YOU SHOULD READ THIS SECTION CAREFULLY AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHTS TO FILE A LAWSUIT IN COURT AND TO PARTICIPATE IN A CLASS ACTION.
As detailed in this Dispute Resolution: Binding Arbitration, and Class Action Waiver section (the “Dispute Resolution Section” or “Section 10”), these Terms mandate that all disputes, claims, questions, or disagreements between you and Grifols arising out of or relating to the Terms or the Services (“Disputes”) be resolved first through an informal dispute resolution process. In the event informal resolution fails, the Terms further mandate that all Disputes (except those identified in Section e, Exceptions to Arbitration) be formally resolved through binding arbitration. Binding arbitration means that an arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve Disputes. By arbitrating Disputes, you also give up your right to have a jury decide them. Consequently, you should read the entirety of the Dispute Resolution Section carefully as it may significantly affect your legal rights.
a. Choice of Law
These Terms and all Disputes, whether in arbitration or court (if a Dispute is non-arbitrable under these Terms or for any other reason), shall be governed by the laws of the United States and the laws of the State of North Carolina, without regard to the provisions regarding conflicts of law (i.e., any federal law or North Carolina law, including any conflict of law principle, that would provide for the application of the laws of another jurisdiction other than the United States or North Carolina shall not apply).
b. Exclusive Venue for Litigation
By agreeing to these Terms, you agree that (solely to the extent any Dispute is not arbitrable—and including any arbitration-related litigation such as a motion to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on an arbitration award)—any litigation must be resolved exclusively by a court of competent jurisdiction, federal or state (including small claims court), located in Wake County, North Carolina, United States of America, and no other court. You consent to the exercise of personal jurisdiction over you by such courts with respect to any Dispute and hereby waive any and all jurisdictional and venue defenses otherwise available to you in them. You further agree to accept service of process by U.S. or certified mail from Grifols or these courts.
c. Informal Dispute Resolution
Unless otherwise noted in this Section 10, you and Grifols agree that if any Dispute arises between us, both parties will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding in arbitration or otherwise. As part of this Agreement, you understand that failure to engage in informal dispute resolution as described here could result in the award of fees against you in arbitration.
To initiate informal dispute resolution, the initiating party must first send a written description of the Dispute to the other party. For any Dispute against Grifols that you initiate, you agree to send to Grifols at general.counsel@grifols.com (a) a written description of the Dispute and (b) the email address(es) associated with your relationship with Grifols. The written description must be on an individual basis and also provide, at minimum, the following information: your name; a description of the nature or basis of the claim or Dispute with sufficient detail for Grifols to assess its merits; and the specific relief sought. For any Dispute that Grifols initiates, we will send our written description of the Dispute to the email address associated with your use of the Services provided we can reasonably identify such an address.
You and Grifols agree, following receipt of the written description, to negotiate in good faith about the Dispute through an informal telephonic dispute resolution conference. The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If either party is represented by counsel, that party’s counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference, unless one party states in writing that the other party need not participate.
If the Dispute is not fully resolved within sixty (60) days after the non-initiating party receives the written description of the Dispute, you and Grifols agree to resolve any remaining aspects of the Dispute through the additional dispute resolution provisions set forth below, including pursuant to the Mutual Arbitration Agreement.
A good faith engagement in informal dispute resolution, including each party’s participation in the informal telephonic dispute resolution conference, shall be and is a prerequisite and condition precedent to either party initiating a lawsuit or arbitration. The parties agree that any applicable statute of limitations period and filing fees or other deadlines will be tolled while the parties engage in informal dispute resolution.
d. Binding Arbitration
After the parties have engaged in informal dispute resolution as provided above, either party may initiate arbitration for such Dispute as set forth in this Section (unless the Dispute is within the scope of Section e Exceptions to Arbitration).
If you decide to initiate arbitration, a copy of the arbitration demand must be emailed to general.counsel@grifols.com. If Grifols is initiating arbitration, it will serve a copy of the demand to the email address associated with your use of the Services, or other reasonable means.
i. Mutual Arbitration Agreement.
Except as provided in Section e, Exceptions to Arbitration, you and Grifols agree that all Disputes arising out of or relating to the interpretation, applicability, enforceability, formation, or performance of this Agreement or the Services — including but not limited to any claim that all or any part of these terms are void or voidable, whether a claim is subject to arbitration, and any Dispute regarding the payment, non-payment, or timing of any administrative or arbitrator fees—shall be resolved exclusively through binding arbitration in accordance with this Binding Arbitration section (collectively, the “Arbitration Agreement”).
