MOBILE APP TERMS OF USE AND END USER LICENSE AGREEMENT

1. Conditions for Use of the App

General. The App is offered subject to your acceptance without modification of this Agreement. By accessing or using the App, you agree to be bound by all of the terms and conditions of this Agreement as such terms and conditions may be modified by us from time to time in our sole discretion. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT WITHOUT MODIFICATION, THEN YOU MAY NOT ACCESS OR USE THE APP. Please check this Agreement periodically for changes. Your continued access or use of the App following any changes to the Agreement constitutes your acceptance of those changes.

Mobile Check-In/Out. By accessing or using the mobile check-in/out functionality of the App, you agree to be bound by all of the terms and conditions associated with mobile check-in (i.e., Mobile Check-In Terms and Conditions), which are available at the time that you complete your check-in.

Digital Key. By accessing or using the digital key functionality of the App, you agree to be bound by all of the terms and conditions associated with the digital key (i.e., the Digital Key Terms of Use), which are available by clicking on the MGM Rewards tab within the App (located at the bottom of the screen), and navigating to “Digital Key Terms of Use.”

Reservations and/or Purchases. By accessing or using the room, show, restaurant, or other reservation and/or purchase features of the App, you agree to be bound by all of the terms and conditions associated with such reservations and/or purchases, which may be posted at the time you make such reservations and/or purchases.

2. Privacy

Any information you provide in connection with your use of the App will be collected, used and shared in accordance with this Agreement and our Privacy Policy, which is incorporated into and made a part of this Agreement. Our Privacy Policy is available by clicking on the MGM Rewards tab within the App (located at the bottom of the screen), and navigating to “Privacy Policy.”

3. Age Restrictions

You must be 21 years of age or older and otherwise legally able to use the App under all applicable laws, rules, regulations, orders, decrees, and ordinances (“Laws”). You are solely responsible for complying with applicable Laws. If you are under 21, we ask that you not access or use (or attempt to access or use) the App. In addition, persons under the age of 21 are not permitted to gamble at our casinos.

4. License

We hereby grant you a limited, personal, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable right to install and use the App for your personal purposes on one mobile device. Any commercial use is prohibited. The App is valuable intellectual property of MGM Resorts International and/or its affiliates or licensors. You obtain no rights to the App except to use it in accordance with this Agreement. You may not: (a) copy, redistribute, publish, reverse engineer, decompile, disassemble, modify, or translate the App or any component thereof; (b) sell, assign, sublicense, transfer, distribute, or lease the App or any component thereof; (c) use the App or any component thereof in any type of service provider environment or make the App available to any third party through a computer network or otherwise; (d) export the App or any component thereof to any country (whether by physical or electronic means); (e) reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes any portion of the App; or (f) use the App in a manner prohibited by applicable Laws or the terms of this Agreement (together “Prohibited Activities”). You will be solely liable for any damages, costs, expenses, losses, fines and penalties arising out of or in connection with the commission of any Prohibited Activities. You will notify us promptly upon becoming aware of the commission by any person of any Prohibited Activities and will provide us with reasonable assistance with any investigations we may conduct as a result.

5. Copyright and other Intellectual Property

The App, workflow processes, user interfaces, designs, know-how, and other content and materials available to you as part of the App, including trademarks, service marks, trade names and any other intellectual property rights, images, audio, videos, text, software and the “look and feel” of the App (collectively, “App Content”) are protected by copyright, trademark, and other intellectual property laws. You may not reproduce, republish, distribute, display, perform, transmit, sell, or otherwise use any App Content without our express written permission.

6. Copyright Infringement

Just as we ask others to respect our intellectual property rights, we respect the intellectual property rights of others. If you believe that any App Content infringes upon your copyright, please notify us at ip@mgmresorts.com. Your notice should include (a) a description of the copyrighted work that you claim has been infringed; (b) the screen where the allegedly infringing App Content is located; (c) your full name, postal address, telephone number, and email address; (d) a statement that you have a good faith belief that the use of the allegedly infringing material on the App is not authorized; (e) your physical or electronic signature; and (f) a statement that you are the copyright owner or an authorized agent of the copyright owner.

