Welcome to HBO!
2. REPRESENTATIONS: By using this Service you represent and warrant that you are a resident of the U.S., that you are a legal adult, that you meet all other eligibility and residency requirements, and that you are fully able and legally competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement and to abide by and comply with these terms and conditions.
3. COPYRIGHTS AND TRADEMARKS: This Service and all materials incorporated on this Service (including, but not limited to text, photographs, graphics, video and audio content) are protected by copyrights, patents, trade secrets or other proprietary rights under laws of the United States and other countries. Some of the titles, characters, logos or other images incorporated by HBO on this Service are also protected as registered or unregistered trademarks, trade names and/or service marks ("Trademarks") owned by HBO. All other trademarks are the property of their respective owners. Use of the Trademarks of HBO or of any other party is not authorized in any manner other than as incorporated into this Service.
4. INFRINGEMENT NOTICE: If you believe that any content appearing on this Service has been copied in a way that constitutes copyright infringement under the laws of the U.S., please forward the following information to the Copyright Agent named below:
a) Your name, address, telephone number, and email address;
b) A description of the copyrighted work that you claim has been infringed;
c) The exact URL or a description of where the alleged infringing material is located;
d) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
e) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
f) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Home Box Office, Inc.
230 Park Avenue South
New York, NY 10003
Attn: Legal Department
Please note that while HBO seeks to preserve any and all exemptions from liability that may be available under the copyright law, this is not a stipulation that HBO is a service provider as defined in 17 USC section 512c or elsewhere in the law.
5. RESTRICTIONS ON USE OF MATERIALS:
(a) You may not copy, reproduce, distribute, publish, enter into a database, display, perform, modify, create derivative works, transmit, or in any way exploit any part of this Service, except that you may access and display material and all other content displayed on this Service for non-commercial, personal, entertainment use on a single computer or device only. Without limiting the generality of the foregoing, you may not distribute any part of this Service over any network, including a local area network, nor sell or offer it for sale. In addition, these files may not be used to construct any kind of database. Any authorization to copy material granted by HBO in any part of this Service for any reason is restricted to making a single copy for non-commercial, personal, entertainment use and is subject to your keeping intact all copyright and other proprietary notices. Using any material on any other website or networked computer environment is prohibited. Also, decompiling, reverse engineering, disassembling, or otherwise reducing the code used in any software on this Service into a readable form in order to examine the construction of such software and/or to copy or create other products based (in whole or in part) on such software, is prohibited.
(b) HBO respects the intellectual property rights of others and asks users of this Service to do the same.
6. DISCLAIMER OF WARRANTIES:
YOUR USE OF THIS SERVICE IS AT YOUR OWN RISK. THIS SERVICE AND ALL THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICES AND OTHER CONTENT IN THIS SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HBO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HBO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THIS SERVICE WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT HBO'S WEBSITES OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. HBO DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR OTHER CONTENT IN THIS SERVICE OR ANY SITES LINKED TO THIS SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. HBO MAKES NO WARRANTIES THAT YOUR USE OF THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT IN THIS SERVICE WILL NOT INFRINGE THE RIGHTS OF OTHERS AND HBO ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT OF THIS SERVICE. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
7. LIMITATION OF LIABILITY AND TIME LIMITATION FOR CLAIMS:
HBO DOES NOT ACCEPT ANY LIABILITY FOR ANY LOSS OR DAMAGE (DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR OTHERWISE) RESULTING FROM ANY USE OF, OR INABILITY TO USE, THIS SERVICE OR THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR OTHER CONTENT ON THIS SERVICE, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF HBO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. WITHOUT LIMITATION, YOU (AND NOT HBO) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY SUCH LOSS OR DAMAGE ARISING. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
8. SUBMISSIONS AND POSTINGS:
(a) HBO does not accept unsolicited submissions of concepts, creative ideas, suggestions, stories, or other potential content. This is to avoid the possibility of future misunderstanding when projects developed by HBO staff or representatives might seem to others to be similar to the submitted concepts, creative ideas, suggestions, stories or other potential content. Therefore, please do not send HBO any unsolicited submissions.
