|Time Deposit Term: 60 months||Product: 60 month Fixed-Rate CD|
|Interest Payment Frequency: Annually||Interest Payment Method: Capitalization|
These Terms and Conditions (the "Agreement") apply to your Certificate of Deposit, also referred to herein as a "Time Deposit Account" ("CD"). Compass Bank opens CD accounts that have no certificate, known as Time Deposits. We may change the accounts and services described herein at any time, as described in Section 13. We may also add new accounts or services and convert or discontinue existing accounts or services at any time. By opening your account or by conducting any transaction involving your account, you agree to this Agreement, which also incorporates, by reference, any supplemental provisions and disclosures we provide concerning your account.
Your attention is drawn to the Arbitration and Waiver of Jury Trial provisions in Section 16. If a dispute arises between us, then you or we may require that it be resolved through arbitration, rather than through a trial. Please read this Agreement carefully and retain a copy for your records.
You agree to keep the funds on deposit with Compass Bank until the end of the term stated above. Current interest rates and annual percentage yields can be obtained by calling 1-800-COMPASS or visiting www.bbvacompass.com. The interest rate and annual percentage yield that will be applicable to your account will be available for you to review and accept on the eSignature page before your account is opened. Fees could reduce the earnings on the account. The annual percentage yield assumes interest remains on deposit until maturity and any withdrawal will reduce earnings. Interest begins to accrue on the business day you make your deposit, or on the business day your deposit is received if mailed to us.
The following terms and definitions apply when used in this Agreement. Terms used herein but not defined below shall have the meaning assigned to them in the Uniform Commercial Code. References to the Uniform Commercial Code are to the Uniform Commercial Code in effect in the state where we maintain your account.
Account Owner or Owners. Each person named in our records as an account owner, including any trustee, custodian or other person acting in that capacity.
Business Days. Many of our branches are open on Saturdays to serve many of your banking needs. For the purposes of this Agreement, however, our business days are Monday through Friday, excluding holidays.
Multiple Party Account. A time deposit account with two or more owners (whether or not there is a right of survivorship). We offer the following types of Multiple Party Accounts:
Multiple Party Accounts will be presumed to be with right of survivorship (type (i) above) unless applicable law requires that you make an affirmative designation in order for right of survivorship status to apply.
P.O.D. Account. A time deposit account payable on request to an owner during that owner’s lifetime and on that owner’s death to one or more beneficiaries, or to one or more owners during their lifetimes, and on the death of all of the owners to one or more beneficiaries.
Single Party Account. An account owned by one party as indicated on our records. The owner of a Single Party Account may choose either (i) that at the death of the owner, ownership passes as part of the owner’s estate; or (ii) a P.O.D. Account by designating one or more beneficiaries of the account.
Totten Trust Account. A time deposit account in the name of one or more owners as trustee for one or more beneficiaries where the relationship is established by the form of the time deposit account and there are no assets of the trust other than the sums on deposit in the time deposit account. This is also a form of P.O.D. Account.
We, Our, Us, BBVA Compass, Compass and Compass Bank. Compass Bank, Member FDIC, or any other affiliate bank of BBVA Compass Bancshares, Inc. For the purposes of Section 8 only, these items also include the directors, officers and employees of Compass Bank and its affiliates.
You, Your and Yours. The account owner or, if the account is a multiple party account, any and all account owners.
Owners. You appoint each other account owner of a multiple party account as your authorized agent for all purposes relating to your account including, but not limited to, making deposits, making withdrawals, obtaining account information, making transfers from the account, closing or redeeming the account, pledging or assigning the account and receiving notice regarding the account. If there is more than one account owner, we may provide notice regarding the account to only one of you. A withdrawal from or redemption of your multiple party account by any account owner will discharge our obligation to you with respect to the amount withdrawn, regardless of the source of the funds in the account. Any account owner of a multiple party account may add a new owner to the account. We may, but are not required to, honor a request by you to prevent a withdrawal or redemption by any other account owner or to remove another account owner from the account. If we honor the request, you agree to indemnify us and hold us harmless from any loss or damage caused you or anyone else that results from our honoring the request. You may be required to sign additional documents or agreements in connection with the request.
Assignment of Account. No pledge, assignment, or other transfer of any time deposit account to any third person, whether by gift or otherwise, shall be binding on us unless acknowledged by us in writing. Unless we agree otherwise in writing, the account will remain subject to our right of set off even after we receive notice of the transfer. Accounts are transferable only on our records. We reserve the right not to acknowledge or accept any attempted transfer of an account to any third person. If you have granted a security interest in the account to secure any debt owed by you to us, we shall be deemed to have control of the account, as that term is used in the Uniform Commercial Code. Except as provided in this paragraph, the Account is not transferable.
