24
25
G. Class Action Waiver
. NEITHER YOU NOR DISH 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 DISH 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
Section 12(G) is found to be unenforceable, then the entirety of Section 12 shall be null
and void.
H. Right to Opt Out
. In the event that you do not wish to be bound by Section 12, then
you must notify DISH in writing within thirty (30) days following the date that we first give
you notice of your right to elect to opt out of Section 12 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 DISH at the Legal Dispute Resolution Notice Address that includes:
(1) your name and account number; (2) your service address; and (3) a clear statement that
you do not wish to resolve Disputes with DISH through arbitration. Your decision to opt out
of Section 12 will have no adverse effect on your relationship with DISH or DISH’s delivery
of 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 Disputes (if any) as an individual action,
either through binding arbitration or in small claims court, pursuant to and in accordance
with Section 12 (excluding this Section 12(H), which in such event will no longer apply).
In the event that you are a new DISH customer, then your activation of a DISH account or
receipt of Services or Equipment and failure to notify DISH in writing within thirty (30) days
following the date of activation of your account shall constitute your acknowledgment and
agreement that you are bound by Section 12. In the event that you are an existing DISH
customer, then your continued receipt of Services or Equipment and failure to notify DISH
in writing within thirty (30) days following the date that we first give you notice of your right
to elect to opt out of Section 12 shall constitute your acknowledgment and agreement that
you are bound by Section 12. We will be deemed to have given you notice of your right to
elect to opt out of Section 12 as follows: (a) in the event that we send you notice by U.S.
mail (including, without limitation, on a mailed bill, bill insert, notice, letter or postcard), then
it will be considered given three (3) days after it is first deposited in the U.S. mail, addressed
to you at your billing address then appearing in our records; (b) in the event that we send
you notice electronically (including, without limitation, via an e-mail, electronic bill, social
media message or attachment), then it will be considered given at the time we first send
an electronic communication containing such notice or notifying you of the availability of
such notice (or the electronic bill in which it is included) to the electronic contact information
Residential Customer Agreement, cont.
Residential Customer Agreement, cont.
(including, without limitation, e-mail address or social media (e.g., Facebook, Twitter)
identifier) then appearing in our records; and (c) in the event that we send you notice via
broadcast on a television channel, or on your receiver(s) (including, without limitation,
through pop-up messages sent to your receiver) or through publication on dish.com,
mydish.com, dish.com/legal
or other website, then it will be considered given when first
broadcast, sent or published.
I. Miscellaneous
. Notwithstanding any provision in this Agreement to the contrary, in the
event that DISH makes any future change to Section 12 (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 DISH 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 DISH
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 Dispute
between you and DISH in accordance with the unmodified language of
Section 12, unless
you have previously opted out of Section 12 in a timely manner. Except as otherwise set
forth in Section 12 or under applicable law, each of you and DISH shall bear and be solely
responsible for its respective attorneys’ fees, costs and expenses incurred in connection
with any Dispute.
J. Expenses Outside of Arbitration
. Except as otherwise expressly set forth in this
Agreement, 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).
K. Exceptions
. The following Disputes are excluded from Section 12 (including, without
limitation, the informal dispute resolution provision set forth in Section 12(C)) and may only
be decided by a court of competent jurisdiction: (i) any Dispute based on your receipt of all
or any portion of the Services without paying for them, whether through theft of Services,
piracy or otherwise; and (ii) any Dispute based on a violation of the Communications Act of
1934, 47 U.S.C. § 1201 et seq., or the Electronic Communications Privacy Act, 18 U.S.C. §§
2510-2521 et seq., or any federal or state law relating to signal theft or theft of service.
L. Survival
. Section 12 shall survive expiration or earlier termination of this Agreement for
any reason or no reason indefinitely.