This Arbitration Agreement is intended to be interpreted broadly, and it applies to claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with Sections 10(f) (“30-Day Right to Opt Out”) and 10g) (“Changes to this Section”) below. If you accept this Arbitration Agreement, then any earlier arbitration agreement you had with Grifols is superseded and any Disputes, regardless of when they arose, will be subject to the provisions of this Arbitration Agreement.
This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and evidences a transaction involving interstate commerce. You and Grifols expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Arbitration Agreement. If for whatever reason the rules and procedures of the FAA cannot apply, North Carolina law governing arbitration agreements shall apply.
ii. WAIVER OF RIGHTS INCLUDING JURY TRIAL.
THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM(S) THAT ARE SUBJECT OF THE DISPUTE, AND THAT RIGHTS TO DISCOVERY AND APPEALS MAY BE LIMITED IN ARBITRATION. THE PARTIES FURTHER UNDERSTAND THAT THE COSTS OF ARBITRATION COULD EXCEED THE COST OF LITIGATION.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT BY AGREEING TO THIS AGREEMENT AND ARBITRATION AGREEMENT, YOU AND GRIFOLS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
iii. CLASS ARBITRATION AND COLLECTIVE RELIEF WAIVER.
YOU AND GRIFOLS ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, AND EXCEPT AS OTHERWISE SET OUT IN THIS SECTION 10(d)(iii) AND SECTION 10(d)(iv)(E) (“BATCHING”) BELOW, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER REPRESENTATIVE ACTION, AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM; NOTWITHSTANDING THIS ACKNOWLEDGEMENT AND AGREEMENT, YOU AGREE THAT ANY ARBITRATION INVOLVING YOU MAY PROCEED ON A CONSOLIDATED BASIS, BUT THAT IT MAY DO SO ONLY IF GRIFOLS PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.
With the exception of this Section 10(d)(iii) (“CLASS ARBITRATION AND COLLECTIVE RELIEF WAIVER”), and Sections 10(d)(iv)(E) (“Batching”) and 10(d)(iv)(G) (“Arbitration Decision & Award”) below, if any part of this Arbitration Agreement is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the arbitration provider’s rules, then the balance of this Arbitration Agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting provision(s) were not contained herein. If, however, this Section 10(d)(iii), Section 10(d)(vi)(E), or Section 10(d)(vi)(G) is found to be invalid, unenforceable, or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Grifols shall be entitled to arbitrate their dispute. As detailed in Section 11 (“Class Action Waiver for Court Actions”), in the event this section is invalidated, you will also not be able to participate in a class or representative action in court.
Nothing in this Section prevents you or Grifols from agreeing to participate in a class-wide settlement of claims.
iv. Arbitration Location & In Some Circumstances On the Papers.
Any arbitration between us will be held in English and:
A. If the amount in controversy between you and Grifols is less than $10,000, then the arbitration will be conducted solely by submission of written materials that you and we submit to the arbitrator, unless (A) the arbitrator determines that a hearing is necessary or (B) the parties agree otherwise. In such cases, the parties agree to remote participation in the hearing by video- or telephone- conference.
B. If the amount in controversy between you and Grifols exceeds $10,000, either party may request an arbitration hearing, and that hearing shall presumptively be held via video- or telephone conference unless (i) the arbitrator determines there is good cause to hold an in-person hearing or (ii) the parties agree otherwise. In the event there is an in-person hearing, the location of the hearing will be determined by mutual agreement of the parties or, if the parties cannot agree, by the arbitrator in accordance with the provider’s rules and applicable law.
v. Time to File.
Any arbitration against Grifols must be commenced by filing a demand for arbitration within one (1) year from the date you first knew or reasonably should have known of the act, omission or default giving rise to the claim. If applicable law prohibits a one (1) year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law
vi. The Arbitration Rules.
A. The Provider & Fees.
Any arbitration initiated under these Terms will be administered by JAMS and conducted before a single arbitrator in accordance with the provisions of (i) JAMS Streamlined Arbitration Rules and Procedures, if the amount in dispute between the parties is $250,000 or less, or (ii) JAMS Comprehensive Rules and Procedures if the amount in dispute is greater than $250,000, in either case excluding any rules or procedures governing or permitting class or representative actions. If twenty-five (25) or more similar arbitration demands are filed against Grifols by either the same party or similar parties represented by the same law firm or law firms acting in coordination (a “Mass Arbitration”), then JAMS Mass Arbitration Procedures will apply. The applicable JAMS rules and procedures are available at https://www.jamsadr.com/adr-rules-procedures/. If for any reason JAMS is unable to administer arbitration, the parties will select an alternative arbitration provider.
