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c. Your Notice Address. Our agent shall send notice to you at the between this Section 2J and any rule or procE' ``' ' " `
<br /> address,e-mail address,or facsimile number you indicated on your organization,this Section 2.7 controls.The par 6.1.D. - Page 59 I
<br /> application to accept the Card.You must notify our agent immediately of simultaneously notify the other party of its selection.
<br /> any change in your notice address. If our selection is not acceptable to you,then you may select another of
<br /> the following organizations within thirty days after you receive notice of
<br /> our initial selection.Any arbitration hearing that you attend shall take
<br /> a. Indemnity. You shall indemnify,defend,and hold harmless us and place in the federal judicial district where your headquarters is located.
<br /> our Affiliates,agents,successors,assigns,and third party licensees,from . National Arbitration Forum(NAF): P.O.Box 50191,Minneapolis,MN
<br /> and against all damages,liabilities,losses,costs,and expenses,including 55404-0191; (800)474-2371; www.arbitration-forum.com
<br /> legal fees,arising or alleged to have arisen from your breach,negligent or
<br /> wrongful act or omission,failure to perform under the Agreement,or • American Arbitration Association(AAA): 335 Madison Ave.,
<br /> failure in the provision of your goods or services. New York,NY 10017; (800)778-7879; www.adr.orq
<br /> b. Limitation of Liability. In no event shall we or our Affiliates,agents, �• ��mitation of Rights. IF ARBITRATION IS CHOSEN BY A PARTY WITH
<br /> successors,or assigns be liable to you for any incidental,indirect,specu- RESPECTTO A CLAIM,NEITHER YOU NOR WE SHALL HAVE THE RIGHT TO
<br /> lative,consequential,special,punitive,or exemplary damages of any kind LITIGATE THAT CLAIM IN COURT OR HAVE A JURYTRIAL ON THAT CLAIM,
<br /> (whether based in contract,tort,including negligence,strict liability, ORTO ENGAGE IN PREARBITRATION DISCOVERY EXCEPTAS PROVIDED IN
<br /> fraud,or otherwise,or statutes,regulations,or any other theory)arising THE RULES OR PROCEDURES OF NAF OR AAA,AS APPLICABLE.FURTHER,
<br /> out of or in connection with the Agreement,even if advised of such YOU SHALL NOT HAVE THE RIGHTTO PARTICIPATE IN A REPRESENTATIVE
<br /> potential damages.Neither you nor we(and our agent)will be responsible CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING
<br /> to the other for damages arising from delays or problems caused by TO ANY CLAIM.OTHER RIGHTS THATYOU WOULD HAVE IN COURT MAY
<br /> telecommunications carriers or the banking system,except that our(and ALSO NOT BE AVAILABLE IN ARBITRATION.NOTWITHSTANDING ANY OTHER
<br /> our agent's)rights to create Reserves and exercise Chargebacks will not PROVISION IN THE AGREEMENT AND WITHOUT WAIVING EITHER PARTY'S
<br /> be impaired by such events. RIGHTTO APPEAL SUCH DECISION,IF ANY PORTION OFTHIS SECTION 2.7.c
<br /> OR OF SECTION 2.7.d BELOW IS DEEMED INVALID OR UNENFORCEABLE,
<br /> THENTHIS ENTIRE SECTION 2.7(OTHERTHANTHIS SENTENCE)SHALL
<br /> NOT APPLY.
<br /> a. Effective Date/Termination Date.The Agreement begins as of the
<br /> date(i)you first accept the Card after receipt of the Agreement or d. Individually Named Parties Only. All parties to the arbitration must
<br /> otherwise indicate your intention to be bound by the Agreement or(ii)we be individually named.There is no right or authority for any Claims to be
<br /> approve your application to accept the Card,whichever occurs first.Either arbitrated or litigated on a class action or consolidated basis,on behalf of
<br /> party can terminate the Agreement without cause(and notwithstanding the general public or other parties,orjoined or consolidated with claims
<br /> any other rights established under the Agreement)at any time by of other parties,and you and we are specifically barred from doing so.This
<br /> notifying the other party.Termination will take effect according to the prohibition is intended to,and does,preclude any trade association or
<br /> notice period specified in Section 2.4.a above. other organization from arbitrating any Claim on a representative basis on
<br /> behalf of the organization's members.The arbitrator's authority to resolve
<br /> b. Grounds forTermination. In addition to our rights in Sections 23.c Claims is limited to Claims between you and us alone,and the arbitrator's
<br /> and 2.6.a above,we may terminate the Agreement at any time without authority to make awards is limited to awards to you and us alone.
