Dispute & Resolution
DISPUTE RESOLUTION POLICY:
Any and all disputes related to or arising from your use of the OnTech Site and any products or services ordered on the OnTech Site (“OnTech Disputes”) are subject to this Dispute Resolution Policy. Please carefully review our entire Dispute Resolution Policy for more information on how we resolve OnTech Disputes and your related rights and obligations.
Mandatory and Binding Arbitration. In the event that you or we have an OnTech Dispute that cannot be resolved through informal dispute resolution (outlined below), then you and we agree (unless you opt out in accordance with the below opt out procedure) to resolve such OnTech Disputes in an individual action, either through binding arbitration or in small claims court, instead of in courts of general jurisdiction. You acknowledge and agree that, in the event that you or we commence an individual action in small claims court in accordance with this Dispute Resolution Policy and it is determined that the applicable small claims court cannot adjudicate such individual action (e.g., such small claims court lacks jurisdiction over such individual action), then such OnTech Dispute may only be resolved through an arbitration proceeding pursuant to this Dispute Resolution Policy. Arbitration is more informal than a lawsuit in court. Arbitration means that you will have a fair hearing before a neutral arbitrator rather than before a judge or jury in a court. Arbitrators can award the same damages that a court can award. Proceeding in arbitration may result in limited discovery and is subject to limited review by courts. Arbitration means that you waive your right to a trial by a jury or a trial by a judge (other than in small claims court). Any arbitration under this Dispute Resolution Policy will take place on an individual basis; class arbitrations and class or representative claims are not permitted. BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH AGREEING TO WAIVE THE RIGHT TO A TRIAL BY JURY OR A TRIAL BY A JUDGE (OTHER THAN IN SMALL CLAIMS COURT) AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR TO BRING A CLAIM IN A REPRESENTATIVE CAPACITY. You and we also each agree that this Dispute Resolution Policy evidences a transaction in interstate commerce and, thus, that the Federal Arbitration Act (the “FAA”) governs the interpretation and enforcement of this provision. Nothing in this Dispute Resolution Policy precludes you from bringing issues to the attention of federal, state or local agencies (including, without limitation, the Federal Trade Commission). Such agencies can, where permitted by law, seek relief against us on your behalf.
OnTech Dispute Defined. The term “OnTech Dispute” means, subject to the Dispute Resolution Policy Exceptions set forth below, any and all past, present or future disputes, claims or controversies between you and us related to or arising from your use of the OnTech Site and any products or services ordered on the OnTech Site, whether based in contract, statute, regulation, ordinance, tort (including, without limitation, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort) or any other legal or equitable theory, and includes, without limitation, the validity, enforceability and/or scope of this Dispute Resolution Policy. The term “OnTech Dispute” is to be given the broadest possible meaning that will be enforced and includes, without limitation, any and all claims between you and us in any way arising out of, relating to or in connection with: (i) your use of the OnTech Site; (ii) any and all services offered, provided, or sold on the OnTech Site; (iii) any and all devices or products offered, provided, or sold on the OnTech Site; (iv) billing, collection and credit reporting; (v) telephone calls, texts, faxes and emails that you claim you received from us and/or a party acting or purporting to act on our behalf; and/or (vi) our and/or our agents’ collection, retention and/or disclosure of personally-identifiable information.
Informal Dispute Resolution; Notice and Opportunity to Cure. You and we agree to first try to resolve any OnTech Dispute informally. Accordingly, neither you nor we may start an individual action, either through binding arbitration or in small claims court, for at least sixty (60) calendar days after you or we notify the other of an OnTech Dispute by sending a written document titled “dispute resolution notice” (each, a “Dispute Resolution Notice”). You may, but are not required to, download a form Dispute Resolution Notice at http://www.dish.com/downloads/legal/dispute-resolution-notice.pdf. You must send your Dispute Resolution Notice to the Legal Dispute Resolution Notice Address (i.e., DISH Network L.L.C., Attn: Dispute Resolution, P.O. Box 9040, Littleton, Colorado 80120-9040), and we must send our Dispute Resolution Notice to your billing address then appearing in our records. The Dispute Resolution Notice must: (i) state your name, account or order number (if any), and your contact information; (ii) describe the nature and basis of the OnTech Dispute; and (iii) set forth the specific relief sought in connection with the OnTech Dispute. In the event that you and us do not reach an agreement to resolve the OnTech Dispute within sixty (60) calendar days after the Dispute Resolution Notice is received, then you or us may commence an individual action, either through binding arbitration or in small claims court, in accordance with this Dispute Resolution Policy.
Arbitration Procedures. Unless you and we agree otherwise in writing, the arbitration will be governed by the then-current Consumer Arbitration Rules (collectively, the “AAA Rules”) of the American Arbitration Association (“AAA”) excluding any rules for class or collective actions, as modified by this Agreement, and will be administered by the AAA and conducted before a single, neutral arbitrator. The AAA Rules are available online at the AAA’s website (as of August 7, 2015, www.adr.org), by calling the AAA (as of August 7, 2015, 1-800-778-7879) or by submitting a written request to the Legal Dispute Resolution Notice Address (i.e., DISH Network L.L.C., Attn: Dispute Resolution, P.O. Box 9040, Littleton, Colorado 80120-9040). The arbitration will be held at a location in the county of your billing address then appearing in our records unless you and we both agree to another location or a telephonic or “desk” arbitration (i.e., an arbitration conducted solely on the basis of written submissions by the participants). The arbitrator will be bound by the terms and conditions of the OnTech Site, including, without limitation, this Dispute Resolution Policy and your and our waiver of the right to a trial by jury or a trial by a judge (other than in small claims court) and the right to participate in a class action or to bring a claim in a representative capacity. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to adjudicate the merits of any OnTech Dispute. In the event that you and/or we elect to submit an OnTech Dispute to arbitration pursuant to this Dispute Resolution Policy, then the party initiating arbitration must open a case by filing with the AAA: (i) a demand for arbitration; (ii) the administrative filing fee; and (iii) a copy of the applicable arbitration agreement (i.e., this Dispute Resolution Policy) — (collectively, the “Demand for Arbitration”). The filing may be made through “AAA WebFile,” located on the AAA’s website (www.adr.org), or by filing the Demand for Arbitration with any AAA office, regardless of the intended locale of any hearing.