Unless otherwise required by applicable law, the applicable provider rules, procedures, and fee schedules will govern the amount you and Grifols must pay to the provider for arbitration fees, including with respect to any fee waivers. However, if the arbitrator determines that your claim(s) were frivolous or asserted in bad faith, you understand and agree that consistent with this Arbitration Agreement and the power of the arbitrator to impose sanctions, you may be required to reimburse Grifols for arbitration fees (including attorneys’ fees) that Grifols incurred to defend your claim(s).
The parties further agree that the provider has discretion to modify the amount or timing of any administrative or arbitration fees due under its rules and procedures where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the arbitration fees imposed by the provider does not constitute a default, waiver, or breach of this Section while such challenge remains pending before the provider, the arbitrator, and/or a court of competent jurisdiction as provided in these Terms.
You are responsible for your own attorneys’ fees, except to the extent otherwise provided by these Terms, the provider’s rules and procedures, and/or applicable law. Grifols will not seek its attorneys’ fees and arbitration costs from you with respect to claims that you file, unless the arbitrator determines that your claim is frivolous, or that you have engaged in conduct that is considered sanctionable under either the applicable provider rules and procedures or Federal Rule of Civil Procedure 11. Grifols may seek attorneys’ fees as provided by these Terms, the provider’s rules and procedures, and/or applicable law for claims it pursues against you.
B. Arbitrator’s Authority.
Unless preempted by federal law (in which federal law will apply), the arbitrator shall apply North Carolina law consistent with the FAA. The arbitrator shall honor claims of privilege recognized at law (North Carolina or federal, as the case may be) and, to the extent applicable notwithstanding the “Time to File” provision in Section 10(d)(v) above, abide statutes of limitations that would be applicable in court.
The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the provider rules and procedures for frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with the informal dispute resolution procedures contemplated by this Arbitration Agreement.
C. Arbitration Demand Must Contain Sufficient Information.
Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based, and must include proof that the claimant is party to this Arbitration Agreement and to these Terms. The arbitrator and/or provider may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11), including for any claim filed on behalf of a claimant who is not a party to this Arbitration Agreement or these Terms.
D. Dispositive Motions.
Subject to the applicable provider rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.
E. Batching.
To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to JAMS (or another arbitration provider selected by the parties if JAMS is unavailable) against Grifols within reasonably close temporal proximity (a “Mass Filing”), the parties agree to administer the Mass Filing in sequential batches of approximately 100 demands per batch (as adjusted to accommodate any arbitrator strikes as described below). To the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands. The parties further agree: (1) to designate one arbitrator for each batch; (2) to accept applicable fees, including any related fee reduction determined by JAMS (or another arbitration provider selected by the parties if JAMS is unavailable) in its discretion, provided it does not increase the cost of arbitration to you; (3) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed, and adjudicated; (4) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Grifols and you, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (5) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. If your demand for arbitration is included in the Mass Filing, any statute of limitation applicable to your claims will remain tolled until your demand for arbitration is decided, withdrawn, or settled.
Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable provider rules and procedures for such selection, and shall be subject to any rights to strike an arbitrator provided under applicable state law if the rights granted by law exceed those provided for in the provider rules. Notwithstanding subsection 10(d)(iv) above, the provider/ process administrator will determine the location where the proceedings will be conducted, if in person, or whether proceedings by video- or tele- conference is appropriate.
You agree to cooperate in good faith with Grifols 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 combined reduced fees, set by the provider in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or process administrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. For example, if the number of cases filed makes batches of 100 cases too small for the prompt resolution of all filed claims, you and Grifols agree that the provider may increase the batch size or, alternatively, that the provider may decrease the batch size or transfer a case between batches if appropriate in the reasoned discretion of the provider and/or procedural arbitrator. Any and all disagreements between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a JAMS process administrator (or similar, in the event JAMS is unavailable and another provider is selected).
This “Batching” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of JAMS Mass Arbitration Procedures or authorizing class arbitration of any kind.
The parties agree that this “Batching” provision is integral to the Arbitration Agreement insofar as it applies to a Mass Filing. If the Batching provision in this Section [_](d)(vi)(D) is found to be invalid, unenforceable, or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Grifols shall be required to arbitrate any claim that is a part of the Mass Filing.
