Free Complaint - District Court of California - California

Case 3:07-cv-04765-CRB Document 1-5 Filed 09/17/2007 Page 1 of 23 BE MY GUEST DINING CARD - TERMS AND CONDITIONS http://wwwl O.americanexpress.com/sif/cda~page/O,4 , 5 1 ,OO.asp 1 182 6

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Be My Guest Cards

THE BE MY GUEST@DINING CARD
Reclplent Terms and Conditions

MANAGE... Available Funds 8 Transactiun H~story GET HELP. .. Frequently Asked Q~iesttoris
Terms and Condltlons

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Exhibit 18, Page 136

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BE MY GUEST DINING CARD - TERMS AND CONDITIONS http:Nwwwl0.americanexpress.com/sif/cda~pagelO, 1,8521,OO.asp 164 Case 3:07-cv-04765-CRB Document 1-5 Filed 09/17/2007 Page 2 of 23

Congratulations for receiving a new Be My Guest Dining Card, the gifl that you can use when you dine at any Restaurantaccepting the American Express Card in the United States These terms and conditions govern your use of the Be My ~ u e s t @ Dining Card ("Be My Guest Dining Card or "Card") that you have received as a gifl. By signing or using the Be My Guest Dining Card, you are agreeing to these terms and conditions. The terms "you" and "your" refer to the person who received the Be My Guest Dining Card and whose signature appears on it. The terms "we" and "us" refer to American Express Travel Related Services Company, Inc.
THE BE MY GUEST DINING CARD

that indicates the amount of funds that have been loaded onto your Card. The value of the funds .that are loaded onto the Card and are available for spending is referred to herein as the "Available Funds." As you use the Be My Guest Dining Card, the Card?s Available Funds will be reduced by the full amount of each purchase including tips, taxes, charges and other fees, if any. You may not use the Card for any amount that exceeds the Available Funds or after the "valid thru" date printed on its face.
BEFORE USING THE CARD

Before using your Be My Guest Dining Card, it must be: (i) activated by calling 1-877-388-2329and (ii) signed by you on the reverse of the Card, where indicated. In addition we suggest that you write down the Card number and the customer sewice number on a separate piece of paper in case the Card is lost or stolen. See section below entitled "Refunds." At the time of activation, for your protection and for compliance purposes, we may request some additional identification verification information from you. Such data will be held in confidence in accordance with the section below entitled "Data Protection and Privacy".
USING THE CARD

To use the Card at a restaurant that accepts Amer~can Express Cards, s~mply present the Card at the t ~ m e payment, and slgn the rece~pt ~ t h same of w the signature you have used when you s~gned Card. You may wlsh to retaln the the recelpt as a record of the transact~onThe Be My ~ u e s t @ Dlnlng Card can be used to pay the full amount of the meal lncludlng t ~ and applicable taxes, so long p as the balance of the card IS suffic~ent The Be My ~ u e s t @ Dining Card can also be used to pay part of the total meal and the rest with another form of payment accepted by the restaurant. Please note that restaurants often add a fixed percentage (approximately 20%) to the authorization amount when they swipe your card to receive approval. This is very common in restaurants to cover the tipping charge that would normally be added to the transaction amount. This may result in a decline or it may result in a "hold for the additional amount on your Available Balance. Once the actual transaction is cleared between American Express and the restaurant merchant, American Express will remove the hold on any additional funds. For example, if your meal totaled $50 but the restaurant authorized for $60 and you paid only the $50 for ld the meal with your Card and the tip in cash, then the additional $10 w o ~ ~be held until the American Express receives confirmation that the transaction was for $50 (usually within 3 and 7 days). To avoid this, you can generally ask the restaurant to only authorize the amount you have requested." You agree: That American Express is authorized to deduct the amount of your purchases, together with any other fees, taxes, or charges from the funds loaded on your Be My Guest Dining Card whenever your Card is used to make a purchase. To track your spending and not to use the Card for any amount that exceeds the Available Funds. Not to use the Card afler the "valid thru" date printed on its face. Not to permit any other person to use the Be My Guest Dining Card issued to you. Not to use the Card at any locations other than restaurants located in the United States Not to use the Card for any illegal purposes. To keep the Card securely and treat it like Cash. If your Card is lost or stolen you can only obtain a refund of the amounts still remaining on the Card as of the time you notify us of the loss. To notify us at once if the Card is lost or stolen. See the section entitled "Refunds" below. Please note that purchases made with Be My Guest Dining Cards are similar to those made with cash or travelers checks. You cannot "stop payment" or lodge a "billing dispute" on such transactions. Any problems or disputes you may have regarding the transaction should be addressed directly with the establishment.

