Arbitration Agreement With Class Action Waiver. You or we may elect to arbitrate Claims. You and we agree that if we have a Claim against you or you have a Claim against us, or any of our agents, successors, assigns, affiliates, owners, officers, directors, employees, or representatives, then the person or entity asserting the claim or against whom the claim is asserted may elect to have such Claim(s) resolved by arbitration on an individual basis as provided below, and not by a judge or jury in court. The party electing arbitration agrees to notify the other party of its election pursuant to applicable rules of arbitration or as otherwise provided by law. If a party files a lawsuit in court asserting Claim(s) that are subject to arbitration and the other party files a motion to compel arbitration with the court which is granted, it will be the responsibility of the party asserting the Claim(s) to select an arbitration administrator in accordance with this Arbitration Agreement and start the arbitration proceeding in accordance with the administrator’s rules and procedures. Even if all parties have opted to litigate a Claim in court, you or we may elect arbitration with respect to any Claim made by a new party or any Claim later asserted by a party in that or any related or unrelated lawsuit (including a claim initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Arbitration Agreement. What is arbitration? Arbitration is a procedure used to resolve disputes. By participating in arbitration, YOU GIVE UP YOUR RIGHT TO GO TO COURT OR TO HAVE A JURY TRIAL. In an arbitration proceeding, a professionally trained, neutral, third party arbitrator holds a hearing. The hearing is less formal than a trial in court. Each party has the opportunity to tell his or her side of the dispute. The arbitrator will review each party's case and make a decision. The decision is binding on the parties. What is a “Claim?” “Claims'' means any and all claims, disputes or controversies that arise under common law, federal or state statute or regulation, local ordinance or otherwise, and that we or our servicers or agents have against you or that you have against us, our affiliates, servicers, agents, successors, assigns, representatives, directors, officers and employees. This Arbitration Agreement is also binding upon and may be enforced by any third party who is named as a co-defendant in a Claim asserted by one party against another party. “Claims'' also includes any and all claims that arise out of or relate to (i) your use of the IBV Widget, or (ii) the relationship between you and us. “Claims'' also includes initial claims, counterclaims, crossclaims, and third-party claims. Notwithstanding the foregoing, “Claims” does not include disputes about the validity, enforceability, coverage, or scope of this Arbitration Agreement or any part thereof (including but not limited to the provision titled “Is class arbitration allowed?”); all such disputes are for a court and not an arbitrator to decide. “Claims” also does not include any individual action brought by you or us in small claims court (or an equivalent court), unless such action is transferred, removed, or appealed to a different court or otherwise exceeds the jurisdiction of the small claims court or equivalent court. What rules apply to arbitration? The arbitration will be governed by the consumer arbitration rules of the Better Business Bureau (“BBB''). Alternatively, you may elect to have the arbitration heard by and under the consumer rules of the Judicial Arbitration and Mediation Service (“JAMS''). If neither the BBB nor JAMS can serve and you and we cannot agree on a replacement, then a court with jurisdiction will select the arbitrator, who must abide by the terms of this Arbitration Agreement. The arbitrator will follow the applicable substantive law, consistent with the FAA, that would apply if an individual matter had been brought in court and may award any damages or other relief or remedies that would apply under applicable law to an individual action brought in court, including, without limitation, punitive damages (which shall be governed by the constitutional standards employed by the courts) and injunctive, equitable, and declaratory relief (but only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim). Any arbitration hearing, if one is held, will take place at a location near your residence. The arbitration will be conducted by a single arbitrator, except that any party may appeal the single arbitrator’s award to a 3-arbitrator panel, which will have de novo review, if the award or the amount in controversy exceeds $25,000. The arbitration award will be in writing. Judgment upon the award may be entered by any party in any court having jurisdiction and will be final, binding, and non-appealable except for any appeal rights under the FAA. All statutes of limitations and privileges that are applicable to a Claim will apply to any arbitration between you and us. No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have preclusive effect in an arbitration between the parties to this Arbitration Agreement. Is class arbitration allowed? No. If either you or we elect to resolve one or more Claims by arbitration, then such Claim(s) will be arbitrated only on an individual basis. There will be no right or authority for any Claims to be arbitrated on a class or other representative basis. The arbitrator will not conduct class arbitration and will not allow you to act as a representative or private attorney general or in any other representative capacity. In addition, the arbitrator will not join or consolidate Claims by or against you with claims by or against any other person or entity unless all parties otherwise agree in writing. Who pays the costs of arbitration? We will pay our share of any arbitration fees. If you are unable to pay your share of the costs of arbitration, then your arbitration fees may be waived by the BBB or other arbitration service provider you have selected. If your properly submitted request to waive the arbitration fees is denied, or if the arbitration service you have selected does not have a waiver procedure, then we will, at your request, pay your share of the arbitration fees. We will always pay any fees or expenses that we are required to pay by law or that we are required to pay for this Arbitration Agreement to be enforced. You and we each agree to pay our own expenses for attorneys' fees, experts, and witnesses, unless applicable law gives you or us the right to recover any of those expenses from the other. If the arbitrator finds that the substance of a claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the arbitrator may award sanctions in the form of fees and expenses reasonably incurred by the other party or parties. What law applies? Since this Arbitration Agreement is made pursuant to a transaction involving interstate commerce, it will be governed by the Federal Arbitration Act, 9 U.S.C. Sections 116, as amended (the “FAA”). To the extent that state law is applicable under the FAA, the laws of the State of Illinois will apply. Other Arbitration Terms. This Arbitration Agreement is an independent agreement, and it will survive the termination of the Deposit Account Agreement, the closing of your deposit accounts with us, the closing and repayment of your deposit accounts with us, and any bankruptcy (to the extent permitted by applicable bankruptcy law), and it will be binding upon us, our successors, and assigns, and upon you and your heirs and assigns. In the event of a conflict between this Arbitration Agreement, on the one hand, and the arbitration administrator’s rules or other terms of this Agreement or any other agreement between you and us, on the other hand, this Arbitration Agreement shall govern. If any portion of this Arbitration Agreement is held to be invalid or unenforceable, then the remaining portions shall nevertheless remain in force, subject to two exceptions: (1) if a determination is made that the restrictions in this Arbitration Agreement prohibiting the arbitrator from conducting a class or other representative proceeding or awarding relief on behalf of third parties are unenforceable, and that determination is not reversed on appeal, then the Arbitration Agreement shall be void in its entirety; and (2) if a court determines that a public injunctive relief Claim may proceed notwithstanding the restrictions in this Arbitration Agreement prohibiting the arbitrator from conducting a class or other representative proceeding or awarding relief on behalf of third parties, and that determination is not reversed on appeal, then the public injunctive relief Claim will be decided by a court, any individual Claims will be arbitrated, and the parties will ask the court to stay the public injunctive relief Claim until the other Claims have been finally concluded. CLASS ACTION WAIVER. BY SIGNING THIS ARBITRATION AGREEMENT, YOU AGREE THAT YOU ARE WAIVING ANY RIGHT YOU MAY HAVE TO BRING, JOIN OR PARTICIPATE IN ANY CLASS ACTION, CLASS ARBITRATION PROCEEDING, OR OTHER REPRESENTATIVE ACTION AGAINST US OR RELATED THIRD PARTIES.
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