7. App Connectivity and Updates 

You are responsible for providing, at your own expense, all necessary equipment, Internet connectivity, service plans etc. that are necessary to access and use the App. We do not guarantee that the App can be accessed in all places, on all devices, via Wi-Fi service available at our properties, or through all wireless service plans. You understand and agree that (a) your wireless service provider or other third party may charge fees for data transmission resulting from your access and use of the App, and (b) the App may automatically download and install updates and additional features that we may make available from time to time.

8. Location Access and Push Notifications

You may receive information concerning events, products, services, promotional offers, etc. through the App based upon the location of your mobile device. Such information may be provided in a variety of ways including through in-App content and push notifications. After downloading the App, you will be asked to accept or deny location access and push notifications except that, for users of the Android mobile operating system, you consent to receive push notifications by installing the App (i.e., push notifications are “on” in your settings), and you must opt-out through the App Info screen if you do not want push notifications. If you accept location access, you agree that we and/or our service providers may have access to your location through your mobile device and use this location for marketing purposes such as delivering information concerning events, products, services, promotional offers etc. that we believe will be of interest to you based in whole or in part on our knowledge of your location. We may also use location tracking access for non-marketing purposes such as improving the functionality of the App. If you deny location access, you may not be able to access or receive some information concerning events, products, services, promotional offers, etc. that are available through the App. If you accept push notifications (or do not opt-out of receiving push notifications, as applicable), we may send you notifications through the App that we think will be of interest to you, including push notifications based on our knowledge of your mobile device’s location. If you deny push notifications (or opt-out from receiving push notifications), you may not receive notice of information concerning certain events, products, services, promotional offers, etc. that are available through the App. We do not guarantee that your device will always be able to successfully use location services and receive push notifications. Note that users of both iOS and Android mobile operating systems can change Location Access and Push Notifications settings at any time on your device by visiting the appropriate settings screen. For additional information concerning how we use and share information collected through the App, please see our Privacy Policy.

9. Passwords and Security 

Some features of the App may be restricted to registered users and/or MGM Rewards members. For example, only MGM Rewards members whose government-issued photo identification has been verified in accordance with established procedures set forth in the Digital Key Terms of Use are permitted to use the digital key functionality of the App. When you register for access to features of the App (including, but not limited to, restricted features), you agree to submit accurate and complete information and to update such information as required from time to time. If we suspect that your information is untrue, inaccurate, out-of-date, or incomplete, we may suspend or terminate your access to the App and/or request additional information from you. When registering for access to restricted features of the App, you may be asked to select a personal, non-transferable password. You may also be prompted to use touch ID, face ID, and/or other similar biometric information that is stored on your device(s) (but which is not collected, possessed, received or otherwise obtained or accessible to us) to access the App or features of the App without entering your password. You may also be asked to provide information that we will use to confirm your identity in the event you submit a request for a lost or forgotten username or password.

You are solely responsible for the confidentiality and use of your username, password and other security data and methods, and for the physical security of the mobile device(s) through which you access the App. You understand that you will be solely responsible for all reservations, bookings, and other activities electronically transmitted, or use of any data, information, or services obtained, using your username and password, and/or other security data. For example, you understand that if you choose to use features that enable other users to access your device(s), account(s), etc., you are solely responsible for any such use by you or any other person, and any activity initiated by another person will be considered to be activity authorized by you. You accept full responsibility for the monitoring of your account. You agree that we shall not be under a duty to inquire as to the authority or propriety of any instructions given to us by you or via your username and password or other security data, and shall be entitled to act upon any such instructions; and we will not be liable for any losses that you incur, (including any claims, damages, actions, demands, or other losses, as well as any costs, expenses charges, attorneys’ fees, or other fees and expenses incurred by you), or other liability arising out of any such instructions as long as such instructions reasonably appear to be authentic. You agree to notify us immediately of any unauthorized use of your password or account or any other breach of security that is known or suspected by you. Password-protected accounts may not be shared or used by more than one individual. You agree that we may send to you in electronic form (which may include email, text, and/or push notification) any notices or other communications regarding the App.

