Class Action Waiver. You and we both agree, to the fullest extent allowed by law, to all of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other terms.

Appears in 52 contracts

Samples: Cardmember Agreement, Cardmember Agreement, Cardmember Agreement

Class Action Waiver. ~~You and we both agree~~EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS SECTION 7.11, to the fullest extent allowed by law, to all of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS ANY ARBITRATION OR COURT ACTION HEREUNDER SHALL PROCEED SOLELY ON AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES INDIVIDUAL BASIS WITHOUT THE RIGHT FOR ANY CLAIMS TO ~~GO TO COURT~~ BE ARBITRATED OR LITIGATED ON A CLASS OR COLLECTIVE ACTION BASIS OR ON A BASIS INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF OTHERS OR ANY GOVERNMENTAL BODY OR THE PUBLIC. CLASS AND ~~TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT~~COLLECTIVE ACTIONS UNDER THIS DISPUTE RESOLUTION PROVISION ARE PROHIBITED, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (WHETHER IN COURT OR ARBITRATION, AND THE ARBITRATOR OR COURT, AS APPLICABLE, SHALL HAVE NO AUTHORITY TO PROCEED ON SUCH BASIS. NO DISPUTE, CONTROVERSY, CLAIM OR ACTION BROUGHT IN ~~ARBITRATION):~~ COURT OR ARBITRATION BY EXECUTIVE ARISING UNDER OR RELATING TO THIS AGREEMENT OR OTHERWISE ARISING IN CONNECTION WITH OR RELATING TO EXECUTIVE’S EMPLOYMENT MAY BE JOINED WITH A DISPUTE, CONTROVERSY, CLAIM OR ACTION OF ANOTHER EXECUTIVE OR OTHER PERSON OR ENTITY, ANY SUCH JOINT CLAIMS BEING WAIVED BY EXECUTIVE HEREUNDER, EXCEPT THAT THE COMPANY MAY BRING CLAIMS IN ARBITRATION OR COURT TO ENFORCE THIS AGREEMENT AND RELATED TORT, STATUTORY AND OTHER CLAIMS AGAINST EXECUTIVE AND OTHERS WHO ARE ACTING IN CONCERT OR PARTICIPATION WITH EXECUTIVE, AND IN ANY SUCH PROCEEDING EXECUTIVE MAY JOIN ANY CLAIMS OF SUCH OTHER PARTIES (BUT NO OTHERS). ANY DISPUTES REGARDING THE VALIDITY AND ENFORCEABILITY OF THIS SECTION 7.11 AND THE WAIVER HEREIN SHALL BE RESOLVED EXCLUSIVELY BY THE DULY-APPOINTED ARBITRATOR, AND NOT BY A COURT OR OTHER GOVERNMENTAL OR ADMINISTRATIVE BODY. IN ANY CASE IN WHICH (1) ~~BRING A CLAIM~~ THE DISPUTE IS FILED AS A ~~CLASS~~ CLASS, COLLECTIVE, REPRESENTATIVE OR JOINT ACTION ~~OR IN A REPRESENTATIVE CAPACITY; OR~~ AND (2) ~~PARTICIPATE~~ THE ARBITRATOR FINDS ALL OR PART OF THE CLASS ACTION WAIVER TO BE INVALID OR UNENFORCEABLE, THE CLASS, COLLECTIVE, REPRESENTATIVE OR JOINT ACTION TO THAT EXTENT MUST BE LITIGATED IN A ~~CLAIM~~ COURT WITH JURISDICTION AND VENUE AS A PROVIDED IN SECTION 7.10, AND NOT IN ARBITRATION, BUT THE PORTION OF THE CLASS ~~MEMBER. • Except as otherwise provided in this provision~~ACTION WAIVER THAT IS ENFORCEABLE SHALL BE ENFORCED IN ARBITRATION, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termsAND CLAIMS FALLING THEREUNDER SHALL BE ADJUDICATED IN ARBITRATION.

Appears in 16 contracts

Samples: Executive Employment Agreement (Larkspur Health Acquisition Corp.), Executive Employment Agreement (ZyVersa Therapeutics, Inc.), Executive Employment Agreement (Larkspur Health Acquisition Corp.)

Class Action Waiver. You and we both agree, to the fullest extent allowed by law, to all of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 16 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law~~. 18 Other terms~~.

Appears in 7 contracts

Samples: Cardmember Agreement, Cardmember Agreement, Cardmember Agreement

Class Action Waiver. ~~You and we both agree~~YOU AND BNEA HEREBY AGREE: (i) THAT EACH CLAIM IS PERSONAL TO YOU AND BNEA, ~~to the fullest extent allowed by law~~AND SHALL ONLY BE CONDUCTED AS AN INDIVIDUAL ARBITRATION (OR AN INDIVIDUAL COURT PROCEEDING, to all of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against usWITH RESPECT TO CLAIMS EXCLUDED FROM THE ARBITRATION AGREEMENT, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY PURSUANT TO ~~REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT~~ SUBPART 14.a.iii) AND ~~TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY~~ NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR ~~IN A~~ OTHER FORM OF REPRESENTATIVE ~~CAPACITY~~ACTION; (ii) EXPRESSLY WAIVE ANY RIGHT TO FILE OR ~~(2)~~ PARTICIPATE IN A ~~CLAIM~~ CLASS ACTION OR SEEK RELIEF ON A CLASS OR REPRESENTATIVE BASIS; AND (iii) THE ARBITRATOR (OR COURT, WITH RESPECT TO CLAIMS EXCLUDED FROM THE ARBITRATION AGREEMENT, PURSUANT TO SUBPART 14.a.iii) MAY ONLY CONDUCT AN INDIVIDUAL ARBITRATION (OR COURT ACTION, WITH RESPECT TO CLAIMS EXCLUDED FROM THE ARBITRATION AGREEMENT, PURSUANT TO SUBPART 14.a.iii), MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL’S CLAIMS, AND MAY NOT PRESIDE OVER ANY FORM OF REPRESENTATIVE OR CLASS PROCEEDING RELATING TO SUCH CLAIMS. UNLESS YOU SUBMIT A PROPER OPT OUT NOTICE (AS DESCRIBED IN SUBSECTION 14.c), YOU AND BNEA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termsMEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

Appears in 7 contracts

Samples: License Agreement, License Agreement, License Agreement

Class Action Waiver. ~~You and we both agree~~EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS SECTION 10(C), to the fullest extent allowed by law, to all of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS ANY ARBITRATION OR COURT ACTION HEREUNDER SHALL PROCEED SOLELY ON AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES INDIVIDUAL BASIS WITHOUT THE RIGHT FOR ANY CLAIMS TO ~~GO TO COURT~~ BE ARBITRATED OR LITIGATED ON A CLASS OR COLLECTIVE ACTION BASIS OR ON A BASIS INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF OTHERS OR ANY GOVERNMENTAL BODY OR THE PUBLIC. CLASS AND ~~TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT~~COLLECTIVE ACTIONS UNDER THIS DISPUTE RESOLUTION PROVISION ARE PROHIBITED, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (WHETHER IN COURT OR ARBITRATION, AND THE ARBITRATOR OR COURT, AS APPLICABLE, SHALL HAVE EXECUTION VERSION NO AUTHORITY TO PROCEED ON SUCH BASIS. NO DISPUTE, CONTROVERSY, CLAIM OR ACTION BROUGHT IN COURT OR ARBITRATION BY EMPLOYEE ARISING UNDER OR RELATING TO THIS AGREEMENT OR OTHERWISE ARISING IN CONNECTION WITH OR RELATING TO EMPLOYEE’S EMPLOYMENT OR AFFILIATION WITH THE COMPANY AFFILIATED GROUP MAY BE JOINED WITH A DISPUTE, CONTROVERSY, CLAIM OR ACTION OF ANOTHER EMPLOYEE OR OTHER PERSON OR ENTITY, ANY SUCH JOINT CLAIMS BEING WAIVED BY EMPLOYEE HEREUNDER, EXCEPT THAT THE COMPANY (OR ANY MEMBER(S) OF THE COMPANY AFFILIATED GROUP) MAY BRING CLAIMS IN ARBITRATION OR COURT TO ENFORCE THIS AGREEMENT AND RELATED TORT, STATUTORY AND OTHER CLAIMS AGAINST EMPLOYEE AND OTHERS WHO ARE ACTING IN CONCERT OR PARTICIPATION WITH EMPLOYEE, AND IN ANY SUCH PROCEEDING EMPLOYEE MAY JOIN ANY CLAIMS OF SUCH OTHER PARTIES (BUT NO OTHERS). ANY ISSUE CONCERNING THE ENFORCEABILITY OR VALIDITY OF THIS SECTION 10(C) AND THE WAIVER HEREIN SHALL BE DECIDED BY A COURT WITH JURISDICTION AND VENUE AS PROVIDED IN SECTION 10(B). IN CONNECTION THEREWITH, IF THERE IS A DETERMINATION BY SUCH COURT THAT THIS SECTION 10(C) IS UNENFORCEABLE, THEN ANY CLASS, COLLECTIVE, REPRESENTATIVE OR JOINT ACTION BY THE PARTIES SHALL ONLY BE BROUGHT IN A COURT WITH JURISDICTION AND VENUE AS PROVIDED IN SECTION 10(B), AND NOT IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other terms.

Appears in 4 contracts

Samples: Employment and Severance Agreement (ONESPAWORLD HOLDINGS LTD), Employment and Severance Agreement (ONESPAWORLD HOLDINGS LTD), Employment and Severance Agreement (ONESPAWORLD HOLDINGS LTD)