Authorization to Pay and Debit the Account. You authorize us to pay or withdraw funds from the account, without any notice to you, and subject to the penalties for early withdrawal set forth in Section 5 on the order of any account owner or authorized signer or on the order of any personal representative of any account owner or authorized signer (even if appointed in a state or country other than the one in which we maintain your account). You authorize us to honor orders to pay or withdraw funds received by us from any of these persons in writing, orally (including by telephone), or by electronic means. We may, but are not required to, honor orders by an attorney-in-fact for any of these persons. We may require that powers of attorney be executed on forms acceptable to us before we recognize the order of the attorney-in-fact. We may terminate our acceptance of a power of attorney for any reason.
Automatic Renewal. At maturity, the time deposit account will be automatically renewable unless Compass Bank sends written notice to the contrary. If we choose to renew your account at maturity, we will send you written notice in advance of the maturity of the account. You will have ten (10) calendar days after maturity to withdraw funds from the account without penalty. If you do not terminate the account in the time period set forth in the maturity notice, we will renew the account on the terms of this Agreement, as modified by the terms provided in our notice to you.
If we choose not to renew your account at maturity, we will send you written notice of such decision at least (10) calendar days prior to maturity.
Error Correction. You agree to repay us promptly any amount credited to your account in error, and you authorize us to charge your account to obtain payment of any erroneous payment or credit.
Transaction Limitations. Except as expressly provided in this Agreement, after the time deposit account is opened, you may not make deposits into the time deposit account. Withdrawals from the time deposit prior to the maturity date are subject to the penalties described in Section 5. If the time deposit is opened as an IRA, additional penalties may be required or imposed by law, rule or regulation.
Multiple Party Deposits. If a time deposit account is a multiple party account, a payable on death (P.O.D.) account, or a "Totten" trust account, our rights and liabilities for payment of any sums in the account shall be governed by the laws of the state in which we maintain your account.
Deposit by Minors, Agents or Trustees. A time deposit accepted from or on behalf of a minor, at our option, may be paid to or for such minor, and such payment shall be valid even though not executed by the minor’s guardian, custodian, or legal representative. Where a time deposit is accepted from an agent, trustee or other representative, we do not have to inquire as to the authority of such representative, and the time deposit may be paid to the owner or to such representative without inquiring as to the disposition of the time deposit.
Uniform Transfer to Minors Act (UTMA) Deposits. The gift of money to the minor named as beneficiary of an UTMA account is irrevocable and is made in accordance with and to include all provisions of the applicable state statute, and shall include all interest earned on the time deposit account and any additional deposits to the account.
You may request us to allow you to withdraw all or part of the funds in the time deposit account before its maturity date. If we consent to early withdrawal for any reason other than the death or declaration of legal incompetency of a depositor, a penalty will be assessed on the amount withdrawn. The early withdrawal penalty for time deposits with a term of 365 days or less is equal to twenty five dollars ($25.00) plus one percent (1%) of the amount withdrawn. The early withdrawal penalty for time deposits with a term greater than 365 days is equal to twenty five dollars ($25.00) plus three percent (3%) of the amount withdrawn. If the withdrawal occurs within six (6) days after the date of any deposit or partial withdrawal, the amount of the early withdrawal penalty shall be calculated as above, but in no event shall it be less than the equivalent of seven days' simple interest on the amount withdrawn.
Without prior written notice to you, we may hold funds in your account subject to a claim or we may pay the source of the claim when we receive any notice, claim, or court order which we believe may affect your account (such as liens, garnishments, attachments, levies, injunctions, or other orders of a court or other governmental agency), regardless of the form or manner in which we receive the notice, claim, or court order. We will not be responsible for refusing to let you withdraw funds from the account because of the claim or after we have paid funds to the source of the claim. If we pay the source of the claim, your account will be subject to the penalty set forth above for early withdrawal and any applicable fee established from time to time for processing that claim. Contact your nearest BBVA Compass Banking office for a current fee schedule.
In the event of any controversy with respect to your account, such as a dispute over who has the right to make withdrawals from the account or who is the owner of the funds on deposit in the account, we may (but do not have to) refuse to pay any funds to anyone until we are satisfied that the dispute is resolved or the demand is withdrawn. We will not be responsible for any damages you may suffer as a result of our refusal to allow you to withdraw funds due to the dispute or demand. We also may interplead the funds in the account in a court of appropriate jurisdiction, naming all of the claimants to the account as defendants in such action. If we interplead the funds in the account, your account will be subject to the penalty set forth above for early withdrawal. You agree that we will be reimbursed out of the account for all expenses we incur in such action, including attorneys’ fees and costs.
Interest on your account will compound daily. If your time deposit account has a term greater than one year and an interest payment method of capitalization, interest will be credited to your account at least annually.
We use the daily balance method to calculate interest. This method applies a daily periodic rate to the principal in the time deposit account each day.
We may be required to escheat to the state where we maintain your account the balance in any account that is considered "abandoned" or "unclaimed" according to the laws of that state (or, if applicable, the laws of the state of your last residence as shown on our records).
