TERMS OF SERVICE

12. MANDATORY ARBITRATION

PLEASE READ THIS SECTION CAREFULLY. YOU AND SF BALLET ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO ANY CLAIM ARISING OUT OF OR RELATING TO THESE TOS OR YOUR ACCESS TO OR USE OF THE SERVICE. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

12.1. Mandatory Arbitration. You hereby agree that, except as provided in Section 12.12 below, any claim, dispute, or controversy between you and SF BALLET, whether brought by you or by SF BALLET, arising out of or relating in any way to these TOS or your access to or use of, or inability to access or use, the Service must be resolved through final, binding, and confidential arbitration administered by American Arbitration Association (“AAA”) and located in San Francisco County, California, or, if mutually agreed between you and us, via other remote means.

12.2. Pre-Arbitration Claim Resolution. A party who intends to seek arbitration or pursue a claim in court must first send to the other a written Notice of Dispute (“Notice”). The Notice to SF BALLET should be sent by mail or overnight delivery to San Francisco Ballet Association, 455 Franklin Street, San Francisco US 94102. The Notice must include (1) your name, address, and email address; (2) a description of the nature and basis of the claim or dispute including any relevant facts regarding your use of the Service; (3) an explanation of the specific relief sought, including the total damages you seek, if any, and the basis for the damage calculations; (4) your personally signed statement verifying the accuracy of the contents of the Notice; and (5) if you have retained an attorney, your signed statement authorizing SF BALLET to disclose personal information about you to your attorney if necessary in resolving your claim. The Notice must also be individualized, meaning it can only concern your dispute and no other person’s dispute. Once the Notice is received, you and SF BALLET agree to participate and negotiate (personal and, if you and SF BALLET are represented, with counsel) in good faith about the dispute for 60 days. This personal participation includes a telephone settlement conference between you and SF BALLET if it is request by you or SF BALLET once the Notice is received. If SF BALLET and you do not reach an agreement to resolve the claim within 60 days after the Notice is received, you or SF BALLET may commence an arbitration proceeding or pursue the dispute in court only under the circumstances described below. If either you or SF BALLET send the other an incomplete Notice, the 60-day period begins only after a complete Notice is received, and if either you or SF BALLET request a telephone discussion, the 60-day period begins only after the discussion has happened. Compliance with these pre-arbitration Notice and dispute resolution procedures are a condition precedent to initiating arbitration. If either you or SF BALLET violate this mandatory informal dispute resolution procedure, a court of competent jurisdiction has the authority to enjoin the prosecution of the arbitration or small claims court proceeding, and, unless prohibited by law, AAA shall neither accept nor administer such arbitration nor assess arbitration fees in connection with such arbitration. You or SF BALLET may elect to raise, and seek monetary relief in connection with, non-compliance with this section in arbitration or small claims court. Any relevant limitations period and filing fee or other deadlines will be tolled during the 60-day mandatory information dispute resolution procedure unless that period is extended by agreement of you and SF BALLET.

12.3. Arbitration Procedures. If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or SF BALLET may initiate arbitration proceedings. The arbitration will be administered in accordance with the applicable AAA rules, including the Comprehensive Dispute Resolution Rules and Procedures and the Mass Filing Dispute Resolution Rules and Procedures as applicable. The AAA rules and additional information about AAA are available at www.namadr.com.

By agreeing to be bound by this TOS you either: (i) acknowledge and agree that you have read and understand the rules of AAA; or (ii) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason. You and SF BALLET agree that any party initiating arbitration must submit a signed certification to AAA that they have complied with the pre-arbitration Notice and dispute resolution procedures before initiating arbitration.

This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration. The arbitration will be conducted before a single arbitrator.

An administrative conference with AAA shall be conducted in each arbitration proceeding, and you and an SF BALLET representative shall appear at the administrative conference via telephone. If you initiated the arbitration and you fail to appear at the administrative conference, regardless of whether your counsel attends, AAA will administratively close the arbitration proceeding without prejudice, unless you show good cause as to why you were not able to attend the conference. If we initiated the arbitration and a SF BALLET representative fails to appear at the administrative conference, regardless of whether our counsel attends, AAA will administratively close the arbitration proceeding without prejudice, unless we show good cause as to why the representative was not able to attend the conference.

Any dispute shall be arbitrated on an individual basis; class arbitrations and class actions are not permitted, and you and SF BALLET agree not to bring any claims as part of a class action or to bring any claims on behalf of or purporting to represent more than one claimant. All issues shall be for the arbitrator to decide, including the scope of this Provision.

In rendering an award, the arbitrator shall apply the governing law stated in Section 13.1 below, except that the Federal Arbitration Act will govern the interpretation and enforcement of this Section 12. Responsibility for the payment of arbitration fees (including filing, arbitrator, and hearing fees) will be governed by the AAA rules unless you qualify for a fee waiver under applicable law, in which case you agree to provide us the option of paying the arbitrator before seeking to initiate any other form of dispute resolution, including litigation. Each party shall be responsible for its own attorney fees and costs incurred in such arbitration unless the arbitrator awards sanctions or determines that the substance of the claim, defense, or relief sought is frivolous or brought for an improper purpose, in which case the arbitrator may order you or SF BALLET to pay the other side’s attorney fees and/or costs, including any filing fees, case management fees, hearing fees, and arbitrator compensation.

