Arbitration, Waiver of Jury Trial and Waiver of Class Action or Representative Claim: You and we agree to resolve claims and disputes through binding arbitration. Neither you nor we will have the right to pursue such dispute in court or have a jury decide the dispute, nor will you or we have the right to bring or participate in any CLASS OR OTHER REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION. The arbitration and waiver of jury trial provision’s terms are set forth in the section titled "ARBITRATION; WAIVER OF JURY TRIAL; WAIVER OF CLASS ACTION OR REPRESENTATIVE CLAIM." PLEASE READ THIS ARBITRATION; WAIVER OF JURY TRIAL; WAIVER OF CLASS ACTION OR REPRESENTATIVE CLAIM SECTION CAREFULLY.
ARBITRATION; WAIVER OF JURY TRIAL; WAIVER OF CLASS ACTION OR REPRESENTATIVE CLAIM
PLEASE READ THIS SECTION CAREFULLY. IT PROVIDES THAT YOU AND WE WILL RESOLVE ANY DISPUTES BY BINDING ARBITRATION. PURSUANT TO THIS SECTION, YOU AGREE THAT (1) YOU AND WE ARE WAIVING THE RIGHT TO A JURY TRIAL OR TRIAL BEFORE A JUDGE IN A PUBLIC COURT AND (2) YOU AND WE ARE WAIVING ANY RIGHT TO BRING OR PARTICIPATE IN ANY CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION OR RAISE ANY OTHER CLAIMS IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR OTHER PERSONS SIMILARLY SITUATED.
Agreement to Arbitrate. YOU HAVE THE RIGHT TO REJECT THIS ARBITRATION PROVISION AS BELOW SET FORTH. If you do not reject this arbitration provision, you and we agree to resolve by binding arbitration any claim subject to this section, except those claims filed and decided in small claims court as below set forth. If you or we fail to submit to binding arbitration following lawful demand, such party shall bear all costs and expenses incurred by the other party to compel arbitration.
Waiver of Jury Trial and Class or Representative Action. YOU AND WE AGREE THAT NO CLASS ACTION, PRIVATE ATTORNEY GENERAL, OR OTHER CLAIMS BROUGHT IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR OTHER PERSONS SIMILARLY SITUATED MAY BE PURSUED IN ARBITRATION OR IN COURT. CLAIMS MAY NOT BE JOINED, CONSOLIDATED, OR OTHERWISE COMBINED WHETHER OR NOT ANY SUCH COMBINATION OCCURRED AS A RESULT OF AN ASSIGNMENT. YOU AND WE FURTHER AGREE THAT, IN THE EVENT THAT A CLAIM PROCEEDS IN COURT, YOU AND WE WAIVE THE RIGHT TO A JURY TRIAL.
Disputes Subject to Arbitration. As used in this section, the term “claim” has the broadest possible meaning and includes, but is not limited to, any unresolved disagreement, controversy, dispute, or cause of action between you and us related to or concerning this Agreement, including any disagreements regarding the meaning, application or enforceability of this Agreement, any proceeding or other claim between you and us concerning, relating to or arising out of your myAdvance account, the Associated Checking Account, this Agreement, the services provided pursuant to this Agreement, any relationship between you and us that is governed by this Agreement, or any advertisement or solicitation, whether asserted or brought in a direct, derivative, assignee, survivor, successor, beneficiary or personal capacity. The term “claim” includes claims of every kind and nature, including but not limited to, initial claims, counterclaims, cross-claims and third-party claims and claims based upon contract, tort, fraud and other intentional torts, statutes, regulations, common law and equity. For purposes of this section, “we,” “us,” and “our” includes Commerce Bank, any corporate parent, subsidiaries, affiliates, employees, officers, directors, agents, controlling persons and representatives, as well as any person or entity who provides any services in connection with this Agreement.
Disputes Not Subject to Arbitration. Notwithstanding the foregoing, the term “claim” shall not include any dispute or controversy regarding the validity, enforceability, coverage or scope of this arbitration provision or any part thereof, including, without limitation, the waiver of class action or representative claim set forth above and this sentence; all such disputes are for a court and not the arbitrator to decide. In addition, claims filed by you or us individually in small claims court, so long as any such claim remains in that court and advances only an individual claim for relief, are not subject to arbitration. However, if a claim is transferred, removed or appealed to a different court, you or we will then have the right to demand arbitration of such claim.
