RBS Terms and Conditions
AGREEMENT TO BINDING ARBITRATION: PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT OR TO PURSUE CLAIMS IN A CLASS OR REPRESENTATIVE CAPACITY. Resident and
Management agree that any and all claims between them and/or arising from or relating to this Lease, including, the validity and enforceability of this agreement to arbitrate (each, a “Dispute”), shall be resolved by binding arbitration under the Federal Arbitration Act (“FAA”) before one arbitrator, unless an exception applies as stated below. This includes claims based on contract, tort, equity, statute, or otherwise, as well as claims regarding the scope and enforceability of this provision. This includes all claims by or against Resident, other Residents, Management, and Management’s Agents. However, at the election of any party, a court of competent jurisdiction may adjudicate small claims, any request for injunctive relief, and/or any claims for eviction or recovery of possession of the premises, but all other claims will be decided by arbitration under this Lease. The arbitration will be administered JAMS in accordance with the JAMS Rules effective as of the date the arbitration is commenced, which are available https://www.jamsadr.com/rules-comprehensive-arbitration, as modified by this Agreement. If, for any reason, JAMS is unable to administer the arbitration, then except as otherwise stated below, Resident may file Resident’s Dispute with any national arbitration company that handles consumer arbitrations following procedures that are substantially similar to the JAMS Rules. Arbitration hearings may be conducted by videoconference unless the arbitrator believes an in-person hearing is necessary. In such instances, the location of an arbitration hearing will be decided pursuant to the JAMS Rules. The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law. The decision of the arbitrator shall be final and binding on Resident and Management, and any award of the arbitrator may be entered in any court of competent jurisdiction. The arbitrator shall determine the scope and enforceability of this arbitration agreement, including whether a Dispute is subject to arbitration. The arbitrator has authority to decide all issues of validity, enforceability or arbitrability, including, but not limited to, where a party raises as a defense to arbitration that the claims in question are exempted from the arbitration requirement or that any portion of this agreement is not enforceable. If a lawsuit filed in court includes claims or requests for relief that are arbitrable and claims or requests for relief that are not, Resident and Management agree that any non-arbitrable claims or requests for relief shall be stayed pending the completion of the arbitration of the arbitrable claims or requests for relief.
51.1. Seeking Arbitration: If Resident elects to seek arbitration action, Resident agrees to first send to Management, by certified mail, a written notice of Resident’s claim (“Notice”). The Notice to Management must be addressed to: The Connor Group, Attn: Legal Department, 10510 Springboro Pike, Miamisburg, OH 45342. If Management initiates arbitration, Management will send a written Notice to an email address Resident has previously provided to Management, if available. Management may also use any other means to contact Resident. A Notice, whether sent by Resident or by Management, must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). If Resident and Management do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, Resident or Management may commence an arbitration proceeding or file a claim in small claims court. Arbitration forms can be downloaded from https://www.jamsadr.com.
51.2. Fees: Resident and Management agree that payment of all filing, administration, and arbitrator fees will be governed by the JAMS Rules. If Resident initiates an arbitration, Resident is required to pay JAMS’ initial filing fee, but Management will reimburse Resident for this filing fee at the conclusion of the arbitration to the extent it exceeds the fee for filing a complaint in a federal or state court in Resident’s county (or parish) of residence. If the arbitrator finds that either the substance of Resident’s claim or the relief sought was frivolous, or that Resident’s claim was brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then Management will not reimburse Resident’s initial filing fee and may seek an award of our legal fees or costs against Resident and/or Resident’s counsel. The Lease authorizes the arbitrator to award fees or other sanctions against Resident’s counsel. Any facts, evidence, documents, or testimony introduced or produced in an arbitration proceeding may be used only in that proceeding and may not be disclosed, introduced, or used in another arbitration proceeding even if it involves the same or similar claims. Management and Resident each also agree that the arbitrator will not be bound by rulings in any prior arbitrations not involving the same parties, even if they involved the same or similar claims.
51.3. Hearing: If Resident’s claim is for US $10,000 or less, Management agrees that Resident may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or
video hearing, or by an in-person hearing as established by the JAMS Rules. If Resident’s claim exceeds US $10,000, the right to a hearing will be determined by the JAMS Rules. In the event the arbitration will be conducted solely on the basis of submitted documents, the arbitrator’s decision and award will be made and delivered within six (6) months of the selection of the arbitrator, unless extended by the arbitrator. Except as expressly set forth herein, the payment of all filing, administration, and arbitrator fees will be governed by the JAMS Rules.
51.5. Confidentiality: Resident and Management shall maintain the confidential nature of the arbitration proceeding and the Award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
51.6. Coordinated Proceedings: If twenty-five (25) or more individuals initiate Notices of dispute with us raising similar claims, and counsel for the individuals bringing the claims are the same or are coordinated for these individuals (“Coordinated Claims”), the claims shall proceed in arbitration in a coordinated proceeding. Counsel for the individuals and Management’s counsel shall each select ten (10) cases to proceed first in arbitration in a bellwether proceeding (“Test Cases”). The remaining cases shall not be filed in arbitration until the first ten (10) have been resolved. If the parties are unable to resolve the remaining cases after the conclusion of the Test Cases, each side may select another twenty-five (25) cases to proceed to arbitration for a second bellwether proceeding. This process may continue until the parties have determined an objective methodology to make an offer to resolve each and every outstanding claim. A court will have authority to enforce this clause and, if necessary, to enjoin the mass filing of arbitration demands against us. Individuals bringing Coordinated Claims shall be responsible for up to US $250 of their filing fees or the maximum permissible under the applicable arbitration rules, whichever is greater. All applicable statutes of limitations and defenses based upon the passage of time will be tolled while the Coordinated Proceedings specified in this Section are pending. Management will take such action, if any, required to effectuate such tolling.