Your account will be presumed to have been terminated by you, if, for the period of time prescribed by law, you do not initiate activity in the account, correspond with us or otherwise indicate interest in the account, as defined by the laws of the state in which we maintain your account.
You acknowledge that, except as otherwise prohibited by law, we have the right to set off against your account any indebtedness or other obligations which you owe us, at any time, without any further notice to or demand on you, whether the indebtedness or other obligations exist at the time the account is opened or arise later. The indebtedness includes, without limitation, all charges and overdrafts incurred on any account you hold with us. You agree that, subject to applicable state laws, we may set off against the time deposit account any claim which we have against you without regard to the source or ownership of the funds on deposit in the account and without requirement that the claim be owed to us by all of the account owners rather than only one or some of them. The penalties for early withdrawal set forth in Section 5 of these Terms and Conditions apply to a set off by us.
You waive and agree that we may waive certain legal requirements called presentment, demand for payment, protest, notice of protest, and notice of dishonor with respect to any and all items for which you received payment or credit from us. No departure by us from the provisions of this Agreement or any waiver of any fees and charges with respect to your Account shall constitute (a) a waiver by us of any further right to impose any charges or enforce the provisions of this Agreement or (b) a course of dealing different from this Agreement.
Interest paid to you is reported to the Internal Revenue Service by us as having been received by the first account owner according to the certification provided us by that owner. We may be required to withhold a portion of your interest payment and remit it to the Internal Revenue Service. If applicable, we will send you notice of the amount withheld and remitted to the Internal Revenue Service.
Except as otherwise provided by law, this Agreement and all accounts are governed by the laws of the state where we maintain your account and applicable federal laws and regulations in effect from time to time, and are subject to any applicable automated or other clearing house rules and regulations. A determination that any provision of this Agreement is unenforceable or invalid shall not affect the enforceability or validity of any other provision of this Agreement.
For purposes of this Agreement, your account will be deemed to be maintained in the state where you opened your account. Your account is considered to have been opened:
Survival of this Agreement. All provisions of this Agreement shall survive the termination of this Agreement or your account(s) by either party to the extent necessary to determine the liability of either party to the other for actions arising in connection with this Agreement or your account(s).
Amendments to this Agreement. We may amend this Agreement from time to time upon prior notice to you. Amendments of this Agreement may include the modification or deletion of existing provisions and the addition of new provisions. We agree to provide you notice of any amendment (except an amendment benefiting you) on the later of (A) at least thirty (30) days, or such longer period if required by law, before that amendment becomes effective, or (B) upon maturity and renewal of the account, by mailing you notice of the amendment to the last address shown on our records, or by posting notice of the amendment in our offices. We may, but are not required to, give you notice if the amendment will be to your benefit. If there is more than one account owner, we will send the notice of amendment to only one of you. By continuing to maintain your account or obtaining the services or products relating to this Agreement after the amendment becomes effective, you agree to the amendment of this Agreement. We also may, in our sole discretion, discontinue certain kinds of services, products and accounts, place restrictions on certain accounts or create new ones. If we discontinue the kind of account you have, we can transfer your funds to another type of account. In that case, we will mail you a notice at least thirty (30) days before the transfer takes effect. By continuing to maintain your account after the transfer takes effect, you expressly agree to the change in the kind of account you have.
The provisions of this section apply to items you deposit to open your time deposit account. Except as expressly provided in this Agreement, you may not make additional deposits to your account after opening it. If you are allowed to make additional deposits to your account after opening it, the provisions of this section also apply to items you deposit to your time deposit account. See "Transaction Limitations" in Section 3 for more information on additional deposits.
Deposit Procedures. We may charge for deposits and we also may refuse to accept for deposit or collection any item you offer for deposit, accept all or any part of a deposit for collection only, or limit the amount of the deposit.
Collection As Agent. Items delivered to us in connection with a time deposit account are received by us as your agent for collection and at your risk. We may accept represented items as your agent for collection and at your risk, and we may charge a fee for re-presentment. We are obligated only to exercise ordinary care in handling and collecting items. We shall not be liable for misconduct, neglect, insolvency, mistake, or fault of other persons or entities, or for loss or destruction of any item in transit or in the possession of others or for loss of use as a result of theft, fire, or other event beyond our reasonable control. If an item presented for collection represents the entire principal amount of the account and remains uncollected for any reason, we will terminate the account.
If any item deposited to your account is payable by a payor that is not a bank, we may send the item directly to that payor. Items payable through another bank may be sent directly to that bank or to collecting agents who likewise shall have the right to send the items directly to the bank on which they are drawn or at which they are payable. Payment of these items may be accepted in cash or drafts and neither we nor any collecting agents shall be liable for failure to collect such drafts. Each collecting agent is deemed to be your agent. No collecting agent shall be liable for loss arising from any act or omission of another agent.
Foreign Currencies. Deposits in foreign currencies will be converted to U.S. dollars at the exchange rate in effect at the time of final collection. You bear all exchange risk related to time deposits of foreign currency.
