ARBITRATION AGREEMENT
DEFINITIONS. “We”, “Our”, and “Us” each refer to Usawa, and “You” and “Your” each refer to the identified Credit Applicant.
“Transaction” refers to collectively the Usawa account for which you are applying, and every subsequent credit transaction you conduct with Usawa following your submission of this Credit Application. “Agreement” refers to collectively every Credit Agreement, Loan Agreement,Arbitration Agreement, or any other written agreement into which You and Usawa enter following your submission of this Credit Application. “Claim” means any claim, dispute, or controversy arising from or relating to this Agreement, this Transaction, any other agreement or transaction into which you and Usawa have ever entered or completed in the past, or any other business between You and Usawa. A court or arbitrator interpreting the scope of this Arbitration Agreement should broadly construe the meaning of Claim to give effect to our shared intention to arbitrate any and all claims, disputes, or controversies that may arise between You and Usawa. Consistent with a broad construction, Claim includes (but is not limited to) each of the claims or disputes listed below.
A Claim includes any dispute regarding the scope, validity, or enforceability of this Arbitration Agreement – for example, an assertion by either party that this Arbitration Agreement is rendered unenforceable because the Transaction associated with this Agreement violates applicable usury, lending, or consumer protection laws. A Claim also includes any assertion by either party that this Arbitration Agreement is unenforceable because it lacks fairness or mutuality of obligations, conflicts with bankruptcy or other federal laws, improperly limits one party’s remedies for the other party’s violation of laws, or unduly restricts either party’s access to the court system. Finally, a Claim includes any assertion by either party that this Arbitration Agreement is unenforceable because either party did not understand its provisions, needs to discover the filing fees and/or associated costs for initiating arbitration proceedings, or believes the arbitration firm or arbitrator will be unfair or biased.
A Claim includes any claim that you assert against a person or entity related to us, including our parent company, affiliated companies, directors, officers, employees, agents, and representatives, and any claim that we assert against a person or entity related to you. For the purpose of this Arbitration Agreement, references to We, Our, and Us, and references to You and Your, include such related persons or entities. You and We agree that these related persons and entities may elect to arbitrate any Claim asserted against them even though they have not signed this Arbitration Agreement.
A Claim includes any statutory, tort, contractual or non-monetary claim – for example, Claims arising from federal or state statute/act or legislative enactment, a federal or state administrative regulation or rule, non-statutory law based on court cases, local ordinance or zoning code, a contract, a judicial or regulatory decree or consent agreement. A Claim could be based on Your or Our conduct before this Transaction took place – for example, a Claim could arise from any dispute regarding marketing, our processing of applications, or communication of funding decisions.
A Claim could include requests for monetary damages or equitable remedies, whether such request is asserted as a claim, counterclaim, or cross-claim.
Right to reject arbitration. You can reject the Arbitration Agreement if you do not want to arbitrate all Claims as provided in the Agreement. To reject arbitration, you must deliver written notice to Usawa within 30 days of the date on this Credit Application at Usawa, Attn: Arbitration Opt-Out, 791-C East Main St., Spartanburg, SC 29302. This is the only way that you can reject the Arbitration Agreement. Your rejection of the Arbitration Agreement will not affect your right to credit, the amount of credit you receive, or any contract term.
Arbitration Agreement.
Mandatory arbitration upon election. Subject to your decision to reject arbitration, and to the small claims court exception explained below, You and We agree to arbitrate any Claim if the person or entity against whom a Claim is asserted elects to arbitrate the Claim. Consequently, if the person or entity against whom a Claim is asserted elects to arbitrate the Claim, You and We may not file or maintain a lawsuit in any court except a small claims court and You and We may not join or participate in a class action, act as a class representative or a private attorney general, or consolidate a Claim with the claims of others. A person or entity against whom a Claim is asserted may elect to arbitrate the Claim by providing oral or written notice to the person asserting the Claim (i.e., the claimant). Such notice need not follow any particular format but must reasonably inform the claimant that arbitration has been elected. For example, if You or We file a lawsuit against the other, then the other provides sufficient notice if the other orally informs the claimant that the other elects to arbitrate the Claim or if the other files a pleading (i.e., a document filed in court) requesting the court to stay (i.e., freeze) the court case and refer the Claim to arbitration.
Small Claims Court Exception. You and We may ask a small claims court to decide a Claim so long as no party to the small claims court lawsuit seeks to certify a class, consolidate the Claims of multiple persons, or recover damages beyond the jurisdiction of the small claims court. If you file a small claims court lawsuit against us, then we lose the right to elect arbitration of your Claim (but not of other persons’ Claims). In contrast, if we file a small claims court lawsuit against you, then you retain the right to elect arbitration of our Claim.
