IF YOU FOLLOW THE PROCEDURES SET FORTH IN SECTION 2(B) BELOW, YOU HAVE THE RIGHT TO OPT OUT OF THIS DISPUTE RESOLUTION PROVISION (“DISPUTE RESOLUTION PROVISION”) (EXCEPT JURY TRIAL WAIVER) WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THIS AGREEMENT; PROVIDED HOWEVER, YOU HAVE THE RIGHT TO OPT OUT OF THIS DISPUTE RESOLUTION PROVISION (EXCEPT JURY TRIAL WAIVER) WITHIN 30 DAYS OF YOUR ACCEPTANCE OF THIS AGREEMENT AS DEFINED IN SECTION 1 ABOVE (THE “OPT-OUT PERIOD”). OTHERWISE, YOU WILL BE BOUND TO SETTLE ANY DISPUTES YOU MAY HAVE WITH COX THROUGH THE FOLLOWING DISPUTE RESOLUTION PROCEDURES.
A. AGREEMENT TO ARBITRATE AND NOT LITIGATE:
YOU AND COX AGREE TO ARBITRATE — RATHER THAN LITIGATE IN COURT —
any and all claims, disputes, or controversies between you and Cox, including any parents, subsidiaries, affiliates, officers, directors, employees, or agents of Cox, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort) or other legal or equitable theory, except as expressly provided in Sections 2(G) and 2(H) below (“Dispute”) that arise out of or in any way relate to this Agreement, any of the Services provided under this Agreement or any other Services or products that Cox provides to you in connection with this Agreement (including but not limited to amounts that Cox charges you for Services or products provided, any alleged breach related to the collection, retention or disclosure of your personal information, and any alleged violation of our Privacy Notice). You and Cox also agree to arbitrate any and all Disputes that arise out of or relate in any way to any services or products provided to you by Cox or any of its affiliated entities under any other agreement, except as specified in Sections 2(G) and 2(H) below.
B. Opt Out:
You may opt out of this Dispute Resolution Provision (except for the jury trial waiver contained in Section 2(K) below) by notifying Cox of that intent during the Opt-Out Period by sending an email to Cox at ArbitrationOptOut@cox.com or a letter via U.S. mail to Cox Legal Department, Attn: Litigation Counsel, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328 stating that you are opting out of this dispute resolution provision. Exercising this right, should you choose to do so, will not affect any of the other terms of this Agreement with Cox, and you may remain a Cox customer. If you opt out of the Dispute Resolution Provision, that opt out will remain in effect if Cox modifies this section in the future or you agree to a new term of service under this Agreement. If you enter into a new agreement with Cox that includes a dispute resolution provision and you want to opt out of that provision, you will need to follow the instructions in that agreement for opting out.
C. Class Action and Mass Action Waiver:
All Disputes between us must be resolved on an individual basis. Except as specified below, you and Cox agree that all Disputes between you and Cox will be arbitrated individually, and that you will not file or participate in a “Class Action” (as defined in federal, state, or arbitration procedural rules), any other form of class, collective, representative, or consolidated actions (collectively “Mass Action,” which term includes, but is not limited to, any action in which twenty-five or more similar demands for arbitration are filed against Cox or any of its affiliated entities and representation for the parties is consistent or coordinated across all cases. The twenty-five or more demands for arbitration need not be filed simultaneously. A Mass Action expressly includes any mass action as defined under National Arbitration and Mediation (“NAM”) Comprehensive Rules and Procedures (including its Mass Filing Supplemental Dispute Resolution Rules and Procedures). We both agree that it is a material breach of this Dispute Resolution Provision to file or participate in a Class Action or Mass Action, and Cox may enforce this prohibition as set forth in Section 2(i) below. If you or Cox brings a claim in small claims court, this Class Action and Mass Action waiver will apply. Nothing in this subsection bars any claims by you for public injunctive relief, which must be decided in court under Section 2(H) below. We both agree that this Class Action and Mass Action waiver is an essential part of our arbitration agreement and that if this Class Action and Mass Action waiver is found to be unenforceable by any court or arbitrator then the entire arbitration agreement set forth in this Section 2 will not apply to any Dispute between you and Cox, except for the provisions of Section 2(K) waiving the right to jury trial. This Class Action and Mass Action waiver may not be severed from our arbitration agreement.
D. Arbitrator Authority:
The arbitration between you and Cox will be binding. In arbitration, there is no judge and no jury. Instead, our Disputes will be resolved by an arbitrator, whose authority is governed by the terms of this Agreement. You and Cox agree that an arbitrator may only award such relief as a court of competent jurisdiction could award, limited to the same extent as a court would limit relief pursuant to the terms of this Agreement. Except as provided in Section 2(H) below, the arbitrator may resolve all disputes concerning whether this Dispute Resolution Provision is enforceable, unconscionable, applicable, valid, void, or voidable. An arbitrator may award attorneys’ fees and costs if a court would be authorized to do so, and may issue injunctive or declaratory relief if that relief is required or authorized by the Applicable Law, but that injunctive or declaratory relief may not extend beyond you and your dealings with Cox. Review of arbitration decisions in the courts is very limited. Any arbitrator award – whether or not confirmed – is neither res judicata nor collateral estoppel as to any Dispute or issue between the parties not subject to or not submitted to arbitration (including, but not limited to, any claim for public injunctive relief) or as to any Dispute or claim between Cox and any non-parties to the arbitration. Because of, among other things, the nature of any Dispute submitted to arbitration, the informality of the procedures to adjudicate any such Dispute, and the limited review of arbitration decisions by the court, the award is conclusive only as to the Dispute resolved in arbitration and only as to the parties to that arbitration.
