you) submit Notices or seek to file demands for arbitration raising similar claims against the other party or related parties by the same or coordinated counsel or entities, consistent with the definition and criteria of Mass Filings (“Mass Filing”) set forth in NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures (“NAM’s Mass Filing Rules,” available at https://www.namadr.com/resources/rules-fees-forms/), you and we agree that the additional procedures set forth below shall apply. 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. The parties acknowledge and agree that by electing to participate in a Mass Filing, the adjudication of their dispute might be delayed. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are initiated, so long as the pre-arbitration Notice complies with the requirements in the Arbitration Agreement, until your claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.
Stage One: Counsel for the claimants and counsel for WBD shall each select 25 claims per side (50 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be 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 promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and WBD 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 WBD shall each select 50 claims per side (100 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be 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 promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and WBD shall pay the mediator’s fee.
Stage Three: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for WBD shall each select 100 claims per side (200 claims total) to be filed and to proceed in individual arbitrations as part of a third staged process, subject to any procedural changes the parties agreed to in writing. Any remaining claims shall not be filed or be 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. Following this third set of staged proceedings, counsel for claimants may elect to have the parties participate in a global mediation session of all remaining claims with a retired federal or state court judge.
If your claim is not resolved as part of the staged process identified above, either:
Option One: You and WBD may separately or by agreement, opt out of arbitration and elect to have your claim heard in court consistent with the Agreement. You may opt out of arbitration by providing your individual, personally signed notice of your intention to opt out by sending WBD an email to firstname.lastname@example.org. 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, personally signed by you, that you wish to opt out of arbitration within 30 days after the conclusion of Stage 3 or the elective mediation associated with Stage 3. WBD may opt your claim out of arbitration by sending an individual, personally signed notice of its intention to opt out to your counsel within 14 days after the expiration of your 30 day opt out period. Counsel for the parties may agree to adjust these deadlines.
Option Two: If neither you nor WBD elect to have your claim heard in court consistent with Option One, then you agree that your claim will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining claims exceeds 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. Any remaining claims shall not be filed or be 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 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 with NAM (including through a Procedural Arbitrator) 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.
A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. If these additional procedures apply to your claim, and a court of competent jurisdiction determines that they are not enforceable as to your claim, then your claim shall proceed in a court of competent jurisdiction consistent with this Agreement.
You and WBD 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 WBD 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 such cases.
(10) Severability: If any portion of this Arbitration Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of this Arbitration Agreement shall continue to be enforceable and valid according to the terms contained herein.
13. CLASS ACTION AND JURY TRIAL WAIVER
You and WBD 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 WBD 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 WBD may not participate in any class, collective, consolidated, private attorney general, or representative proceeding brought by any third party. Notwithstanding the foregoing, you or WBD may participate in a class-wide settlement.
To the fullest extent permitted by law, you and WBD waive any right to a jury trial.
14. GOVERNING LAW AND VENUE
These Terms shall be governed by the laws of the State of New York, without regard to conflict of law principles. Any dispute that is not subject to arbitration, or any issues involving arbitrability or enforcement of any provisions under the dispute resolution clause or Arbitration Agreement shall be brought in the appropriate state or federal court located in New York County, New York; and we and you each irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in New York County, New York for the adjudication of all non-arbitral claims.
15. TIME LIMITATION FOR CLAIMS
Subject to the dispute resolution clause and to the extent permitted by applicable law, any dispute, claim or controversy arising out of or relating in any way to the Website, these Terms, or the relationship between us, must be commenced within one year of the relevant events. A dispute is commenced if it is filed in an arbitration or, if the dispute is non-arbitrable, a court of competent jurisdiction, during the one-year period. If you or we provide notice of a dispute, the one-year period is tolled for 60 days following receipt of the notice of dispute (although for the sake of clarity, it may be further extended if your dispute, claim or controversy is part of a mass filing as contemplated in Subsection (9) of the Arbitration Agreement).
16. ADDITIONAL TERMS AND CONDITIONS
You may have to accept additional terms and conditions ("Additional Terms") in order to use certain features offered through the Website. Any Additional Terms that we may provide to you will be incorporated by reference into these Terms. If there is a conflict or inconsistency between those Additional Terms and these Terms, those Additional Terms will prevail solely with respect to your use of the particular feature to which they apply.
17. CHANGES TO THESE TERMS
(A) We reserve the right in our sole discretion and at any time without prior notice and for any reason, to modify or discontinue any aspect or feature of this Website or to modify or add to these Terms ("Updated Terms").
(B) Updated Terms will be effective immediately and we will communicate changes to these Terms by making them available on the Website. It is your responsibility to review the Terms and the Website from time to time for any Updated Terms. By continuing to use the Website after any Updated Terms come into effect means you agree to be bound to the changes. If any change materially limits the availability of the Website, then in addition to posting the Updated Terms on the Website, if required by applicable law, we will communicate this limitation by sending an email to the address associated with your Website access.
(A) Any delay or failure on the part of WBD to exercise or enforce any rights under these Terms to which we may be entitled shall not, in any event, be construed as a waiver of the right and privilege to do so at any subsequent time. WBD has the right to determine your compliance with these Terms in our sole discretion. You irrevocably agree that you waive any and all rights to injunctive or other equitable relief. The section headings used herein are for convenience only and shall not be given any legal import.
(B) You may not assign these Terms or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. Any such purported assignment or delegation by you without the appropriate prior written consent will be null and void and of no force and effect. WBD may assign these Terms or any rights hereunder without your consent and without notice.