Please carefully read this agreement to arbitrate any and all disputes.
1. In the event of a dispute between you and The Cosmopolitan unless otherwise agreed below, any and all claims arising from the dispute, including a claim challenging the validity or enforceability of this provision, must be resolved by binding arbitration instead of in court if either side requests binding arbitration. This means if either you or we choose arbitration, NEITHER PARTY HAS THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL AND DISCOVERY AND APPEAL RIGHTS WILL BE LIMITED. Even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any new claims later asserted in that lawsuit.
2. CLASS ACTION WAIVER. CLAIMS MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER GUESTS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Notwithstanding the above limiting all disputes to arbitration, only a court, and not an arbitrator, may determine the validity and effect of the Class Action Waiver.
3. Small Claims Court. We will not choose to arbitrate any claim you bring in small claims court. However, in the event a claim initially filed by you in small claims court is transferred, removed, or appealed to a different court, we may then choose to arbitrate.
4. Written Notices. All written notices sent by you in connection with this Agreement to Arbitrate must be sent to Nevada Property 1 LLC d/b/a The Cosmopolitan of Las Vegas, Attn: Legal, 3708 Las Vegas Boulevard South Las Vegas, NV 89109.
5. Right to Reject. YOU HAVE THE RIGHT TO REJECT THIS AGREEMENT TO ARBITRATE. You may reject the Agreement to Arbitrate only if we receive from you by certified mail a written notice of rejection within the earlier of (a) thirty (30) days after you click the “Complete Reservation” button; (b) seventy two (72) hours before the arrival date listed in your Reservation; or (c) if your Reservation is made within seventy-two (72) hours before the arrival date listed in your Reservation, seven (7) days after your arrival date. Your rejection notice must include your name, address, phone number, reservation number, and state “REJECTION NOTICE” in the subject line of the notice. Your rejection notice also must not be sent with any other correspondence. Rejection of arbitration will not affect your other rights or responsibilities under these Terms and Conditions. If you reject arbitration, neither you nor we will be subject to the arbitration provisions for your Reservation, however, the Class Action Waiver remains in effect.
6. Notice of Dispute. If a party decides to seek arbitration, the party must first send, by certified mail, a written Notice of Dispute (“Notice”) addressed to the other party. The Notice must (i) describe the nature and basis of the claim; and (ii) set forth the specific relief sought. If we decide to seek arbitration, we may send the Notice addressed to you at your address that we have on file. If you decide to seek arbitration, you must send written notice to the address above. If we and you do not reach an agreement to resolve the claim within 60 days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made may not be disclosed to the arbitrator.
7. Governing Law and Rules. This provision is governed by the Federal Arbitration Act (FAA) and the laws of Nevada to the extent the laws of Nevada do not conflict with the FAA. You agree that arbitration may proceed with the American Arbitration Association (AAA) or, if we decide not to proceed with the AAA, arbitration must proceed with organization mutually agreed upon by the parties. The rules for the arbitration will be those in this Agreement to Arbitrate and the procedures of the chosen arbitration organization, but the rules in this Agreement to Arbitrate will be followed if there is disagreement between the Agreement to Arbitrate and the organization’s procedures. If the organization’s procedures change after the claim is filed, the procedures in effect when the claim was filed will apply. For a copy of the AAA’s procedures, to file a claim or for other information, please contact the AAA at 1101 Laurel Oak Rd., Suite 100, Voorhees, NJ 08043, www.adr.org, phone 1-800-778-7879. If AAA is completely unavailable, and if you and we cannot agree on a substitute, then either you or we may request that a court appoint a substitute.
8. Hearings and Decisions. Arbitration hearings will take place in Clark County, Nevada or at such other location as may be mutually agreed upon. A single arbitrator will be appointed.
The arbitrator must, at a minimum:
- Be a retired judge or justice of any Nevada state or federal court;
- Follow all applicable substantive law of the State of Nevada applicable to contracts made and to be performed entirely within such State without regard to Nevada’s conflicts of laws principles, except when contradicted by the FAA;
- Follow applicable statutes of limitations of the State of Nevada;
- Honor valid claims of privilege; and
- Issue a written decision including the reasons for the award.
The arbitrator’s decision will be final and binding except for (1) any review allowed by the FAA; (2) a decision that awards more than $10,000 may be appealed to a new appellate arbitrator by the party who is to pay the award; and (3) an award of injunctive relief may be appealed to a new appellate arbitrator by the party to be enjoined. The appellate arbitrator is completely free to accept or reject the entire original award or any part of it. The appeal must be filed with the arbitration organization not later than 30 days after the original award issues. The appealing party pays all appellate costs unless the appellate arbitrator determines otherwise as part of its award. Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction.
9. Confidentiality. All aspects of an arbitration, including the hearing and record of the proceeding, will be confidential and will not be open to the public, except (i) to the extent both you and we agree otherwise in writing; (ii) as may be appropriate in any subsequent proceeding between you and us; or (iii) as may otherwise be appropriate in response to a governmental agency or legal process. All settlement negotiations, mediations, and the results thereof are confidential.
10. Fees and Costs. If you wish to begin arbitration against us but you cannot afford to pay the organization’s or arbitrator’s costs, we may advance those costs if you send us a written notice with a request to advance costs. If the arbitrator does not rule in your favor on all claims brought by you during the arbitration, the arbitrator will decide whether you must reimburse us for money we advanced for you for the arbitration. If the arbitrator rules in your favor on all claims brought by you during the arbitration, we will not ask for reimbursement of money we advanced.
11. Other Beneficiaries. In addition to you and us, the rights and duties described in this provision apply to: our parent companies, subsidiaries and affiliates, and our and their officers, directors, employees, and agents; any third party co-defendant of a claim subject to this provision; and all guests visiting The Cosmopolitan in connection with, a result of, or relating to any claim subject to this provision.
12. Severability. If any part of this provision is deemed or found to be unenforceable for any reason (except as set forth in the following sentence), the remainder shall remain enforceable. However, if the Class Action Waiver above is deemed or found to be unenforceable for any reason, this entire provision will be deemed unenforceable.