12.4. Arbitral Authority. Unless you opt-out of arbitration as described below, and except with respect to the class arbitration waiver in Section 12.5, the arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, formation, arbitrability, or enforceability of this arbitration provision, including any challenge that the arbitration provision or these TOS are void, voidable, or otherwise invalid. There is no judge or jury in arbitration, the arbitration will be subject to different rules than the rules that would apply in court, and court review of arbitration awards is limited. The arbitrator will, however, be empowered to grant whatever relief would be available in court under law or in equity (including injunctive and declaratory relief and statutory damages) and must follow the provisions in these TOS, as a court would. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.

12.5. Class Action Waiver. You agree that all arbitrations will be conducted on an individual, and not a class-wide, basis. An arbitrator will have no authority to certify a class or award class-wide relief. The arbitrator is authorized only to award relief on behalf of the individual parties and only to the extent of their individual claims. YOU ACKNOWLEDGE AND AGREE THAT UNLESS YOU AND SF BALLET OTHERWISE AGREE IN WRITING WITH REGARD TO ANY CLAIMS ARISING OUT OF THESE TERMS OR YOUR USE OF THE SERVICE, YOU WILL NOT BE ENTITLED TO SEEK TO, AND AN ARBITRATOR OR COURT MAY NOT, JOIN OR CONSOLIDATE YOUR CLAIMS WITH ANY OTHER SIMILAR CLAIMS OF ANY OTHER PERSON OR PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitrator has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

12.6. Jury Waiver. You understand and agree that by accepting this Provision in these Terms, you and SF BALLET are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and SF BALLET might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others. Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.

12.7. Mass filing and Batching Process. For purposes of efficient administration, in the event twenty-five (25) or more substantially similar demands for arbitration are filed by or with the assistance or coordination of the same law firm, group of law firms, or organization (“Mass Filing”), the parties agree that (i) AAA (or another arbitration provider selected by the parties or by the court if AAA is unavailable), shall administer the Mass Filing in batches of 25 per batch (if, after batching, fewer than 25 demands remain, then the final batch will consist of the remaining demands); (ii) a single, different arbitrator shall be designated for each batch (unless the parties agree otherwise) selected in accordance with the applicable AAA rules; (iii) no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 25 is filed, processed, and adjudicated, (iv) any arbitration fees associated with a demand for arbitration included in a Mass Filing shall only be assessed after the demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (vi) that the staged process of batched proceedings, with each set including 25 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved.

You agree to cooperate in good faith with SF BALLET 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 single filing and administrative fees for batches of claims. Any disagreement between the parties as to whether the batch arbitration procedure applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by AAA. The batch arbitration procedure set forth herein shall in no way be interpreted as authorizing class arbitration of any kind. We reserve our right to raise unique defenses as to each claimant in connection with this process, and you reserve all rights to raise unique claims, facts, and defenses in connection with your claims. While AAA shall batch the claims for organizational purposes, it shall not consolidate them for decision on the merits and shall decide each case on the merits individually. 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 is settled.

12.8. Opt-Out. Notwithstanding the above, you or SF BALLET may choose to pursue a dispute in court and not by arbitration if: (a) the dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). If you opt out of a subsequent revision, you will remain bound by the prior version of this Section unless you previously opted out of that version. To opt-out, you must email your name and address, and username, email address, or phone number associated with your Account (if applicable), along with a clear statement that you want to opt-out of this arbitration agreement, to us at EMAIL with the subject line: “Arbitration Opt Out.” The opt-out email must also be individualized, meaning it can only concern your rights and no other person’s rights.

12.9. Proceedings in Court. If for any reason, a claim proceeds in court rather than arbitration under this Section, the claim shall be resolved exclusively (except as provided in Section 12.12) in the appropriate state and federal courts located in San Francisco County, California. Both parties hereby irrevocably and unconditionally consent to the venue and jurisdiction of such courts, and waive all defenses, including for lack of personal jurisdiction and inconvenience of the forum, with respect to such courts for the adjudication of such claims.

12.10. Severability. If any clause within this Provision (other than the Class Action Waiver and Mass Filing and Batching Process clauses above) is found to be illegal or unenforceable, that clause will not apply, but all enforceable provisions will remain valid. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court. If the Mass Filing and Batching Process clause is found to be illegal or unenforceable, the Class Action Waiver will still apply, but the rest of this Provision will be unenforceable and the dispute will be decided by a court.

12.11. Continuation. This Provision shall survive the termination of your account with SF BALLET or its affiliates and your discontinued use of SF BALLET’s Websites.

12.12. Exclusions. Notwithstanding anything else in these TOS to the contrary, including in this Section 12, any claims alleging efforts to interfere with the Service or engage with the Service in an unauthorized or illegal manner, and any claims for equitable or other injunctive relief provided in Section 13.2, shall not be subject to the mandatory arbitration provisions in this Section 12. In addition, you or SF BALLET may assert a claim in small claims court in the United States if such claim qualifies; provided that, it is brought and maintained solely as an individual claim and in San Francisco County, California.