Class Action Waiver. You and we both agree, to the fullest extent allowed by law, to all of the following (the “"Class Action Waiver”"): ° o Claims will not under any circumstances be pursued in Class Proceedings; ° o We waive the right to bring or to participate in Class Proceedings against you; ° o You waive the right to bring or to participate in Class Proceedings against us; ° o If some other person initiates a Class Proceeding against you,, we may not and will not join that proceeding or participate as a member of that class; and ° o If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • ● WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “"CLAIM” " BE RESOLVED BY BINDING ARBITRATION. • ● ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • ● YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • ● Except as otherwise provided in this provision, you and we agree to all of the following: ° o You may choose to have any Claim we bring against you be resolved through binding arbitration; ° o We may choose to have any Claim you bring against us be resolved through binding arbitration; ° o We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° o Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° o If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • ● If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° o Litigate that Claim in court; ° o Have a jury trial on that Claim; or ° o Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • ● Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • ● Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. ~~17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) •~~ ● The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • ● For arbitrations with an Administrator, all of the below will apply: ° o Arbitrations shall be conducted according to the Rules; ° o The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° o The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • ● For arbitrations without an Administrator, all of the below will apply: ° o Arbitrations shall be conducted according to the AAA Rules; ° o The Arbitrator shall take the place of AAA in the AAA Rules; and ° o The person(s) you and we mutually agree upon will be the Arbitrator. • ● Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • ● You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • ● You and we may be represented by counsel in any arbitration. • ● The Arbitrator shall have no authority to award punitive damages. • ● The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • ● Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° o As noted below for Class Proceedings; and ° o A court will decide whether a Claim is an Ordinary Claim. • ● An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • ● If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • ● If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • ● If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • ● The terms of this arbitration provision shall survive all of the below events: ° o The repayment of your account; ° o Changes to your account or Agreement (see the “"Changes to your account terms section”"); ° o Our assignment of your account; ° o Issuance of replacement accounts or cards; ° o The closing of your account; and ° o The bankruptcy or similar action by you or us. • ● This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. ● The Arbitrator shall do all the following: ° o Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° o Apply applicable statutes of limitations; and ° o Honor claims of privilege recognized at law. ~~18 Other terms.~~OTHER TERMS Benefits and Rewards Your account may have additional rewards or benefits we or a third party provide. If it does, they will be explained in separate documents which include rewards terms and conditions or benefits guides. Any benefits or rewards are subject to change or termination without notice. If there is a rewards membership fee, it will be listed in your separate rewards terms and conditions and added to your account as a purchase transaction. Third parties may provide or own the benefits or rewards on your account and we are not responsible for their actions. Assignment You may not transfer your account or your rights or obligations under this Agreement. We may transfer all or part of your account balance and account along with our rights and obligations under this Agreement to another person or entity. Governing Law The interpretation and enforcement of this Agreement and your account will be governed in accordance with federal law and, to the extent state law applies, Nebraska law, regardless of conflict of law principles. Notices Any notice we mail to you (including on or with a statement) will be considered given when we put in the U.S. mail addressed to the address we have for you. Any notice we send to you in electronic form is considered given when we send it to you at the most recent electronic address we have for you. Waiver If we do not exercise or we delay exercising any right under this Agreement, we can still exercise those rights later. Actions We may take or not take certain actions that benefit you at times and which are not required by this Agreement or law. If we do, such actions (a) can be stopped at any time; and (b) will not add to our obligations to you under this Agreement and will not constitute a course of conduct. Entire Agreement This Agreement replaces any prior communications between you and us. Severability If any term of this Agreement is found to violate any applicable law, that term will be deemed changed to comply with such law. Any invalid or unenforceable term of this Agreement will not affect whether any other term is valid or enforceable. BILLING RIGHTS We want to outline your billing rights if you have an item you want to dispute on any statement or if you are dissatisfied with any purchases made with your account: YOUR BILLING RIGHTS

Appears in 4 contracts

Samples: www.fnbo.com, www.fnbo.com, www.fnbo.com

Class Action Waiver. ~~You~~ Any Claim permissible herein must be brought in the party’s individual capacity, and ~~we both agree~~not as a plaintiff or class member in any purported class, ~~to the fullest extent allowed by law~~collective, ~~to all of the following~~ representative, multiple plaintiff, or similar proceeding (~~the~~ “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provisionAction”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all Each of the ~~following: ° You may choose~~ parties expressly waives any ability to ~~have~~ maintain any ~~Claim we bring against you be resolved through binding arbitration; ° We may choose to have~~ Class Action in any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not availableforum. The ~~Administrator~~ arbitrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they not have authority to ~~entertain~~ combine or ~~determine~~ aggregate similar claims or conduct any ~~Claim brought in~~ Class Action nor make an award to any entity or person not a party to the arbitration. Any claim that all or part of this Class ~~Proceeding~~Action Waiver is unenforceable, ~~that decision~~ unconscionable, void, or voidable may be ~~appealed to~~ determined only by a court of competent ~~jurisdiction~~jurisdiction and not by an arbitrator. IfTHE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, ~~despite this Agreement~~TO HAVE A JUDGE OR JURY DECIDE THEIR CASE INDIVDUALLY OR TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION, ~~Class Proceedings~~ HOWEVER, THEY UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY THROUGH ARBITRATION. Warranties: CLEANSKY ENERGY MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESSED OR IMPLIED, WITH REGARD TO THE PROVISION OF ELECTRIC SERVICE AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. Limitation of Liability: Customer will be deemed to be in exclusive control (and responsible for any damages or injury caused thereby) of the electric power after receipt at the delivery point or points. CLEANSKY ENERGY WILL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES), WHETHER BY STATUTE, IN CONTRACT OR TORT, EVEN IF THE RESULT OF NEGLIGENCE (WHETHER SOLE, JOINT, CONCURRENT, ACTIVE OR PASSIVE). ALL OTHER LIABILITY WILL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, AND SUCH DIRECT ACTUAL DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY. CUSTOMER HEREBY WAIVES ALL OTHER REMEDIES AT LAW OR IN EQUITY. THERE ARE NO THIRD-PARTY BENEFICIARIES TO THIS AGREEMENT. To the extent any damages required to be paid hereunder are ~~allowed~~liquidated, ~~those proceedings~~ the parties acknowledge that the damages are not intended and shall ~~be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may~~ not be ~~consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without~~ construed as a penalty, such damages are difficult or impossible to determine, that otherwise obtaining an adequate remedy is inconvenient or impossible, and that the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file liquidated damages constitute a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense reasonable approximation of the ~~fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules~~ harm or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termsloss.

Appears in 4 contracts

Samples: rates.titangasandpower.com, rates.titangasandpower.com, rates.titangasandpower.com

Class Action Waiver. You and we both agree, to the fullest extent allowed by law, to all of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, ,the party that filed it may choose to have any counterclaim, ,cross-claim, ,or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other terms. Benefits and Rewards. Your account may have additional rewards or benefits we or a third party provide. If it does, they will be explained in separate documents which include rewards terms and conditions or benefits guides. Any benefits or rewards are subject to change or termination without notice. If there is a rewards membership fee, it will be listed in your separate rewards terms document and added to your account as a purchase. Third parties may provide or own the benefits or rewards on your account and we are not responsible for their actions.

Appears in 2 contracts

Samples: Cardmember Agreement, Cardmember Agreement

Class Action Waiver. ~~You~~ Any Claim permissible herein must be brought in the party’s individual capacity, and ~~we both agree~~not as a plaintiff or class member in any purported class, ~~to the fullest extent allowed by law~~collective, ~~to all of the following~~ representative, multiple plaintiff, or similar proceeding (~~the~~ “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provisionAction”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all Each of the ~~following: ° You may choose~~ parties expressly waives any ability to ~~have~~ maintain any ~~Claim we bring against you be resolved through binding arbitration; ° We may choose to have~~ Class Action in any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not availableforum. The ~~Administrator~~ arbitrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they not have authority to ~~entertain~~ combine or ~~determine~~ aggregate similar claims or conduct any ~~Claim brought in~~ Class Action nor make an award to any entity or person not a party to the arbitration. Any claim that all or part of this Class ~~Proceeding~~Action Waiver is unenforceable, ~~that decision~~ unconscionable, void, or voidable may be ~~appealed to~~ determined only by a court of competent ~~jurisdiction~~jurisdiction and not by an arbitrator. IfTHE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, ~~despite this Agreement~~TO HAVE A JUDGE OR JURY DECIDE THEIR CASE INDIVDUALLY OR TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION, ~~Class Proceedings are allowed~~HOWEVER, ~~those proceedings shall be conducted only in a court~~ THEY UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY THROUGH ARBITRATION. Warranties: CLEANSKY ENERGY MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESSED OR IMPLIED, WITH REGARD TO THE PROVISION OF ELECTRIC SERVICE AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. Limitation of ~~competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration~~ Liability: Customer will be ~~consolidated with~~ deemed to be in exclusive control (and responsible for any ~~other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1~~damages or injury caused thereby) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the ~~fees and costs of their own attorneys~~electric power after receipt at the delivery point or points. CLEANSKY ENERGY WILL NOT BE LIABLE FOR CONSEQUENTIAL, ~~experts~~INCIDENTAL, ~~witnesses~~SPECIAL, ~~documents~~PUNITIVE, ~~and other expenses~~EXEMPLARY OR INDIRECT DAMAGES (INCLUDING LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES), ~~no matter who prevails~~WHETHER BY STATUTE, IN CONTRACT OR TORT, EVEN IF THE RESULT OF NEGLIGENCE (WHETHER SOLE, JOINT, CONCURRENT, ACTIVE OR PASSIVE). ~~• If~~ ALL OTHER LIABILITY WILL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, AND SUCH DIRECT ACTUAL DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY. CUSTOMER HEREBY WAIVES ALL OTHER REMEDIES AT LAW OR IN EQUITY. THERE ARE NO THIRD-PARTY BENEFICIARIES TO THIS AGREEMENT. To the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other terms.extent any

Appears in 2 contracts

Samples: rates.cleanskyenergy.com:8443, rates.cleanskyenergy.com:8443

Class Action Waiver. ~~You and we both agree~~EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS SECTION 10(C), to the fullest extent allowed by law, to all of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS ANY ARBITRATION OR COURT ACTION HEREUNDER SHALL PROCEED SOLELY ON AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES INDIVIDUAL BASIS WITHOUT THE RIGHT FOR ANY CLAIMS TO ~~GO TO COURT~~ BE ARBITRATED OR LITIGATED ON A CLASS OR COLLECTIVE ACTION BASIS OR ON A BASIS INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF OTHERS OR ANY GOVERNMENTAL BODY OR THE PUBLIC. CLASS AND ~~TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT~~COLLECTIVE ACTIONS UNDER THIS DISPUTE RESOLUTION PROVISION ARE PROHIBITED, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (WHETHER IN COURT OR ARBITRATION, AND THE ARBITRATOR OR COURT, AS APPLICABLE, SHALL HAVE NO AUTHORITY TO PROCEED ON SUCH BASIS. NO DISPUTE, CONTROVERSY, CLAIM OR ACTION BROUGHT IN COURT OR ARBITRATION BY EMPLOYEE ARISING UNDER OR RELATING TO THIS AGREEMENT OR OTHERWISE ARISING IN CONNECTION WITH OR RELATING TO EMPLOYEE’S EMPLOYMENT OR AFFILIATION WITH THE COMPANY AFFILIATED GROUP MAY BE JOINED WITH A DISPUTE, CONTROVERSY, CLAIM OR ACTION OF ANOTHER EMPLOYEE OR OTHER PERSON OR ENTITY, ANY SUCH JOINT CLAIMS BEING WAIVED BY EMPLOYEE HEREUNDER, EXCEPT THAT THE COMPANY (OR ANY MEMBER(S) OF THE COMPANY AFFILIATED GROUP) MAY EXECUTION VERSION BRING CLAIMS IN ARBITRATION OR COURT TO ENFORCE THIS AGREEMENT AND RELATED TORT, STATUTORY AND OTHER CLAIMS AGAINST EMPLOYEE AND OTHERS WHO ARE ACTING IN CONCERT OR PARTICIPATION WITH EMPLOYEE, AND IN ANY SUCH PROCEEDING EMPLOYEE MAY JOIN ANY CLAIMS OF SUCH OTHER PARTIES (BUT NO OTHERS). ANY ISSUE CONCERNING THE ENFORCEABILITY OR VALIDITY OF THIS SECTION 10(C) AND THE WAIVER HEREIN SHALL BE DECIDED BY A COURT WITH JURISDICTION AND VENUE AS PROVIDED IN SECTION 10(B). IN CONNECTION THEREWITH, IF THERE IS A DETERMINATION BY SUCH COURT THAT THIS SECTION 10(C) IS UNENFORCEABLE, THEN ANY CLASS, COLLECTIVE, REPRESENTATIVE OR JOINT ACTION BY THE PARTIES SHALL ONLY BE BROUGHT IN A COURT WITH JURISDICTION AND VENUE AS PROVIDED IN SECTION 10(B), AND NOT IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other terms.

