FanDuel Predicts Binding Arbitration Agreement and Class Action Waiver

Three Forums Exist for the Resolution of Commodity Disputes: Civil Court litigation, reparations at the Commodity Futures Trading Commission ("CFTC") and arbitration conducted by a self-regulatory or other private organization.

The CFTC recognizes that the opportunity to settle disputes by arbitration may in some cases provide many benefits to customers, including the ability to obtain an expeditious and final resolution of disputes without incurring substantial costs. The CFTC requires, however, that each customer individually examine the relative merits of arbitration and that your consent to this arbitration agreement be voluntary.

You need not sign this agreement to open or maintain an account with FanDuel Predicts. See 17 CFR 166.5.

1. Initial Dispute Resolution

1. You and FanDuel Predicts agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost, and mutually beneficial outcome. You and FanDuel Predicts therefore agree that, before either you or FanDuel Predicts demand individual arbitration against the other, you will make a good-faith effort to resolve informally any claim covered by this Arbitration Agreement. This requires first sending a written notice of the dispute ("Notice of Dispute") to the other party. For any dispute you initiate, you agree to send the written description of the dispute along with the email address associated with your account to FanDuel Predicts Customer Service, using the FanDuel Predicts category in the link here. For any dispute that FanDuel Predicts initiates, we will send our written description of the dispute to the email address associated with your FanDuel Predicts account. The Notice of Dispute must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; the email address associated with the account on file; and the specific relief sought. After receiving the Notice of Dispute, you and FanDuel Predicts agree to personally meet and confer, via telephone or videoconference, to attempt to resolve the dispute. If you are represented by counsel, your counsel may participate in the conference, but you shall also personally attend the conference, unless FanDuel Predicts states in writing that you are not required to personally attend. The conference, if requested by either party, shall be individualized such that a separate conference must be held each time either party sends a Notice of Dispute, even if the same law firm or group of law firms or organizations represents multiple users in similar cases, unless all parties agree; multiple individuals cannot participate in the initial dispute resolution conference unless all parties agree.
2. If the dispute is not resolved within sixty (60) days after receipt of the Notice of Dispute, or after the completion of the initial dispute resolution conference, if requested, whichever is later, you and FanDuel Predicts agree to resolve any remaining dispute through the further dispute resolution provisions below.
3. The aforementioned informal dispute resolution process, including your personal participation in the meet and confer is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any applicable statute of limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process. The parties further agree that whether a complaining party has satisfied these Initial Dispute Resolution procedures, including whether a Notice of Dispute contained all required information, is an issue that can be decided by a court as a prerequisite to arbitration.

2. Binding Arbitration

1. Only after the parties have engaged in a good-faith effort to resolve the dispute in accordance with the Initial Dispute Resolution (Section 1), and only if those efforts fail, then either party may initiate binding arbitration, subject to the exceptions in Section 5 and the terms set forth below, as the sole means to resolve claims using the procedures set forth in Section 6 below.
2. If you intend to initiate an arbitration, you must provide notice to FanDuel Predicts of your intent to do so by sending FanDuel Predicts a Notice of Intent to Initiate Arbitration. The Notice of Intent to Initiate Arbitration should be sent to support@account.predicts.fanduel.com. Within 10 days of receipt of a Notice to Initiate Arbitration, FanDuel Predicts will provide you with a list of organizations for dispute resolution ("Arbitration Providers") and a copy of the rules for each forum. If FanDuel Predicts intends to submit a claim to arbitration against you, FanDuel Predicts will send a Notice of Intent to Initiate Arbitration to the email address associated with your FanDuel Predicts account, together with a list of Arbitration Providers and rules for each forum listed. You shall, within forty-five (45) days after receipt of such list, notify FanDuel Predicts of the Arbitration Provider selected from the list. Your failure to provide such notice shall give FanDuel Predicts the right to select an Arbitration Provider from the list.
3. Subject to the requirements described in this Section, you or FanDuel Predicts must then file a demand for arbitration with the selected arbitration provider (a "Demand"). After filing a copy of the Demand with the arbitration provider, you must also email a copy to support@account.predicts.fanduel.com. Merely emailing a Demand to FanDuel Predicts will not commence an arbitration proceeding. If FanDuel Predicts is initiating arbitration, it will serve a copy of the Demand to the email address associated with your FanDuel Predicts account.
4. You and FanDuel Predicts agree that all claims, disputes, or disagreements arising out of or relating in any way to the interpretation or performance of the FanDuel Predicts Terms and Conditions (the "Terms"), which includes the FanDuel Predicts Futures Customer Agreement (including its formation, interpretation, performance and/or breach) or payments by or to FanDuel Predicts, or that in any way relate to the provision or use of FanDuel Predicts services, your relationship with FanDuel Predicts, or any other dispute with FanDuel Predicts, shall be resolved exclusively through binding arbitration in accordance with this Arbitration Agreement. This includes claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or the Terms as well as claims that may arise after the termination of this Arbitration Agreement or the Terms. This Arbitration Agreement is governed by the Federal Arbitration Act ("FAA") in all respects and evidences a transaction involving interstate commerce. You and FanDuel Predicts expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Arbitration Agreement. If the FAA does not apply to a particular dispute, the parties stipulate and agree that the New York Arbitration Act ("NYAA") will apply. If neither the FAA nor NYAA apply, the state law governing arbitration agreements in the state in which the arbitration will take place shall apply.
5. Except as set forth in Section 5, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the Terms, including without limitation, the interpretation, applicability, enforceability, revocability, scope, validity or formation of these Terms, 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 of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator 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 arbitration provider rules and procedures for any 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 this Arbitration Agreement.
6. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND FANDUEL PREDICTS ARE EACH WAIVING THE RIGHT TO SUE IN COURT AND HAVE A TRIAL BY JURY OR JUDGE TO THE MAXIMUM EXTENT PERMITTED BY LAW. There is no jury in arbitration, and court review of an arbitration award is subject to very limited review.
7. Except as set forth in Section 4 below, if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.