The Arbitrator’s Award. An arbitrator’s award will consist of a written statement of the disposition of each OnTech Dispute and a concise written statement of the essential findings and conclusions on which the award is based. The arbitrator’s decision and award are final and binding, subject only to the limited court review permitted under the FAA, and judgment on the award may be entered in any court of competent jurisdiction.
Costs of Arbitration. In the event that you initiate arbitration and agree that you will receive less than $75,000 in damages, then, after we receives notice that you have initiated arbitration, we will promptly reimburse you for your payment of the filing fee and we will directly pay the AAA any case management fees associated with the arbitration and the professional fees for the arbitrator’s services. However, in the event that you initiate an arbitration in which you seek $75,000 or more in damages, then the payment of these fees will be governed by the AAA Rules.
Class Action Waiver. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE ANY CLAIM IN A REPRESENTATIVE CAPACITY, INCLUDING, WITHOUT LIMITATION, AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, IN CONNECTION WITH ANY DISPUTE (as defined above). Further, unless both you and we agree otherwise in writing, the arbitrator may not consolidate more than one (1) person’s claims, and may not otherwise preside over any form of a representative or class proceeding. In the event that any portion of this Dispute Resolution Policy is found to be unenforceable, then the entirety of this Dispute Resolution Policy shall be null and void.
Right to Opt Out. In the event that you do not wish to be bound by our Dispute Resolution Policy, then you must notify us in writing that you are exercising your right to opt out within thirty (30) days following the acceptance of these Terms for disputes related to or arising from your use of the OnTech Site or within thirty (30) days of placement of your order for disputes related to or arising from any products or services ordered on the OnTech Site by: (i) completing the Opt Out Form located at http://www.dish.com/downloads/legal/arbitration-opt-out.pdf and sending it to the Legal Dispute Resolution Notice Address (i.e., DISH Network L.L.C., Attn: Dispute Resolution, P.O. Box 9040, Littleton, Colorado 80120-9040); or (ii) otherwise providing written notification to us at the Legal Dispute Resolution Notice Address that includes: (1) your name and account or order number; (2) your address; and (3) a clear statement that you do not wish to resolve OnTech Disputes with us through arbitration. Your decision to opt out of this Dispute Resolution Policy will have no adverse effect on your relationship with us or our delivery of products or Service(s) to you. Any opt-out not received within the thirty (30) day period set forth above will not be valid and you must pursue your OnTech Disputes (if any) as an individual action, either through binding arbitration or in small claims court, pursuant to and in accordance with this Dispute Resolution Policy (excluding this Right to Opt Out provision, which in such event will no longer apply). Your order or receipt of services or products and failure to notify us in writing within thirty (30) days following the date of your order shall constitute your acknowledgment and agreement that you are bound by this Dispute Resolution Policy.
Miscellaneous. Notwithstanding any provision in this Dispute Resolution Policy to the contrary, in the event that we make any future change to this Dispute Resolution Policy (other than a change to the Legal Dispute Resolution Notice Address), then you may reject any such future change as follows: (i) in the event that we elect to provide notice of such change, then by sending written notice to us at the Legal Dispute Resolution Notice Address of your rejection of such change within thirty (30) days following the date that we first give you our notice; or (ii) in the event that we elect not to provide notice of such change, then by sending written notice to us at the Legal Dispute Resolution Notice Address of your rejection of such change at any time. By rejecting any future change, you are agreeing that you will resolve any OnTech Dispute between you and us in accordance with the unmodified language of this Dispute Resolution Policy, unless you have previously opted out in a timely manner. Except as otherwise set forth in this Dispute Resolution Policy or under applicable law, each of you and we shall bear and be solely responsible for its respective attorneys’ fees, costs and expenses incurred in connection with any OnTech Dispute.
Expenses Outside of Arbitration. Except as otherwise expressly set forth in this Dispute Resolution Policy, in the event that either party files a judicial or administrative action asserting a claim that is subject to arbitration (other than an individual action in small claims court) and the other party successfully compels arbitration, then the party filing that judicial or administrative action must pay the other party’s costs and expenses incurred in seeking to compel arbitration (including, without limitation, reasonable attorneys’ fees, expenses and court costs).
Dispute Resolution Policy Exceptions. The following OnTech Disputes are excluded from this Dispute Resolution Policy (including, without limitation, the informal dispute resolution provision) and may only be decided by a court of competent jurisdiction: (i) any OnTech Dispute based on your receipt of all or any portion of the OnTech products or services without paying for them; and (ii) any violation of the Computer Fraud and Abuse Act, 18 U.S.C. §1030 et seq.