Exhibit 18, Page 137

Case 3:07-cv-04765-CRB Document 1-5 Filed 09/17/2007 Page 3 of 23 BE MY GUEST DINING CARD - TERMS AND CONDITIONS http://wwwl0.americanexpress.com/sif/cda/page/O, 1,8521,OO.asp 164

INFORMATIONABOUT AVAILABLE FUNDS You should keep track of the amount of Ava~lable Funds on the Be My Guest Dlnlng Card Issued to you You may call us at any t ~ m e uslng the Customer Servlce number shown on your Card to obtaln the current Ava~lable Funds amount You may also request lnformat~on about prevlous transact~ons calling by Customer Servlce Your Avallable Funds w ~ lreflect all transacl~ons have i that been posted to our system If you have a question or a problem about a transaction posted to your Be My Guest Dining Card (for example, a transaction that appears to be a duplicate transaction) you must notify us immediately, and no later than sixty (60) days from the date of the transaction. You must tell us your Card number, the date and dollar amount of the error, and describe the error and explain as clearly as you can why you believe there is an error. If we ask you to put your dispute in writing, you agree to do so within five (5) business days. We will investigate and will notify you of the results of our investigation within sixty (60) business days.

If your Be My Guest Dlnlng Card 1 lost, stolen or used ~mproperly, s CONTACT US IMMEDIATELY at the Customer Servlce number shown on the Card. You w ~ l l be asked to provide us with the Card number and other identifying details. We cannot provide a refund if you do not have your Card number available. If our records show that there are still Available Funds remaining on the Card, we will cancel the Card and refund such Available Fund amounts to you. IMPORTANT: PLEASE SAFEGUARD YOUR CARD SECURELY AND TELL US IMMEDIATELY IF THE CARD IS LOST OR STOLEN. UNFORTUNATELY, NO REFUNDS WILL BE PROVIDED FOR AMOUNTS DEBITED FROM YOUR LOSTlSTOLEN CARD BEFORE YOU NOTIFY US.

s to It 1 your responsibil~ty keep track of your spendlng on t Card. You may also contact us for information on the amoun on the Be My Guest Dining Card (see "Information About Av above). If you attempt to use the Card when there are insuffi Funds for the transaction in question, the transaction in mos declined. However, if due to a systems malfunction or for an a transaction occurs despite insufficient Available Funds on us, upon request, for the amount of the Shortage. In addition, we reserve the righ to charge you a Shortage fee of $15 per transaction whenever you either create or enlarge the Shortages on your Be My Guest Dining Card. "VALID THRU" DATE -VALUE LOADED DOES NOT EXPIRE Please note that the Be My Guest D ~ n ~ n g has a "val~d Card thru" date lnd~cated on the face of the Card That 1 the date after whlch you may not use that Card s However, exceeding the "val~d thru" date does not mean the Ava~lable Funds that Funds remaln on the Card after the "val~d are on the Card explre If Ava~lable thru" date, s~mply contact us at the Customer Service number on the Card for ~nstruct~on how to redeem the Avallable Funds We may relssue a Card to on you, and ~fso, we reserve the r~ght (Subject to applicable law) to charge you a Relssuance Fee of $5 95 Or, ~fyou wlsh, you may request a check to be ~ssued w~th Ava~iable any Funds on the Card, for a check-lssuance fee of $10 in thls Instance, Amerlcan Express reserves the right to hold funds for ten (10) busmess days before redeeming any such Ava~lable Funds SERVICE FEES You may leave Available Funds on the Card as long as you wish and may contact us at any time to redeem them, but if Available Funds remain on the Card for more than 12 months from the purchase date, we may deduct from the Available Funds a Service Fee of $2.00 per month beginning on the first month after 12 months from the purchase date. Note: Such Service Fees will not apply in any state or jurisdiction in which they are prohibited or restricted.