E. Informal Dispute Resolution:
You and Cox agree that you must attempt to resolve disputes informally before you may file a demand for arbitration, as set forth in this section (the “Informal Dispute Resolution Process”). If you have a dispute, first call Cox Customer Care at the number listed on your monthly bill statement. If the Cox representative is unable to resolve your dispute in a timely manner, you agree to then notify Cox of the dispute by sending a written description of your claim to Cox Customer Care, ATTN: Corporate Escalation Team, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328, along with your address, so that Cox can attempt to resolve it with you. If Cox does not satisfactorily resolve your claim within 45 calendar days of receiving written notice to Cox Customer Care of your claim, then you may pursue the claim in arbitration, and if you do so, you must first notify us in writing of your intent to file for arbitration by sending a written notice of your intent to file for arbitration to Cox via U.S. mail to Cox Legal Department, Attn: Litigation Counsel, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328. Cox will notify you before it files for arbitration by sending you a written notice of our intent to file for arbitration to the last known address of record we have on file for you at least 45 calendar days prior to initiating arbitration or a small claims action. At any time during the Informal Dispute Resolution process, either you or Cox may elect to have the Dispute resolved in small claims court in accordance with Section 2(G) below. This Informal Dispute Resolution is mandatory, and we both agree that it is an essential part of our arbitration agreement. We both agree that it is a material breach of this Dispute Resolution Provision to initiate an arbitration or small claims action without first engaging in the Informal Dispute Resolution Process.
F. Arbitration Procedures:
You and Cox agree that this Agreement and the services Cox provides to you affects interstate commerce and that the Federal Arbitration Act and not state arbitration laws applies for all Disputes. All arbitration shall be conducted by NAM under its Comprehensive Rules and Procedures (including its Mass Filing Supplemental Dispute Resolution Rules and Procedures) as modified by this Dispute Resolution Provision. NAM’s rules are available on its website www.namadr.com or by calling 1-800-358-2550. You must file your own demand, which sets forth your own claim, and may not join in a claim filed by another person. If the arbitrator determines that claim is for $25,000 or less, you agree that it may be resolved based only on written submissions. For claims above $25,000, 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 (or the arbitrator orders) another location, a remote video hearing, or a telephonic or “desk” arbitration (i.e. an arbitration conducting solely on the basis of written submissions by the participants.) If there is a conflict between NAM’s rules and this Dispute Resolution Provision, this Dispute Resolution Provision shall control. To initiate arbitration, you must send a letter requesting arbitration and describing your claims to Cox at ArbitrationOptOut@cox.com or via U.S. mail to Cox Legal Department, Attn: Litigation Counsel, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328. You must also comply with the NAM’s rules regarding initiation of arbitration. Cox will pay all filing fees and costs for commencement of arbitration, except the portion of such fees allocated to you under NAM’s fee schedule then in effect. We agree that fees imposed by NAM will be due at the time set forth under NAM’s rules, except that in no event shall the fees payable by the party responding to the demand for arbitration be due and payable earlier than 30 days from the date on which that party receives an invoice. You will be responsible for your own attorneys’ fees and costs unless otherwise determined by the arbitrator. Cox will not seek to recover its fees and costs from you in the arbitration, unless your claim has been determined to be frivolous or to have been brought for an improper purpose. If you are successful in the arbitration, Cox will pay your reasonable attorneys’ fees and costs. If you obtain an award from the arbitrator greater than Cox’s last written settlement offer, Cox will pay you $5,000 in addition to what you have been awarded in the arbitration. Any award, decision, finding, or conclusion entered or adopted by an arbitrator shall only apply to the individual arbitration and shall not have any res judicata, collateral estoppel or other preclusive effect and such award, decision, finding, or conclusion shall not be referred to, offered, or admitted in any subsequent proceeding.
G. Small Claims:
Notwithstanding this agreement to arbitrate, you and Cox may bring appropriate Disputes against each other in small claims court, if the Dispute falls within the small claims court’s jurisdiction, or before the Federal Communications Commission, the relevant state public utilities commission, or any other federal, state, or local government agency authorized by law to hear the Dispute. A small claims court includes any court designated as small claims or any court of limited jurisdiction in which claims are only resolved on an individual basis. During the 45-day period following your submission of written notice of a Dispute to Cox, in which time you and Cox attempt to informally resolve the Dispute, or within 30 days after you or Cox have initiated an arbitration, either you or Cox may elect to have the Dispute resolved in small claims court by sending written notice to the other party of this election. In the event there is any disagreement between you and Cox concerning whether the Dispute is within the jurisdiction of the small claims court, only the small claims court may resolve that disagreement. If the small claims court determines that it lacks jurisdiction to hear the Dispute, then the Dispute may be submitted to arbitration in accordance with the terms of this Section 2. If the small claims court determines that it has jurisdiction over part of the Dispute, then that part shall first be resolved in small claims court, and any remaining issues in the Dispute shall be resolved in accordance with the terms of this Section 2. We both agree that it is a material breach of this Dispute Resolution Provision to initiate an arbitration when the other party has elected to have the Dispute resolved in small claims court, absent a determination by the small claims court that it does not have jurisdiction over the Dispute.
