Resolution of Claims
RESOLUTION OF CLAIMS AGREEMENT
MEDIATION, BINDING ARBITRATION, AND CLASS ACTION WAIVER. RESOLUTION OF DISPUTES BY ARBITRATION: THIS SECTION CONTAINS IMPORTANT INFORMATION REGARDING YOUR ACCOUNTS AND ALL RELATED SERVICES. IT PROVIDES THAT EITHER YOU OR WE CAN REQUIRE THAT ANY DISPUTES BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY TRIAL AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, THE DISPUTE IS SUBMITTED TO A NEUTRAL PARTY, AN ARBITRATOR, INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES MAY BE MORE LIMITED THAN RULES APPLICABLE IN COURT.
DISPUTES COVERED BY THIS AGREEMENT. Claims or disputes between you and us arising out of or relating to your account(s), transactions involving your account(s), safe deposit box, and any related service with us are subject to this agreement. Any claims or disputes arising from or relating to this agreement, any prior account agreement between us, or the advertising, the application for, or the approval or establishment of your account are also included. Claims are subject to this agreement regardless of what theory they are based on or whether they seek legal or equitable remedies. This agreement applies to any and all such claims or disputes, whether they arose in the past, may currently exist or may arise in the future. All such disputes are referred to in this agreement as “Claims”. An exception to this agreement is that both you and we have the right to pursue a Claim in a small claims court instead of arbitration, if the Claim is in that court’s jurisdiction and proceeds on an individual basis. Claims or disputes arising from your status as a borrower under any loan agreement with Guadalupe Bank are also excluded from this agreement.
NEGOTIATION. If a Claim arises between us, and negotiations between us reach an impasse, either of us may give the other written notice of the Claim (“Notice of Impasse”). If a Notice of Impasse is given, we will attempt to resolve the Claim promptly by negotiation between our representatives at a higher management level (“Management Personnel”). Within 30 days after one of us delivers a Notice of Impasse, the party receiving the Notice of Impasse will submit a written response to the other party. Thereafter, each of us, through their respective Management Personnel, will promptly confer in person or by telephone to attempt to resolve the Claim, and all reasonable requests for information made by one party to the other will be honored.
MEDIATION. If a Claim has not been resolved by negotiation within 60 days of a Notice of Impasse, or if our Management Personnel have failed to confer within 45 days after delivery of the Notice of Impasse, the parties may endeavor to settle a Claim by mediation using a mediator agreeable to both of us, and following agreed mediation procedures (the “Agreed Mediation Procedures”).
ARBITRATION. All Claims that are not resolved by negotiation or by mediation within 180 days of a Notice of Impasse may be resolved by binding arbitration in accordance with the terms of this agreement, at the election of either party, and judgment upon an arbitration award may be entered in any court having jurisdiction; provided, however, if either party elects, in writing, with notice to the other party, not to participate in a negotiation or a mediation of a Claim, or to continue a negotiation or a mediation, either party may initiate arbitration before the expiration of such 180 day time period. A Notice of Impasse is not a notice of arbitration. If a party elects to proceed to resolve a Claim by arbitration, the electing party must send a separate notice of arbitration under the Rules (as hereinafter defined) in order to initiate an arbitration proceeding concerning a Claim.
GOVERNING LAWS. RULES. NON-ADMINISTERED ARBITRATION AND LOCATION OF ARBITRATION PROCEEDING. The arbitration of Claims is governed by: the Federal Arbitration Act (9 U.S. Code, Chapter I,§§ I – 16) (the “FAA”); the Texas Arbitration Act (TEX. CIV. PRAC. & REM. CODE, Chapter 171, §§ 171.001 – 171.098) (the “TAA”) to the extent the TAA does not conflict with the FAA; and the International Institute for Conflict Prevention and Resolution (“CPR”) Rules for Non-Administered Arbitration (“Rules”). In the event of a conflict between this article and the Rules, this article controls. If it is determined that the FAA is inapplicable to a Claim, then the Claim will be governed by the TAA and the Rules. Arbitration proceedings will be conducted at a location in Kerrville, Texas agreed to in writing by the parties, or, in the absence of such an agreement, at a location in Kerrville, Texas selected by the Tribunal.