From t ~ m e time the Be My Guest Dlntng Card servlce may be inoperatwe, and to when thls happens, you may be unable to use your Card or obta~n lnformatlon about Ava~lable Funds on your Card Please notlfy us ~fyou have any problems using your Be My Guest Dlnlng Card You agree that Amerlcan Express Is not respons~ble any lnterruptlon of servlce for
NO WARRANTY REGARDING 00

Exhibit 18, Page 138

Case 3:07-cv-04765-CRB Document 1-5 BE MY GUEST DINING CARD - TERMS AND CONDITIONS

Filed 09/17/2007

Page 4 of 23

REFUSAL OF CARD

American Express will not be liable for the failure of any restaurant to honor the Be My Guest Dining Card.
CHANGING THESE TERMS AND CONDlTlONSlCARD CANCELLATION

We may change the terms of or add new terms to this Agreement at any time, in accordance with applicable law. In addition, we may suspend, cancel, add, modify or delete any feature offered in connection with your Be My Guest Dining Card at our sole discretion at any time, with or without cause, and without giving you notice, subject to applicable law. If we cancel your Card, any Available Funds remaining on the Card upon such cancellation after payment for all of your transaction and applicable fees will be returned to you. We may condition

payment with respect to any problem arising out of any transaction made with the Be My Guest Dining Card, you are automatically deemed to assign and transfer to us any rights and claims (excluding tort claims) that you have, had or may have against any third party for an amount equal to the amount we have paid to you or credited to your Be My Guest Dining Card. You agree that you w~ll pursue any not claim against or reimbursement from such third party for the amount that we paid or credited to your Card, and that you will cooperate with us if we decide to pursue the third party for the amount paid or credited. If we do not exercise our rights under this Agreement, we do not give up our rights to exercise them in the future.

As part of prov~d~ng w ~ t h Be My Guest D~nlng you the Card, we obta~n nonpubl~c personal ~nformat~on ("Cardholder Informat~on") about you, ~nclud~ng lnformation provided to us by the Be My Guest Dining Card purchaser, such as your name andlor your address. lnformation you provide to us at the time of activation. lnformation about purchases you make with the Be My Guest Dining Card, such as the date of the purchase, the amount and the place of purchase. In addition, we may obtain information from providers of identity verification data and demographic information, in connection with our efforts to protect against fraudulent or unauthorized use of the Be My Guest Dining Card.

INFORMATION SECURITY

Only those persons who need ~tto perform their job respons~b~l~t~es are author~zed have access to Purchaser lnformatlon In add~t~on, rnalnta~n to we phys~cal, electron~c, and procedural security measures that comply w~th federal regulat~ons safeguard Purchaser lnformat~on to
DISCLOSURE

To process Be My Guest Dining Card transactions, to provide customer service, to process claims for lost or stolen Cards, to develop marketing offers, to help protect against fraud, and to conduct research and analysis, it?s often necessary for us to disclose Cardholder lnformation to companies that work with us. For example, we may provide certain Purchaser lnformation to companies, including American Express Affiliates that perform business operations or services, including marketing services, on our behalf. And we may provide certain Cardholder lnformation to others outside of American Express as permitted by law, such as to government entities or other third parties in response to subpoenas.
OFFERS

We may develop market~ng programs and send you offers for products and servlces that you may f ~ n d value We do not share customer addresses with of other companies for them to market thew own products and servlces Cho~ceIf you prefer not to recelve offers, you may opt out by call~ng In the US toll free at us 1-800-722-8614or collect outs~de US at 1-801-945-9450 If you opt out from the

Exhibit 18, Page 139

Case 3:07-cv-04765-CRB Document 1-5 BE MY GUEST DINING CARD - TERMS AND CONDITIONS

Filed 09/17/2007

Page 5 of 23

receiving these offers, we may still send important information about the Be My Guest Dining Card or other American Express products and services to you.

