Subscriber Agreement Section 18
Last updated Oct 2023
(a) Informal Dispute Resolution: Diamond wants to address your concerns without the need for a formal legal dispute. Before filing a claim against Diamond, you agree to try to resolve the Dispute informally by contacting help@support.ballysports.com . Similarly, if you have provided an email address to us as part of your Service registration, Diamond agrees to do the same. If a dispute is not resolved within 30 days after the email noting the Dispute is sent, you or Diamond may initiate an arbitration proceeding as described below
(b) We Both Agree To Arbitrate: By agreeing to this Subscriber Agreement, and to the extent permitted by applicable law, you and Diamond each and both agree to resolve any Disputes – including any Dispute concerning the enforceability, validity, scope or severability of this agreement to arbitrate – through final and binding arbitration as discussed herein.
(c) Opt-out of Agreement to Arbitrate: You may decline this agreement to arbitrate by contacting help@support.ballysports.com within 30 days of first accepting this Subscriber Agreement and stating that you (include your first and last name and email address associated with your Service registration) decline this arbitration agreement. By opting out of the agreement to arbitrate, you will not be precluded from using the Service, but you and Diamond will not be permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.
(d) Exceptions to Agreement to Arbitrate: Notwithstanding your and Diamond’s agreement to arbitrate Disputes, either you or Diamond may bring a lawsuit in an appropriate court of law asserting causes of action which seek only temporary injunctive relief until an arbitrator can be empaneled and determine whether to continue, modify or terminate such relief, to compel arbitration pursuant to this Section 18 or to enforce any arbitral award issued hereunder.
(e) Arbitration Procedures and Fees: You and Diamond agree that the American Arbitration Association ("AAA") will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes in effect at the time arbitration is sought ("AAA Rules"). Those rules are available at www.adr.org . Arbitration will proceed on an individual basis and will be handled by a sole arbitrator in accordance with those rules. You and Diamond further agree that, unless and only to the extent prohibited under AAA Rules, the arbitration will be conducted telephonically or via other remote electronic means. The AAA Rules will govern payment of all arbitration fees. The arbitrator shall be authorized to award any remedies, including injunctive relief, that would be available to you in an individual lawsuit and that are not waivable under applicable law. Notwithstanding any language to the contrary in this Section 18(e), if a party seeks injunctive relief that would significantly impact other users of the Service as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential.
(f) Arbitration Shall Proceed Individually: You and Diamond agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor Diamond may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a "Collective Arbitration"). Without limiting the generality of the foregoing, a claim to resolve any Dispute against Diamond will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. "Concurrently" for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
(g) Class Action and Collective Arbitration Waiver: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR DIAMOND SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR PARTICIPATE IN ANY COLLECTIVE ARBITRATION (AS DEFINED ABOVE) OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, OR OTHERWISE SEEK TO RECOVER FOR LOSSES INCURRED BY A THIRD PARTY. IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN THE EVENT ALL OR ANY PORTION OF SUBSECTIONS (F) OR (G) OF THIS SECTION (DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS) ARE FOUND TO BE INVALID OR LESS THAN FULLY ENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION (DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS) MAY BE DEEMED VOID AND AS HAVING NO EFFECT UPON EITHER PARTY'S ELECTION.
(h) Judicial Forum for Disputes: Except as otherwise required by applicable law, in the event that you have opted out from the agreement to arbitrate, an exception to the agreement to arbitrate applies, or the agreement to arbitrate is otherwise found not to apply to you or your claim, you and Diamond agree that any judicial proceeding may only be brought in a state or federal court in Baltimore City or County, Maryland. Both you and Diamond consent to venue and personal jurisdiction there.
(b) We Both Agree To Arbitrate: By agreeing to this Subscriber Agreement, and to the extent permitted by applicable law, you and Diamond each and both agree to resolve any Disputes – including any Dispute concerning the enforceability, validity, scope or severability of this agreement to arbitrate – through final and binding arbitration as discussed herein.
(c) Opt-out of Agreement to Arbitrate: You may decline this agreement to arbitrate by contacting help@support.ballysports.com within 30 days of first accepting this Subscriber Agreement and stating that you (include your first and last name and email address associated with your Service registration) decline this arbitration agreement. By opting out of the agreement to arbitrate, you will not be precluded from using the Service, but you and Diamond will not be permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.
(d) Exceptions to Agreement to Arbitrate: Notwithstanding your and Diamond’s agreement to arbitrate Disputes, either you or Diamond may bring a lawsuit in an appropriate court of law asserting causes of action which seek only temporary injunctive relief until an arbitrator can be empaneled and determine whether to continue, modify or terminate such relief, to compel arbitration pursuant to this Section 18 or to enforce any arbitral award issued hereunder.
(e) Arbitration Procedures and Fees: You and Diamond agree that the American Arbitration Association ("AAA") will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes in effect at the time arbitration is sought ("AAA Rules"). Those rules are available at www.adr.org . Arbitration will proceed on an individual basis and will be handled by a sole arbitrator in accordance with those rules. You and Diamond further agree that, unless and only to the extent prohibited under AAA Rules, the arbitration will be conducted telephonically or via other remote electronic means. The AAA Rules will govern payment of all arbitration fees. The arbitrator shall be authorized to award any remedies, including injunctive relief, that would be available to you in an individual lawsuit and that are not waivable under applicable law. Notwithstanding any language to the contrary in this Section 18(e), if a party seeks injunctive relief that would significantly impact other users of the Service as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential.
(f) Arbitration Shall Proceed Individually: You and Diamond agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor Diamond may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a "Collective Arbitration"). Without limiting the generality of the foregoing, a claim to resolve any Dispute against Diamond will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. "Concurrently" for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
(g) Class Action and Collective Arbitration Waiver: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR DIAMOND SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR PARTICIPATE IN ANY COLLECTIVE ARBITRATION (AS DEFINED ABOVE) OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, OR OTHERWISE SEEK TO RECOVER FOR LOSSES INCURRED BY A THIRD PARTY. IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN THE EVENT ALL OR ANY PORTION OF SUBSECTIONS (F) OR (G) OF THIS SECTION (DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS) ARE FOUND TO BE INVALID OR LESS THAN FULLY ENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION (DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS) MAY BE DEEMED VOID AND AS HAVING NO EFFECT UPON EITHER PARTY'S ELECTION.
(h) Judicial Forum for Disputes: Except as otherwise required by applicable law, in the event that you have opted out from the agreement to arbitrate, an exception to the agreement to arbitrate applies, or the agreement to arbitrate is otherwise found not to apply to you or your claim, you and Diamond agree that any judicial proceeding may only be brought in a state or federal court in Baltimore City or County, Maryland. Both you and Diamond consent to venue and personal jurisdiction there.