Appears in 2 contracts

Samples: Employment and Severance Agreement (ONESPAWORLD HOLDINGS LTD), Employment and Severance Agreement (ONESPAWORLD HOLDINGS LTD)

Class Action Waiver. ~~You~~ Any Claim must be brought in the respective party’s individual capacity, and ~~we both agree~~not as a plaintiff or class member in any purported class, collective, representative, multi-plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. The arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the ~~fullest extent allowed~~ arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by ~~law~~a court of competent jurisdiction and not by an arbitrator. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE AND TO BE A PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, THEY UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY, THROUGH ARBITRATION. Waiver of Jury Trial. Subject to ~~all of~~ and without modifying or waiving in any way the ~~following (the~~ clauses above entitled “Mandatory Arbitration” and “Class Action Waiver~~”): ° Claims will not under~~ ,” each of the parties hereby unconditionally waives any ~~circumstances be pursued in Class Proceedings; ° We waive the~~ right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to and in any ~~Class Proceeding~~action, ~~the entire provision shall be null and void~~proceeding, claim, counterclaim, demand, dispute, or other matter whatsoever arising out of or related to this Agreement. ~~• The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes~~ Consent to ~~your account~~ Contact. You are required to provide an active telephone number by which we can reach you. You may, but are not required to, provide us with a cellular, voice-over-Internet-protocol (VoIP), or ~~Agreement~~ other telephone number which may require you to pay for receiving calls (~~see the~~ a “~~Changes~~ mobile” number). You are not required to ~~your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts~~ provide a mobile number in order to access any product or ~~cards; ° The closing of your account; and ° The bankruptcy or similar action~~ service provided by ~~you or~~ us. ~~• This provision is~~ If you choose to provide us with a mobile number, you thereby expressly consent to receiving communications from us and our affiliates and agents at that number for any purpose and by any method, including efforts to contact you regarding a debt, prerecorded or artificial voice message calls, text messages, and calls made by an automatic telephone dialing system. Such calls and messages may incur access fees from your cellular provider. Your consent to receive prerecorded or artificial voice message calls, text messages, and calls made by an automatic telephone dialing system may be revoked at any time, although we may still contact you in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termsany debt you may have.

Appears in 1 contract

Samples: www.hvcu.org

Class Action Waiver. You and we both agree, to the fullest extent allowed by law, to all of the following (the “"Class Action Waiver”"): ° o Claims will not under any circumstances be pursued in Class Proceedings; ° o We waive the right to bring or to participate in Class Proceedings against you; ° o You waive the right to bring or to participate in Class Proceedings against us; ° o If some other person initiates a Class Proceeding against you,, we may not and will not join that proceeding or participate as a member of that class; and ° o If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • ● WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “"CLAIM” " BE RESOLVED BY BINDING ARBITRATION. • ● ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • ● YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • ● Except as otherwise provided in this provision, you and we agree to all of the following: ° o You may choose to have any Claim we bring against you be resolved through binding arbitration; ° o We may choose to have any Claim you bring against us be resolved through binding arbitration; ° o We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° o Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° o If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • ● If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° o Litigate that Claim in court; ° o Have a jury trial on that Claim; or ° o Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • ● Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • ● Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. ~~17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) •~~ ● The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • ● For arbitrations with an Administrator, all of the below will apply: ° o Arbitrations shall be conducted according to the Rules; ° o The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° o The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • ● For arbitrations without an Administrator, all of the below will apply: ° o Arbitrations shall be conducted according to the AAA Rules; ° o The Arbitrator shall take the place of AAA in the AAA Rules; and ° o The person(s) you and we mutually agree upon will be the Arbitrator. • ● Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • ● You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • ● You and we may be represented by counsel in any arbitration. • ● The Arbitrator shall have no authority to award punitive damages. • ● The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • ● Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° o As noted below for Class Proceedings; and ° o A court will decide whether a Claim is an Ordinary Claim. • ● An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • ● If you ~~file~~ f ile a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • ● If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • ● If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • ● The terms of this arbitration provision shall survive all of the below events: ° o The repayment of your account; ° o Changes to your account or Agreement (see the “"Changes to your account terms section”"); ° o Our assignment of your account; ° o Issuance of replacement accounts or cards; ° o The closing of your account; and ° o The bankruptcy or similar action by you or us. • ● This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. ● The Arbitrator shall do all the following: ° o Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° o Apply applicable statutes of limitations; and ° o Honor claims of privilege recognized at law. ~~18 Other terms.~~OTHER TERMS Benefits and Rewards Your account may have additional rewards or benefits we or a third party provide. If it does, they will be explained in separate documents which include rewards terms and conditions or benefits guides. Any benefits or rewards are subject to change or termination without notice. If there is a rewards membership fee, it will be listed in your separate rewards terms and conditions and added to your account as a purchase transaction. Third parties may provide or own the benefits or rewards on your account and we are not responsible for their actions. Assignment You may not transfer your account or your rights or obligations under this Agreement. We may transfer all or part of your account balance and account along with our rights and obligations under this Agreement to another person or entity. Governing Law The interpretation and enforcement of this Agreement and your account will be governed in accordance with federal law and, to the extent state law applies, Nebraska law, regardless of conflict of law principles. Notices Any notice we mail to you (including on or with a statement) will be considered given when we put in the U.S. mail addressed to the address we have for you. Any notice we send to you in electronic form is considered given when we send it to you at the most recent electronic address we have for you. Waiver If we do not exercise or we delay exercising any right under this Agreement, we can still exercise those rights later. Actions We may take or not take certain actions that benefit you at times and which are not required by this Agreement or law. If we do, such actions (a) can be stopped at any time; and (b) will not add to our obligations to you under this Agreement and will not constitute a course of conduct. Entire Agreement This Agreement replaces any prior communications between you and us. Severability If any term of this Agreement is found to violate any applicable law, that term will be deemed changed to comply with such law. Any invalid or unenforceable term of this Agreement will not affect whether any other term is valid or enforceable. BILLING RIGHTS We want to outline your billing rights if you have an item you want to dispute on any statement or if you are dissatisfied with any purchases made with your account: YOUR BILLING RIGHTS

Appears in 1 contract

Samples: www.fnbo.com

Class Action Waiver. ~~You and we both agree, to the fullest extent allowed by law, to all of the following (the “Class Action Waiver”): ° Claims~~ Resident agrees that Resident will not ~~under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to~~ participate in ~~Class Proceedings~~ any class action claims against ~~you; °~~ us or our representatives. You must file any claim against us individually, and you expressly waive ~~the right~~ your ability to ~~bring~~ bring, represent, join or ~~to participate~~ otherwise maintain a class action, collective action or similar proceeding against us in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against usany forum. YOU UNDERSTAND THAT, ~~you may not and will not join that proceeding or participate as a member of that class~~WITHOUT THIS WAIVER, YOU COULD BE A PARTY IN A CLASS ACTION LAWSUIT. ~~Arbitration Provision (this “provision”)~~BY SIGNING THIS LEASE, YOU ACCEPT THIS WAIVER AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY. • THE PROVISIONS OF THIS ~~AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED~~ PARAGRAPH SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS LEASE. YOU ARE LEGALLY BOUND BY ~~THE PARTIES~~THIS DOCUMENT. PLEASE READ ~~THE FOLLOWING PARAGRAPHS~~ CAREFULLY. ~~• WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO~~ DO NOT SIGN IF YOU ARE NOT IN AGREEMENT OR IF YOU HAVE A ~~CLAIM DETERMINED BY~~ DIFFERENT UNDERSTANDING. WE SUGGEST THAT YOU TAKE A ~~JURY~~COPY OF THESE DOCUMENTS TO AN ATTORNEY FOR REVIEW PRIOR TO SUBMITTING THE RENTAL APPLICATION OR SIGNING THE LEASE. AS STATED IN – SECTION 34 (ENTIRE AGREEMENT) – THIS LEASE, ALONG WITH ANY EXHIBITS, APPENDICES, ADDENDUMS, SCHEDULES, AND AMENDMENTS ENCOMPASSES THE ENTIRE AGREEMENT OF THE PARTIES AND SUPERSEDES ALL PREVIOUS UNDERSTANDINGS AND AGREEMENTS BETWEEN THE PARTIES, WHETHER ORAL OR WRITTEN. THERE ARE NO PROMISES, WARRANTIES, UNDERSTANDINGS, OR REPRESENTATIONS OTHER ~~RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW,~~ THAN THOSE ~~OTHER RIGHTS~~ THAT ARE ~~WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT~~ CONTAINED HEREIN OR IN ~~ARBITRATION):~~ THE EXHIBITS, APPENDICES, ADDENDUMS, SCHEDULES, AND AMENDMENTS HERETO. YOU ARE ENTITLED TO RECEIVE AN ORIGINAL OF THIS LEASE AFTER IT IS FULLY SIGNED. Resident Signature Landlord or Landlord’s Representative Printed Resident Name Title Resident’s Date of Birth Date Date ADDENDUM TO LEASE, COMMUNITY RULES AND REGULATIONS The following Community Rules and Regulations (1hereinafter referred to as “Rules”) ~~BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER~~are a binding part of your Lease with your community. ~~• Except as otherwise~~ We provide these Rules for your benefit and the benefit of the other residents of the community. Please understand that any violation of any of these Rules causes increased operating expenses, including, but not limited to, clean‐up cost, increased management and labor cost, and increased utility cost. Please further understand that any violation of one of these Rules constitutes an Event of Default under the Lease and provided ~~in this provision~~by law. In accordance with your Lease, and the Security Deposit, you will be charged for violation of these Rules in order to offset those increased costs. Such charges are due and ~~we agree to all of~~ payable at the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and same time as the succeeding month’s rent. Capitalized terms not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will defined herein shall have the ~~right~~ same meaning ascribed to ~~do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided~~ them in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termsLease.

Appears in 1 contract

Samples: Square Lease Agreement

Class Action Waiver. ~~You~~ Any arbitration under these Terms will take place on an individual basis; class arbitrations and we class/representative/collective actions are not permitted. EACH PARTY AGREES THAT IT MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both ~~agree~~you and Per Scholas agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Subject to Change THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY MADE TO THE INFORMATION HEREIN. PER SCHOLAS AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES TO THE SITE AT ANY TIME. Termination/Access Restriction Per Scholas reserves the right, in its sole discretion, to terminate your access to the ~~fullest~~ Site and the Services or any portion thereof at any time, without notice. To the maximum extent ~~allowed~~ permitted by law, these Terms are governed by the laws of the State of New York and you hereby consent to the exclusive jurisdiction and venue of courts in New York in all disputes arising out of or relating to the use of the Site and receipt of the Services. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Per Scholas as a result of this agreement or use of the ~~following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring~~ Site or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all receipt of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any Services. Per Scholas's performance of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator these Terms is subject to ~~judicial review only as~~ existing laws and legal process, and nothing contained in these Terms is in derogation of Per Scholas's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or the Services or information provided to or gathered by Per Scholas with respect to such use. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the ~~Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award~~ intent of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this original provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the ~~rest~~ remainder of ~~this provision will remain~~ these Terms shall continue in effect. ~~However~~Unless otherwise specified herein, if these Terms constitute the ~~Class Action Waiver is held to be invalid~~ entire agreement between the user and Per Scholas with respect to the Sit, and Services, and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Per Scholas with respect to the Site. A printed version of these Terms and of any ~~Class Proceeding, the entire provision~~ notice given in electronic form shall be ~~null~~ admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and ~~void. • The terms of this arbitration provision shall survive all of~~ subject to the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; same conditions as other business documents and ~~° The bankruptcy or similar action by you or us. • This provision is made~~ records originally generated and maintained in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termsprinted form.