(b) From time to time, areas on this Service may expressly request submissions of concepts, creative ideas, suggestions, stories, or other potential content from you ("Invited Submissions"). Where this is the case, please carefully read any specific rules or other terms and conditions which appear elsewhere on this Service to govern the Invited Submissions ("Additional Terms"), since they will affect your legal rights. If no Additional Terms govern the Invited Submissions, then this Agreement will apply in full to any Invited Submissions you make. Please also be aware that any Invited Submissions you may make will not be acknowledged and the act of providing Invited Submissions does not create a fiduciary or other special relationship between you and HBO, or any of its affiliates, agents, licensees, successors or assigns or place HBO or any of its affiliates, agents, licensees, successors or assigns in a position that is any different from the position held by members of the general public. You acknowledge and agree that neither HBO nor any of its affiliates, agents, licensees, successors or assigns has now, or shall have in the future, any duty or liability, direct or indirect, vicarious, contributory or otherwise, with respect to the infringement or protection of any copyright in and to your Invited Submissions, and that HBO and its affiliates, agents, licensees, successors or assigns are not responsible for the loss, deletion, failure to store or misdelivery of any Invited Submissions.
(c) To the extent that use of the Service provides you or other users an opportunity to post and exchange information, content, ideas and opinions ("Postings"), be advised that HBO does not screen, edit, or review Postings prior to their appearance on the Service or elsewhere, and Postings do not necessarily reflect the views of HBO. To the fullest extent permitted by applicable laws, HBO excludes all responsibility and liability for the Postings or for any losses or expenses resulting from their use and/or appearance on the Service or elsewhere. You hereby represent and warrant that you have all necessary rights in and to all Postings you provide and all material, content and information they contain and that such Postings shall not infringe any proprietary right, intellectual property right or other rights of third parties.
(d) In any event, no material you send to us will be treated as confidential.
9. RULES OF CONDUCT:
(a) Please act responsibly when using this Service. You may only use this Service and its contents for lawful purposes and in accordance with applicable law and you are prohibited from storing, distributing or transmitting any unlawful material through this Service. You may not collect or store personal information regarding other users. You recognize that storing, distributing or transmitting unlawful material could expose you to criminal and/or civil liability. You agree that if a third party claims that material you have contributed to the Service is unlawful, you will bear the burden of establishing that it is lawful. You understand and agree that all materials publicly posted (other than by HBO) or privately transmitted on or through this Service are the sole responsibility of the sender, not HBO, and that you are responsible for all material you upload, post or otherwise transmit to or through this Service.
(b) HBO requires that you do not submit any Invited Submissions or Postings or otherwise make available on this Service any content, or act in a way, which in our opinion:
(i) libels, defames, invades privacy, stalks, is obscene, pornographic, racist, abusive, harassing, threatening or offensive;
(ii) seeks to exploit or harm children;
(iii) infringes any intellectual property or other right of any entity or person, including violating anyone's copyrights or trademarks or their rights of publicity;
(iv) violates any law or may be considered to violate any law;
(v) you do not have the right to transmit under any contractual or other relationship (e.g., inside information, proprietary or confidential information received in the context of an employment or a non-disclosure agreement);
(vi) advocates or promotes illegal activity;
(vii) impersonates or misrepresents your connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;
(viii) advertises any commercial endeavor (e.g., offering for sale products or services) or otherwise engages in any commercial activity (e.g., conducting raffles or contests, displaying sponsorship banners, and/or soliciting goods or services) except as specifically authorized on this Service;
(ix) solicits funds, advertisers or sponsors;
(x) includes programs which contain viruses, worms and/or "Trojan horses" or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications;
(xi) disrupts the normal flow of dialogue, causes a screen to scroll faster than other users are able to type, or otherwise act in a way which affects the ability of other people to engage in real time activities via the Service;
(xii) copies any other pages or images on this Service except with appropriate authority;
(xiii) includes MP3 format files;
(xiv) amounts to a "pyramid" or similar scheme;
(xv) amounts to "data warehousing" (i.e., using any web space made available to you as storage for large files which are only linked from other sites). You must provide a reasonable amount of content to accompany such material in order that at least some of the traffic to your site comes directly via us;
(xvi) disobeys any policy or regulations established from time to time regarding use of this Service or any networks connected to this Service; or
(xvii) contains links to other sites that contain the kind of content, which falls within the descriptions set out at (i) to (xvi) above.
(c) In addition, unless otherwise permitted by HBO, you are prohibited from removing any sponsorship banners, similar promotional displays and inserts or other material inserted by HBO anywhere on this Service (e.g., on any web space made available for your use).