TRIBUNAL. The Tribunal (as that term is used in the Rules) for an arbitration will consist of a single arbitrator selected from a CPR Panel (as that term is defined in the Rules), except that if the amount in controversy exceeds $100,000.00, either party may opt for an arbitration conducted by three arbitrators, of whom each party will appoint one, and the third arbitrator, who will chair the Tribunal, selected as provided in Rule 5.2. Each arbitrator must have the following minimum qualifications: an attorney, licensed to practice law in the State of Texas for at least 10 years, whose practice area includes banking law. The Tribunal will prepare a written award that is a reasoned opinion, and that includes findings of fact and conclusions of law.
STATUTE OF LIMITATIONS. The statute of Limitations of the State of Texas applicable to the commencement of a lawsuit will apply to the commencement of an arbitration of a Claim, except that the running of the statute of limitations is tolled during the period of time beginning on the date a Notice of Impasse is received and ending on the date that a party may commence an arbitration.
INDIVIDUAL CLAIMS ONLY. NO CLASS ACTION OR JOINDER OF PARTIES. YOU ACKNOWLEDGE THAT YOU AND WE AGREE THAT NO CLASS ACTION, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY, MAY BE PURSUED IN ANY ARBITRATION OR IN ANY COURT PROCEEDING, REGARDLESS OF WHEN THE CLAIM OR CAUSE OF ACTION AROSE OR ACCRUED, OR WHEN THE ALLEGATIONS OR FACTS UNDERLYING THE CLAIM OR CAUSE OF ACTION OCCURRED. Unless mutually agreed to by you and us, claims of two or more persons may not be joined, consolidated, or otherwise brought together in the same arbitration (unless those persons are joint account holders or beneficiaries on your account and/or related accounts, or parties to a single transaction or related transaction), whether or not the claim may have been assigned.
COSTS. The party initiating the arbitration shall pay the initial filing fee. If you file the arbitration and an award is rendered in your favor, we will reimburse you for your filing fee. If there is a hearing, we will pay the fees and costs of the arbitration for the first day of that hearing. All other fees and costs will be allocated in accordance with the rules of the arbitration forum. However, we will advance or reimburse filing and other fees if the arbitrator rules that You cannot afford to pay them or finds other good cause for requiring us to do so, or if you ask us in writing and we determine there is good reason for doing so. Each party shall bear the expense of their respective attorneys, experts, and witnesses and other expenses, regardless of who prevails, but a party may recover any or all costs and expenses from another party if the arbitrator, applying applicable law, so determines.
RIGHT TO RESORT TO PROVISIONAL REMEDIES PRESERVED. Nothing herein shall be deemed to limit or constrain our right to resort to self-help remedies, such as the right of set-off or the right to restrain funds in an account, to interplead funds in the event of a dispute, to exercise any security interest or lien we may hold in property, or to comply with legal process, or to obtain provisional remedies such as injunctive relief, attachment, or garnishment by a court having appropriate jurisdiction; provided, however, that you or we may elect to arbitrate any dispute related to such provisional remedies.
DAMAGES / REMEDIES. A Tribunal is not authorized to award damages in excess of compensatory damages, and the parties hereby irrevocably waive any right to punitive, exemplary or similar damages with regard to all Claims resolved by arbitration unless a governing statute requires that compensatory damages be increased in a specified manner.
APPEALS. A party may appeal a final Tribunal award on a Claim following the CPR Arbitration Appeal Procedures. Unless the parties agree on another location, any appeal will be held at the same location as the arbitration proceeding award being appealed.
SEVERABILITY, SURVIVAL. These arbitration provisions shall survive (a) termination or changes to your accounts or any related services; (b) the bankruptcy of any party; and (c) the transfer or assignment of your Accounts or any related services. If any portion of this Resolution of Claims agreement is deemed invalid or unenforceable, the remainder of this Resolution of Claims agreement shall remain in force. No portion of this Resolution of Claims agreement may be amended, severed, or waived absent a written agreement between you and us.
APPLICABILITY. Arbitration will not apply to your Account as long as you are an active duty Service Member.