Arbitration Procedure. The arbitration shall be administered by the American Arbitration Association (“AAA”), pursuant to its Commercial Arbitration Rules and its Supplementary Procedures for the Resolution of Consumer-Related Disputes (collectively, “Rules”) in effect at the time a demand for arbitration is filed. If there is a conflict between the Rules and this Agreement, this Agreement shall control. Pursuant to the Rules, the AAA will select an arbitrator, and the parties shall have seven days to object to the selected arbitrator. Arbitrators shall have expertise in the substantive laws applicable to the claim’s subject matter. The arbitration proceeding shall take place in the county in which your Associated Checking Account is located.
The arbitrator, you and we will not disclose the existence, content or outcome of any arbitration proceeding; provided, however, that disclosures required by applicable law or regulation shall not be subject to such restriction. The forgoing sentence does not prohibit any party from, in good faith, investigating a claim or defense, including interviewing witnesses or otherwise engaging in discovery or from entering a judgment on the arbitrator’s award in any court of competent jurisdiction.
The arbitrator may award any damages or other relief provided for under applicable law.
Delegation of Authority to the Arbitrator. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including, but not limited to, any claim of fraud, that you or we have been deceived into entering this Agreement, or that all or any part of this Agreement is void or voidable for any reason.
Fees and Costs of Arbitration. You will be responsible for paying your share of the arbitration fees as set forth in the Rules. The Rules currently provide that, for claims that do not exceed $10,000, you will pay a maximum fee of $125, and for claims between $10,000 and $75,000, you will pay a maximum fee of $375. We will pay the remainder of any arbitration fees. If the fee you pay is not used, it will be refunded to you. To the extent not prohibited by applicable law, each party shall bear the costs for its respective attorney(s), expert(s), witness(es) and other fees and/or expenses, regardless of who prevails.
Rights Preserved. This arbitration provision does not prohibit you or us, at any time, from (a) exercising any lawful rights to preserve or obtain possession of property or self-help remedies, including but not limited to, the right to set-off, the right to restrain funds in an account, recoupment, repossession, or trustee’s sales; or (b) to obtain provisional or ancillary remedies or injunctive relief (other than a stay of arbitration), including but not limited to attachment, garnishment, or the appointment of a receiver by a court of appropriate jurisdiction. The election by either you or us of any of the foregoing actions shall not be deemed a waiver of the right to elect binding arbitration of any claim upon the filing by you or us, as applicable, of a response to such action.
Applicable Law. You and we agree that our relationship includes transactions involving interstate commerce and that this Agreement (including its interpretation and enforcement) and any arbitration rule, proceeding and award pursuant to the terms hereof, are governed by and enforceable pursuant to the provisions of the Federal Arbitration Act (9 U.S.C. § 1, et seq.). To the extent that state law is applicable, Missouri law shall apply. The arbitrator shall decide the claim in accordance with the terms of this Agreement, all statutes of limitation, defenses, attorney-client and other privileges.
Severance. If any term or provision of this arbitration provision is held to be unenforceable or illegal, the remaining provisions shall be enforced without regard to such illegal or unenforceable term or provision. If however, any provision of this Agreement regarding class action, class arbitration, private attorney general action, other representative action, joinder, or consolidation is finally held by an authority of competent jurisdiction to be unenforceable or illegal, such provision shall not be severable and this arbitration provision between you and us shall be null and void. Any provision of this Agreement regarding class action, class arbitration, private attorney general action, other representative action, joinder, or consolidation shall be adjudicated in accordance with applicable law and shall not be resolved through arbitration. The waiver of jury trial shall remain in full force and effect to the fullest extent allowed by law even if any dispute between you and us is resolved in a court rather than in arbitration.
Survival. This arbitration provision shall survive any termination or changes to your myAdvance account, your Associated Checking Account, or this Agreement; the transfer or assignment of any of the foregoing; and the bankruptcy of any party.
Right to Reject Arbitration Agreement. If you don’t want this arbitration provision to apply to this Agreement, you may reject it and as a result not be subject to the requirement to resolve any claim by arbitration. To reject this arbitration provision, you must send us written notice of your decision to reject this arbitration provision to the address set forth below and we must receive your notice within thirty (30) days of the opening of your myAdvance account. Your notice must: (a) include a signed statement that you reject the arbitration provision set forth in this Agreement; (b) include your name, address and myAdvance account name and number; and (c) be sent to us by certified mail, return receipt requested at the following address: COMMERCE BANK, PO BOX 801277, KANSAS CITY, MO 64180-1277. This is the only way you can reject this arbitration provision. If you reject this arbitration provision, it will not affect any remaining terms of this Agreement and it will not adversely affect your myAdvance account, your Associated Checking Account or any relationship between you and us.