10. Submissions/Feedback 

We are pleased to hear from our customers and welcome feedback on the App. However, if you send us any ideas, suggestions, drawings, graphics, innovations, concepts, recommendations, or similar materials (“Submissions”) you agree that the Submissions are not confidential. You hereby assign such Submissions to us without compensation (or the expectation of compensation) and agree that we may disclose, reproduce, republish, modify, distribute, display, perform, transmit, sell, or otherwise use your Submissions for commercial or non-commercial purposes with no compensation to you. For any Submissions that cannot be legally assigned to us, you hereby grant us an unrestricted, perpetual, royalty-free, irrevocable and worldwide license to reproduce, republish, modify, distribute, display, perform, transmit, sell, or otherwise use your Submissions for commercial or non-commercial purposes with no compensation to you.

11. Prohibited Conduct 

You agree not to (a) upload, transmit, post, email, or otherwise make available through the App any material in any format that (i) is false, inaccurate, misleading, fraudulent, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, invasive of another's privacy, or libelous; (ii) infringes any third party's intellectual property or other proprietary right or rights of publicity or privacy; or (iii) contains viruses, worms, Trojan horses, time bombs, corrupted files, or any other software or programs designed to interrupt, interfere, intercept, expropriate, destroy or limit the functionality of the App or any software, hardware, source code or equipment associated with the App; (b) alter, remove, or falsify any attributions or other proprietary designations of origin or source of the App or App Content; (c) impersonate any person or entity, including our employees or officers, or falsely state or otherwise misrepresent your affiliation with any person or entity; (d) attempt, through any means, to gain unauthorized access to the App or another person’s account or information on or through the App; (e) use any robot, scraper, spider, or any other automatic device or manual process to monitor or copy the App or any App Content without our prior express written permission; (f) install or run the App on any device which is rooted, jailbroken or whose operating system software, hardware (including interface, display, geolocation and networking components) or firmware has been tampered with in any way; (g) take any action that imposes an unreasonable or disproportionately large load on the App; (h) take any action that creates liability for us or causes us to lose any of the services of our business partners, vendors or suppliers; (i) take any action that would cause you or us to violate any applicable Laws or that would violate this Agreement.

12. Promotional Information 

We make information available through the App regarding certain programs, offers, or promotions (“Promotions”). All Promotions are subject to the specific terms, conditions, and restrictions disclosed in connection with such Promotions and are subject to being withdrawn or changed without prior notice. We are not responsible for any typographical or other errors or omissions regarding prices, availability, requirements, or other information in connection with Promotions.

13. Links to Third-Party Sites 

The App may contain links to websites or other electronic destinations (“Third-Party Sites”) that are not owned or operated by us. We do not have any control over Third-Party Sites and are not responsible for any information, functionality, or content accessed through Third-Party Sites. By linking to Third-Party Sites, we do not represent or imply that we endorse such Third-Party Sites. You are responsible for taking the necessary precautions to protect yourself and your mobile device or computer from viruses, worms, and other harmful or destructive content that may be accessible through Third-Party Sites. We disclaim any responsibility for any harm resulting from your use of Third-Party Sites.

14. Disclaimer  

YOU AGREE THAT USE OF THE APP IS AT YOUR SOLE RISK. THE APP IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR AT OR THROUGH THE APP SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

WE MAKE NO WARRANTY THAT THE APP WILL MEET YOUR REQUIREMENTS, BE ACCURATE, COMPLETE, CURRENT OR TIMELY, UNINTERRUPTED, SECURE, OR ERROR FREE.

YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR MOBILE DEVICE, COMPUTER, COMPUTER NETWORK, OR DATA (INCLUDING LOSS OF DATA) THAT RESULTS FROM YOUR ACCESS OR USE OF THE APP. WE DO NOT WARRANT THAT THE APP IS FREE OF DEFECTS, VIRUSES, MALFUNCTIONS, OR HARMFUL COMPONENTS THAT COULD DAMAGE OR ALLOW UNAUTHORIZED ACCESS TO YOUR MOBILE DEVICE, COMPUTER, COMPUTER NETWORK, OR DATA.

WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE CAUSED, OR ALLEGED TO HAVE BEEN CAUSED, DIRECTLY OR INDIRECTLY, BY THE INFORMATION OR IDEAS CONTAINED, SUGGESTED OR REFERENCED AT OR THROUGH THE APP.

WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE APP IS APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU ACCESS OR USE THE APP FROM OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION, EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES.