3. Location

1. Subject to Section 6.6, if applicable, if you are a resident of the United States, and initiate arbitration, such arbitration will take place in the County where you reside, or if no arbitrator is available in that County, then at the closest arbitration location available in the state. Where FanDuel Predicts initiates arbitration shall be initiated in the County of New York, State of New York, United States of America, unless you and FanDuel Predicts otherwise agree or unless the designated arbitrator determines, based on a written objection, that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue despite either party's initial selection. For any arbitration conducted in New York, you and FanDuel Predicts agree to submit to the personal jurisdiction of any federal or state court in New York County, New York, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. mail and hereby waive any and all jurisdictional and venue defenses otherwise available. The parties agree that arbitration may take place exclusively by video, where such arrangements are acceptable to the appointed arbitrator.

4. Waiver of Class and Other Non Individualized Relief

1. YOU AND FANDUEL PREDICTS ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT OTHERWISE IN THIS SECTION 4 AND SECTION 6 BELOW, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR 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, UNLESS FANDUEL PREDICTS PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.
2. If there is a final judicial determination that applicable law precludes enforcement of Section 4's limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
3. If there is a final judicial determination that the provisions in Section 4 or Section 6 are not enforceable as to a particular claim or request for relief, then the parties agree that that particular claim or request for relief may proceed in court but shall be severed and stayed pending arbitration of the remaining claims. This provision does not prevent you or FanDuel Predicts from participating in a class-wide settlement of claims.

5. Exceptions

1. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). You are also not waiving your right to elect instead to petition the CFTC to institute reparations proceedings under Section 14 of the Commodity Exchange Act with respect to any dispute that may be arbitrated pursuant to this agreement. In the event a dispute arises, you will be notified if FanDuel Predicts intends to submit the dispute to arbitration. If you believe a violation of the Commodity Exchange Act is involved and if you prefer to request a section 14 "Reparations" proceeding before the CFTC, you will have forty-five (45) days from the date of such notice in which to make that election.
2. Either party may also elect to have disputes or claims resolved in a small claims court that are within the scope of that court's jurisdiction regardless of what forum the filing party initially chose. 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 be brought in small claims court. Seeking such relief shall not waive a party's right to arbitration under this agreement, 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.
3. Either party may elect to have disputes regarding whether a complaining party has satisfied the Initial Dispute Resolution procedures set forth in Section 1.1 resolved by a court as a precursor to arbitration.

