NayusDante
09-14-2011, 10:11 PM
So as soon as SNEA was formed, it becomes SNEI. New terms of service were just emailed out and there's a very interesting added section this time:
(note the agreement to arbitration instead of court proceedings, as well as the bit about California jurisdiction)
15. BINDING INDIVIDUAL ARBITRATION
Purpose. The term “Dispute” means any dispute, claim, or controversy between you and any
Sony Entity regarding any Sony Online Services or the use of any devices sold by a Sony Entity
to access Sony Online Services, whether based in contract, statute, regulation, ordinance, tort
(including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or
any other legal or equitable theory, and includes the validity, enforceability or scope of this
Section 15 (with the exception of the enforceability of the Class Action Waiver clause below).
“Dispute” is to be given the broadest possible meaning that will be enforced. If you have a
Dispute with any Sony Entity or any of a Sony Entity’s officers, directors, employees and agents
that cannot be resolved through negotiation within the time frame described in the “Notice of
Dispute” clause below. Other than those matters listed in the Exclusions from Arbitration clause,
you and the Sony Entity that you have a Dispute with agree to seek resolution of the Dispute
only through arbitration of that Dispute in accordance with the terms of this Section 15, and not
litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral
arbitrator instead of in a court by a judge or jury.
Exclusions from Arbitration. YOU AND THE SONY ENTITIES AGREE THAT ANY
CLAIM FILED BY YOU OR BY A SONY ENTITY IN SMALL CLAIMS COURT ARE
NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 15.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER
WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING
ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 15, YOU MUST
NOTIFY SNEI IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT
THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO 6080
CENTER DRIVE, 10TH FLOOR, LOS ANGELES, CA 90045, ATTN: LEGAL
DEPARTMENT/ARBITRATION AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR
ADDRESS, (3) YOUR PSN ACCOUNT NUMBER, IF YOU HAVE ONE, AND (4) A
CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH
ANY SONY ENTITY THROUGH ARBITRATION.
Notice of Dispute. IF YOU HAVE A DISPUTE WITH ANY SONY ENTITY, YOU MUST
SEND WRITTEN NOTICE TO 6080 CENTER DRIVE, 10TH FLOOR, LOS ANGELES, CA
90045, ATTN: LEGAL DEPARTMENT/ARBITRATION, ATTN: SONY LEGAL
DEPARTMENT: DISPUTE RESOLUTION” TO GIVE SNEI OR THE SONY ENTITY YOU
HAVE A DISPUTE WITH THE OPPORTUNITY TO RESOLVE THE DISPUTE 18
INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute
in good faith for no less than 60 days after you provide notice of the Dispute. If the Sony Entity
you have a Dispute with does not resolve your Dispute within 60 days from receipt of notice of
the Dispute, you or the Sony Entity you have a Dispute with may pursue your claim in arbitration
pursuant to the terms in this Section 15.
Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN
ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL
BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR
UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR
PRIVATE ATTORNEY GENERAL LEGALACTION, UNLESS BOTH YOU AND THE
SONY ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO
DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. THIS
PROVISION DOES NOT PRECLUDE YOUR PARTICIPATION AS A MEMBER IN A
CLASS ACTION FILED ON OR BEFORE AUGUST 20, 2011.
SNEAInitiation of Arbitration Proceeding/Selection of Arbitrator. If you or the Sony Entity
you have a Dispute with elect to resolve your Dispute through arbitration, the party initiating the
arbitration proceeding may initiate it with the American Arbitration Association (“AAA”),
www.adr.org, or JAMS www.jamsadr.com. The terms of this Section 15 govern in the event
they conflict with the rules of the arbitration organization selected by the parties.