15. Limitation of Liability 

NEITHER WE NOR OUR AFFILIATES, OR ANY OF THE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES (OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS) OF ALL SUCH ENTITIES SHALL BE LIABLE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RESULTING FROM THE APP OR THE USE, ATTEMPTED USE OR INABILITY TO USE THE APP, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST REVENUE, LOSS OF DATA, OR OTHER INTANGIBLES EVEN IF FORESEEABLE OR IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, YOU AGREE THAT OUR TOTAL LIABILITY FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE ACTUAL TOTAL AMOUNT RECEIVED BY US FROM YOU TO ACCESS THE APP. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages. Therefore, the exclusions set forth above may not apply to you.

I FURTHER UNDERSTAND AND AGREE THAT ALL RIGHTS UNDER SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY OF THE UNITED STATES ARE HEREBY EXPRESSLY WAIVED. SECTION 1542 READS AS FOLLOWS:

1542. CERTAIN CLAIMS NOT AFFECTED BY A GENERAL RELEASE. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

16. Indemnification 

You agree to indemnify, hold harmless, and release us, our affiliates, and each of our respective officers, directors, shareholders, members, employees, agents, representatives (and their respective successors and assigns) from and against any and all claims, damages, costs, expenses, losses, fines and penalties including, but not limited to, reasonable attorney's fees, arising from or related to your access, use, attempted use, inability to use or misuse of the App or noncompliance with this Agreement.

17. Export Controls, Designated Persons and Prohibited Persons/Excluded Persons 

We control and operate the App from the United States and it is possible that software available at or through the App may be subject to United States export controls administered by the United States Commerce Department or sanctions programs administered by the United States Treasury Department. Although it is envisioned that the App will be used primarily by persons who are residents of the United States, no software available on or through the App may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) any country subject to a United States or United Nation embargo or sanction; (b) to anyone on the United States Treasury Department's list of Specially Designated Nationals and Blocked Persons (“SDN List”); (c) to anyone on the United States Commerce Department’s Denied Persons List or Entity List; or (d) to anyone subject to the same or similar restrictions as the foregoing. By downloading or using the App, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any of the above lists or subject to such restrictions.

Although it is envisioned that the App will be used primarily by persons who are residents of the United States, no person shall use the App for making reservations or travel arrangements for (i) “designated persons” that are government officials or residents of certain embargoed countries; (ii) or terrorists or drug traffickers or other persons or entities whose names are published on the SDN List; or (iii) anyone on the Nevada Gaming Control Board’s Excluded Person List or List of Denials, Revocations & Findings of Unsuitability (or any other similar list of any state where our casinos are located, as applicable).

18. Responsible Gaming

We offer GameSense information (available at www.mgmresorts.com/gamesense) to our patrons to encourage responsible gaming. If you or someone you know has a gambling problem or concerns with gambling responsibly, please call the 24-hour Problem Gambler’s Helpline at 800.522.4700, or call 1.800.GAMBLER (in New Jersey and Maryland), 1.800.426.1234 (in Massachusetts) or 1.800.270.7117 (in Michigan). Or visit mdgamblinghelp.org (in MD) or gamesensema.com (in MA) for help. Please play responsibly. If you bet more that you can afford to lose, you’ve got a problem.

19. Arbitration

YOU AND MGM AGREE TO RESOLVE ANY AND ALL DISPUTES, CLAIMS, OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR SITE, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, ONLY THROUGH BINDING ARBITRATION OR IN SMALL CLAIMS COURT.  ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY.  IT ALSO ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT. AN ARBITRATION DECISION IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. YOU MAY CHOOSE TO BE REPRESENTED BY A LAWYER IN ARBITRATION OR PROCEED WITHOUT ONE. YOU UNDERSTAND AND AGREE THAT THEY ARE GIVING UP THE RIGHT TO BRING A CLAIM IN COURT, OTHER THAN SMALL CLAIMS COURT. YOU ALSO UNDERSTAND AND AGREE THAT THEY ARE GIVING UP THE RIGHT TO HAVE A JURY DECIDE THEIR CLAIM OR TO COMMENCE, PARTICIPATE IN, OR RECOVER THROUGH A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION FOR ANY DISPUTE WITHIN THE SCOPE OF THIS AGREEMENT.   MGM AND YOU ALSO ACKNOWLEDGE AND AGREE AS FOLLOWS:

A. Scope of Agreement to Arbitrate; Venue; JAMS Arbitration.  Except for claims submitted to small claims court, any dispute, claim or controversy arising out of or relating to this Agreement or the Site, including the determination of the scope or applicability of this Agreement to Arbitrate, shall be determined by binding arbitration before one neutral arbitrator in Clark County, Nevada unless JAMS Rules require another location. Also, the parties may agree or the arbitrator may decide to conduct the arbitration over the telephone, using video conferencing, or other remote technology.