10. USE OF SUBMITTED CONTENT:
(a) HBO will consider anything you provide to HBO and/or contribute to this Service as available for our use free of any obligations to you, except where we have expressly solicited Invited Submissions and those submissions are expressly governed by additional terms appearing elsewhere on this Service (see "Submissions and Postings" above), in which event those Additional Terms will determine how we will treat your Invited Submissions.
(b) Subject to the provisions of any additional terms, by posting or uploading any content to this Service and/or providing any communication or material to HBO ("User Content"), you automatically and irrevocably:
(i) grant and assign to HBO a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license in the User Content throughout the world including, without limitation, all copyright, together with all consents (if any) necessary to enable its reproduction, distribution, modification, publishing and/or other exploitation by HBO and/or by any person authorized by HBO, by any means and in all media now known or hereafter devised, in whole or in part, without payment or other reference to you or any other person, and to advertise and promote such exploitation, for the full period of all such rights (together with any extensions and renewals) and insofar as possible in perpetuity;
(ii) waive all moral rights in the User Content which may be available to you in any part of the world and confirm that no such rights have been asserted;
(iii) appoint HBO as your agent with full power to enter into any document and/or do any act HBO may consider appropriate to confirm the grant and assignment, consent and waiver set out above;
(iv) warrant that you are the owner of the User Content and entitled to enter into this Agreement; and
(v) confirm that no such User Content will be subject to any obligation, of confidence or otherwise, to you or any other person and that HBO shall not be liable for any use or disclosure of such User Content.
11. MODERATION/MONITORING: HBO shall have the right, but not the obligation, to monitor any Invited Submissions, Postings or other material on HBO.com. HBO shall have the right in its sole discretion to edit, refuse to post or remove any material submitted or posted to HBO.com. Without limiting the foregoing, HBO shall have the right to remove any material that HBO, in its sole discretion, finds to be in violation of this Agreement or otherwise objectionable.
12. DEACTIVATION/TERMINATION OF YOUR REGISTRATION: You may deactivate your registration on the Service, at any time and for any reason, by sending an email request to firstname.lastname@example.org. We may terminate your use of and registration on the Service, at any time and for any reason, with or without cause, without prior notice to you and without any liability or further obligation of any kind whatsoever to you or any other party.
13. HYPERLINKS TO AND FROM THIRD PARTY SITES: (a) This Service may link you to other sites on the "Internet". These sites may contain information or material that some people may find inappropriate or offensive. These other sites are not under the control of HBO, and you acknowledge that (whether or not such sites are affiliated in any way with HBO) HBO is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites. The inclusion of such a link does not imply endorsement of any site by HBO or any association with its operators.
(c) Any area of this Service that is accessed through any third party proprietary online service is subject to the rules, policies and guidelines of such third party proprietary online service.
14. SYSTEM ABUSE:
(a) You may not reproduce, sell, resell or otherwise exploit any resource, or access to any resource, contained on this Service.
(b) You are prohibited from using any services or facilities provided in connection with this Service to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g. password guessing programs, cracking tools or network probing tools) is strictly prohibited.
16. USE IN U.S. ONLY: This Service is intended for viewing solely in the U.S. HBO makes no representation that materials or other content in the Service are appropriate or available for use outside the U.S. If you choose to access the Service from other locations you do so on your own initiative and at your own risk. You are responsible for complying 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 U.S. or the country you reside in.
17. INDEMNITY: You agree to indemnify and hold harmless HBO, its directors, officers, shareholders, parents, subsidiaries, affiliates, agents, and licensors, from and against all losses, expenses, damages and costs, including reasonable attorneys" fees, resulting from your breach of any of the foregoing provisions, representations or warranties, and/or from your placement or transmission of any content onto the Service's servers, and/or from any and all use of your account in violation of this Agreement or the failure to fulfill any obligations relating to your account incurred by you or any other person using your account. We reserve the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, you shall provide us with such cooperation as is reasonably requested by us.
18. SEVERABILITY: Except as specified in Section 21 (Dispute Resolution), if any provision or portion thereof of this Agreement shall be unlawful, void, invalid, or for any reason unenforceable, then that portion shall be deemed to be severable from this Agreement 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 Agreement shall continue to be enforceable and valid according to the terms contained herein. This is the entire agreement between the parties relating to the matters contained herein.