F. Mediation Following First Batch in a Mass Filing.
The results of the first completely adjudicated batch of demands will be given to a mediator selected from a group of five mediators proposed by the provider, with Grifols and the remaining claimants’ counsel being able to strike one mediator each, and then rank the remaining mediators with the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results of the first batch are provided to the mediator, Grifols, the remaining claimants in the Mass Filing and their counsel, and the mediator will have 90 days (the “Mediation Period”) to agree on a resolution or substantive methodology for resolving the outstanding demands. If the parties are unable to resolve the outstanding demands during the Mediation Period and cannot agree on a methodology for resolving them through further arbitrations, either Grifols or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in a court of competent jurisdiction as set forth in these Terms and under applicable law. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. If neither Grifols nor the remaining claimants opt out and the parties cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process in section [_](d)(vi)(D). Absent notice of an opt-out, the arbitrations will proceed in the order determined by the sequential numbers assigned to demands in the Mass Filing.
G. Arbitration Decision & Award.
The arbitrator will render an award within the time frame specified in the applicable provider rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with Section 10(d)(iii) (“CLASS ARBITRATION AND COLLECTIVE RELIEF WAIVER”) above, and also must be consistent with the provisions of Section 9 (“Limitation of Liability”) of these Terms as to the types and the amounts of damages or other relief for which a party may be held liable. As detailed above in Section 10(d)(vi)(A) (“The Provider & Fees”), attorneys’ fees will be available to the prevailing party only if authorized under the substantive law governing the claims in the arbitration or if imposed by the arbitrator as a sanction consistent with the other provisions of this Arbitration Agreement.
No arbitration award or decision will have any preclusive effect as to issues or claims in any other Dispute, except to preclude the same or similar claims from being re-arbitrated between the same parties.
H. Confidentiality.
Unless otherwise prohibited by law, all arbitration proceedings pursuant to this Arbitration Agreement will be confidential and closed to the public and any parties other than you and Grifols (and each of the parties’ authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court relief in connection with any such proceeding (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
e. Exceptions to Arbitration.
Notwithstanding the parties’ agreement to resolve all Disputes through binding arbitration as set above in Section 10(d) above:
i. Compliance with Informal Dispute Resolution Procedures.
Either party may elect to have disputes regarding whether a complaining party has satisfied the Initial Dispute Resolution procedures set forth in Paragraph 10(c) resolved by a court as a precursor to arbitration.
ii. Small Claims Court and Time-Barred Claims.
Either party may elect to have Disputes resolved in a small claims court regardless of what forum the filing party initially chose, provided the Disputes are within the scope of that court’s jurisdiction.
Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may in fact be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under these Terms, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed (and any applicable statute of limitations tolled) pending the outcome of such action.
iii. Provisional Relief.
Either party may apply to a court of competent jurisdiction, as set forth herein, for a provisional remedy in connection with an arbitrable controversy, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief.
f. 30-Day Right to Opt Out
You have the right to opt out and not be bound by the Arbitration Agreement, including the CLASS ARBITRATION AND COLLECTIVE RELIEF WAIVER set forth in Section 10(d)(iii), by sending written notice of your decision to opt out to general.counsel@grifols.com. Your written notice must have the subject line “ARBITRATION OPT-OUT.” The notice must be sent within thirty (30) days of (i) the effective date for you of the most recent update of this Dispute Resolution Section or (ii) your first date that you used the Services, whichever is later. Otherwise, you shall be bound by the Arbitration Agreement set forth above. If you opt-out of the Arbitration Agreement, Grifols also will not be bound by it.
If you opt out of the Arbitration Agreement, you or we may exercise your or our right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate Disputes under a prior version of this Agreement will not apply to claims not yet filed.
Grifols will continue to honor any valid arbitration opt-outs. That is, if you validly opted out of arbitration pursuant to a prior version of Terms, Grifols will treat you as opting out of arbitration pursuant to these Terms as well. If you do not timely opt out of the Arbitration Agreement in these Terms, such action shall constitute mutual acceptance of the terms of the Dispute Resolution Section 10 by you and Grifols.
g. Changes to this Section.
We will provide thirty (30) days' notice of any material changes to the Dispute Resolution Section by posting a notice on the Services, informing you via email, or otherwise complying with any applicable notice or consent requirements. Material amendments will become effective on the 30th day following notice to you and will apply to all claims not yet filed. Unless you follow the termination procedure described below in Section 12 (or you follow any opt-out procedure provided in the amended terms), you agree that any unfiled claims are subject to the revised clause. If you terminate without opting out, and your termination is effective before the updates to this Section 10 take effect, then the version of this Section that was in effect on the effective date of your termination will continue to apply.
h. Survival.
This Dispute Resolution Section shall survive any termination of your agreement to these Terms subject to the 30-Day Right to Opt Out and Changes to this Section provisions above.