The Federal Arbitration Act (“FAA”) applies to this agreement to arbitrate.  In particular, the FAA applies even if a choice of law principle would result in application of a different law.  No provision of this Agreement to Arbitrate will be interpreted to preclude application of the FAA.  If a court nevertheless concludes for any reason that the FAA does not apply, then the laws of the State of Nevada shall govern this Agreement to Arbitrate and no effect shall be given to any Nevada choice of law or conflict of law rules or provisions that would cause the application of the laws of any other state.  

Judgment on any arbitration award may be entered in any court having competent jurisdiction. This clause shall not preclude an arbitration party from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction. Any arbitration hereunder shall be conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those rules exist on the effective date of this Agreement to Arbitrate, including rules 16.1 and 16.2 of those rules (“JAMS Rules”). These rules are available for your review at https://www.jamsadr.com/rules-comprehensive-arbitration/.  The parties agree, notwithstanding anything to the contrary in JAMS Rules, that dispositive motions are permitted.  Nothing contained herein prevents you from bringing any issues you may have to the attention of federal, state, or local government agencies or authorities. 

B. No Class, Collective, Representative, or Mass Actions or Arbitrations: You and MGM agree that either may bring claims against the other only in an individual capacity and not as a representative plaintiff or class member in any purported class, collective, representative, or mass arbitration proceeding. Furthermore, unless agreed by you and MGM otherwise or except as set forth below in subparagraph J, the arbitrator may not consolidate more than one person’s claim with another person’s claims or another person’s claims, and may not otherwise preside over any form of a class, collective, representative, or mass arbitration proceeding. To avoid any doubt, except pursuant to an agreement between you and MGM or except as set forth below in subparagraph J, nothing herein allows class, collective, representative, or mass arbitrations even if the relevant arbitration rules and procedures would so provide. Notwithstanding any other provision of this Agreement to Arbitrate, the arbitrator may award monetary 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. Any question regarding the enforceability or interpretation of this paragraph shall be decided by a court and not the arbitrator. If any provision of this subparagraph B is found to be unenforceable, then the entirety of this agreement to arbitrate shall be null and void, except that the parties’ agreement to bring claims only in an individual capacity and not as not as a representative plaintiff or class member in any purported class, collective, or mass proceeding will remain in effect, including in any court proceeding.

C. Seeking Arbitration; Filing in Small Claims Court: If you or MGM seeks to pursue arbitration, or file a small claims court action (as set forth below), you or MGM must first send a written notice of the claim (“Notice”) before filing the arbitration demand or the small claims court action. If you seek to file the arbitration demand or small claims court action, you must send the Notice by certified mail to: Senior Vice President and Legal Counsel (Litigation), 6385 S. Rainbow Blvd., Suite 500, Las Vegas, Nevada 89118, and must include your name, address, telephone number, and MGM Rewards Account Number (if you have one). If MGM seeks to file the arbitration demand or small claims court action, MGM will send a written notice to the email or physical mailing address it has for you. If such contact information has not been provided, MGM may also use any other reasonable means to contact you to provide the Notice, including by posting a message in your MGM Rewards Account (if you have one). A Notice, whether sent by you or MGM, must (a) describe the nature and basis of the claim or dispute, including the specific facts that support that particular claimant’s claim; (b) set forth the specific relief sought by that particular claimant, including the amount of damages that claimant seeks (“Demand”). The Notice and Demand shall be signed by the claimant and the claimant shall declare under penalty of perjury that the facts stated in the Notice and Demand are true and correct.  The Notice and Demand is designed to allow the party receiving the Notice to make, if appropriate, a fair, fact-based offer of settlement if it chooses to do so within a 30-day period following actual receipt of the Notice and Demand. The party receiving the notice may, but is not obligated to, make a written settlement offer during that time. If you and MGM do not reach an agreement to resolve the claim within 30 days after the Notice and Demand are received, the party sending the Notice and Demand may file a claim in any small claims court within the United States having jurisdiction (including personal jurisdiction) to hear the claim or, only if the claim cannot be heard in small claims court, commence an arbitration proceeding. Arbitration forms can be downloaded from www.jamsadr.com.  If required by controlling, applicable law, the limitations period for filing a claim will be tolled during the 30-day notice period described in this paragraph.  The filing of an arbitration demand is the equivalent of filing a court complaint for purposes of compliance with any applicable statute of limitations.

