|
with an arbitration proceeding; provided, that any prevailing party may seek the recovery of, and the arbitrator(s) may award or apportion, costs,
<br />fees, and/or expenses, as provided under the terms of this Master Agreement or the Arbitration Rules, or as required by applicable law.
<br />The arbitration of any Claim of $100,000 or greater shall be conducted by a panel of three arbitrators. The arbitration of any Claim of
<br />a lesser amount shall be conducted by one arbitrator. The arbitrator(s) shall be selected from the AAA's panel of arbitrators by mutual agreement
<br />between Customer and Bank if the parties cannot agree on the arbitrator(s), the AAA shall appoint the arbibator(s). Except as expressly provided
<br />in this agreement to arbitrate, no Claim may be joined with another dispute or lawsuit, or consolidated with the arbitration of another Claim, or
<br />resolved on behalf of a class of similarly situated persons, or brought as private attorney general or on another similar representative basis. All
<br />statutes of limitation, defenses, and attorney-client and other privileges that would apply in a court proceeding shall apply in the arbitration. Any
<br />in-person arbitration hearing shall be held in the federal judicial district embracing Birmingham, Alabama Any dispute regarding whether a
<br />particular controversy is subject to arbitration, including any claim of unconscionability and any dispute over the scope or validity ofthis agreement
<br />to arbitrate disputes or of this entire Master Agreement, shall be decided by the arbitrator(s). The arbitrator(s) shall establish such reasonable
<br />procedures as may be necessary for the reasonable exchange of information between the parties prior to such arbitration. In rendering an award,
<br />the arbitrator(s) shall apply applicable contract terns, statutes and legal precedent and shall follow the Federal Rules ofEvidence, enforce applicable
<br />privileges, and employ applicable burdens ofproof The arbitrator(s) shall award only such relief as a court of competentjurisdiction could properly
<br />award under applicable law. The findings, reasoning, decision, and award of the arbitrators) shall be set forth in writing and shall be based upon
<br />and be consistent with the law of the jurisdiction that applies to this Master Agreement. Judgment on the arbitration award may be entered in any
<br />court having jurisdiction.
<br />In the event that the arbitration results in an award which imposes an injunction on you or on us, or contains a monetary award in excess
<br />of two hundred fifty thousand dollars (5250,000.00), the award shall be reviewable on appeal initiated within 30 days of the award by a panel of
<br />three new arbitrators selected to hearthe appeal underthe procedure forappointment from thenational roster as provided by Commercial Arbitration
<br />Rule 11. Such review shall apply the substantive and procedural standards normally applying to an appeal of a judgment from a trial court of
<br />competentjurisdiction. However, if the award does not impose an injunction on you or on us or contain a money award in excess of two hundred
<br />fifty thousand dollars ($250,000.00), then the award shall not be appealable and shall only be subject to such challenges as would otherwise be
<br />permissible under the FAA.
<br />This agreement to arbitrate does not limit the right of Customer or Bank, whether before, during or after the pendency of any arbitration
<br />proceeding, to exercise self-help remedies such as set-off; repossession, trustee's sales and the like. This agreement to arbitrate does not limit the
<br />right of Customer or Bank, whether before or during the pendency of any arbitration proceeding to bring an action (individually, and not on behalf
<br />of a class) to obtain provisional or ancillary remedies or injunctive relief (other than a stay of arbitration) to protea the rights or property of the
<br />party seeking such relief. However, the arbitrator(s) shall have the power to vacate and/or stay any such proceedings or orders granting provisional
<br />orancillaryremcdicsor igjunetive relief; upon application by Customer orBank. The taking by either CustomerorBank of any ofself-help remedies
<br />or by filing any action in court, including, but not limited to, the actions described in the preceding sentence, shall not be deemed to be a waiver of
<br />the right to elect binding arbitration of any Claim upon the filing of a counterclaim or the like by either Customer or Baric in response to any such
<br />action. Customer and Bank specifically acknowledge and agree that this Master Agreement evidences a "transaction involving commerce" under
<br />the FAA, and hereby waive and relinquish any right to claim otherwise.
<br />If any term or provision of this agreement to arbitrate disputes and waiver of jury trial is held to be invalid or unenforceable, the
<br />remaining provisions shall be enforced without regard to the invalid or unenforceable term or provision; provided, that if Customer or Bank seeks
<br />to bring a joined, consolidated, or class action for arbitration, and if the foregoing prohibition against the arbitration of joined, consolidated or class
<br />actions is held by an authority of competent jurisdiction to be invalid or unenforceable, the arbitration agreement between Customer and Bank shall
<br />be deemed inapplicable to such joined, consolidated or loss action, to the effect that any permitted and lawful joined, consolidated or class action
<br />shall be adjudicated in accordance with the provisions of applicable law and shall not be resolved through arbitration (provided further, that the
<br />jury trial waivershall, in any event, remain in full force and effect to the fullest extent permitted by law). This agreement to arbitrate disputes and
<br />waiver of jury trial shall survive the termination of this Master Agreement or any Service for any reason.
<br />WHETHER ANY CONTROVERSY IS ARBITRATED OR SETTLED BY A COURT, CUSTOMER
<br />AND BANK VOLUNTARILY, KNOWINGLY, AND INTENTIONALLY WAIVE ANY RIGHT TO A JURY
<br />TRIAL WITH RESPECT TO SUCH CONTROVERSY TO THE FULLEST EXTENT ALLOWED BY LAW.
<br />EACH PARTY ACKNOWLEDGES THAT IT HAS RECEIVED THE ADVICE OF COMPETENT
<br />COUNSEL WITH REGARD TO THE WAIVER OF THE RIGHT TO JURY TRIAL.
<br />26. Governing Law, Venue. This Master Agreement, and the rights, remedies, obligations, and liabilities arising hereunder, shall be governed by
<br />and construed in accordance with the laws of the State of Alabama, without regard to its conflict of laws principles, and, where applicable, the laws of the
<br />United States. Any action at law, suit in equity, or other proceeding (including, without limitation, arbitration proceedings) for the enforcement of
<br />this Master Agreement or any provision hereof, or for the adjudication of any dispute of controversy relating to or arising out of any relationship
<br />or transaction between the parties, shall take place, at the option of Bank (whether or not such proceeding is initiated by B ank), in the State of
<br />Alabama, in Jefferson County, in the City of Birmingham. Customer hereby consents to the personal jurisdiction of the state and federal courts in
<br />Jefferson County, Alabama, in any dispute or contest arising from or relating to this Master Agreement or any relationship or transaction between
<br />Customer and Bank, and Customer waives any right to dismiss or transfer any action or adversarial proceeding or hearing commenced in or
<br />transferred to Birmingham, Jefferson County, Alabama, because of the inconvenience of the forum or venue. In the event of any judicial or other
<br />adversarial proceeding between the parties relating to or concerning this Agreement, Bank shall be entitled to recover its reasonable attorneys' fees
<br />and other costs in addition to any other relief to which it may be entitled in the event that it is the prevailing party.
<br />12 of 29
<br />P51
<br />
|