From time to time we may monitor andlor record telephone calls between you or Additional Be My Guest Dining Cardholders and us to assure the quality of our customer service or as required by applicable law.
NOTICES
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glven by us shall be deemed given when deposited in the United , postage prepaid, addressed to you at the latest address shown on

ARBITRATION

Purpose: This Arbitration Provision sets forth the circumstances and procedures under which Claims (as defined below) may be arbitrated instead of litigated in court. Definitions: As used in this Arbitration Provision, the term "Claim" means any claim, dispute or controversy between you and us arising from or relating to the Be My Guest Dining Card or this Agreement as well as any related or prior agreement that you may have had with us or the relationships resulting from this Agreement, including the validity, enforceability or scope of this Arbitration Provision or the Agreement. For purposes of this Arbitration Provision, "you" and "us" also includes any corporate parent, or wholly or majority owned subsidiaries, affiliates. any licensees, predecessors, successors, assigns, any purchaser of any accounts, all agents, employees, directors and representativesof any of the foregoing, and other persons referred to below in the definition of "Claims." "Claim" includes claims of every kind and nature, including but not limited to initial claims, counterclaims, cross-claims and third-party claims and claims based upon contract, tort, fraud and other intentional torts, statutes, regulations, common law and equity. "Claim" also includes claims by or against any third party using or providing any product, service or benefit in connection with the Card or this Agreement (including, but not limited to, third parties who accept the Card, third parties who use, provide or participate in programs accessed with the Card, enrollment services and rewards programs, debt collectors and all of their agents, employees, directors and representatives)if and only if, such third party is named as a co-party with you or us (or files a Claim with or against you or us) in connection with a Claim asserted by you or us against the other. The term "Claim" is to be given the broadest possible meaning that will be enforced and includes, by way of example and without limitation, any claim, dispute or controversy that arises from or relates to (a) your Be My Guest Dining Card; (b) the amount of Available Funds on the Be My Guest Dining Card; (c) advertisements, promotions or oral or written statements related to the Be My Guest Dining Card, goods or services purchased with the Card; (d) any benefits and services related to the Card; and (e) your enrollment for or activation of the Card. We shall not elect to use arbitration under the Arbitration Provision for any Claim that you properly file and pursue in a small claims court of your state or municipality so long as the Claim is individual and pending only in that court. Initiation o f Arbitration ProceedinglSelection of Administrator: Any Claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration Provision and the code of procedures of the national arbitration organization to which the Claim is referred in effect at the time the Claim is filed. Claims shall be referred to either the National Arbitration Forum ("NAF), JAMS, or the American Arbitration Association ("AM"), selected by as the party electing to use arbitration. If a selection by us of one of these organizations is unacceptable to you, you shall have the right within 30 days after you receive notice of our election to select either of the other organizations listed to serve as arbitrator administrator. For a copy of the procedures, to file a Claim or for other information about these organizations, contact them as follows: The NAF at P.O. Box 50191, Minneapolis, MN 55404; website at www.arbitration-forum.com. JAMS at 1920 Main Street, Suite 300, Los Angeles, CA 92614; website: www.jamsadr.com. AAA at 335 Madison Avenue, New York, NY 10017; website: www.adr.org. ****Significance of Arbitration: IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WlLL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR TO HAVE THEIR CLAIMS RESOLVED EXCEPT AS PROVIDED FOR IN THE CODE OF PROCEDURES OF THE NAF, JAMS OR AAA. AS APPLICABLE (THE "CODE") FURTHER, YOU AND WE WlLL NOT HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVECAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO

Exhibit 18, Page 140

BE MY GUEST DINING CARD - TERMS AND CONDITIONS

Case 3:07-cv-04765-CRB

Document 1-5

Filed 09/17/2007

Page 6 of 23

ARBITRATION. EXCEPT AS SET FORTH BELOW, THE ARBITRATOR7S DECISION WILL BE FINAL AND BINDING NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION Restrictions o n Arbitration: If either party elects to resolve a Claim by arbitration, that Claim shall be arbitrated on an individual basis. There shall be no right or authority for any Claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other Cardholders or other persons similarly situated. The arbitrator?^ authority to resolve Claims is limited to Claims between you and us alone, and the arbitrator?^ authority to make awards is limited to you and us alone. Furthermore, Claims brought by you against us or by us against you may not be joined or consolidated in arbitration with Claims brought by or against someone other than you, unless otherwise agreed to in writing by all parties. Arbitration Procedures: This Arbitration Provision is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16, as it may be amended (the "FAA). The arbitration shall be governed by the applicable Code, except that (to the extent enforceable under the FAA) this Arbitration Provision shall control if it is inconsistent with the applicable Code. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law and, at the timely request of either party, shall provide a brief written explanation of the basis for the decision. The arbitration proceeding shall not be governed by any Federal or state rules of civil procedure or rules of evidence. Either party may submit a request to the arbitrator to expand the scope of discovery allowable under the applicable Code. The party submitting such a request must provide a copy to the other party, who may submit objections to the arbitrator with a copy of the objections provided to the requesting party, within fifteen (15) days of receiving the requesting party7s notice. The granting or denial of such a request will be in the sole discretion of the arbitrator who shall notify the parties of hislher decision within twenty (20) days of the objecting party?s submission. The arbitrator shall take reasonable steps to preserve the privacy of individuals, and of business matters. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator?^ decision will be final and binding, except for any right of appeal provided by the FAA. However, any party can appeal that award to a three-arbitrator panel administered by the same arbitration organization, which shall consider anew any aspect of the initial award objected to by the appealing party. The appealing party shall have thirty (30) days from the date of entry of the written arbitration award to notify the arbitration organization that it is exercising the right of appeal. The appeal shall be filed with the arbitration organization in the form of a dated writing. The arbitration organizationwill then notify the other party that the award has been appealed. The arbitration organization will appoint a three-arbitrator panel which will conduct an arbitration pursuant to its Code and issue its decision within one hundred and twenty (120) days of the date of the appellant7s written notice. The decision of the panel shall be by majority vote and shall be final and binding. Location o f ArbitrationlPayment of Fees: Any arb~trat~on hear~ng you attend shall take place In the federal judlclal that d~str~ct your res~denceYou will be responsible for paylng your share, ~fany, of of fees f~l~ng, adm~n~strat~ve, hear~ng andlor other fees) the arb~trat~on (~nclud~ng prov~ded the Code, to the extent that such fees do not exceed the amount of by fees you would have Incurred ~fthe Clam had been brought In the state the f~llng or federal court closest to your bllllng address that would have jur~sdlct~on over be for of fees the Cla~mWe w~ll respons~ble paylng the rema~nder any arb~trat~on request, we w ~ lcons~der good fa~th l In mak~ng temporary a At your wr~tten advance of all or part of your share of the arb~trat~on for any Clam you fees ~n~tlate to wh~ch or we seek arb~trat~on w~ll be assessed any as you You not arb~trat~on In excess of your share ~fyou do not preva~l any arb~trat~on fees In w~th us Continuation: Thls Arb~trat~on Prov~s~on survlve term~natlon your Be My Guest D ~ n ~ n g shall of Card as well as voluntary payment of any shortages In full by you, or any legal proceed~ng us to collect a debt owed by you, and any bankruptcy by you or us by of Arbltratlon Prov~s~ondeemed lnval~d unenforceable IS or If any port~on t h ~ s or the under any pr~nc~ple provlslon of law or equlty, ~tshall not ~nval~date remalnlng port~ons t h ~ s of Arb~trat~on Provlslon, the Agreement, each of whlch shall be enforceable regardless of such ~nval~d~ty