D. Fees and Costs:  The payment of all administrative fees and costs associated with the arbitration, including the payment of all arbitrator fees, will be governed by the JAMS Rules; provided, however, that MGM shall pay any administrative fees or costs incidental to the arbitration that you would not incur in a court proceeding. However, if this division of fees and costs conflicts with the laws of the applicable jurisdiction under this Paragraph 19 and those laws are not preempted by this agreement or the FAA, the fees and costs terms of that jurisdiction’s laws shall apply.  

The prevailing party shall be entitled to an award of reasonable attorneys’ fees and costs unless the laws of the applicable jurisdiction under this Paragraph 19 affirmatively prohibit such an award to either party and those laws are not preempted by this agreement or the FAA. Unless forbidden by the laws of the applicable jurisdiction under this Paragraph 19, and unless those laws are not preempted by this agreement or the FAA, neither party shall be entitled to an award of reasonable attorneys’ fees and costs if the laws of the applicable jurisdiction under this Paragraph 19 do not allow for all parties to the proceeding to recover such fees.  In an arbitration, if the arbitrator determines that a claim was filed for purposes of harassment or is frivolous, the non-prevailing party shall reimburse the prevailing party for any administrative fees or costs associated with the arbitration, as well as for the prevailing party’s reasonable attorneys’ fees and costs.  At any point during the arbitration or small claims court proceeding and before a final award is rendered by the arbitrator or a final judgment is issued by the small claims court, any party may make an offer of judgment.  If the plaintiff or claimant makes an offer of judgment that is not accepted by the defendant or respondent and if that offer is less than what the plaintiff or claimant receives in a final award or a final judgment, then the plaintiff or claimant shall recover the plaintiff or claimant’s attorneys’ reasonable attorneys’ fees and costs.  If the defendant or respondent makes an offer of judgment that is not accepted by the plaintiff or claimant and if that offer is greater than what the plaintiff or claimant receives in a final award or a final judgment, then the defendant or respondent shall recover the defendant or respondent’s reasonable attorneys’ fees and costs. The preceding three sentences shall not apply if the laws of the applicable jurisdiction under this Paragraph 19 preclude their provisions and those laws are not preempted by this agreement or the FAA.  When a recovery of attorneys’ fees and costs is authorized, the arbitrator will rule upon a motion for fees and costs under the same standards a court would apply to such a motion.  

E. Hearing: The parties may choose to conduct the arbitration solely on the basis of documents submitted to the arbitrator or through a telephonic or video hearing, or by an in-person hearing as established by the JAMS Rules.

F. Injunctive Relief: Notwithstanding anything contained herein, you and MGM agree that the parties may sue in court to enjoin infringement of intellectual property rights.  However, any claim for damages, even if brought in connection with a claim for injunctive relief, must be filed in small claims court or in arbitration pursuant to the terms of this Agreement to Arbitrate.

G. Awards: At the outset of the arbitration, the parties shall consider agreeing to the JAMS Arbitration Appeal Procedures (“Appeal Procedures”) with respect to any final award in an arbitration hereunder.  The parties are not required to agree to the Appeal Procedures. The Appeal Procedures will be implemented only by mutual agreement according to the JAMS Rules. An arbitration award, any judgment confirming it, and any decisions by an arbitrator apply only to that specific arbitration; they cannot be used and cannot be given any preclusive, collateral estoppel, or res judicata effect in any other proceeding except to enforce the award itself.

H. Confidentiality: You and MGM shall maintain the confidential nature of the arbitration and any award arising therefrom, 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.