Appears in 1 contract

Samples: perscholas.org

Class Action Waiver. ~~You~~ CURVE, each Merchant, and ~~we both agree~~each Guarantor agree that they may bring claims against each other relating to this Agreement only in their individual capacities, and not as a plaintiff or class action member in any purported class or representative proceedings. I have read and agree to the ~~fullest extent allowed by law~~terms and conditions set forth above: Name: Cxxx Xxxxxxxxx Title: Date: 8/31/2023 Page 14 of 16 STANDARD MERCHANT CASH ADVANCE AGREEMENT G13. Arbitration. CURVE HAS THE RIGHT TO REQUEST THAT ANY DISPUTE, to all of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against usCONTROVERSY OR CLAIM BETWEEN CURVE AND MERCHANT, ~~you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). •~~ ANY GUARANTOR OR ANY OWNER, WHETHER ARISING OUT OF OR RELATING TO THE CONSTRUCTION AND INTERPRETATION OF THIS AGREEMENT ~~CONTAINS AN~~ OR OTHERWISE (INCLUDING WITHOUT LIMITATION CLAIMS FOR FRAUD, MISREPRESENTATION, INTENTIONAL TORT, NEGLIGENT TORT OR UNDER ANY LOCAL, STATE OR FEDERAL STATUTE OR RULE), BE SUBMITTED TO ARBITRATION ~~PROVISION WHICH MAY~~ BEFORE EITHER (I) THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL RULES, OR (II) MEDIATION AND CIVIL ARBITRATION INC. D/B/A RAPIDRULING (WXX.XXXXXXXXXXX.XXX) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES. THE ARBITRATION SHALL BE ~~ENFORCED~~ GOVERNED BY THE ~~PARTIES~~FEDERAL ARBITRATION ACT. ~~PLEASE READ~~ THE ~~FOLLOWING PARAGRAPHS CAREFULLY~~ARBITRATION SHALL BE DEEMED TO BE LOCATED IN BROWARD COUNTY, FLORIDA, REGARDLESS OF THE LOCATION OF THE PARTIES OR ARBITRATOR. • TO THE EXTENT PERMITTED BY THE ARBITRATOR RULES, THE ARBITRATION PROCEEDINGS SHALL PROCEED VIRTUALLY OR REMOTELY AND SHALL NOT REQUIRE THE PARTIES TO APPEAR IN-PERSON. ALL QUESTIONS CONCERNING ARBITRATRABILITY OF ANY DISPUTE SHALL BE DECIDED BY THE ARBITRATOR. CURVE MAY DEMAND THAT SUCH DISPUTE BE SUBMITTED TO ARBITRATION EITHER BY (I) SENDING A WRITTEN NOTICE OF INTENT TO ARBITRATE TO ALL OTHER PARTIES IN ACCORDANCE WITH ~~LIMITED EXCEPTIONS~~THE NOTICE PROVISION IN PARAGRAPH 6.5 OF THIS AGREEMENT, OR (II) SENDING A WRITTEN NOTICE OF INTENT TO ARBITRATE TO THE ATTORNEY OF RECORD FOR MERCHANT, ANY GUARANTOR OR ANY OWNER WHO HAS BROUGHT ANY ACTION OR PROCEEDING BEFORE ANY COURT OR TRIBUNAL AGAINST CURVE. INITIALLY, THE PARTIES WILL SPLIT THE ARBITRATION FILING FEE, ADMINISTRATION FEE AND ARBITRATOR FEE. IF CURVE PREVAILS IN ARBITRATION, THE ARBITRATOR MAY AWARD TO CURVE ITS ATTORNEYS’ FEES (IN ACCORDANCE WITH PARAGRAPH 4.4 OF THIS AGREEMENT) AND SHARE OF THE ARBITRATION FILING FEE, ADMINISTRATION FEE AND ARBITRATOR FEE. MERCHANT, ANY GUARANTOR AND ANY OWNER MAY OPT OUT OF THIS ARBITRATION PROVISION ~~ALLOWS EITHER PARTY~~ BY SENDING CURVE A NOTICE THAT HE, SHE OR IT DOES NOT WANT THIS PROVISION TO ~~REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES~~ APPLY IN ACCORDANCE WITH PARAGRAPH 6.3 WITHIN 14 DAYS AFTER THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termsEFFECTIVE DATE OF THIS AGREEMENT.

Appears in 1 contract

Samples: Advance Agreement (First Person Ltd.)

Class Action Waiver. ~~You~~ Any arbitration under these Terms and we Conditions will take place on an individual basis; class arbitrationsandclass/representative/collectiveactionsarenotpermitted. THEPARTIESAGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both ~~agree~~you and Valmis agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Liability Disclaimer THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. JYTYLA CORP DBA VALMIS PROPERTY RENEWAL SERVICES AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME. JYTYLA CORP DBA VALMIS PROPERTY RENEWAL SERVICES AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. JYTYLA CORP DBA VALMIS PROPERTY RENEWAL SERVICES AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL JYTYLA CORP DBA VALMIS PROPERTY RENEWAL SERVICES AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, WITH THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF JYTYLA CORP DBA VALMIS PROPERTY RENEWAL SERVICES OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. Termination/Access Restriction Valmis reserves the right, in its sole discretion, to terminate your access to the ~~fullest~~ Site and the related services or any portion thereof at any time, without notice. To the maximum extent ~~allowed~~ permitted by law, this agreement is governed by the laws of the State of Minnesota and you hereby consent to theexclusivejurisdiction andvenueofcourtsin Minnesota in all disputesarisingoutoforrelating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Valmis as a result of this agreement or use of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member Site. Valmis's performance of ~~that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (~~this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator agreement is subject to ~~judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award~~ existing lawsand legal process, and nothing containedin this agreement is in derogation of Valmis'sright to complywith governmental, court andlaw enforcement requests or requirements relating to your use of the ~~Arbitrator may~~ Site or information provided to or gathered by Valmis with respect to such use. If any part of this agreement is determined to be ~~entered in any court with jurisdiction. • Any dispute as to whether a claim~~ invalid or ~~dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration~~ unenforceable pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law including, but not limited to, the warranty disclaimers and ~~either~~ liability limitationssetforthabove, thentheinvalidorunenforceableprovisionwillbedeemedsuperseded byavalid, enforceableprovisionthat most closelymatchestheintentofthe originalprovisionand the ~~Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense~~ remainder of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain agreement shall continue in effect. ~~However~~Unlessotherwisespecifiedherein, ~~if the Class Action Waiver is held to be invalid~~ thisagreementconstitutestheentireagreementbetweentheuser and Valmis with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Valmis with respect to the Site. A printed version of this agreement and of any ~~Class Proceeding, the entire provision~~ notice given in electronic form shall be ~~null~~ admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and ~~void. • The terms of this arbitration provision shall survive all of~~ subject to the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; same conditions as other business documents and ~~° The bankruptcy or similar action by you or us. • This provision is made~~ records originally generated and maintained in ~~connection with a transaction involving interstate commerce~~printed form. It ~~shall~~ is the express wish to the parties that this agreement and all related documents be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termswritten in English.

Appears in 1 contract

Samples: Terms and Conditions

Class Action Waiver. ~~You~~ TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BRING, JOIN, OR PARTICIPATE IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING AS TO ANY CLAIM, DISPUTE OR CONTROVERSY YOU MAY HAVE AGAINST US, OUR EMPLOYEES, OFFICERS, DIRECTORS, SERVICERS, AGENTS AND ASSIGNS. YOU AGREE TO THE ENTRY OF INJUNCTIVE RELIEF TO STOP SUCH A LAWSUIT OR TO REMOVE YOU AS A PARTICIPANT IN THE SUIT. THE PARTIES ACKNOWLEDGE THAT THE CLASS ACTION WAIVER IS MATERIAL AND ESSENTIAL TO THE ARBITRATION OF ANY CLAIMS AND IS NON-SEVERABLE FROM THE ARBITRATION PROVISION. IF THE CLASS ACTION WAIVER IS VOIDED, FOUND UNENFORCEABLE, OR LIMITED WITH RESPECT TO ANY CLAIM FOR WHICH YOU SEEK CLASS-WIDE RELIEF, THEN THE PARTIES’ ARBITRATION PROVISION (EXCEPT FOR THIS SENTENCE) SHALL BE NULL AND VOID WITH RESPECT TO SUCH CLAIM, SUBJECT TO THE RIGHT TO APPEAL THE LIMITATION OR INVALIDATION OF THE CLASS ACTION WAIVER. HOWEVER, THE ARBITRATION PROVISION SHALL REMAIN VALID WITH RESPECT TO ALL OTHER CLAIMS. THE PARTIES ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL A CLASS ACTION BE ARBITRATED. THIS AGREEMENT DOES NOT CONSTITUTE A WAIVER OF ANY OF YOUR RIGHTS AND REMEDIES TO PURSUE A CLAIM INDIVIDUALLY, AND NOT AS A CLASS ACTION, IN BINDING ARBITRATION, OR OTHERWISE, AS PROVIDED ABOVE. Right to Opt Out. As our customer, you are afforded a one-time opportunity to opt out of this Arbitration Provision by sending us a written notice that includes your name(s), your Account and/or accounts number(s), and ~~we both agree~~a listing of all the account holders who do not wish to be governed by the arbitration provision in this Agreement, ~~to the fullest extent allowed by law, to all of the following~~ or calling us toll free at 1-877-672- 5678 (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provisionOpt Out Notification”). ~~• THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES~~If you, as a primary account holder, received this notice, you have a duty to inform joint account holders of the ability to opt out. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): Your written Opt Out Notification must be: (1) ~~BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY~~sent to us by U.S. first class mail to: Northwest Bank Attn: Product Support PO Box 128 Xxxxxx, PA 16365; OR and (2) ~~PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree~~ signed by all parties requesting to ~~all~~ opt out of the ~~following: ° You may choose~~ arbitration provision. We must either receive your written Opt Out Notification to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claimOpt Out, or ~~third party claim brought in that action be resolved through binding arbitration. • If a party chooses~~ each account holder must call to ~~have a Claim be resolved by arbitration, neither~~ express their decision to Opt Out within forty-five (45) calendar days after the first day you ~~or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except~~ are established as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an ~~Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial~~ account holder and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite initially receive this Agreement~~, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction~~. ~~The claims of other persons who may (or may not) have similar claims may~~ Your decision to opt out will not ~~be consolidated with any Claim. No arbitration will be consolidated with~~ affect any other ~~arbitration proceeding without the consent of all parties. The only Claims that may be joined under this~~ provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termsAgreement.

Appears in 1 contract

Samples: www.northwest.bank

Class Action Waiver. ~~You~~ Any arbitration under these Terms will take place on an individual basis; class arbitrations and ~~we both agree~~class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH'S INDIVIDUAL CAPACITY, ~~to the fullest extent allowed by law~~AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, to all of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURTCOLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS ~~DISCOVERY~~ IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both you and Vertical Entertainment, LLC agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Liability Disclaimer THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND CONTENT INCLUDED IN OR ~~APPEAL RIGHTS~~AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. VERTICAL ENTERTAINMENT, LLC AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME. VERTICAL ENTERTAINMENT, LLC AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES, CONTENT AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES, CONTENT AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. VERTICAL ENTERTAINMENT, LLC AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES, CONTENT AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VERTICAL ENTERTAINMENT, LLC AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF VERTICAL ENTERTAINMENT, LLC OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT ~~BE AVAILABLE~~ APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR ~~MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW~~WITH ANY OF THESE TERMS OF USE, ~~THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE~~ YOUR SOLE AND EXCLUSIVE REMEDY IS TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termsDISCONTINUE USING THE SITE.

