AOL Terms of Service

BINDING ARBITRATION AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 14, YOU AND US BOTH AGREE TO RESOLVE ANY AND ALL DISPUTES, CONTROVERSIES OR CLAIMS THAT IN ANY WAY ARISE OUT OF OR RELATE TO THESE TERMS OR FROM ANY SERVICES YOU RECEIVE FROM US (OR FROM ANY ADVERTISING FOR ANY SUCH SERVICES), INCLUDING ANY DISPUTES BETWEEN YOU AND OUR EMPLOYEES OR AGENTS ("DISPUTE(S)"), ONLY BY ARBITRATION ON AN INDIVIDUAL BASIS. THIS INCLUDES BUT IS NOT LIMITED TO ANY CLAIM THAT ALL OR ANY PART OF THIS ARBITRATION AGREEMENT IS VOID OR VOIDABLE, WHETHER A CLAIM IS SUBJECT TO ARBITRATION, AND ANY DISPUTE REGARDING THE PAYMENT OF ADMINISTRATIVE OR ARBITRATOR FEES. YOU UNDERSTAND THAT BY AGREEING TO THESE TERMS, ARBITRATION WILL BE THE SOLE AND EXCLUSIVE MEANS OF RESOLVING ANY DISPUTE BETWEEN US. YOU ALSO UNDERSTAND THAT BY AGREEING TO THESE TERMS, YOU AND WE ARE GIVING UP THE RIGHT TO BRING A CLAIM IN COURT OR IN FRONT OF A JURY AND THAT YOU AND WE ARE GIVING UP THE RIGHT TO PROCEED WITH ANY CLASS ACTION OR OTHER REPRESENTATIVE ACTION. We also both agree that:

1. Informal Dispute Resolution. If either you or we intend to arbitrate a Dispute under these Terms, the party seeking arbitration must first notify the other party of the Dispute in writing at least 60 days in advance of initiating the arbitration. Notice to us should be sent either by mail to AOL, 770 Broadway, New York, NY 10003, USA; or disputes.legal@aol.com. Notice to you will be to your email address(es) or street address(es), if any, that we have in our records at the time the notice is sent. The written description must be on an individual basis and provide, at minimum, the following information: the sender's name; a description of the nature or basis of the claim or Dispute; the specific relief sought; and, if you are a AOL registered user, your AOL ID or AOL email address. After receipt of the written description by AOL, you and AOL agree to personally meet and confer, via telephone or videoconference, to attempt to resolve the Dispute. If a party is represented by counsel, that party's counsel may participate in the conference, but the party themselves shall also personally attend the conference.

   If we are unable to resolve the Dispute within 60 days, either party may then proceed to file a claim for arbitration in accordance with the Dispute resolution provisions below.

   The aforementioned Informal Dispute Resolution process, including the written description and personal participation in the meet and confer, is a prerequisite and condition precedent to commencing any formal Dispute resolution proceeding. The parties agree that any relevant limitations period and filing fees or other deadlines will be tolled while the parties engage in this Informal Dispute Resolution process. The parties further agree that whether a complaining party has satisfied these Informal Dispute Resolution procedures, including whether the written description contained all required information, is an issue that can be decided by a court as a prerequisite to arbitration.

2. Arbitration Procedure. The Federal Arbitration Act applies to these Terms. Subject to the exceptions listed in Section 14(a)(ii).3. below, any and all Disputes will be resolved by arbitration before a sole arbitrator administered by National Arbitration and Mediation ("NAM"), in accordance with the rules of NAM as modified by these Terms, including, as applicable, NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. If you are initiating arbitration, a copy of the demand shall also be emailed to disputes.legal@aol.com. If you are a registered AOL user, any demand initiating arbitration, whether filed by you or AOL, must include your AOL ID or AOL email address. If AOL is initiating arbitration, a copy of the demand shall also be sent to the email address(es) or street address(es), if any, that we have in our records at the time the arbitration is initiated.

   The arbitrator shall apply New York law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law. The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party's failure to comply with the Informal Dispute Resolution clause.

   If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and AOL submit to the arbitrator, unless the arbitrator determines that a hearing is necessary or the parties agree otherwise. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference, unless the parties agree otherwise.

   Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions unless they are unlikely to efficiently resolve or narrow issues in dispute. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and AOL (and each of the parties' authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).

3. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, in the event 25 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM against either party ("Mass Filing"), the parties agree (i) to administer the Mass Filing in batches of 100 demands per batch (to the extent there are between 25 and 100 demands filed, the batch will consist of all such demands; if fewer than 100 arbitration demands are left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (ii) to accept applicable fees, including any related fee reduction determined by NAM in its discretion; (iii) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until selected for inclusion in a set of batch proceedings in accordance with the Terms; (iv) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by AOL and you, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication in accordance with the Terms; and (v) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand is adjudicated or resolved or as stated in Section 14(a)(ii).4. below. Arbitrator selection for each batch shall be conducted after the prior batch is adjudicated and to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection. The arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with AOL and the arbitration provider to implement such a "batch approach" or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. This "Batch Arbitration" provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM's Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or settled.