I. Small Claims Court: For claims within the jurisdictional limit of any small claims court within the United States having jurisdiction (including personal jurisdiction) to hear the claim at issue, you or MGM must bring an individual action in small claims court instead of proceeding to arbitration. Also, if the claims in any Notice and Demand for arbitration should have been brought in small claims court, then the party receiving the Notice and Demand may choose to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party of that choice in writing.  Upon receiving such a notice, the party who submitted the Notice and Demand shall only file an action in small claims court and may not file a demand for arbitration.  If this provision is found to be invalid, then this provision shall be severable and the matter will proceed in arbitration. Claims brought in small claims court may only be brought in an individual capacity and not as a representative plaintiff or class member in any purported class, collective, representative, or mass proceeding.

J. Mass Filings of Individual Arbitrations:  If you or MGM submits a Notice or Demand that includes a claim that is similar to the claims of 25 or more Notices and Demands submitted by other persons within 180 days of the Notice or Demand submitted by you or MGM, or if your counsel or MGM’s counsel submits claims to the responding party on behalf of 25 or more persons within 180 days of yours or MGM’s Notice or Demand, the claims shall proceed in arbitration in a coordinated proceeding pursuant to the terms of this subparagraph J.  

Process Arbitrator: JAMS shall appoint a single Process Arbitrator using the JAMS Rules’ arbitrator selection process.  MGM will pay all fees related to the Process Arbitrator.  The Process Arbitrator will be responsible for addressing procedural issues that involve more than one batch of individualized cases, such as coordinating discovery across batches, deciding whether claims are similar to one another, and determining whether adjustments made be needed to the batching, bellwether, and mediation procedures set forth below in light of the totality of circumstances presented by a particular set of similar claims.  The Process Arbitrator shall not decide the merits of any claims.  

Bellwether Proceeding and Mediation: Your counsel and MGM’s counsel shall select 5 cases each (10 cases in total) to proceed first in arbitration in a Bellwether Proceeding. The remaining cases shall not be filed in arbitration until the first 10 have been decided by the first merits arbitrator. The period of any applicable statute of limitations will be tolled for a claimant as of the date that the claimant submitted a Notice and Demand.  A party who has served a Notice and Demand and who is waiting to file an arbitration demand may instead choose to file a claim in a small claims court within the United States having jurisdiction over the claim.  Following the first merits arbitrator’s final award, that merits arbitrator shall provide a JAMS-appointed mediator and counsel for all parties having similar claims with a copy of the reasoned decision explaining the bases for the final award with personal information redacted to protect the privacy of the first 10 claimants.  MGM will pay all fees related to the mediation.  For 90 days following the mediator’s receipt of the redacted reasoned decision, the parties shall negotiate in good faith to achieve resolution of the outstanding claims. If the parties are unable to resolve the remaining cases after the conclusion of this 90-day mediation period, each side may select another 5 cases to proceed to arbitration for a second Bellwether Proceeding followed by another mediation process as described above. This process may continue until the parties are able to resolve all of the similar claims. 

Batching of Cases: Each batch of 10 cases shall be filed as a single arbitration proceeding.  The arbitration provider shall treat each batch as one case, with each batch and case having one demand for arbitration, one appointed arbitrator, and one set of administrative documents and administrative and filing fees per batch.  You and MGM agree to cooperate in good faith with each other and the arbitration provider to implement this batching approach.  If the arbitration provider declines to batch cases or assess fees as provided for above, either party may attempt to negotiate with the arbitration provider regarding administrative and filing fees and then, after engaging in such negotiations, a party required to pay such fees in 25 or more cases involving similar claims may elect to serve notice on all other parties that it will not proceed with arbitration, in which case the other parties must file their claims in court. 

Adjustments to the Batching, Bellwether Proceeding, and/or Meditation Process: If a party cannot file a claim in small claims court, and if that party will not be able to file a claim in arbitration within two years of having submitted a Notice and Demand in light of the procedures set forth above, then that party or the responding party may request that the Process Arbitrator adjust those procedures in a manner that will fairly balance the parties’ respective interests.  The Process Arbitrator will solicit, consider, and balance the parties’ legitimate interests in formulating a plan for efficiently and fairly arbitrating the claims of such parties.  The Process Arbitrator shall consider the parties’ interests in the timely resolution of the claims, the requirement for individualized adjudication of claims, the importance of avoiding excessive fees and costs that may be associated with having a large number of arbitrators hearing similar claims, and other factors that the parties may raise with the Process Arbitrator.  

Court Enforcement: A court will have authority to interpret and enforce this subparagraph J and, if necessary, to enjoin conduct that would violate this subparagraph.  