H. Exceptions to Arbitration:
(i). This Dispute Resolution Provision does not require arbitration of claims for public injunctive relief. To the extent that you have a Dispute that is subject to arbitration and you also assert a claim for public injunctive relief that is required to be brought in court, the arbitrator shall first decide the merits of the Dispute. A court may then decide your claim for public injunctive relief de novo (without giving any law of the case, res judicata or collateral estoppel effect to the award or arbitration decision on the Dispute).
(ii) This Dispute Resolution Provision shall not require arbitration of any claim concerning whether you have filed or participated in a prohibited Class Action or Mass Action, which shall be determined by a court of competent jurisdiction, except that either Party may promptly elect to have such a claim resolved under NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures (the “NAM Election”). In the event any party alleged to be a participant in a prohibited Class Action or Mass Action makes the NAM Election, we agree that Cox shall have the right to make the NAM Election for any additional claim against any party alleged to be part of the same prohibited Class Action or Mass Action, even if Cox has already initiated an action in court.
(iii) This Dispute Resolution Provision shall not require arbitration of any claim that you or Cox have breached this Dispute Resolution Provision, including but not limited to claims of material breach of Sections 2(C) [Class Action and Mass Action Waiver], 2(E) [Informal Dispute Resolution], or 2(G) [Small Claims], except that either party may promptly make a NAM Election for that claim. In the event any party alleged to have breached this Dispute Resolution Provision makes a NAM Election, we agree that Cox shall have the right to make the NAM Election for any additional claim against any party alleged to be part of the same prohibited Class Action or Mass Action, even if Cox has already initiated an action in court. We agree that any of the remedies set forth in section 2(I) [Remedies for Breach of Dispute Resolution Provision] may be imposed.
(iv) Should Cox notify NAM and you in writing that it contends an arbitration(s) you filed breaches the Dispute Resolution Process, that you have participated or will be participating in a prohibited Class Action or Mass Action, or that you have otherwise materially breached Sections 2(C), 2(E), or 2(G), then NAM will stay the arbitration(s). In such event, either you may bring an action against Cox to compel it to arbitrate such Dispute(s) or Cox may bring an action for declaratory relief that it is not required to arbitrate such Dispute(s). Such actions must be brought in a court of competent jurisdiction located in the same judicial district as the address listed in the Informal Dispute Resolution Notice, the small claims court that Cox contends should resolve the Dispute(s), or with NAM pursuant to a NAM Election.
I. Remedies for Breach of Dispute Resolution Provision:
As set forth above in Sections 2(C), 2(E), and 2(G), we agree that certain actions constitute a material breach of this Dispute Resolution Agreement. We agree that one of the essential purposes of this Dispute Resolution Provision is to provide for the prompt, efficient, and inexpensive resolution of disputes, and Sections 2(C), 2(E), and 2(G) further this purpose by ensuring disputes are resolved on an individual basis and by providing for alternative low-cost paths to resolving individual disputes. In the event a court or arbitrator determines that a breach of the Dispute Resolution Provision has occurred, or in the event an arbitrator acting under NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures determines that you have participated in a prohibited Class Action or Mass Action, then we agree on the following remedies, in addition to any other remedy ordered by the court or arbitrator:
(i) The court or arbitrator may enter an order permitting the dispute to be heard in court, rather than arbitration. Whether the Dispute proceeds to resolution in court or in arbitration, you agree that the Dispute will be resolved on an individual basis as set forth in Section 2(C).
(ii) The court or arbitrator may enter an order that the breaching party bear the non-breaching party’s costs, including but not limited to fees incurred in court or in arbitration.
(iii) The court or arbitrator may enter an order to dismiss without prejudice all demands included within the Mass Action.
J. Non-Severability:
It is the intention of the parties that the provisions of this Dispute Resolution Provision are mutually dependent and not severable. If any part of this Dispute Resolution Provision is determined to be unenforceable for any reason, then the entire Dispute Resolution Provision, except for the Jury Trial Waiver set forth in Section 2(K), shall be unenforceable.
K. Jury Trial Waiver:
If for any reason this arbitration agreement is found to be unenforceable under Section 2(J) [Non-Severability], or if you opt out of this Dispute Resolution Provision, you and Cox expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY. This means that a Judge rather than a Jury will decide disputes between you and Cox if, for any reason, this arbitration agreement is not enforced.
L. Survival:
This Dispute Resolution Provision survives the termination of your Services with Cox. If you bring a claim against Cox after termination of your Services that is based in whole or in part on events or omissions that occurred while you were a Cox customer, this dispute resolution provision shall apply.