51.7. Punitive Damage and Limitation of Liability: In any arbitration arising out of or related to the Lease, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. In any arbitration arising out of or related to the Lease, the arbitrator may not award any incidental, indirect, or consequential damages.
51.8. Severance of Arbitration Agreement: If the clauses concerning and describing the procedures and obligations related to Coordinated Claims and Test Case procedures is or becomes invalid or unenforceable, then the remaining entire arbitration agreement and any clauses concerning, relating to, specifying, or otherwise describing the arbitration agreement shall be severed from the Lease. However, any duty of confidentiality whether or not such duty is connected with arbitration shall survive such severance.
51.9. California Residents: If Resident is a California resident, Resident will not be required to pay the fees and costs incurred by the opposing party if Resident does not prevail.
51.10. Discovery: The parties further agree that discovery shall be limited so that the only discovery permitted shall be Requests to Produce, unless additional discovery is permitted by the arbitrator on a good faith showing by a party that additional discovery is necessary. Any discovery objections also shall be decided by the arbitrator (e.g., privilege, burdensomeness, etc.).
CLASS AND MASS ACTION WAIVER: To the fullest extent permitted by applicable law, Resident and Management acknowledge and agree that any proceedings, whether in arbitration or court, will be conducted only on an individual basis and not as a class, representative, mass, or consolidated action (“Class and Mass Action Waiver”). Resident further agrees to give up the ability to participate in a class arbitration or class action. Unless both Resident and Management agree otherwise, the arbitrator may not consolidate more than one person’s claims with Resident’s claims and may not otherwise preside over any form of a representative or class proceeding. In any action between Resident and Management, if a court or an arbitrator determines that any part of this arbitration provision or Class and Mass Action Waiver is unenforceable with respect to any claim, remedy, or request for relief, then the arbitration provision and Class and Mass Action Waiver will not apply to that claim, remedy, or request for relief. But the arbitration provision and Class and Mass Action Waiver will still apply to all other claims, remedies, and requests for relief that Resident or Management may assert in that or any other action. In any such case, Resident and Management agree that they will arbitrate all claims, remedies, and requests for relief
subject to individual arbitration first, and that any remaining unresolved claims, remedies, or requests for relief may be pursued in court only after the arbitrator’s award has been issued. In any such proceeding, the arbitrator’s factual findings will not be entitled to deference by the court. Accordingly, Resident expressly waives any right and/or ability to bring, represent, join, or otherwise maintain a Class Action or similar proceeding against Management in any forum. Any claim that all or any part of the Class and Mass Action Waiver is unenforceable, unconscionable, void, or voidable shall be determined by the arbitration service chosen by the parties.
52.1. 30-Day Right to Opt Out: Resident has the right to opt-out and not be bound by the arbitration agreement and Class and Mass Action Waiver provisions in this Sections 51 and 52 by sending written notice of Resident’s decision to opt-out. The notice must be sent within 30 days of the date on which Resident first executes this Lease; otherwise Resident shall be bound to arbitrate disputes in accordance with the terms of this Section 51 and 52. If Resident opts- out of these arbitration provisions, Management also will not be bound by them.
AMENDMENT TO COMMUNITY POLICIES: To fullest extent permitted by applicable law, in accordance with the Resident’s Lease Agreement, as specifically required by said Lease Agreement, having been executed by Resident and Management, which stipulates that no modification of the Lease Agreement is valid unless it is done in writing and signed by Resident and Management, Resident and Management hereby, in accordance therewith, mutually acknowledge and agree to the following revision of the Lease Agreement. Specifically, the redaction of that certain language, typically appearing in the Community Policies, Rules and Regulations, or elsewhere where it may appear in a particular version or variation upon the Lease Agreement which might be subject to misinterpretation as an apparent restriction on a Resident’s ability to publish truthful reviews, opinions or statements regarding the Community or Management. Moreover, the following clause is now, by mutual desire, and the consent of Resident and Management stricken from the Lease Agreement in its entirety, to-wit: Resident agrees not to post disparaging or false statements online and agrees to remove any posts regarding Management or the Community upon Management’s request. To the extent that this exact refrain does not appear in the Resident’s Lease Agreement, any provision or clause espousing a sentiment that could be similarly misconstrued in regard to a Resident’s right to publish is likewise withdrawn so as if the Lease Agreement was drafted without said clause and in such condition upon its execution, as of the date of its Effective Date. Management further asserts that the spirit of the disregarded language, and its practical application, were only ever in regard to publications that were untruthful and otherwise impermissible and were employed or intended to be a deterrence against a Residents expression of its opinion or assertion of accurate information into the public domain.