Determination of Unenforceability: If any provision of this subparagraph J is found to be unenforceable, then the entirety of this agreement to arbitrate shall be null and void, except that the parties’ agreement to bring claims only in an individual capacity and not as not as a representative plaintiff or class member in any purported class, collective, or mass proceeding will remain in effect, including in any court proceeding.

K. Savings and survival: Except as provided for in subparagraphs B and J, if a court or arbitrator having jurisdiction finds any portion of this Agreement to Arbitrate unenforceable, that portion shall not be effective and the remainder of the agreement shall remain effective. No waiver, express or implied, by you or MGM of any breach of or default hereunder will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default. This Agreement to Arbitrate shall survive termination of any relationship you may have with MGM and even after you have stopped receiving services or products from MGM.

L. Waiver of Jury Trial:  You and MGM agree to waive your right to a trial by jury for all claims in arbitration. In addition, if for any reason a claim proceeds in court rather than through arbitration, you and MGM agree that there will not be a jury trial except as to any specific claims for which applicable law provides for a non-waivable right to a jury trial. You and MGM unconditionally waive, to the maximum extent permitted by applicable law, any right to trial by jury for any dispute, claim or controversy arising out of or relating to this Agreement or the Site, including the determination of the scope or applicability of this Agreement to Arbitrate. In the event of litigation, this paragraph may be filed to show a written consent to a trial by the court.

M. Classwide Settlement: Nothing in this Agreement to Arbitrate shall preclude you or MGM from negotiating or agreeing to a classwide settlement or from participating in any court proceedings in connection with such a settlement.  

N. Opting Out: If you are not already bound to an arbitration provision with MGM relating to this Agreement or the Site where you had the opportunity to opt out of the requirement to arbitrate, you can choose to reject this Agreement to Arbitrate by mailing us a written opt-out notice ("Opt-Out Notice") in accordance with the terms of this Section. If you are already bound to such an arbitration provision relating to your use of the Site, you may opt out of any revisions to your prior arbitration agreement made by this Agreement to Arbitrate in the manner specified below, but opting out of such revisions shall otherwise have no effect on any previous, other, or future arbitration agreements that you may have with MGM. 

The Opt-Out Notice must be postmarked no later than 30 days after the date you receive notice of this Agreement to Arbitrate. You must mail the Opt-Out Notice to Senior Vice President Legal Counsel (Litigation), MGM Resorts International, 6385 S. Rainbow Blvd., Suite 500, Las Vegas, NV 89118. The Opt-Out Notice must state that you do not agree to this Agreement to Arbitrate and must include your name, address, phone number, and email address you provided to MGM. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. Opting out of the Agreement to Arbitrate will not affect the applicability of any other terms or agreements you may have with MGM.

20. Entire Agreement, Modification and Amendments

This Agreement is the entire agreement between you and us regarding the App. You understand and agree to be bound by the Agreement as it may be amended from time to time. We may amend the Agreement at any time, in our sole and complete discretion, either by (a) sending you an electronic notice (which may include email, text, and/or push notification) notifying you of the amendments, and/or (b) publishing the amended Agreement on the App or any place through which you access the App. Any amendment to the Agreement will take effect on the sooner of (x) the day you are notified electronically, or (y) the day of first publication on the App or any place through which you access the App. If any amendment is unacceptable to you, your only recourse is to terminate use of the App. Your continued access or use of the App following notification of any amendment(s) will be deemed binding acceptance of the Agreement as amended. It is your sole responsibility to review the Agreement and any amendments each time you use the App.

21. Miscellaneous

We reserve the right to suspend, terminate, restrict or modify your access to the App at any time, in our sole and complete discretion, without prior notice or liability. We may at any time and for any reason in our sole discretion, modify, suspend, or discontinue the App. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the remainder of the Agreement, which shall remain in full force and effect. No waiver of any breach or default of the Agreement shall be deemed to be a waiver of any preceding or subsequent breach or default. You may be required to agree to additional terms and conditions to access particular sections or functions of the App. We reserve the right, in our sole discretion and without consent or notice, to transfer, assign, sublicense or pledge the App or this Agreement, in whole or in part, to any person or entity. You may not assign, sublicense or otherwise transfer in any manner any of your rights or obligations under the Agreement. The section headings used in the Agreement are for convenience only.

Updated on September 8, 2023

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