Alternative Dispute Resolution. YOU AND WE AGREE TO RESOLVE DISPUTES ONLY BY FINAL AND BINDING ARBITRATION, as follows:
a. ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT OR FROM ANY OTHER AGREEMENT BETWEEN US, WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION BY ONE OR MORE ARBITRATORS BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), OR ANOTHER ARBITRATION ADMINISTRATOR THAT WE MUTUALLY AGREE UPON. Arbitration will apply both to claims against DMG, and also claims against the officers, directors, managers, employees, agents, affiliates, insurers, contractors, successors or assigns of DMG. Arbitration and this paragraph shall apply to claims that arose at any time, including claims arising before this paragraph became binding on the Parties.
b. In the event of any controversy or claim arising out of or relating to this Agreement, or a breach thereof that cannot be settled through negotiation, the Parties hereto shall first attempt in good faith to settle the dispute by confidential mediation, administered by the American Arbitration Association, or another arbitration administrator that the Parties mutually agree upon, under its Mediation Rules and Procedures. If settlement is not reached within sixty (60) days after service of a written demand for mediation, any unresolved controversy or claim shall be settled by confidential arbitration administered by the American Arbitration Association (or another arbitration administrator that the Parties mutually agree upon) under its Commercial Arbitration Rules and related procedures, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The number of arbitrators shall be one (1).
The place of mediation or arbitration shall be Baltimore County, Maryland and Maryland state law shall apply. This Agreement will be governed and construed in accordance with the laws of the state of Maryland, without giving effect to any choice of law or conflict of laws rules or provisions. The Federal Arbitration Act shall not apply in substance or procedure.
When this arbitration provision is inapplicable, any legal claims arising out of or relating to the Agreement must be brought in the federal or state courts located in the state of Maryland, and Client consents to jurisdiction and venue in those courts.
If either Party brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and the Party bringing or appealing such action or opposing confirmation of such award does not prevail, such Party will pay all of the costs and expenses (including, without limitation, court costs, arbitrator’s fees and expenses, and reasonable outside attorneys’ fees) incurred by the other Party in defending such action.
Additionally, if either Party brings any action for judicial relief in the first instance without first pursuing mediation and arbitration prior thereto, the Party bringing such action for judicial relief will be liable for and will immediately pay to the other Party all of the other Party’s costs and expenses (including, without limitation, court costs and outside attorneys’ fees) to stay or dismiss such judicial action and/or remove it to mediation or arbitration.
The arbitrator will not be empowered to award punitive damages.
The consent of the Parties to mediate and arbitrate their disputes shall survive termination of this Agreement.
If the Agreement is found not to be subject to mediation or arbitration, each Party herein consents, agrees and affirmatively WAIVES ANY RIGHT TO A JURY TRIAL in any proceeding.
The Parties covenant and agree to keep all aspects of the arbitration proceeding confidential. Except in response to a subpoena or other discovery request from a person or entity that was not a party in the arbitration proceeding, or upon mutual written consent of the Parties, the Parties shall not disclose, transmit or disseminate, to any other person or entity whatsoever: (i) the existence of the arbitration proceeding; (ii) any information regarding the arbitration proceeding; (iii) testimony, documents or any other evidence used at or in connection with the arbitration proceeding; or (iv) the results of the arbitration proceeding or the arbitration award.
c. NO PARTICIPATION IN A CLASS ACTION. Client agrees not to be a representative or member of any class of claimants or act as a private attorney general in court or in arbitration with respect to any claim against DMG. Notwithstanding any other provision of this Agreement, the arbitrator shall not have the power to determine that class arbitration is permissible. The arbitrator also shall not have the power to preside over class or collective arbitration, or to award any form of class-wide or collective remedy. Instead, the arbitrator shall have power to award money or injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. No class or representative or private attorney general theories of liability or prayers for relief may be maintained in any arbitration held under this Agreement.
d. If for some reason the prohibition on class arbitrations set forth in Subsection (c) cannot be enforced, then the Agreement to arbitrate will not apply.
e. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, CLIENT AND DMG AGREE THAT THERE WILL NOT BE A JURY TRIAL.
f. The arbitrator or the court shall have the discretion to include in an award to the prevailing Party a recovery of its reasonable costs and expenses, including attorneys’ fees, in any action or proceeding in connection with, arising out of, or under the Agreement.