19. ELECTRONIC SIGNATURE: As a Registered Accountholder, your use of the Services may enable you to enter into agreements and/or to make purchases electronically. You acknowledge and agree that your electronic submissions constitute your agreement and intent to be bound by any such agreements and/or purchases, including without limitation all transactions you enter into in connection with the Service.
20. FORCE MAJEURE: HBO shall not have any liability to you by reason of any delay or failure to perform any obligation hereunder if the delay or failure to perform is occasioned by force majeure, which shall refer to any act of God, storm, fire, casualty, unanticipated work stoppage, power outage, satellite failure, strike, lockout, labor dispute, civil disturbance, riot, war, national emergency, Governmental action, or other cause beyond its control.
21. DISPUTE RESOLUTION
Our customer-service department can resolve most customer concerns quickly and to the customer's satisfaction. Please contact HBO Customer Support at email@example.com. In the unlikely event that you're not satisfied with customer service's solution (or if HBO has not been able to resolve a dispute it has with you after attempting to do so through the Informal Dispute Resolution Procedures below), we each agree to resolve those disputes 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 Dispute Resolution 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. Moreover, in arbitration you may be entitled to recover attorneys' fees from us to the same extent as you would be in court.
(1) Claims Subject to Arbitration: To the fullest extent permitted by applicable law, HBO 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 "HBO," "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 HBO 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 Subsection 21.2. All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and HBO 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 Section 21.2 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 HBO), 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 HBO representative will be required to attend in person. For residents outside the United States, arbitration shall be initiated in New York, New York. 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 HBO 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 HBO 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 HBO, 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 HBO will be subject to this Section 21 and not to any prior arbitration agreement you had with HBO, and, notwithstanding any provision in this Agreement to the contrary, you agree that this Section 21 amends any prior arbitration agreement you had with HBO, 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 HBO makes any future change to this Arbitration Agreement (other than a change to the Notice Address), you may reject any such change by sending HBO 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 Section 21.2, 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 HBO 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 HBO 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 HBO 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 HBO 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 HBO 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 HBO 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 HBO 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. HBO 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 HBO 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 HBO 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 HBO 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.
22. CLASS ACTION AND JURY TRIAL WAIVER:
You and HBO 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 HBO 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 HBO may not participate in any class, collective, consolidated, private attorney general, or representative proceeding brought by any third party. Notwithstanding the foregoing, you or HBO may participate in a class-wide settlement.
To the fullest extent permitted by law, you and HBO waive any right to a jury trial.
23. EXPORT CONTROL: You may not use or otherwise export or re-export any software associated with the Service except as authorized by United States law and the laws of the jurisdiction in which the software was obtained. In particular, but without limitation, the software may not be exported or re-exported into any U.S. embargoed countries or to any persons listed as prohibited under applicable law or regulation.
24. MISCELLANEOUS: These Terms cannot be changed or terminated orally. Any failure of HBO to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. No waiver by HBO of any provision of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of HBO. HBO may assign its rights and obligations under these Terms, in whole or in part, to any party at any time without any notice. These Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of HBO. If any provision of these Terms is held to be illegal, invalid, or unenforceable, then the provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The section titles in this Agreement are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these Terms will not be construed against HBO by virtue of HBO having drafted them. HBO reserves the right to deny access to all or part of the Service to you or any person in its sole discretion without notice or liability of any kind. Any violation of these Terms may be referred to law enforcement authorities. These Terms constitute the entire understanding and agreement between you and HBO and supersede any and all prior or inconsistent understandings relating to the Service and your use of the Service.
25. CLOSED CAPTIONING: If you have specific concerns or inquiries regarding closed captioning, please contact:
Home Box Office, Inc.
230 Park Avenue South
New York, NY 10003
26. GOVERNING LAW AND VENUE
This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of New York, without regard to conflict of law principles. Any dispute is not subject to arbitration under Section 21 (Dispute Resolution) of this Agreement, or any issues involving arbitrability or enforcement of any provisions under Section 21 shall be brought in the appropriate state or federal court located in New York County, New York; and we both 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.
IF YOU DO NOT AGREE TO BE LEGALLY BOUND BY ALL OF THE FOREGOING TERMS PLEASE DO NOT ACCESS AND/OR USE THE SERVICE.
Last updated: November 21, 2023