APPLICABLE LAW

Exhibit 18, Page 141

Case 3:07-cv-04765-CRB
FDR815126 9/8/06 11:06 PM

Document 1-5

Filed 09/17/2007

Page 7 of 23

Page 1

PDB 815126

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AGREEMENT BETWEEN STARWOOD PREPERRED GUEST CREDIT CARDMEMB~~X .
AMERICAN EXPRESS BANK, F$B
If the greatest of the three calculationsin section (2) above is the c u m t billed Finance Charge, then we will add $15 to the calculation of the Minimum Amount Due. A our option, we may also indude in t the Minimum Amount Due all or part of other fees incur~d during the billing period and any part of the New Balance in excess of your credit line. The Minimum Amount Due will not exceed the New Balance. You may pay more than the Minimum Amount Due, up to the entire outstanding balance, at any time. line and limit as of the statement date. You agree to manage your Account so that your balance for Cash Advanm (including fees and Finance Charges) will not exceed the Cash Advance limit and your overall balance (including fees and Finance Charges) will not exceed your credit line. You agree to pay us, immediatelyupon request, the amount of any balance on your Account in e x m of any applicable credit line or limit W m m the right to declineany attempted Charge, even if the Charge e would not causeyou to exceed your credit line or limit. W are not responsible for any lossesor other consequences if a transace tion on your b u n t is not appmved for any reason, even if you have sufficientcredit available.Except as otherwise required by applicable law, we will not be responsible if any m e ~ h a nrt e h to honor the Cad or for any other pmblem you may have with a merchant

Welcome to A~nericanExpress Cardmembership This document and the acmmpanyingsupplement(s) constitute your Agreement Please read and keep this Agreement.Abide by its terms. When you keep, sign or use the Card issued to you (including any renewal or replacement Cards), or you use the account associatedwith this Agreement (your "Account"), you agree to the k mof this Agreement. The words "you," "your" and "yours" mean the person who applied for the Account and the person to whom we addressbilling statemenis, as well as any person who agrees to be liable on the Account. The "Basic Cadmember'' is the person who opened the Account. A your t quest, we may also issue a Cad on your Account to another peeon (an "Additional Cadmember"). The term "Card" refers to the American Expresse Cad issued to you, all other Cards issued on your Account, and any other device (such as Account numbers and convenience checks) with which you may access your Account "We:' "our" and "us" refer to American Express Bank FSB, the issuer of your b u n t .
Using the Card You may u:e the Card to o k d n gwds :md servicesfrom any reeon who acceptsthe Cad (' Purchase(s)"). You may also use the Card Q obtain loans ("Cash Advance(s)") thmugh various means we m y make available (e.g., AM machines) up to the applicable limits on your Account. T A our discretion,we may permit you to transfer balances fmm other t accounts to your Account ("Balance Transferb)"). A our discretion,we t may issue convenience checks that you can use to access your Account. kdch convenience checkmaybe usedonly by you. You may not use conveniencechecks to pay any amount you owe under this Agreementor to pay any other acmunt you have with us or our affiliates.Transactions you make in rrsponse to pmmotional offers fmm us will be subject to the terms of the pmmotion and this Agreement. All amounts charged to your Account, includingPurchases, Cash Advances, Balance W e r s , convenience checks, annual fee(?.), if any, any amounts guaranteed by use of the Card, other fees, and any Finance Charges, are "Charges." Aconvenience check that we identifyas having been made payable to cash, to you, or to a bank, bmkerage or similar asset accountwillbe heated as a Cash Advance. Any other convenience check and/or a Balance Transfer will be treated as a Purchase, except as othenvisenoted. If you make a Purchase or a Balance Transfer, or use a convenienceche& that is governed by apmmotional offer fmm us, the Charge will be included in a Pmmotional Balance, unlesswe notify you othenvise. You agree not to let any person use a Card except aCadmember whw name is on it. You agree to notify us if the Cad is last or stolen, or you suspect that it is being usedwithout your permission. You agree to use the Account only for Punhaw, Cash Advances, or Balance Ransfersthat are lawful and are permitted under this Agreement W may issue you e renewal or replacementCards Wore apreviously issued Cad expires. If you or an Additional Cadmember authorize a third patty to bill Charges on a wurring basis to your Account ("Recurring Charge(s)"), we may (but are not required to) provide such third patty with your cumnt Account status, Cad number andlor expiration date to permit that third patty to continuebilling your Account W may take such steps e even if your mount number changes or if we issue a renewal or replacement Card to MUor an Additional Cadmember To withdm authorization'for a Recurting Charge, you must notify the third patty The Cad may be equipped with the Expresspayf e a r e ("ExpMay"), which enables you to make Charges without having the Card "swiped" or imprinted at a participating merchant.You only in acmrdance with our instluctions,and you agree not to attempt to get cash with ExpressPay fmm any source. You may cancel the Y m P a y feature on the Cad or any Additionupon nouce to us by calling the number on the back of the Cad.