Appears in 1 contract

Samples: dx35vtwkllhj9.cloudfront.net

Class Action Waiver. You and we both agree, to the fullest extent allowed by law, to all of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE ~~PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE~~ EXECUTIVE AGREES THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU HE WILL NOT ~~BE ABLE TO DO THESE TWO THINGS (~~ASSERT CLASS ACTION OR REPRESENTATIVE ACTION CLAIMS AGAINST THE COMPANY IN ~~COURT~~ ARBITRATION OR ~~IN ARBITRATION): (1) BRING~~ OTHERWISE, NOR WILL HE JOIN OR SERVE AS A ~~CLAIM AS~~ MEMBER OF A CLASS ACTION OR REPRESENTATIVE ACTION, AND HE AGREES THAT HE WILL ONLY SUBMIT HIS OWN, INDIVIDUAL CLAIMS IN ARBITRATION AND WILL NOT SEEK TO REPRESENT THE INTERESTS OF ANY OTHER PERSON. ADMINISTRATIVE RELIEF. THE EXECUTIVE UNDERSTANDS THAT THIS AGREEMENT DOES NOT PROHIBIT HIM FROM PURSUING AN ADMINISTRATIVE CLAIM WITH A ~~REPRESENTATIVE CAPACITY;~~ LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNING AGENCY THAT IS AUTHORIZED TO ENFORCE OR ADMINISTER LAWS RELATED TO EMPLOYMENT, INCLUDING BUT NOT LIMITED TO THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR THE WORKERS’ COMPENSATION BOARD. THIS AGREEMENT DOES, HOWEVER, PRECLUDE HIM FROM PURSUING COURT ACTION REGARDING ANY SUCH CLAIM, EXCEPT AS PERMITTED BY LAW. WAIVER OF RIGHT TO JURY TRIAL. THE EXECUTIVE UNDERSTANDS THAT, BY SIGNING THIS AGREEMENT, BOTH PARTIES ARE GIVING UP ANY RIGHT THEY MAY HAVE TO A JURY TRIAL ON ALL CLAIMS THEY MAY HAVE AGAINST EACH OTHER, AS DESCRIBED ABOVE. REQUIRED NOTICE OF ALL CLAIMS. THE COMPANY AND THE EXECUTIVE AGREE THAT IF A DISPUTE ARISES, THE PARTY WHO WANTS TO ARBITRATE THE DISPUTE MUST GIVE WRITTEN NOTICE OF ANY CLAIM TO THE OTHER PARTY. WRITTEN NOTICE TO THE COMPANY OR ITS OFFICERS, EMPLOYEES OR AGENTS, SHALL BE SENT TO THE COMPANY’S CORPORATE OFFICE. THE EXECUTIVE WILL BE GIVEN NOTICE AT THE LAST ADDRESS RECORDED IN HIS PERSONNEL FILE (~~2) PARTICIPATE IN~~ UNLESS HE SENDS WRITTEN NOTICE TO THE COMPANY NOTIFYING THEM OF THE NEED TO USE A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continuedDIFFERENT ADDRESS). ~~Arbitration Provision~~ THE WRITTEN NOTICE MUST DESCRIBE THE NATURE OF ALL CLAIMS ASSERTED AND MUST DETAIL THE FACTS UPON WHICH THE CLAIMS ARE BASED. THE NOTICE MUST BE SENT TO THE OTHER PARTY(IES) BY FEDERAL EXPRESS (~~this “provision”). (continued~~OR ANOTHER SIMILAR OVERNIGHT MAIL SERVICE PROVIDER) ~~• The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator~~OR BY CERTIFIED OR REGISTERED MAIL, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termsRETURN RECEIPT REQUESTED.

Appears in 1 contract

Samples: EdenLedger, Inc.

Class Action Waiver. ~~You and we both agree~~YOU AND BNEA HEREBY AGREE: (i) THAT EACH CLAIM IS PERSONAL TO YOU AND BNEA, ~~to the fullest extent allowed by law~~AND SHALL ONLY BE CONDUCTED AS AN INDIVIDUAL ARBITRATION (OR AN INDIVIDUAL COURT PROCEEDING, to all of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against usWITH RESPECT TO CLAIMS EXCLUDED FROM THE ARBITRATION AGREEMENT, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY PURSUANT TO ~~REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT~~ SUBPART 12.a.iii) AND ~~TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY~~ NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR ~~IN A~~ OTHER FORM OF REPRESENTATIVE ~~CAPACITY~~ACTION; (ii) EXPRESSLY WAIVE ANY RIGHT TO FILE OR ~~(2)~~ PARTICIPATE IN A ~~CLAIM~~ CLASS ACTION OR SEEK RELIEF ON A CLASS OR REPRESENTATIVE BASIS; AND (iii) THE ARBITRATOR (OR COURT, WITH RESPECT TO CLAIMS EXCLUDED FROM THE ARBITRATION AGREEMENT, PURSUANT TO SUBPART 12.a.iii) MAY ONLY CONDUCT AN INDIVIDUAL ARBITRATION (OR COURT ACTION, WITH RESPECT TO CLAIMS EXCLUDED FROM THE ARBITRATION AGREEMENT, PURSUANT TO SUBPART 12.a.iii), MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL’S CLAIMS, AND MAY NOT PRESIDE OVER ANY FORM OF REPRESENTATIVE OR CLASS PROCEEDING RELATING TO SUCH CLAIMS. UNLESS YOU SUBMIT A PROPER OPT OUT NOTICE (AS DESCRIBED IN SUBSECTION 12.c), YOU AND BNEA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termsMEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

Appears in 1 contract

Samples: cdn-cms.bnea.io

Class Action Waiver. ~~You~~ Any Claim permissible herein must be brought in the party’s individual capacity, and ~~we both agree~~not as a plaintiff or class member in any purported class, ~~to the fullest extent allowed by law~~collective, ~~to all of the following~~ representative, multiple plaintiff, or similar proceeding (~~the~~ “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provisionAction”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all Each of the ~~following: ° You may choose~~ parties expressly waives any ability to ~~have~~ maintain any ~~Claim we bring against you be resolved through binding arbitration; ° We may choose to have~~ Class Action in any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not availableforum. The ~~Administrator~~ arbitrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they not have authority to ~~entertain~~ combine or ~~determine~~ aggregate similar claims or conduct any ~~Claim brought in~~ Class Action nor make an award to any entity or person not a party to the arbitration. Any claim that all or part of this Class ~~Proceeding~~Action Waiver is unenforceable, ~~that decision~~ unconscionable, void, or voidable may be ~~appealed to~~ determined only by a court of competent ~~jurisdiction~~jurisdiction and not by an arbitrator. IfTHE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, ~~despite this Agreement~~TO HAVE A JUDGE OR JURY DECIDE THEIR CASE INDIVDUALLY OR TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION, ~~Class Proceedings are allowed~~HOWEVER, ~~those proceedings shall be conducted only in a court~~ THEY UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY THROUGH ARBITRATION. Warranties: CLEANSKY ENERGY MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESSED OR IMPLIED, WITH REGARD TO THE PROVISION OF ELECTRIC SERVICE AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. Limitation of ~~competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration~~ Liability: Customer will be ~~consolidated with~~ deemed to be in exclusive control (and responsible for any ~~other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1~~damages or injury caused thereby) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the ~~fees and costs of their own attorneys~~electric power after receipt at the delivery point or points. CLEANSKY ENERGY WILL NOT BE LIABLE FOR CONSEQUENTIAL, ~~experts~~INCIDENTAL, ~~witnesses~~SPECIAL, ~~documents~~PUNITIVE, ~~and other expenses~~EXEMPLARY OR INDIRECT DAMAGES (INCLUDING LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES), ~~no matter who prevails~~WHETHER BY STATUTE, IN CONTRACT OR TORT, EVEN IF THE RESULT OF NEGLIGENCE (WHETHER SOLE, JOINT, CONCURRENT, ACTIVE OR PASSIVE). ~~• If~~ ALL OTHER LIABILITY WILL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, AND SUCH DIRECT ACTUAL DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY. CUSTOMER HEREBY WAIVES ALL OTHER REMEDIES AT LAW OR IN EQUITY. THERE ARE NO THIRD‐PARTY BENEFICIARIES TO THIS AGREEMENT. To the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other terms.extent any

Appears in 1 contract

Samples: Residential and Small

Class Action Waiver. ~~You~~ CEDAR, each Merchant, and ~~we both agree~~each Guarantor agree that they may bring claims against each other relating to this Agreement only in their individual capacities, ~~to the fullest extent allowed by law, to all of the following (the “Class Action Waiver”): ° Claims will~~ and not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a plaintiff or class action member ~~of that class; and ° If some other person initiates a Class Proceeding against us~~in any purported class or representative proceedings. 42. Arbitration. CXXXX HAS THE RIGHT TO REQUEST THAT ANY DISPUTE, ~~you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). •~~ CONTROVERSY OR CLAIM BETWEEN CEDAR AND MERCHANT, ANY GUARANTOR OR ANY OWNER, WHETHER ARISING OUT OF OR RELATING TO THE CONSTRUCTION AND INTERPRETATION OF THIS AGREEMENT ~~CONTAINS AN~~ OR OTHERWISE (INCLUDING WITHOUT LIMITATION CLAIMS FOR FRAUD, MISREPRESENTATION, INTENTIONAL TORT, NEGLIGENT TORT OR UNDER ANY LOCAL, STATE OR FEDERAL STATUTE OR RULE), BE SUBMITTED TO ARBITRATION ~~PROVISION WHICH MAY~~ BEFORE EITHER (I) THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL RULES, OR (II) MEDIATION AND CIVIL ARBITRATION INC. D/B/A RAPIDRULING (WXX.XXXXXXXXXXX.XXX) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES. THE ARBITRATION SHALL BE ~~ENFORCED~~ GOVERNED BY THE ~~PARTIES~~FEDERAL ARBITRATION ACT. ~~PLEASE READ~~ THE ~~FOLLOWING PARAGRAPHS CAREFULLY~~ARBITRATION SHALL BE DEEMED TO BE LOCATED IN MIAMI-DADE COUNTY, FLORIDA, REGARDLESS OF THE LOCATION OF THE PARTIES OR ARBITRATOR. • TO THE EXTENT PERMITTED BY THE ARBITRATOR RULES, THE ARBITRATION PROCEEDINGS SHALL PROCEED VIRTUALLY OR REMOTELY AND SHALL NOT REQUIRE THE PARTIES TO APPEAR IN-PERSON. ALL QUESTIONS CONCERNING ARBITRATRABILITY OF ANY DISPUTE SHALL BE DECIDED BY THE ARBITRATOR. CEDAR MAY DEMAND THAT SUCH DISPUTE BE SUBMITTED TO ARBITRATION EITHER BY (I) SENDING A WRITTEN NOTICE OF INTENT TO ARBITRATE TO ALL OTHER PARTIES IN ACCORDANCE WITH ~~LIMITED EXCEPTIONS~~THE NOTICE PROVISION IN PARAGRAPH 33 OF THIS AGREEMENT, OR (II) SENDING A WRITTEN NOTICE OF INTENT TO ARBITRATE TO THE ATTORNEY OF RECORD FOR MERCHANT, ANY GUARANTOR OR ANY OWNER WHO HAS BROUGHT ANY ACTION OR PROCEEDING BEFORE ANY COURT OR TRIBUNAL AGAINST CEDAR. INITIALLY, THE PARTIES WILL SPLIT THE ARBITRATION FILING FEE, ADMINISTRATION FEE AND ARBITRATOR FEE. IF CXXXX PREVAILS IN ARBITRATION, THE ARBITRATOR MAY AWARD TO CEDAR ITS ATTORNEYS’ FEES (IN ACCORDANCE WITH PARAGRAPH 39 OF THIS AGREEMENT) AND SHARE OF THE ARBITRATION FILING FEE, ADMINISTRATION FEE AND ARBITRATOR FEE. MERCHANT, ANY GUARANTOR AND ANY OWNER MAY OPT OUT OF THIS ARBITRATION PROVISION ~~ALLOWS EITHER PARTY~~ BY SENDING CEDAR A NOTICE THAT HE, SHE OR IT DOES NOT WANT THIS PROVISION TO ~~REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION~~APPLY IN ACCORDANCE WITH PARAGRAPH 33 WITHIN 14 DAYS AFTER THE EFFECTIVE DATE OF THIS AGREEMENT. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other terms43.