<br /> notice to you and without waiving our other rights and remedies if you
<br /> have not submitted a Charge within any twelve month period.The e. Application of Provision. For the avoidance of any confusion,and
<br /> Agreement is a contract to extend financial accommodations,and if not to limit its scope,this Section 2.7 applies to any putative class action
<br /> bankruptcy or similar proceedings are filed with respect to your business, lawsuit that has been filed against us prior to the effective date of the
<br /> then the Agreement will terminate automatically. Agreement relating to the"Honor All Cards;"'non-discrimination;'or
<br /> "no steering"provisions of the Agreement as described in Sections 2.1 and
<br /> c. Post-Termination. If the Agreement terminates,without waiving our Z.Z of these General Provisions and Chapter 3(Card Acceptance)of the
<br /> other rights and remedies,we and our agent may withhold from you any Merchant Regulations,or prior versions of a Card acceptance agreement.
<br /> payments until we have fully recovered all amounts owing to us and our f. Equitable Relief. The arbitrator shall have the power and authority
<br /> Affiliates.If any amounts remain unpaid,then you and your successors to grant equitable relief(e.g.,injunction,specific performance)and,
<br /> and permitted assigns remain liable for such amounts and shall pay us cumulative with all other remedies,shall grant specific performance
<br /> within thirty days of our request.You must also remove all displays of our �,�,henever possible.The arbitrator shall have no power or authority to
<br /> Marks,return our materials and equipment immediately,and submit to alter the Agreement or any of its separate provisions,including this
<br /> our agent any Charges and Credits incurred prior to termination. Section 2.7,nor to determine any matter or make any award except as
<br /> d. Effect ofTermination. Termination of the Agreement for any reason provided in this Section 2.7.
<br /> does not relieve the parties of their respective rights and duties arising g, Small Claims Court;Injunctive Relief. We shall not elect to use
<br /> prior to the effective date of termination that by their nature are intended arbitration under this section for any individual Claim that you properly
<br /> to survive termination,including the provisions of Sections 2.1,23,2.5, file in a small claims court so long as the Claim is pending only in that
<br /> 2.6,2.7 and 2.8 of these General Provisions,our Charge back rights,and court.Injunctive relief sought to enforce the provisions of Sections 2.8.a
<br /> your duties set forth in the Merchant Regulations to protect Cardmember and 8.b of these General Provisions is not subject to the requirements
<br /> Information,indemnify us,retain documents evidencing Transactions,and of this Section 2.7.This Section 2.7 is not intended to,and does not,
<br /> notify your Recurring Billing customers of such termination.Our and our substitute for our ordinary business practices,policies,and procedures,
<br /> agent's right of direct access to the Demand Deposit Account will also including our rights to Chargeback and to create Reserves.
<br /> survive until such time as all credits and debits permitted by the
<br /> Agreement,and relating to Transactions prior to the effective date of h. Governing Law/Appeal/Entry ofJudgment. This Section 2.7 is
<br /> termination,have been made. made pursuant to a transaction involving interstate commerce and is
<br /> governed by the Federal Arbitration Act,9 U.S.C.§16 et seq.(FAA).The
<br /> � arbitrator shall apply New York law and applicable statutes of limitations,
<br /> honor claims of privilege recognized by law and,at the timely request of
<br /> a. Arbitration Rights. All Claims shall be resolved,upon your or our either party,provide a written and reasoned opinion explaining his or her
<br /> election,through arbitration pursuant to this Section 2.7 rather than decision.The arbitrator shall apply the rules of the arbitration organization
<br /> by litigation. selected,as applicable to matters relating to evidence and discovery,not
<br /> b. Arbitration Rules/Organizations. The party asserting the Claim shall the federal or any state rules of civil procedure or rules of evidence.The
<br /> select one of the following arbitration organizations,which shall apply its arbitrator's decision shall be final and binding,except for any rights of
<br /> rules in effect at the time the Claim is filed.In the event of an inconsistency appeal provided by the FAA or if the amount of the award exceeds US
<br /> WFB1301 45
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