a

Annual Fee The annual fee is $30 fw thii Account Gredif Line
A poltion of your credit line may be availableto you for Cash pdvanm up

to your CashMvance limit. W may, at any time and in our sole discree tion, increase and/or deuease your credit line and Cash Advance limit W may limit Charges at an automated teller machine ("AW) to the e lesser of (i) a t o d of $1,003 in any seven-day period, or (ii) the remaining amount of the Cash Advance limit on your b u n t ; and we may impose additional limits at our sole discretion (in addition to any limits imposedby the ATM'sowner). Yourbilling statementswill show your credit line and Cashpdvance limit and the unused portionsof such

Payments All payments must be sent to the payment addressshown on your billing statement and must include the remittance coupon from your billing snkment. You must pa) us In 1 S. currmcv,with 1 s~ngle or chirk draft Promiseto Pay dr~wn a U S bank an11L X J Y J ~ ~ ~ dollus. or with a nczoliablr. un In U.S. You promise to pay all Charge, including Charges incurred by Additional instrument payable in ~.S:d~llars clearable &ugh the C.S. and Cadmembers,on your Account. This promist:includes any Charge for banking system, or thtough an electmnic payment method clearable hrouph the U.S. banking qstem. Your Account number must t , ,which you ur an Additional C;irdmemberindicated an intent to incur the included on or with rll payr.~ents. we decide to accept a payment made If Charge, even if you or the Mditic ;.a1 Cardmember have not signed a in a foreign currency,you authorize us to c h m a conversion rate that charge fom or presented the CanL You also prom& to pay any Charge is acceptableto us to convert your remittance into U.S. currency, unles a ~~icurredanyone that you or an Additional Cardmember let use the by particular tate is required by law Cad, even though you have agreed not to let anyone else use the Card. I'ayments cunfutming l the ahve wquirements hdt we recelvc no laler u Status of atqd Res~otx~ihility Additional Card~nemhers for Additional Cardmembers do not have accounts with us. Instead, they are thdn the hour,p.cBtdon your bnllmpstakment will becreditedto yuur Account as of the day received;payments conforming to the above authorized use~rs your Account, and the Cards isued to them may be on requirements that we receive after the hour specified on your billing cancelledby you or us at any time. You must notify us to woke an statementwill be credited to your Account as of the following day. Additional Cadmember'spermissionto use your Account You are responIf payment does not conform to the requirements staled above, crediting sible under this Agreement for all use of your Account by the Additional may be delayed. If this happens, additional Charges may be imposed. We Cadmembers,and by anyone else you or an Additional Cardmember may a q t late payments, p d a l payments or any paymentsmarked as lets use the Card, and the Charges they incur will be billed to you. You being payment in full or as being settlement of any disputewithout have this responsibility even if you did not intend for an Additional losing any of our rights under this Agreementor under the law Our Cardmember,or other person, to use the Cad f o r . acceptanceof any such paymentsdoes not mean we agree to change this A Additional Cardmember is not liable for Charges incurred by the n Agreement in any way. You agree that an acceptanceof such payments RaricCdnlmtmburorby uther hibuond C d m c m k n Hwewr, by will not operate as an accord and satisfactionwithout our prior express each use of the Adrl~tional to incur C h a w . tht Additional Cad written approval. Cardmember indicats his or her agreement pay us for the Charge if Subjed t app1icabIe[aw, we will @ly a n d a U o c a t e p a and o ~ you fail to or refuse to pay it, and we may, at our discretion,pursue wed& among balanm and Charges on your Amunl in any & Additional Cardmembers for payment of Charges they incur or and manner determid by us in our sole &eNa. In most eases, authorize. You authorize us to provide Account information to we will apply and allocate payments first to balances at lower Annual Additional Cardmembers and to discuss the Account with them. Percentage Rates (UAPRs")and then to higher APR balances, and You agree to notify each Additional Cardmembq at the time he or she apply Purchase credits first to the balance fmm which the comsponbecomes an Mtional Cardmember, that we may receive, record, exchang and use information about him or her in the same mannerwe ding debit originated. However, for senicing administrative, sytems or other business reasons, we may apply and allocate payments and credits dowlh inlurm3uon h u t YOU, as d a n b i d belw In the CONSUMEK among balances and to Charges on your Account in some other order REPORTS TELEPIiONE \tONIIUKIYti/RE(:OKDlNti, and SUSPENor manner that we may determine in our sole discretion.You agree that SION~UYCELLATIOi~ amons of this Aprttmml. we have the unconditional right to exercise this discretion in a way that is most favorableor convenient to us. Billing StatcmentsiMinimum Amount Duu You must not& us immediatelyof any change in the mailing or e-mail Authorizationfor Electronic Debit to Your Checking address to which we send billing statements or notices that a billing Accoitnt statement has been pasted ("Billing Address"). If you wish a Billing W resew the right to processcheck electmnidly by transmitting the e Address change to apply to more than one m u n t you maintain with amount of the check, the muting number, account number and check us, you must tell us. You agree that we may also update your Billing serial number to your financial institution.By submittingacheckfor :,ddess if we w i v e informaiion that ysur Billing M . has ihai.ged 3 m payment, you authorize us to initiate an electronicdebit fmm your bank or is incorrect. or ,asset acmunt If we p m your checkelectronically,your payment The "New Balance" appears on your billing statement. To determine the may be debited to your bank or asset account the same day we receive New Balance,we begin with the outstanding balance on your Account at your check. Also, if we processyour check electronically,you will not the beginning of each billing period, called the "Previous Balance" on receive that cancelled check with your bankor asset account statement the billing statement. W add any Charges, subtractany credits or e If we cannot collect the funds electronically,we may issue a draft against payments credited as of tkdt billing period, and make other applicable your bank or asset account for the amount of the check adjustments. Each billing statement will reflect a Minimum Amount Due. Payment is Fictaiice Gtiarges A. Finance Charges begin to accrue for each Charge asof the date the due by the time and date shown and in the manner pmdbed on the Charge is added to the daily balance,as k r i b e d below. If payment statement. To calculate the Minimum Amount Due we will add together in full for any New Balance shown on the statement for a billing the following: pedal is credited to your Account by the Payment Due Date shown on (1) any amount past due: that statement then Finance Chargeswill not accrue for Purchases (2) the greatest of: fmm the date on which payment in full cithat N e w B a) 1150th of the New Balance on the Closing Date of the billing ited to your Account until the end of the billing period in which such statement (the calculation of which is munded to the nearest payment is credited to your Account In addition, Finance Charges whole dollar) (for purposes of this calculationwe exclude fmm will not accm for Purchases during a billing period if (a) the the New Balance any over-limit f e added to your Account durprevious Balance shown on the billing statement for that billing ing the billing period), period is zero or a credit balance, or (b) payment in full for the New b) the cumnt billed Finance Charges, or Balance, if any, shown on the statements covering the ha0 immediC) $15 (or the New Balance if it is less than $15); and ately preceding billing periods is creditedto your Amunt by the (3) any over-limit fee added to your Account during the billing period.