Appears in 1 contract

Samples: Ameriguard Security Services, Inc.

Class Action Waiver. ~~You~~ Any Claim permissible herein must be brought in the party’s individual capacity, and ~~we both agree~~not as a plaintiff or class member in any purported class, ~~to the fullest extent allowed by law~~collective, ~~to all of the following~~ representative, multiple plaintiff, or similar proceeding (~~the~~ “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provisionAction”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all Each of the ~~following: ° You may choose~~ parties expressly waives any ability to ~~have~~ maintain any ~~Claim we bring against you be resolved through binding arbitration; ° We may choose to have~~ Class Action in any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not availableforum. The ~~Administrator~~ arbitrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they not have authority to ~~entertain~~ combine or ~~determine~~ aggregate similar claims or conduct any ~~Claim brought in~~ Class Action nor make an award to any entity or person not a party to the arbitration. Any claim that all or part of this Class ~~Proceeding~~Action Waiver is unenforceable, ~~that decision~~ unconscionable, void, or voidable may be ~~appealed to~~ determined only by a court of competent ~~jurisdiction~~jurisdiction and not by an arbitrator. IfTHE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, ~~despite this Agreement~~TO HAVE A JUDGE OR JURY DECIDE THEIR CASE INDIVDUALLY OR TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION, ~~Class Proceedings~~ HOWEVER, THEY UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY THROUGH ARBITRATION. Warranties: CLEANSKY ENERGY MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESSED OR IMPLIED, WITH REGARD TO THE PROVISION OF ELECTRIC SERVICE AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. Limitation of Liability: Customer will be deemed to be in exclusive control (and responsible for any damages or injury caused thereby) of the electric power after receipt at the delivery point or points. CLEANSKY ENERGY WILL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES), WHETHER BY STATUTE, IN CONTRACT OR TORT, EVEN IF THE RESULT OF NEGLIGENCE (WHETHER SOLE, JOINT, CONCURRENT, ACTIVE OR PASSIVE). ALL OTHER LIABILITY WILL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, AND SUCH DIRECT ACTUAL DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY. CUSTOMER HEREBY WAIVES ALL OTHER REMEDIES AT LAW OR IN EQUITY. THERE ARE NO THIRD‐PARTY BENEFICIARIES TO THIS AGREEMENT. To the extent any damages required to be paid hereunder are ~~allowed~~liquidated, ~~those proceedings~~ the parties acknowledge that the damages are not intended and shall ~~be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may~~ not be ~~consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without~~ construed as a penalty, such damages are difficult or impossible to determine, that otherwise obtaining an adequate remedy is inconvenient or impossible, and that the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file liquidated damages constitute a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense reasonable approximation of the ~~fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules~~ harm or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termsloss.

Appears in 1 contract

Samples: rates.titangasandpower.com

Class Action Waiver. ~~You and we both agree~~EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS SECTION 11(C), to the fullest extent allowed by law, to all of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS ANY ARBITRATION OR COURT ACTION HEREUNDER SHALL PROCEED SOLELY ON AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES INDIVIDUAL BASIS WITHOUT THE RIGHT FOR ANY CLAIMS TO ~~GO TO COURT~~ BE ARBITRATED OR LITIGATED ON A CLASS OR COLLECTIVE ACTION BASIS OR ON A BASIS INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF OTHERS OR ANY GOVERNMENTAL BODY OR THE PUBLIC. CLASS AND ~~TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT~~COLLECTIVE ACTIONS UNDER THIS DISPUTE RESOLUTION PROVISION ARE PROHIBITED, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (WHETHER IN COURT OR ARBITRATION, AND THE ARBITRATOR OR COURT, AS APPLICABLE, SHALL HAVE NO AUTHORITY TO PROCEED ON SUCH BASIS. NO DISPUTE, CONTROVERSY, CLAIM OR ACTION BROUGHT IN COURT OR ARBITRATION BY EMPLOYEE ARISING UNDER OR RELATING TO THIS AGREEMENT OR OTHERWISE ARISING IN CONNECTION WITH OR RELATING TO EMPLOYEE’S EMPLOYMENT OR AFFILIATION WITH THE COMPANY AFFILIATED GROUP MAY BE JOINED WITH A DISPUTE, CONTROVERSY, CLAIM OR ACTION OF ANOTHER EMPLOYEE OR OTHER PERSON OR ENTITY, ANY SUCH JOINT CLAIMS BEING WAIVED BY EMPLOYEE HEREUNDER, EXCEPT THAT THE COMPANY (OR ANY MEMBER(S) OF THE COMPANY AFFILIATED GROUP) MAY BRING CLAIMS IN ARBITRATION OR COURT TO ENFORCE THIS AGREEMENT AND RELATED TORT, STATUTORY AND OTHER CLAIMS AGAINST EMPLOYEE AND OTHERS WHO ARE ACTING IN CONCERT OR PARTICIPATION WITH EMPLOYEE, AND IN ANY SUCH PROCEEDING EMPLOYEE MAY JOIN ANY CLAIMS OF SUCH OTHER PARTIES (BUT NO OTHERS). ANY ISSUE CONCERNING THE ENFORCEABILITY OR VALIDITY OF THIS SECTION 11(C) AND THE WAIVER HEREIN SHALL BE DECIDED BY A COURT WITH JURISDICTION AND VENUE AS PROVIDED IN SECTION 11(B). IN CONNECTION THEREWITH, IF THERE IS A DETERMINATION BY SUCH COURT THAT THIS SECTION 11(C) IS UNENFORCEABLE, THEN ANY CLASS, COLLECTIVE, REPRESENTATIVE OR JOINT ACTION BY THE PARTIES SHALL ONLY BE BROUGHT IN A COURT WITH JURISDICTION AND VENUE AS PROVIDED IN SECTION 11(B), AND NOT IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other terms.

Appears in 1 contract

Samples: Employment and Severance Agreement (ONESPAWORLD HOLDINGS LTD)

Class Action Waiver. ~~You and we both agree~~To the extent either declaratory or injunctive relief is sought in the arbitration, such relief can be awarded only to the ~~fullest~~ extent ~~allowed~~ necessary to provide the relief warranted by ~~law,~~ a party's individual claim. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AND WE AGREE TO WAIVE ANY ABILITY TO MAINTAIN ANY CLASS ACTION IN ANY FORUM. The arbitrator shall not have authority to combine or aggregate similar claims or conduct any class action or make any award to any person or entity not a party to the arbitration. Any claim that all of ~~the following (the “~~part of this Class Action ~~Waiver”): ° Claims will~~ Wavier is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that classby an arbitrator. ~~Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY~~ THE ~~PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE~~ PARTIES UNDERSTAND THAT ~~ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE~~ THEY WOULD HAVE HAD A RIGHT TO ~~GO TO COURT AND~~ LITIGATE THROUGH A COURT, TO HAVE A ~~CLAIM DETERMINED BY~~ JUDGE OR JURY DECIDE THEIR CASE AND BE A ~~JURY. OTHER RIGHTS YOU MAY~~ PARTY TO A CLASS OR REPRESENTATIVE ACTION, HOWEVER, THEY UNDERSTAND AND INSTEAD CHOOSE TO HAVE ~~IN COURT~~ANY CLAIMS DECIDED INDIVIDUALLY, ~~SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN~~ THROUGH ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, Unless you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filedotherwise, the ~~party that filed it~~ arbitrator may ~~choose to have~~ not consolidate the dispute of another person with your or our dispute and may not preside over any ~~counterclaim, cross-claim,~~ form of a representative or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputesclass proceeding. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this specific provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this ~~provision~~ Arbitration Agreement is found to be ~~not enforceable~~unenforceable, ~~that portion will be severed~~ then the entirety of the Arbitration Agreement and ~~the rest of this provision will remain in effect. However, if the~~ Class Action Waiver ~~is held to be invalid with respect to any Class Proceeding, the entire provision~~ shall be null and void. ~~• The terms~~ If Intermodal Pool changes this "Arbitration Agreement" section after the date you last accepted these Terms of Use (or accepted any subsequent changes hereto), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of our Communication to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any claim or dispute between you and Intermodal Pool in accordance with the provisions of this ~~arbitration provision shall survive all~~ "Arbitration Agreement" section as of the ~~below events: ° The repayment of your account; ° Changes~~ date you last accepted these Terms (or accepted any subsequent changes to ~~your account or Agreement (see the “Changes to your account terms section”~~these Terms); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other terms.

Appears in 1 contract

Samples: www.intermodalpool.com

Class Action Waiver. ~~You~~ Any arbitration under these Terms will take place on an individual basis; class arbitrations and we class/representative/collective actions are not permitted. EACH PARTY AGREEs THAT IT MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both ~~agree~~you and Per Scholas agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Liability Disclaimer THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY MADE TO THE INFORMATION HEREIN. PER SCHOLAS AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES TO THE SITE AT ANY TIME. PER SCHOLAS AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. PER SCHOLAS AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PER SCHOLAS AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, WITH THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PER SCHOLAS OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. Termination/Access Restriction Per Scholas reserves the right, in its sole discretion, to terminate your access to the ~~fullest~~ Site and the related services or any portion thereof at any time, without notice. To the maximum extent ~~allowed~~ permitted by law, these Terms are governed by the laws of the State of New York and you hereby consent to the exclusive jurisdiction and venue of courts in New York in all disputes arising out of or relating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Per Scholas as a result of this agreement or use of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member Site. Per Scholas's performance of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator these Terms is subject to ~~judicial review only as~~ existing laws and legal process, and nothing contained in these Terms is in derogation of Per Scholas's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by Per Scholas with respect to such use. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the ~~Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award~~ intent of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this original provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the ~~rest~~ remainder of ~~this provision will remain~~ these Terms shall continue in effect. ~~However~~Unless otherwise specified herein, if these Terms constitute the ~~Class Action Waiver is held to be invalid~~ entire agreement between the user and Per Scholas with respect to the Site and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Per Scholas with respect to the Site. A printed version of these Terms and of any ~~Class Proceeding, the entire provision~~ notice given in electronic form shall be ~~null~~ admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and ~~void. • The terms of this arbitration provision shall survive all of~~ subject to the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; same conditions as other business documents and ~~° The bankruptcy or similar action by you or us. • This provision is made~~ records originally generated and maintained in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termsprinted form.