   The parties agree that this batching provision is integral to the Arbitration Agreement insofar as it applies to a Mass Filing. If the batching provision in this subpart (iii) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor AOL shall be entitled to arbitrate any claim that is a part of the Mass Filing.

4. Mediation Following First Batch in a Mass Filing. The results of the first batch of demands will be given to a NAM mediator selected from an initially proposed group of 5 mediators, with AOL and the remaining claimants' counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results are provided to the mediator, AOL, the mediator and the remaining claimants will have 90 days (the "Mediation Period") to agree on a resolution or substantive methodology for resolving the outstanding demands. If they are unable to resolve the outstanding demands during the Mediation Period, and cannot agree on a methodology for resolving them through further arbitrations, either AOL or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in court. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. If neither AOL nor the remaining claimants opt out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process. Opt out of arbitration under this section shall not be construed as an opt out of Section 14(a)(iii), titled "Class Action Waiver" below. Absent notice of an opt-out, the arbitrations will proceed in the order determined by the sequential numbers assigned to demands in the Mass Filing.

5. Arbitrator's Decision. The arbitrator's decision shall be controlled by these Terms. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum's rules and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with the terms of the "Limitation of Liability" section of these Terms as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision shall have any preclusive effect in other arbitrations, except to preclude the same or similar claims from being re-arbitrated between the same parties. Attorneys' fees will be available to the prevailing party in the arbitration if authorized under applicable substantive law governing the claims in the arbitration.

6. Small Claims Court Option. As an alternative to arbitration, either party may elect to have any claims resolved in small claims court in your county of residence (or if a business, your principal place of business) or New York, New York on an individual basis for disputes and actions within the scope of such court's jurisdiction, regardless of what forum the filing party initially chose.

7. Arbitration Location. Except for as otherwise provided in subsection (ii)(c) above, the arbitration must take place in the county of your primary residence or New York, New York, unless you and we agree otherwise in writing. If you reside in Argentina, Chile, Colombia, Hong Kong, Mexico, Peru, or Venezuela, you can elect for the arbitration to take place remotely via video conference.

8. Arbitration Fees and Expenses. If you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay any filing and hearing fees in excess of $250 that 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 asserted in bad faith, in which case arbitration fees (including attorneys' fees) may be imposed upon you consistent with the Arbitrator's Rules and the standard for sanctions set forth in Federal Rule of Civil Procedure 11. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise, including as set forth in this Arbitration Agreement.

   The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM's Rules where it deems appropriate (including as specified in subsection (ii)(c) above) provided that such modification does not increase the costs to you, and the parties further agree that they waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver or breach of this Arbitration Agreement while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.

9. 30-Day Right to Opt Out. You have the right to opt out and not be bound by the Arbitration Agreement by sending written notice of your decision to opt out to disputes.legal@aol.com with the subject line, "ARBITRATION OPT-OUT". To be valid, the notice must be sent on an individual basis within thirty (30) days of (a) you first agreeing to these Terms ; or (b) you first using the Services, whichever is later. Any prior valid opt-out of a requirement to arbitrate disputes with AOL will continue to apply. Otherwise, you shall be bound to arbitrate disputes in accordance with the Arbitration Agreement. If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If you opt out of the Arbitration Agreement, AOL also will not be bound by it. If you opt out of this updated arbitration clause and were previously subject to an arbitration clause in effect prior to this updated arbitration clause, then that prior arbitration clause shall remain as part of the agreement between us. If you are a new user and did not previously consent to the prior arbitration clause and you choose to opt-out of this updated agreement, then we will also not be bound by this updated arbitration clause.

10. Changes. AOL reserves the right to make changes to this section. Any such changes will go into effect after 30 days and apply to all claims not yet filed regardless of when such claims may have accrued. If AOL changes this section after the date you first accepted this Arbitration Agreement (or accepted any subsequent changes to this Arbitration Agreement), you agree that your continued use of the Service 30 days after such change will be deemed acceptance of those changes.

11. Severability. If any part of this agreement to arbitrate is found by a court of competent jurisdiction to be unenforceable, the court will reform the agreement to the extent necessary to cure the unenforceable part(s), and the parties will arbitrate their Dispute(s) without reference to or reliance upon the unenforceable part(s). However, if for any reason the Class Action Waiver set forth below in subsection 14(a)(iii) or the Batch Arbitration provision set forth in subsection 14(a)(iii).3. cannot be enforced as to some or all of the Dispute, then the agreement to arbitrate will not apply to that Dispute or portion thereof. Any Disputes covered by any deemed unenforceable Class Action Waiver provision may only be litigated in a court of competent jurisdiction, but the remainder of the agreement to arbitrate will be binding and enforceable. Further, if any part of this Section 14 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 14 will be enforceable.