Arbitration Firm. The American Arbitration Association (AAA) (1-800-778-7879, www.adr.org) will administer the arbitration of Claims. The AAA will normally apply its Consumer Arbitration Rules then in effect to a Claim, but may apply other types of procedural rules such as the AAA's Commercial Arbitration Rules then in effect if a party to the arbitration proceeding demonstrates that the application of such other procedural rules is appropriate. No matter what the arbitration firm’s procedural rules provide, You and We agree that the arbitrator must issue a written decision and may award any type of remedy including punitive damages and equitable relief that a court or jury could award if the Claim were litigated. You and we also agree that an arbitration firm may not arbitrate a Claim as a class action or otherwise consolidate the Claims of multiple persons. You may request a copy of the AAA’s Consumer Arbitration Rules and other procedural rules at the toll-free phone number or URL identified above. If You object to the AAA as the arbitration firm, then You and We may agree to select a local arbitrator who is a retired judge or a registered arbitrator in good standing with an arbitration firm, provided that such local arbitrator must enforce all the terms of this arbitration agreement, including the class-action waiver. The parties may not select a local arbitrator who refuses to enforce this arbitration agreement, including the class-action waiver, because You and We waive any right to arbitrate a Claim on a class-action, representative-action, or consolidated basis. When attempting to contact AAA or another arbitration firm, please recognize that phone numbers and URLs change frequently; you may need to update the contact information provided above with your own research.
Payment of Arbitration Fees, Selection of Forum. If you file a Claim with the AAA or another arbitration firm, the firm will usually ask you to pay a filing fee and may also ask you to pay in advance for some of the expenses the firm will incur when administering the arbitration proceeding. Upon your written request, we will pay to the arbitration firm any fees or advance administrative expenses that the arbitration firm requires you to pay as a condition to your filing a Claim with the firm. Additionally, we will pay any fees or expenses the arbitration firm charges for administering the arbitration proceeding, any fees or expenses the individual arbitrator or arbitrators charge for attending the arbitration hearing, and any fees a court charges you to file a lawsuit appealing the arbitration decision. We will pay these fees and expenses whether or not you prevail in the arbitration proceeding. Finally, we agree to hold the arbitration proceedings in the county of your residence or in any different location in the United States of your choice.
Governing Law. You and We acknowledge that this Transaction involves interstate commerce. Accordingly, You and We agree that both the procedural and the substantive provisions of the Federal Arbitration Act, 9 USC 1-16, govern the enforcement, interpretation, and performance of this Arbitration Agreement. Any court with jurisdiction may enforce this Arbitration Agreement. Additionally, any court with jurisdiction may enforce an arbitration decision rendered under this Arbitration Agreement if that arbitration decision has been properly registered as a judgment.
Survival, Binding Effect and Severability. You and We retain the right to invoke this Arbitration Agreement and to compel the arbitration of Claims even after Your and Our respective obligations under this Agreement have been completed, defaulted, rescinded, or discharged in bankruptcy. This Arbitration Agreement binds the heirs, successors, and assigns including any bankruptcy trustee of both you and us. Finally, if a court or arbitrator determines that any part of this Arbitration Agreement is unenforceable, then you and we agree that the court or arbitrator must fully enforce the remaining provisions that have not been invalidated.
NOTICE-OF-GRIEVANCE AGREEMENT
If the person or entity against whom a Claim is asserted declines to arbitrate the Claim or if a court or arbitrator determines that the above Arbitration Agreement is unenforceable, then you and we agree that neither you nor we may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from or relates to a Claim until the claimant has provided the other party written notice of the asserted Claim and afforded the other party a reasonable period after the giving of the written notice to take corrective action. If applicable law provides a time period, which must elapse before certain action can be taken, then that time period will be deemed reasonable for the purpose of the preceding sentence.
AUTHORIZATION, AGREEMENT, AND REPRESENTATIONS
By clicking the "I Agree" button below, you authorize us to verify the accuracy of the information contained in this Credit Application by, among other actions, submitting your application to a consumer reporting agency, calling your employer to confirm employment, calling your residence to confirm a working home phone number, and obtaining your bank account information. If You obtain one or more Transactions from Us, You further authorize us to service Your Transactions by obtaining information about your location from the contact persons you have listed. By clicking the "I Agree" button below, I represent and warrant that I am not a regular or reserve member of the Army, Navy, Marine Corps, Air Force, or Coast Guard, serving on active duty under a call or order that does not specify a period of 30 days or fewer (or a dependent of such a member). Furthermore, by clicking the "I Agree" button below, You also agree to all the terms of both the Arbitration Agreement and the Notice-of-Grievance Agreement set forth above. Finally, you represent and warrant that all the information contained in this Credit Application is true and correct, that You are not currently a debtor in any bankruptcy proceeding, and that You do not intend to file a bankruptcy petition under any chapter of the U.S. Bankruptcy Code either during the term of a Transaction or within the 90-day period following your repayment of a Transaction.