Arbitration Procedures. Because the software and/or service provided to you by the Sony
Entity you have a Dispute with concern interstate commerce, the Federal Arbitration Act
(“FAA”) governs the arbitrability of all Disputes. However, applicable federal or state law may
also apply to the substance of any Disputes. For claims of less than $75,000, the AAA’s
Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall
apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary
Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee
schedules for non-class action proceedings shall apply. The AAA rules are available at
www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and
you provided notice to and negotiated in good faith with the Sony Entity you had a Dispute with
as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you
will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in
addition to any rights to recover the same under controlling state or federal law afforded to the
Sony Entity you have a Dispute with or you. The arbitrator will make any award in writing but
need not provide a statement of reasons unless requested by a party. Such award will be
binding and final, excerpt for any right of appeal provided by the FAA, and may be
entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or the Sony Entity you have a Dispute with may initiate
arbitration in either San Mateo County, California or the county in which you reside. In the
event that you select the county of your residence, the Sony Entity you have a Dispute with may
transfer the arbitration to San Mateo, County in the event that it agrees to pay any additional fees
or costs you incur as a result of the change in location as determined by the arbitrator. 19
Severability. If any clause within this Section 15 (other than the Class Action Waiver clause
above) is found to be illegal or unenforceable, that clause will be severed from this Section 15,
and the remainder of this Section 15 will be given full force and effect. If the Class Action
Waiver clause is found to be illegal or unenforceable, this entire Section 15 will be
unenforceable, and the Dispute will be decided by a court and you and the Sony Entity you have
a dispute with each agree to waive in that instance, to the fullest extent allowed by law, any trial
by jury.
Continuation. This Section 15 shall survive any termination of this Agreement or the provision
of Sony Online Services to you.
16. GOVERNING LAW AND JURISDICTION
YOU AND SNEI AGREE THAT THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
REGARD TO ITS CONFLICT OF LAW RULES, GOVERN THIS AGREEMENT AND ANY
DISPUTE BETWEEN YOU AND THE SONY ENTITIES. ANY DISPUTE NOT SUBJECT
TO ARBITRATION AND NOT INITIATED IN SMALL CLAIMS COURT WILL BE
LITIGATED BY EITHER PARTY IN A COURT OF COMPETENT JURISDICTION IN
EITHER THE SUPERIOR COURT FOR THE STATE OF CALIFORNIA IN AND FOR THE
COUNTY OF SAN MATEO OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
If anyone else has read through this, am I right in interpreting this as allowing us to AGREE to the TOS and continue using services, but still be able to opt-out of the arbitration clause and retain the right to escalate class action cases to court? I understand the need to cover their liabilities in the future, but something seems a little odd here, and not quite favorable to the consumer. Is Sony afraid of legal action against them should class action suits go that far?
I'd like to hear some other thoughts on this.
(note the agreement to arbitration instead of court proceedings, as well as the bit about California jurisdiction)
15. BINDING INDIVIDUAL ARBITRATION
Purpose. The term “Dispute” means any dispute, claim, or controversy between you and any
Sony Entity regarding any Sony Online Services or the use of any devices sold by a Sony Entity
to access Sony Online Services, whether based in contract, statute, regulation, ordinance, tort
(including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or
any other legal or equitable theory, and includes the validity, enforceability or scope of this
Section 15 (with the exception of the enforceability of the Class Action Waiver clause below).
“Dispute” is to be given the broadest possible meaning that will be enforced. If you have a
Dispute with any Sony Entity or any of a Sony Entity’s officers, directors, employees and agents
that cannot be resolved through negotiation within the time frame described in the “Notice of
Dispute” clause below. Other than those matters listed in the Exclusions from Arbitration clause,
you and the Sony Entity that you have a Dispute with agree to seek resolution of the Dispute
only through arbitration of that Dispute in accordance with the terms of this Section 15, and not
litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral
arbitrator instead of in a court by a judge or jury.
Exclusions from Arbitration. YOU AND THE SONY ENTITIES AGREE THAT ANY
CLAIM FILED BY YOU OR BY A SONY ENTITY IN SMALL CLAIMS COURT ARE
NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 15.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER
WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING
ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 15, YOU MUST
NOTIFY SNEI IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT
THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO 6080
CENTER DRIVE, 10TH FLOOR, LOS ANGELES, CA 90045, ATTN: LEGAL
DEPARTMENT/ARBITRATION AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR
ADDRESS, (3) YOUR PSN ACCOUNT NUMBER, IF YOU HAVE ONE, AND (4) A
CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH
ANY SONY ENTITY THROUGH ARBITRATION.