ELECTRONIC FUND TRANSFER DISCLOSURE STATEMENT
The following disclosures are made in accordance with the federal law regarding electronic payments, deposits, transfers of funds and other electronic transfers to and from your account(s). There may be limitations on account activity that restricts your ability to make Electronic Fund Transfers. Any such limits are disclosed in the appropriate agreements governing your account. Any authorized signer on your account may act alone in conducting electronic fund transactions, regardless of the number of required signers indicated on the account’s signature card.
Definitions: Electronic Fund Transfer: Any transfer of funds, other than a transaction originated by check, draft or similar paper instrument, that is initiated through an electronic terminal, telephone, computer or magnetic tape to instruct us to debit or credit an account. Electronic Fund Transfers include such electronic transactions as direct deposits of funds or electronic transfers of funds to another account. Preauthorized Electronic Fund Transfer: An Electronic Fund Transfer that you have authorized in advance to recur at substantially regular intervals; for example, direct deposits into or withdrawal of funds out of your account.
Your Liability: Authorized Transfers: You are liable for all Electronic Fund Transfers that you authorize, whether directly or indirectly. Unauthorized Transfers: Tell us at once if you believe your account or PIN is lost or stolen or has been or may be subject to unauthorized Electronic Fund Transfers. Telephone us immediately at the number provided below to keep your possible losses to a minimum. You could lose all the money in your account(s) (plus the amount of funds available in an overdraft line of credit). If you fail to report an unauthorized transfer that appears on a periodic statement within 60 days of our transmittal of your periodic statement, then you may be liable for the amount of each unauthorized transfer that occurs after the close of the 60 days and before you provide notice to us, unless the delay in notifying us was due to extenuating circumstances beyond your reasonable control.
Also, if your periodic account statement shows unauthorized transfers and you DO NOT tell us within sixty (60) days after the statement was mailed to you, you may not get back any money you lose after the sixty (60) day period if we can prove that we could have prevented the unauthorized transfer(s) if you had told us in time. If an extenuating circumstance (such as extended travel or hospitalization) prevents you from promptly notifying us of suspected unauthorized transfer(s), the time periods specified in this section may be extended for a reasonable period.
Our Telephone Number and Address: If you believe your account(s) has been or will be subject to unauthorized Electronic Fund Transfers, CALL: 1-800-266-7277 and make the appropriate selection from the voice menu, OR WRITE: BBVA Compass, Customer Service Department, P.O. Box 10566, Birmingham, Alabama 35296.
Compass Bank Business Days: Monday through Friday, excluding holidays.
Account Access: The types of Electronic Fund Transfers that you may make depend upon specific account type(s) and the services which you obtain, as well as the specific types of Electronic Fund Transfers you have authorized.
Charges: Except as may be provided by a specific agreement with us, there is no additional charge for making Preauthorized Electronic Fund Transfers. However, each Preauthorized Electronic Fund Transfer will be subject to the regular account service charges, if any, in accordance with the terms of the related account(s) in effect from time to time.
Your Documentation of Transfers:
Your Right to Stop Payment: If you have authorized us to make regular Preauthorized Electronic Fund Transfer payments out of your account, you may stop any payment by CALLING US at: 1-800-266-7277 and making the appropriate selection from the voice menu, or by WRITING US at: Compass Bank, Customer Service Department, P.O. Box 10566, Birmingham, Alabama 35296. You must notify us in time for us to receive your request at least three (3) business days before the payment is scheduled to be made. You must provide us with sufficient information to identify the payment, as well as other information we may request. If you deliver your stop payment request by telephone, you must confirm your stop payment order to us in writing within twenty-one (21) days of your oral stop payment order. An oral stop payment request will not be binding on us after twenty-one (21) days if you fail to provide the required written confirmation. We also require that you provide us within twenty-one (21) days of our receipt of your oral or written stop payment order a copy of your written notice to the payee revoking the payee’s authority to electronically obtain payments from your account. If we do not receive a copy of that notice from you within twenty-one (21) days of our receipt of your oral or written stop payment request, your stop payment request will no longer be binding on us. In order to fulfill your stop payment request on any Preauthorized Electronic Fund Transfer, we may, in our discretion, but are not required to, stop all payments to the particular payee, or we may, in our discretion, notify you that your stop payment request cannot be fulfilled other than by closing your account. If you properly request us to stop payment and we fail to do so, we will reimburse you for losses or damages you suffer, if any, caused by our failure to stop payment as requested.
Our Failure to Make Transfers: If we do not complete a transfer to or from your account on time or in the correct amount according to our agreement with you, we will reimburse you for any losses or damages that you suffer as a result of our failure to act according to our agreement with you. However, there are some exceptions where we will not be liable, such as, but not limited to, the following: if, through no fault of ours, other than exercise of our right of set off, you do not have money in your account to cover the transfer; if the transfer would exceed the available credit of any overdraft line of credit you may have; if the money in your account is being held subject to legal process or other encumbrance restricting transfers to or from your account; if we have received notice of a dispute as to the rights of parties to the accounts or their creditors or representatives and we have placed a hold on the account until resolution of the dispute; or if circumstances beyond our control prevent the transfer despite our reasonable precautions.