6. Arbitration Rules

1. Once you or FanDuel Predicts have selected an Arbitration Provider as set forth in Section 2, the arbitration will proceed under the National Arbitration and Mediation ("NAM") Comprehensive Dispute Resolution Rules and Procedures and the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures in effect at the time any Demand for arbitration is filed with the arbitration provider, excluding any rules or procedures permitting class or representative actions and except as modified by this Arbitration Agreement. Fees will be based on the selected Arbitration Provider's fee schedule, provide, however, FanDuel Predicts shall bear the incremental costs of a "mixed panel" as defined in 17 CFR § 166.5 unless the arbitrator determine that the customer has acted in bad faith in initiating or conducting the proceeding. The arbitration will be administered and resolved before a single arbitrator.
2. The parties are responsible for their own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise. The parties agree that any arbitration provider has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under its rules where it deems appropriate (including as specified in Section 6.4), provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by the Arbitration Provider does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before the Arbitration Provider, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
3. 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 agreement by having created and/or registered an account with FanDuel Predicts. If the party requesting arbitration is represented by counsel, the Demand shall also include counsel's name, telephone number, mailing address, and email address. Such counsel must also sign the Demand. By signing the Demand, counsel certifies to the best of counsel's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that, consistent with the standards set forth in Federal Rule of Civil Procedure 11(b): (1) the Demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. The arbitrator and/or Arbitration 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 party to this agreement.
4. If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and FanDuel Predicts submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.
5. Subject to the applicable NAM 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. Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of arbitration. You and FanDuel Predicts agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties' attorneys (or other representatives assisting in the prosecution or defense of the arbitration), accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
6. Batch Arbitrations: To increase the efficiency of administration and resolution of arbitrations, in the event 25 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 an Arbitration Provider selected in accordance with Section 2 against FanDuel Predicts within reasonably close temporal proximity ("Mass Filing"), the parties agree (i) to administer the Mass Filing in batches of 100 Demands per batch (or, if between twenty-five (25) and ninety-nine (99) individual Demands are filed, a single batch of all those Demands, and 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) with only one batch filed, processed, and adjudicated at a time; (ii) to designate one arbitrator for each batch; (iii) to accept applicable fees, including any related fee reduction determined by the Arbitration Provider in its discretion; (iv) that 33% of the anticipated total number of batches for the Mass Filing may proceed simultaneously as set forth in this batching provision and Arbitration Agreement, but 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, provided, however, for the avoidance of doubt, the applicable Statute of Limitations shall be tolled for all Demands that have been submitted but not heard in the initial batches from the time they are submitted; (v) that fees associated with a Demand for arbitration included in a Mass Filing, including fees owed by FanDuel Predicts and the claimants, 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 (vi) 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. Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM 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 NAM rules. Notwithstanding Section 3.1, for arbitrations subject to this Section 6.6, the arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with FanDuel Predicts, the arbitrator, 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 Arbitration Provider in its discretion, for each batch of claims. Any disagreement between the parties as to whether this "Batch Arbitration" provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator (an "Administrative Arbitrator") appointed by the Arbitration Provider. In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. This Batch Arbitration provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM's Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. 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 is settled.
7. For arbitrations that are part of a Mass Filing, the results of the first completely adjudicated batch of Demands will be given to a mediator selected from a group of 5 mediators proposed by the Arbitration Provider, with FanDuel Predicts and the remaining claimants' counsel being able to strike one mediator each and then rank the remaining mediators and 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, FanDuel Predicts, the remaining claimants 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 FanDuel Predicts or any remaining claimant may opt out of the arbitration process and have the Demand(s) proceed in a court of competent jurisdiction. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. If neither FanDuel Predicts nor the remaining claimants opt out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process in Section 6.6. 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.
8. The arbitrator will render an award within the time frame specified in the applicable arbitration 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 6.2 above and also must be consistent with the terms of the "Limitation of Liability" section of the Futures Customer Agreement as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys' fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.

7. Changes to this Section

1. FanDuel Predicts will provide thirty (30) days' notice of any material changes to this clause. Changes will apply to all Demands not yet filed. If you continue to use FanDuel Predicts after the 30th day, or you affirmatively accept the changes sooner after having been provided notice, you agree that any unfiled Demands are subject to the revised clause.
2. If you reject any such changes by opting out of the Arbitration Agreement, you may exercise your 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 the Arbitration Agreement will not apply to claims not yet filed. If FanDuel Predicts changes this Arbitration Agreement after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Product(s) or Services thirty (30) days after such change will be deemed acceptance of those changes.
3. For any dispute not subject to arbitration you and FanDuel Predicts agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in New York, NY. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
4. The Terms and the relationship between you and FanDuel shall be governed by the laws of the State of Illinois without regard to conflict of law provisions.