Arbitration and Waiver of Right to Jury Trial and Right to Participate in Class Action: This Arbitration Agreement ("Arbitration Agreement") contains provisions for (i) binding arbitration, (ii) waiver of jury trial, and (iii) waiver of your right to participate in class action. This Arbitration Agreement authorizes you or us to elect mandatory and binding arbitration of certain disputes. When arbitration is elected for disputes subject to binding arbitration, you and we will not have the right to pursue such dispute in court or have a jury decide the dispute and you will not 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 AND WAIVER OF RIGHT TO JURY TRIAL AND RIGHT TO PARTICIPATE IN CLASS ACTION." PLEASE READ THIS ARBITRATION AND WAIVER OF RIGHT TO JURY TRIAL AND RIGHT TO PARTICIPATE IN CLASS ACTION SECTION CAREFULLY.
ARBITRATION AND WAIVER OF RIGHT TO JURY TRIAL AND RIGHT TO PARTICIPATE IN CLASS ACTION
PLEASE READ THIS SECTION CAREFULLY. IT PROVIDES THAT EITHER YOU OR WE CAN REQUIRE THAT ANY DISPUTES BE RESOLVED BY BINDING ARBITRATION. PURSUANT TO THIS SECTION, YOU AGREE THAT YOU AND WE ARE WAIVING THE RIGHT TO A JURY TRIAL OR TRIAL BEFORE A JUDGE IN A PUBLIC COURT AND TO BRING OR PARTICIPATE IN ANY CLASS OR OTHER REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION.
Agreement to Arbitrate and Waiver of Jury Trial. Either you or we may elect, without the consent of the other, to resolve by binding arbitration any claim subject to this section, except those claims specifically below excluded. 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.
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, disagreement, cause of action between you and us, any disagreements regarding the meaning, application or enforceability of the Text Alert Terms and Conditions, or proceeding or other claim between you and us concerning, relating to or arising out of text Alerts, the Text Alert Terms and Conditions, the services provided pursuant to the Text Alert Terms and Conditions, any relationship between you and us that is governed by the Text Alert Terms and Conditions, 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, "you," "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 the Text Alert Terms and Conditions.
Disputes Not Subject to Arbitration. 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, we will then have the right to demand arbitration of such claim.
Arbitration Procedure. Notwithstanding the fact that a lawsuit or other proceeding has commenced, you or we may submit a claim to binding arbitration at any time. YOU AND WE AGREE THAT NO CLASS ACTION, PRIVATE ATTORNEY GENERAL, OR OTHER CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR OTHER PERSONS SIMILARLY SITUATED MAY BE PURSUED IN ARBITRATION, NOR MAY SUCH ACTION BE PURSUED IN COURT IF EITHER PARTY ELECTS TO RESOLVE A CLAIM BY ARBITRATION. CLAIMS MAY NOT BE JOINED, CONSOLIDATED, OR OTHERWISE COMBINED WHETHER OR NOT ANY SUCH COMBINATION OCCURRED AS A RESULT OF AN ASSIGNMENT. 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 Arbitration Agreement, this Arbitration Agreement shall control. Arbitrators shall be selected from the AAA's panel of arbitrators and members of the state bar where the arbitration is held, with expertise in the substantive laws applicable to the claim's subject matter. 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 arbitrator may award any damages or other relief provided for under applicable law. The arbitrator shall decide the claim in accordance with the terms of this Arbitration Agreement, the Text Alert Terms and Conditions, all statutes of limitation, defenses, attorney-client and other privileges. The arbitration proceeding shall take place in the county in which your associated deposit account is located.
Fees and Costs of Arbitration. You will be responsible for paying your share of the arbitration fees to the extent that such fees do not exceed the amount of filing fees you would have otherwise incurred if you filed the claim in the state or federal court having jurisdiction over such claim. We will pay the remainder of any arbitration fees. To the extent not prohibited by applicable law, each party shall bear the costs for its respective attorney, expert, witness and other fees and/or expenses, regardless of who prevails.
Rights Preserved. This agreement to arbitrate 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 the Text Alert Terms and Conditions and any arbitration 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, the laws of the state governing the relationship between you and us shall apply.
Severance. If any term or provision of this Arbitration Agreement is held to be unenforceable or illegal, the remaining provisions shall be enforced without regard to such illegal or unenforceable term or provision; provided, however, that if any provision of this section 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 the Arbitration Agreement between you and us shall be null and void as to such joined, consolidated or class action, and such action shall be adjudicated in accordance with applicable law and shall not be resolved through arbitration; provided, further, that the waiver of jury trial shall remain in full force and effect to the fullest extent allowed by law.
Survival. This Arbitration Agreement shall survive: any termination or changes to text Alerts or the Text Alert Terms and Conditions; the transfer or assignment of any of the foregoing; and the bankruptcy of any party.