Disclosure of Information to Third Parties: We may disclose information to third parties about your account and the transfers you make as described in our Consumer Privacy Disclosure as amended or modified from time to time.
In Case of Errors or Questions About Your Electronic Transfers: Telephone or write us, as soon as you can, at the telephone number or address in Section 3 above, if you think your statement or receipt is wrong or if you need more information about a transfer on the statement or receipt. We must hear from you no later than sixty (60) days after we sent you the FIRST statement on which the error or problem appeared. Your inquiry must include: Your name and account number; AND a description of the error or the transfer you are unsure about, and as clearly as you can, an explanation of why you believe there is an error or why you need more information; AND the dollar amount of the suspected error. If you tell us orally, we may require that you send us your inquiry in writing within ten (10) business days. We will investigate your inquiry and will correct any error promptly. We will tell you the results of our investigation within ten (10) business days [twenty (20) business days for claims on accounts open less than thirty (30) calendar days] after we hear from you; however, we may take up to forty-five (45) calendar days [ninety (90) calendar days for claims on accounts open less than thirty (30) calendar days, foreign-initiated transaction claims, and point-of sale transaction claims] to investigate your questions. If we need additional time to investigate, we will provisionally re-credit your account within ten (10) business days [twenty (20) business days for claims on accounts open less than thirty (30) calendar days] for the amount you think is in error so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your inquiry in writing, and do not receive your written inquiry within ten (10) business days, we may choose not to provisionally re-credit your account. If we find that there was no error, we will send you a written explanation within three (3) business days after we finish our investigation. You may ask for copies of the documents we used.
A. Subsection A applies if you reside in a state other than California and we do not maintain your account in California
By opening or maintaining the account, you agree that if a dispute, claim or controversy of any kind arises out of or relates to this Agreement or to your account or any transactions involving your account, or any service or product related to your account, either you or we can choose to have that dispute resolved by binding arbitration. This arbitration provision limits your ability to litigate claims in court and your right to a jury trial. You should review this section carefully. You will not have the right to participate as a class representative or member of any class of claimants for any claim subject to arbitration. Arbitration is a more informal proceeding in which disputes are decided by one or more neutral arbitrators who issue a binding ruling in the form of an award. You and we understand that discovery and other procedures in arbitration may be more limited than discovery in court proceedings and that the ability to modify, vacate, or appeal an award by an arbitrator(s) is strictly limited.
You and we agree, upon written demand made by you or us, to submit to binding arbitration all disputes, controversies, and claims, whether based on contract, fraud, tort, intentional tort, statute, regulation, constitution, common law, equity, or any other legal basis or theory, and whether pre-existing, present, or future, that arise out of or relate to (a) this Agreement, your account, any transaction involving your account, any service or product related to your account, or any advertisements, promotions, or oral or written statements related to this Agreement or your account, (b) the relationships that result from this Agreement (including, to the fullest extent permitted by applicable law, relationships with third parties who are not parties to this Agreement or this arbitration provision), (c) your relationship with us that relates to this Agreement or any other agreement or relationship you have with us that is not also subject to a different agreement to arbitrate, or (d) the validity, interpretation, scope or enforceability of this Agreement or the interpretation or scope of the Arbitration Clause (collectively, a "Claim"). All parties retain the right to seek relief in a small claims court for disputes or claims within the jurisdictional limits of the small claims court. At the option of the first to commence arbitration, you or we may choose to have the arbitration conducted by JAMS ADR ("JAMS") or the American Arbitration Association ("AAA"), or you and we may agree upon a different arbitrator. In any event, any arbitration under this Agreement shall be conducted in writing in accordance with the AAA Rules ("Rules"). You agree that this arbitration provision is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (the "FAA") shall apply to the construction, interpretation, and enforceability of this Agreement notwithstanding any other choice of law provision contained in this Agreement.
Either you or we may initiate arbitration by giving written notice of the intention to arbitrate to the other party and by filing notice with JAMS or the AAA in accordance with the Rules in effect at the time the notice is filed. The notice shall set forth the subject of the dispute and the relief requested, at a minimum. The demand for arbitration may be made before or after commencement of any litigation. You should contact the AAA at 800-778-7879 or www. adr.org or JAMS at 800-352-5267, www.jamsadr.com for more information about arbitration. If for any reason the AAA or JAMS is unable or unwilling to serve as arbitration administrator, or you and we are unable to agree on another arbitrator, we will substitute another national or regional arbitration organization.