Appears in 1 contract

Samples: Terms and Conditions

Class Action Waiver. ~~You and we both agree~~To the extent either declaratory or injunctive relief is sought in the arbitration, such relief can be awarded only to the ~~fullest~~ extent ~~allowed~~ necessary to provide the relief warranted by ~~law,~~ a party's individual claim. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AND WE AGREE TO WAIVE ANY ABILITY TO MAINTAIN ANY CLASS ACTION IN ANY FORUM. The arbitrator shall not have authority to combine or aggregate similar claims or conduct any class action or make any award to any person or entity not a party to the arbitration. Any claim that all of ~~the following (the “~~part of this Class Action ~~Waiver”): ° Claims will~~ Wavier is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that classby an arbitrator. ~~Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY~~ THE ~~PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE~~ PARTIES UNDERSTAND THAT ~~ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE~~ THEY WOULD HAVE HAD A RIGHT TO ~~GO TO COURT AND~~ LITIGATE THROUGH A COURT, TO HAVE A ~~CLAIM DETERMINED BY~~ JUDGE OR JURY DECIDE THEIR CASE AND BE A ~~JURY. OTHER RIGHTS YOU MAY~~ PARTY TO A CLASS OR REPRESENTATIVE ACTION, HOWEVER, THEY UNDERSTAND AND INSTEAD CHOOSE TO HAVE ~~IN COURT~~ANY CLAIMS DECIDED INDIVIDUALLY, ~~SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN~~ THROUGH ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, Unless you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filedotherwise, the ~~party that filed it~~ arbitrator may ~~choose to have~~ not consolidate the dispute of another person with your or our dispute and may not preside over any ~~counterclaim, cross-claim,~~ form of a representative or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputesclass proceeding. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this specific provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this ~~provision~~ Arbitration Agreement is found to be ~~not enforceable~~unenforceable, ~~that portion will be severed~~ then the entirety of the Arbitration Agreement and ~~the rest of this provision will remain in effect. However, if the~~ Class Action Waiver ~~is held to be invalid with respect to any Class Proceeding, the entire provision~~ shall be null and void. ~~• The terms~~ If SECURSPACE changes this "Arbitration Agreement" section after the date you last accepted these Terms of Use (or accepted any subsequent changes hereto), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of our Communication to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any claim or dispute between you and SECURSPACE in accordance with the provisions of this ~~arbitration provision shall survive all~~ "Arbitration Agreement" section as of the ~~below events: ° The repayment of your account; ° Changes~~ date you last accepted these Terms (or accepted any subsequent changes to ~~your account or Agreement (see the “Changes to your account terms section”~~these Terms); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other terms.

Appears in 1 contract

Samples: s3-us-west-1.amazonaws.com

Class Action Waiver. ~~You~~ Any arbitration under these Terms and we Conditions will take place on an individual basis; class arbitrations and class/ representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both ~~agree~~you and Mobile app agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Liability Disclaimer THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. MOBILE APP AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME. Â MOBILE APP AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. MOBILE APP AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MOBILE APP AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, WITH THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF MOBILE APP OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. Termination/Access Restriction Mobile app reserves the right, in its sole discretion, to terminate your access to the ~~fullest~~ Site and the related services or any portion thereof at any time, without notice. To the maximum extent ~~allowed~~ permitted by law, this agreement is governed by the laws of the State of Tennessee and you hereby consent to the exclusive jurisdiction and venue of courts in Tennessee in all disputes arising out of or relating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Mobile app as a result of this agreement or use of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member Site. Mobile app's performance of ~~that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (~~this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator agreement is subject to ~~judicial review only as~~ existing laws and legal process, and nothing contained in this agreement is in derogation of Mobile app's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by Mobile app with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the ~~Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award~~ intent of the ~~Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by~~ original provision and the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense remainder of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain agreement shall continue in effect. ~~However~~Unless otherwise specified herein, if this agreement constitutes the ~~Class Action Waiver is held to be invalid~~ entire agreement between the user and Mobile app with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Mobile app with respect to the Site. A printed version of this agreement and of any ~~Class Proceeding, the entire provision~~ notice given in electronic form shall be ~~null~~ admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and ~~void. • The terms of this arbitration provision shall survive all of~~ subject to the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; same conditions as other business documents and ~~° The bankruptcy or similar action by you or us. • This provision is made~~ records originally generated and maintained in ~~connection with a transaction involving interstate commerce~~printed form. It ~~shall~~ is the express wish to the parties that this agreement and all related documents be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termswritten in English.

Appears in 1 contract

Samples: www.netcotitle.com

Class Action Waiver. ~~You~~ Any arbitration under these Terms and we Conditions will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both ~~agree~~you and VOVSS agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Liability Disclaimer THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. VISION OF VETERANS SUPPORT SERVICES AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME. VISION OF VETERANS SUPPORT SERVICES AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. VISION OF VETERANS SUPPORT SERVICES AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VISION OF VETERANS SUPPORT SERVICES AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, WITH THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF VISION OF VETERANS SUPPORT SERVICES OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. Termination/Access Restriction VOVSS reserves the right, in its sole discretion, to terminate your access to the ~~fullest~~ Site and the related services or any portion thereof at any time, without notice. To the maximum extent ~~allowed~~ permitted by law, this agreement is governed by the laws of the State of South Carolina and you hereby consent to the exclusive jurisdiction and venue of courts in South Carolina in all disputes arising out of or relating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section. You agree that no joint venture, partnership, employment, or agency relationship exists between you and VOVSS as a result of this agreement or use of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member Site. XXXXX's performance of ~~that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (~~this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator agreement is subject to ~~judicial review only as~~ existing laws and legal process, and nothing contained in this agreement is in derogation of VOVSS's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by VOVSS with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the ~~Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award~~ intent of the ~~Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by~~ original provision and the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense remainder of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain agreement shall continue in effect. ~~However~~Unless otherwise specified herein, if this agreement constitutes the ~~Class Action Waiver is held to be invalid~~ entire agreement between the user and VOVSS with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and VOVSS with respect to the Site. A printed version of this agreement and of any ~~Class Proceeding, the entire provision~~ notice given in electronic form shall be ~~null~~ admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and ~~void. • The terms of this arbitration provision shall survive all of~~ subject to the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; same conditions as other business documents and ~~° The bankruptcy or similar action by you or us. • This provision is made~~ records originally generated and maintained in ~~connection with a transaction involving interstate commerce~~printed form. It ~~shall~~ is the express wish to the parties that this agreement and all related documents be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termswritten in English.

Appears in 1 contract

Samples: Terms and Conditions

Class Action Waiver. ~~You~~ Any arbitration under these Terms and ~~we both agree~~Conditions will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH'S INDIVIDUAL CAPACITY, ~~to the fullest extent allowed by law~~AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, to all of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURTCOLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS ~~DISCOVERY~~ IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both you and Emisha Innovations agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Liability Disclaimer THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR ~~APPEAL RIGHTS~~AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. XXXXXX GREENWOODS HOLDING AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME. XXXXXX GREENWOODS HOLDING AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. XXXXXX GREENWOODS HOLDING AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL XXXXXX GREENWOODS HOLDING AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, WITH THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF XXXXXX GREENWOODS HOLDING OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT ~~BE AVAILABLE~~ APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR ~~MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW~~WITH ANY OF THESE TERMS OF USE, ~~THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE~~ YOUR SOLE AND EXCLUSIVE REMEDY IS TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termsDISCONTINUE USING THE SITE.

Appears in 1 contract

Samples: Terms and Conditions

Class Action Waiver. ~~You~~ Any Claim permissible herein must be brought in the party’s individual capacity, and ~~we both agree~~not as a plaintiff or class member in any purported class, ~~to the fullest extent allowed by law~~collective, ~~to all of the following~~ representative, multiple plaintiffs, or similar proceeding (~~the~~ “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provisionAction”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all Each of the ~~following: ° You may choose~~ parties expressly waives any ability to ~~have~~ maintain any ~~Claim we bring against you be resolved through binding arbitration; ° We may choose to have~~ Class Action in any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not availableforum. The ~~Administrator~~ arbitrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they not have authority to ~~entertain~~ combine or ~~determine~~ aggregate similar claims or conduct any ~~Claim brought in~~ Class Action nor make an award to any entity or person not a party to the arbitration. Any claim that all or part of this Class ~~Proceeding~~Action Waiver is unenforceable, ~~that decision~~ unconscionable, void, or voidable may be ~~appealed to~~ determined only by a court of competent ~~jurisdiction~~jurisdiction and not by an arbitrator. IfTHE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, ~~despite this Agreement~~TO HAVE A JUDGE OR JURY DECIDE THEIR CASE INDIVDUALLY OR TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION, ~~Class Proceedings are allowed~~HOWEVER, ~~those proceedings shall be conducted only in a court~~ THEY UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY THROUGH ARBITRATION. Warranties: CLEANSKY ENERGY MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESSED OR IMPLIED, WITH REGARD TO THE PROVISION OF ELECTRIC SERVICE AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. Limitation of ~~competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration~~ Liability: Customer will be ~~consolidated with~~ deemed to be in exclusive control (and responsible for any ~~other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1~~damage or injury caused thereby) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the ~~fees and costs of their own attorneys~~electric power after receipt at the delivery point or points. CLEANSKY ENERGY WILL NOT BE LIABLE FOR CONSEQUENTIAL, ~~experts~~INCIDENTAL, ~~witnesses~~SPECIAL, ~~documents~~PUNITIVE, ~~and other expenses~~EXEMPLARY, ~~no matter who prevails~~OR INDIRECT DAMAGES (INCLUDING LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES), WHETHER BY STATUTE, IN CONTRACT OR TORT, EVEN IF THE RESULT OF NEGLIGENCE (WHETHER SOLE, JOINT, CONCURRENT, ACTIVE OR PASSIVE). ~~• If~~ ALL OTHER LIABILITY WILL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, AND SUCH DIRECT ACTUAL DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY. CUSTOMER HEREBY WAIVES ALL OTHER REMEDIES AT LAW OR IN EQUITY. THERE ARE NO THIRD-PARTY BENEFICIARIES TO THIS AGREEMENT. To the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other terms.extent any