Notice of Dispute. IF YOU HAVE A DISPUTE WITH ANY SONY ENTITY, YOU MUST
SEND WRITTEN NOTICE TO 6080 CENTER DRIVE, 10TH FLOOR, LOS ANGELES, CA
90045, ATTN: LEGAL DEPARTMENT/ARBITRATION, ATTN: SONY LEGAL
DEPARTMENT: DISPUTE RESOLUTION” TO GIVE SNEI OR THE SONY ENTITY YOU
HAVE A DISPUTE WITH THE OPPORTUNITY TO RESOLVE THE DISPUTE 18
INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute
in good faith for no less than 60 days after you provide notice of the Dispute. If the Sony Entity
you have a Dispute with does not resolve your Dispute within 60 days from receipt of notice of
the Dispute, you or the Sony Entity you have a Dispute with may pursue your claim in arbitration
pursuant to the terms in this Section 15.
Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN
ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL
BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR
UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR
PRIVATE ATTORNEY GENERAL LEGALACTION, UNLESS BOTH YOU AND THE
SONY ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO
DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. THIS
PROVISION DOES NOT PRECLUDE YOUR PARTICIPATION AS A MEMBER IN A
CLASS ACTION FILED ON OR BEFORE AUGUST 20, 2011.
SNEAInitiation of Arbitration Proceeding/Selection of Arbitrator. If you or the Sony Entity
you have a Dispute with elect to resolve your Dispute through arbitration, the party initiating the
arbitration proceeding may initiate it with the American Arbitration Association (“AAA”),
www.adr.org, or JAMS www.jamsadr.com. The terms of this Section 15 govern in the event
they conflict with the rules of the arbitration organization selected by the parties.
Arbitration Procedures. Because the software and/or service provided to you by the Sony
Entity you have a Dispute with concern interstate commerce, the Federal Arbitration Act
(“FAA”) governs the arbitrability of all Disputes. However, applicable federal or state law may
also apply to the substance of any Disputes. For claims of less than $75,000, the AAA’s
Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall
apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary
Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee
schedules for non-class action proceedings shall apply. The AAA rules are available at
www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and
you provided notice to and negotiated in good faith with the Sony Entity you had a Dispute with
as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you
will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in
addition to any rights to recover the same under controlling state or federal law afforded to the
Sony Entity you have a Dispute with or you. The arbitrator will make any award in writing but
need not provide a statement of reasons unless requested by a party. Such award will be
binding and final, excerpt for any right of appeal provided by the FAA, and may be
entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or the Sony Entity you have a Dispute with may initiate
arbitration in either San Mateo County, California or the county in which you reside. In the
event that you select the county of your residence, the Sony Entity you have a Dispute with may
transfer the arbitration to San Mateo, County in the event that it agrees to pay any additional fees
or costs you incur as a result of the change in location as determined by the arbitrator. 19
Severability. If any clause within this Section 15 (other than the Class Action Waiver clause
above) is found to be illegal or unenforceable, that clause will be severed from this Section 15,
and the remainder of this Section 15 will be given full force and effect. If the Class Action
Waiver clause is found to be illegal or unenforceable, this entire Section 15 will be
unenforceable, and the Dispute will be decided by a court and you and the Sony Entity you have
a dispute with each agree to waive in that instance, to the fullest extent allowed by law, any trial
by jury.
Continuation. This Section 15 shall survive any termination of this Agreement or the provision
of Sony Online Services to you.
16. GOVERNING LAW AND JURISDICTION
YOU AND SNEI AGREE THAT THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
REGARD TO ITS CONFLICT OF LAW RULES, GOVERN THIS AGREEMENT AND ANY
DISPUTE BETWEEN YOU AND THE SONY ENTITIES. ANY DISPUTE NOT SUBJECT
TO ARBITRATION AND NOT INITIATED IN SMALL CLAIMS COURT WILL BE
LITIGATED BY EITHER PARTY IN A COURT OF COMPETENT JURISDICTION IN
EITHER THE SUPERIOR COURT FOR THE STATE OF CALIFORNIA IN AND FOR THE
COUNTY OF SAN MATEO OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
If anyone else has read through this, am I right in interpreting this as allowing us to AGREE to the TOS and continue using services, but still be able to opt-out of the arbitration clause and retain the right to escalate class action cases to court? I understand the need to cover their liabilities in the future, but something seems a little odd here, and not quite favorable to the consumer. Is Sony afraid of legal action against them should class action suits go that far?
I'd like to hear some other thoughts on this.