Demand for arbitration under this Agreement must be made before the date when any judicial action upon the same Claim would be barred under any applicable statute of limitations; otherwise, the Claim also is barred in arbitration. Any dispute as to whether any statute of limitations, estoppel, waiver, laches, or similar other doctrine bars the arbitration of any Claim shall be decided by arbitration in accordance with the provisions of this Agreement.
You cannot join together in a dispute with anyone other than persons who use your account, although this limitation does not affect the ability of a purely governmental entity to institute any enforcement action. Even if other people have disputes similar to a dispute that you and we have, those people and their disputes cannot be part of any arbitration between you and us. A Claim by, or on behalf of, other persons will not be considered in, joined with, or consolidated with, the arbitration proceedings between you and us, and a Claim may not be arbitrated on a class action, private attorney general, or other representative basis. Notwithstanding anything to the contrary in this Agreement, any dispute regarding the prohibitions in this paragraph or about the enforceability of the arbitration clause shall be resolved by a court and not by the arbitrator(s).
Where the aggregate of all Claims by both you and us does not exceed $250,000, any expedited procedures provided in the Rules ("Expedited Procedures") shall apply and a single arbitrator shall decide the Claims. Where the aggregate of all Claims by both you and us exceeds $250,000, a panel of three arbitrators shall decide all Claims. Each arbitrator, whether or not acting under Expedited Procedures, shall be an active member in good standing of the bar for any state in the continental United States and shall be either: (a) actively engaged in the practice of law for at least 5 years or (b) a retired judge.
You and we agree that the arbitrator(s): (a) shall limit discovery to non-privileged matters directly relevant to the arbitrated dispute; (b) shall grant only relief that is based upon and consistent with substantial evidence and applicable substantive law; (c) shall have authority to grant relief only with respect to Claims asserted by or against you individually; (d) shall not have any authority to require, as part of any relief granted, that you and we continue any relationship we may have under this Agreement or otherwise; and (e) shall provide a brief written explanation of the basis for the award upon the request of either party and shall make specific findings of fact and conclusions of law to support any arbitration award that exceeds $25,000.
Upon written request by you, for claims up to $50,000, we will pay to the AAA or JAMS the portion of the arbitration filing fee that exceeds the cost of filing a lawsuit in the federal court where you live. Upon written request by you, we may elect, at our sole discretion, to pay or advance some or all of any remaining arbitration fees and other costs. The arbitrator will decide whether we or you ultimately will be responsible for paying any filing, administrative or other fees in connection with the arbitration. If you are the prevailing party in the arbitration, the arbitrator(s) may order us to pay some or all of your attorney, expert, and/or witness fees. Any arbitration proceedings shall be conducted in the federal judicial district where we maintain your account. Judgment upon any award rendered in arbitration may be entered in any court having jurisdiction.
If you or we are seeking to bring a joined, consolidated, or class action and if the portion of this arbitration provision that prohibits the arbitration of joined, consolidated, or class actions is deemed invalid or unenforceable, then the entire arbitration provision shall be void and unenforceable and severed from the rest of this Agreement. If any portion of this arbitration provision other than the prohibition against the arbitration of joined, consolidated or class actions is deemed invalid or unenforceable, then that portion will be severed and the remaining portions of this arbitration provision will remain valid and enforceable including the prohibition against the arbitration of joined, consolidated or class actions. Nothing in this arbitration provision shall limit your or our right, whether before, during, or after the pendency of any arbitration proceeding, to exercise any self-help remedies, such as set-off or repossession and sale of collateral, or to obtain provisional remedies (including but not limited to, injunctive relief or interpleader relief). You and we agree that the taking of these actions or any other participation in litigation by you or us does not waive any right that either you or we have to demand arbitration at any time with respect to any subsequent or amended Claim filed against you or us after commencement of litigation between you and us. This arbitration provision shall survive termination of this Agreement and the closing of your Account.
WAIVER OF JURY TRIAL
This provision limits your rights to a jury trial. You should review this section carefully. If (i) neither you nor we seek to compel arbitration of any dispute we have related to this Agreement, your account, or any transactions involving your account, or (ii) some or all of the arbitration clause is unenforceable and we are in a dispute in a court of law, then each of us agrees to waive any right we may have to a jury trial to the extent allowable under the laws of the state that govern this Agreement.
Attorneys’ Fees. In any action between you and us in court, the prevailing party shall be entitled to recover its reasonable attorneys’ fees expended in the prosecution or defense of the court action from the other party.
B. Subsection B applies if you either reside in California or we maintain your account in California
JUDICIAL REFERENCE & WAIVER OF JURY TRIAL
By opening or maintaining the account, you agree that if a dispute, claim or controversy of any kind arises out of or relates to this Agreement or to your account or any transactions involving your account, or any service or product related to your account, it will be resolved by judicial reference pursuant to the provisions of the California Code of Civil Procedure, Sections 638-645.1 inclusive, unless the dispute, claim or controversy is part of a class action. This judicial reference provision limits your ability to litigate claims in court and your right to a jury trial. By agreeing to judicial reference, you and we waive, and shall not have, any right to a jury trial. You should review this section carefully. Judicial reference is a proceeding in which disputes are decided by a judicial referee who receives the evidence at a hearing and then issues a statement of decision upon which a judgment is based. You and we agree that the referee shall have the power to decide all issues of fact and law and report his/ her statement of decision hereon, and to issue all legal and equitable relief appropriate under the circumstances before him/her.