Appears in 1 contract

Samples: rates.titangasandpower.com

Class Action Waiver. ~~You~~ Any arbitration under these Terms and we Conditions will take place on an individual basis; class arbitrationsandclass/representative/collective actionsarenotpermitted. THEPARTIESAGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both ~~agree~~you and SHINE Systems agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Liability Disclaimer THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. SHINE SYSTEMS LLC AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME. SHINE SYSTEMS LLC AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. SHINE SYSTEMS LLC AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SHINE SYSTEMS LLC AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, WITH THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SHINE SYSTEMS LLC OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. Termination/Access Restriction SHINE Systems reserves the right, in its sole discretion, to terminate your access to the ~~fullest~~ Site and the related services or any portion thereof at any time, without notice. To the maximum extent ~~allowed~~ permitted by law, this agreement is governed by the laws of the Commonwealth of Virginia and you hereby consent to the exclusive jurisdiction and venue of courts in Virginia in all disputes arising out of or relating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section. You agree that no joint venture, partnership, employment, or agency relationship exists between you and SHINE Systems as a result of this agreement or use of the following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member Site. SHINE Systems' performance of ~~that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (~~this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator agreement is subject to ~~judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award~~ existing laws and legal process, and nothing contained in this agreement is in derogation of SHINE Systems' right to comply with governmental, court and law enforcement requests or requirements relating to your use of the ~~Arbitrator may be entered in any court~~ Site or information provided to or gathered by SHINE Systems with ~~jurisdiction. • Any dispute as~~ respect to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedingssuch use. If ~~the Arbitrator decides they have authority to entertain or determine~~ any ~~Claim brought in a Class Proceeding~~part of this agreement isdetermined tobeinvalidorunenforceable pursuanttoapplicablelawincluding, ~~that decision may be appealed to a court of competent jurisdiction. If~~butnotlimitedto, ~~despite this Agreement~~thewarranty disclaimersandliability limitationsset forth above, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration thentheinvalidor unenforceable provision will be ~~consolidated with any other arbitration proceeding without~~ deemed superseded by a valid, enforceable provision that most closely matches the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense intent of the ~~fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this~~ original provision ~~will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed~~ and the ~~rest~~ remainder of ~~this provision will remain~~ the agreement shall continue in effect. ~~However~~Unlessotherwisespecifiedherein, ~~if the Class Action Waiver is held to be invalid~~ thisagreementconstitutestheentireagreementbetweentheuser and SHINE Systems with respect to ~~any Class Proceeding~~the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the ~~entire provision shall be null~~ user and ~~void~~SHINE Systems with respect to the Site. ~~• The terms~~ A printed version of this ~~arbitration provision shall survive all~~ agreement and of any notice given in electronicformshallbeadmissibleinjudicial or administrativeproceedingsbaseduponorrelating to this agreement to the ~~below events: ° The repayment of your account; ° Changes~~ same extent and subject to ~~your account or Agreement (see~~ the ~~“Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account;~~ same conditions as other business documents and ~~° The bankruptcy or similar action by you or us. • This provision is made~~ records originally generated andmaintained in ~~connection with a transaction involving interstate commerce~~printed form. It ~~shall~~ is theexpress wish to the parties that this agreement and all related documents be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termswritten in English.

Appears in 1 contract

Samples: Terms and Conditions

Class Action Waiver. ~~You~~ Any arbitration under these Terms will take place on an individual basis; class arbitrations and we class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both ~~agree~~you and Marlite agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Liability Disclaimer THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. MARLITE, INC. AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME. MARLITE, INC. AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. MARLITE, INC. AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MARLITE, INC. AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, WITH THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF MARLITE, INC. OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. Termination/Access Restriction Marlite reserves the right, in its sole discretion, to terminate your access to the ~~fullest~~ Site and the related services or any portion thereof at any time, without notice. To the maximum extent ~~allowed~~ permitted by law, the Terms are governed by the laws of the State of Ohio. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Marlite as a result of the ~~following (the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring~~ Terms or to participate in Class Proceedings against you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as a member of that class; and ° If some other person initiates a Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class. Arbitration Provision (this “provision”). • THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY. • WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” BE RESOLVED BY BINDING ARBITRATION. • ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree to all use of the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filed, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitrationSite. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator Marlite's performance is subject to ~~judicial review only as~~ existing laws and legal process, and nothing contained in the Terms is in derogation of Marlite's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by Marlite with respect to such use. If any part of the Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the ~~Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award~~ intent of the ~~Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by~~ original provision and the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense remainder of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain Terms shall continue in effect. ~~However~~Unless otherwise specified herein, if the ~~Class Action Waiver is held to be invalid~~ Terms constitutes the entire agreement between the user and Marlite with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Marlite with respect to the Site. A printed version of the Terms and of any ~~Class Proceeding, the entire provision~~ notice given in electronic form shall be ~~null~~ admissible in judicial or administrative proceedings based upon or relating to the Terms to the same extent and ~~void. • The terms of this arbitration provision shall survive all of~~ subject to the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; same conditions as other business documents and ~~° The bankruptcy or similar action by you or us. • This provision is made~~ records originally generated and maintained in ~~connection with a transaction involving interstate commerce~~printed form. It ~~shall~~ is the express wish to the parties that the Terms and all related documents be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other termswritten in English.

Appears in 1 contract

Samples: Agreement

Class Action Waiver. WHERE PERMITTED BY APPLICABLE LAW, YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE BANK OR ANY OTHER INDEMNIFIED PARTY ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. You ~~and we both agree, to the fullest extent allowed by law, to all of the following~~ may not: (~~the “Class Action Waiver”): ° Claims will not under any circumstances be pursued in Class Proceedings; ° We waive the right to bring or to~~ 1) participate in ~~Class Proceedings~~ a class action in court or in arbitration, either as a class representative, class member, or otherwise; (2) act as a private attorney general in court or in arbitration; (3) join or consolidate Claims (as defined in Arbitration below) by or against you with claims by or against any other person, and the arbitrator will have no authority to conduct any such class, private attorney general, or multiple-party proceeding; or (4) have a jury decide the Claim. This section does not apply to you; ° You waive the right to bring or to participate in Class Proceedings against us; ° If some other person initiates a Class Proceeding against you,we may not and will not join that proceeding or participate as , if you are a member of ~~that class; and ° If some other person initiates~~ the Armed Forces or a ~~Class Proceeding against us, you may not and will not join that proceeding or participate as a member of that class~~dependent covered by the Military Lending Act. Arbitration ~~Provision (this “provision”). •~~ PLEASE READ THIS ~~AGREEMENT CONTAINS AN~~ ARBITRATION PROVISION ~~WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS~~ CAREFULLY. ~~• WITH LIMITED EXCEPTIONS~~UNLESS YOU SEND US THE REJECTION NOTICE DESCRIBED BELOW, THIS ARBITRATION PROVISION ~~ALLOWS EITHER PARTY~~ WILL APPLY TO ~~REQUIRE THAT~~ YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU, ON THE ONE HAND, AND US OR ANY ~~“CLAIM”~~ INDEMNIFIED PARTY, ON THE OTHER HAND, WILL BE ~~RESOLVED BY BINDING~~ SUBJECT TO INDIVIDUAL ARBITRATION. ~~• ARBITRATION REPLACES~~ This Arbitration provision does not apply to you if, as of the date of this Agreement, you are a member of the Armed Forces or a dependent of such member entitled to protection under the Federal Military Lending Act. YOU HAVE THE RIGHT TO ~~GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY~~OPT OUT OF THIS ARBITRATION PROVISION AS SET FORTH BELOW. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. • YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. • Except as otherwise provided in this provision, you and we agree Subject to ~~all of~~ the following: ° You may choose to have any Claim we bring against you be resolved through binding arbitration; ° We may choose to have any Claim you bring against us be resolved through binding arbitration; ° We may choose to have any Claim you bring against us preceding sentence and any of Our Related Parties be resolved through binding arbitration; ° Our Related Parties may choose to have any Claim you bring only against them and not us be resolved through binding arbitration; and ° If a court action is filedopt out right under this section, the party that filed it may choose to have any counterclaim, cross-claim, or third party claim brought in that action be resolved through binding arbitration. • If a party chooses to have a Claim be resolved by arbitration, neither you or we will have the right to do any of the following: ° Litigate that Claim in court; ° Have a jury trial on that Claim; or ° Engage in pre-arbitration discovery, except as provided in the Rules or AAA Rules, as applicable. • Ordinary Claims are not subject to this provision. Ordinary Claims may be resolved through court action. • Arbitrations shall be conducted through an Administrator unless one is not available. The Administrator shall be a national arbitration organization with significant experience in financial and consumer disputes. If multiple exist, the Administrator will be the one you and we mutually agree upon. If none exist, the arbitration shall be conducted through an Arbitrator without an Administrator. 17 following Arbitration and class action waiver (continued). Arbitration Provision (this “provision”). (continued) • The Arbitrator must be impartial and neutral. The Arbitrator must also be either a lawyer with at least ten years of experience or a retired judge. • For arbitrations with an Administrator, all of the below provisions will apply: ° Arbitrations shall be conducted according to the Rules; ° The Administrator will provide a listing of possible persons to hear and decide the arbitration; and ° The person(s) you and we mutually agree upon from that listing will be the Arbitrator. • For arbitrations without an Administrator, all of the below will apply: ° Arbitrations shall be conducted according to the AAA Rules; ° The Arbitrator shall take the place of AAA in the AAA Rules; and ° The person(s) you and we mutually agree upon will be the Arbitrator. • Arbitrations will be filed in accord with the Rules or AAA Rules, as applicable. • You or we may choose to have an arbitration hearing. Any hearing will take place in the federal judicial district where you live when the arbitration is filed. You and we may also agree upon a different location. • You and we may be represented by counsel in any arbitration. • The Arbitrator shall have no authority to award punitive damages. • The decision of the Arbitrator will be final and binding. Any final decision of the Arbitrator is subject to judicial review only as set forth by the Federal Arbitration Act. The Arbitrator shall issue a written decision. Judgment upon an award of the Arbitrator may be entered in any court with jurisdiction. • Any dispute as to whether a claim or dispute is a Claim shall be resolved solely by the Arbitrator except: ° As noted below for Class Proceedings; and ° A court will decide whether a Claim is an Ordinary Claim. • An arbitration pursuant to this provision may decide only your Claims, our Claims, or Claims of Our Related Parties. The Arbitrator shall have no authority to entertain or determine Class Proceedings. If the Arbitrator decides they have authority to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only Claims that may be joined under this provision are (1) those brought by us and Our Related Parties against you and Your Related Parties; or (2) those brought by you and Your Related Parties against us and Our Related Parties. • If you file a good faith individual arbitration under this provision, we will reimburse you the initial filing fee up to $350. All other fees will be divided in keeping with applicable law and either the Rules or AAA Rules, as applicable. We will also reimburse other fees if the Arbitrator determines there is good reason or we determine there is good cause to do so. Each party will bear the expense of the fees and costs of their own attorneys, experts, witnesses, documents, and other expenses, no matter who prevails. • If the Rules or AAA Rules are inconsistent with this provision, this provision will prevail. • If any portion of this provision is found to be not enforceable, that portion will be severed and the rest of this provision will remain in effect. However, if the Class Action Waiver is held to be invalid with respect to any Class Proceeding, the entire provision shall be null and void. • The terms of this arbitration provision shall survive all of the below events: ° The repayment of your account; ° Changes to your account or Agreement (see the “Changes to your account terms section”); ° Our assignment of your account; ° Issuance of replacement accounts or cards; ° The closing of your account; and ° The bankruptcy or similar action by you or us. • This provision is made in connection with a transaction involving interstate commerce. It shall be governed by and enforceable under the FAA. The Arbitrator shall do all the following: ° Apply applicable substantive law consistent with the FAA, National Bank Act and agency regulations; ° Apply applicable statutes of limitations; and ° Honor claims of privilege recognized at law. 18 Other terms.:

Appears in 1 contract

Samples: Cardholder Agreement

Common use of Class Action Waiver Clause in Contracts