Either you or we may initiate judicial reference by giving written notice of the intention to initiate judicial reference to the other party and by proceeding in accordance with California Code of Civil Procedure Section 638.
You and we agree, upon written demand made by you or us, to submit to judicial reference all disputes, controversies, and claims, whether based on contract, fraud, tort, intentional tort, statute, regulation, constitution, common law, equity, or any other legal basis or theory, and whether pre-existing, present, or future, that arise out of or relate to this Agreement, the account, any transaction involving the account, any service or product related to your account, or any advertisements, promotions, or oral or written statements related to this Agreement or the account, the relationships that result from this Agreement (including, to the fullest extent permitted by applicable law, relationships with third parties who are not parties to this Agreement or this judicial reference provision), or the validity, interpretation, and scope of this Agreement (collectively, a "Claim"). All parties retain the right to seek relief in a small claims court for disputes or claims within the jurisdictional limits of the small claims court.
You and we agree that a single referee who is a retired California state or federal court judge shall be appointed by the court pursuant to California Code of Civil Procedure 640 and shall preside over the reference proceeding and try all issues, whether of fact or law. If the parties are unable to agree upon a referee within ten (10) days of a written request to do so by any party, then any party may thereafter seek to have a referee appointed pursuant to the California Code of Civil Procedure, Sections 638 and 640, including submitting to the court up to three nominees who are retired state or federal court judges.
You and we shall be entitled to discovery, and the referee shall oversee discovery and may enforce all discovery orders in the same manner as any trial court judge. Demand for judicial reference under this Agreement must be made before the date when any judicial action upon the same Claim would be barred under any applicable statute of limitations; otherwise, the claim also is barred in judicial reference. Any dispute as to whether any statute of limitations, estoppel, waiver, laches, or other doctrine bars the judicial reference of any Claim shall be decided by the judicial referee in accordance with the provisions of this Agreement.
A claim by, or on behalf of, other persons will not be considered in, joined with, or consolidated with, the judicial reference proceedings between you and us. Any such claim will be resolved in a court of proper jurisdiction. Nothing in this judicial reference provision shall limit the right of you or us, whether before, during, or after the pendency of any judicial reference proceeding, to exercise any self-help remedies, such as set off or repossession and sale of collateral, or to obtain provisional or ancillary remedies or injunctive or other traditionally equitable relief, such as filing an interpleader action. You and we agree that the taking of these actions or any other participation in litigation by you or us does not waive any right that either you or we have to demand judicial reference at any time with respect to any subsequent or amended Claim filed against you or us after commencement of litigation between you and us.
You and we agree that the referee shall not have any authority to require, as part of any relief granted, that you and we continue any relationship we may have under this Agreement or otherwise; and shall provide a statement of decision stating the disposition of each claim and a concise written explanation of the basis for the award. The referee’s statement of decision shall contain written findings of fact and conclusions of law, and the court shall enter judgment thereon pursuant to California Code of Civil Procedure Sections 644(a) and 645. The decision of the referee shall then be appealable as if made by the court.
Unless inconsistent with applicable law, each party shall bear the expense of its respective attorney, expert, and witness fees, regardless of which party prevails in the judicial reference. Except for any filing fee if you initiate judicial reference proceedings, we will pay all of the remaining judicial reference fees and other costs, including the referee’s fees where required by law. The referee will decide whether we or you ultimately will be responsible for paying any fees or other costs in connection with the judicial reference. Any judicial reference proceedings shall be conducted in the federal judicial district of your residence, and you will be given the opportunity to attend the proceeding and be heard. Judgment upon any statement of decision rendered in judicial reference may be entered by the court that appointed the judicial referee or any other court with jurisdiction.
If any portion of this judicial reference provision is deemed invalid or unenforceable, the remaining portions of this judicial reference provision will remain valid and enforceable. This judicial reference provision shall survive termination of this Agreement and the closing of your Account.
Attorneys’ Fees. In any action between you and us regardless of whether it is proceeding in court or in judicial reference, unless inconsistent with applicable law, each party shall bear the expense of its respective attorney, expert, and witness fees, regardless of which party prevails in the matter.
TIME DEPOSIT ACCOUNTS ARE SUBJECT TO FEDERAL AND STATE LAWS AND REG ULATIONS
The Internal Revenue Service (IRS) is responsible for insuring that all persons pay the correct amount of Federal Income Tax. In order to accomplish this task, they must match the income reported by businesses for individuals (salary, interest, dividends, etc.) to the income shown on individual tax returns. Taxpayer Identification Numbers (for individuals, their social security numbers) are used as the basis for matching these records. A 1983 law required all payers of interest (such as a bank) to report interest paid to individuals by Taxpayer Identification Number. Therefore, you must provide your correct Taxpayer Identification Number to us so that we may meet these reporting requirements. This law also stipulates that should a bank or other payer of interest not have your correct Taxpayer Identification Number on file, then 28% of interest, dividends and other payments made to you must be withheld and forwarded to the IRS to insure that taxes on this income are paid. This advance payment is known and referred to by the IRS as "backup withholding." Backup withholding is not an additional tax. Rather, the amount of taxes you normally would owe will be reduced by the amount of tax withheld. If an overpayment of taxes results from backup withholding, a refund may be obtained from the IRS.
Unless the IRS has instructed us to withhold from your interest and dividend payments, you can avoid this 28% backup withholding by providing us with your correct Taxpayer Identification Number. Additionally, you must certify that the Taxpayer Identification Number you provide us is correct and that you have not been advised by the IRS that you are subject to backup withholding.
The IRS is empowered to impose penalties on you and us if your correct Taxpayer Identification Number is not provided. (Please see the "Penalties" section below.)
HOW BACKUP WITHHOLDING WORKS
Unless you are an exempt recipient (see Exempt Recipients section) you are subject to backup withholding if: 1) You fail to furnish us your Taxpayer Identification Number, OR 2) The IRS notifies us that you furnished an incorrect Taxpayer Identification Number, OR 3) The IRS notifies us that you are subject to backup withholding (under Section 3406(a)(1)(C) of the Internal Revenue Code*), OR 4) For an interest or dividend account opened after December 31, 1983, you fail to certify to us that you are NOT subject to backup withholding, under (3) above, or fail to certify your Taxpayer Identification Number is correct.
*NOTE: Section 3406(a)(1)(C) of the Internal Revenue Code basically requires backup withholding if you have underreported to the IRS interest or dividend payments you received, or if you failed to file a Tax Return which would have included reportable interest or dividend payments. The IRS will notify you before they instruct us to withhold for either of these reasons.
How to Avoid Backup Withholding: When you open an account with us, we will provide you with the necessary forms to complete in order to provide and certify your Taxpayer Identification Number. TO AVOID BACKUP WITHHOLDING, all you have to do is provide us with your correct Taxpayer Identification Number and sign the certification statement to certify that the number you are providing is correct and that you are not subject to backup withholding.
Taxpayer Identification Number: If you are an individual, your Taxpayer Identification Number is your Social Security Number. If you are not an individual, generally your Taxpayer Identification Number is your Employer Identification Number. In all instances the number you give us should be the number of the owner of the account.
Guidelines for Determining the Proper Identification Number to Give to the Bank: Social Security Numbers have nine digits separated by two hyphens: i.e., 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The following table will help you determine the number to give to the bank.
|For this type of account:||Give the social security number of:|
|1||An individual account||The individual|
|2||Two or more individuals (joint/multiple party account)||The actual owner of the account. This person’s name should be listed first on the account.|
|3||Husband and wife (joint/multiple party account)||The first person listed on the account|
|4||Custodian account of a minor (Uniform Transfer to Minors Act)||The minor|
|5||Adult and minor (joint/multiple party account)||The first person listed on the account|
|6||Account in the name of guardian or committee for a designated ward, minor or incompetent person||The ward, minor or incompetent person|
|7a||The usual revocable savings trust account (grantor is also trustee)||The grantor-trustee|
|7b||So called trust account is not a legal or valid trust||The actual owner|
|8||A valid trust or estate||Legal entity (Do not furnish the identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title.)|
|9||A valid trust, estate, legal pension trust||(Do not furnish the identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title)|
|10||Corporate account||The corporation|
|11||Religious, charitable, or educational organization account||The organization|
|12||Partnership account held in the name of the business||The partnership|
|13||Association, club, or tax-exempt organization||The organization|
|14||A broker or registered nominee||The broker or nominee|
|15||Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments||The public entity|
Obtaining a Number: If you don’t have a Taxpayer Identification Number or you don’t know your number, obtain Form SS-5, application for a Social Security Number Card, or Form SS-4, Application for Employer Identification Number, at the local office of the Social Security Administration or the Internal Revenue Service and apply for a number. When you get a number, submit a new form to the bank.
Exempt Recipients: Payees specifically exempted from backup withholding on ALL payments include the following:
Payments of dividends and patronage dividends not generally subject to backup withholding include the following:
Payments of interest not generally subject to backup withholding include the following:
If you are uncertain whether you qualify as an exempt recipient, call your accountant or the Internal Revenue Service.
To avoid possible withholding, exempt recipients should complete the form(s) provided by Compass Bank and should check the box captioned Exempt Recipients. The form should also contain your Taxpayer Identification Number and the certification statement must be signed. The form must then be returned to Compass Bank.