to

Exhibit 19, Page 142

Case 3:07-cv-04765-CRB
FDRB15126 9/8/06 11:07 PM

Document 1-5

Filed 09/17/2007

Page 8 of 23

Page 2

respective Payment Due Dates shown on t h w statements. For mathematically equivalentmults while usingfmr and/or simpler pulposes of this paragraph, Purchases do not include Balance computational steps than are described in this Agreement. Tnnsfea or conveniencecheeks. A our discretion,we may exdude certain categoriesof debit transactions t B. The Daily Periodic Rate ("DPR") for Purchases and the DPR for or f e e fmm the calmlation of the dailybalm@. unleSwe to Use a Cash M v m s are each based on an APR, which may The later date, we add a Charge to the dailybalanceas bllows: we add a APR for Cash Advances is the Prime Rate plus 14.99%.ADPR is Cash Mvance or purchase to the appropriatedaily balance as of the date 1065th of the APR Your DPB and APRs for Punhas= appear on of request or the transaction date on the billing we add a the accompanylngsupplement(s).When an APR changes, we convenience check to the appropriatedaily balances of the date of first apply it to any existing bal,ance subject to that rate. deposit. W add a Balance Trmfer other than through aconvenience e check to the appropriatedaily balance asof the date ofthe request.W e C. Effective with billing periods beginning on or afterJune 17,2005, add periodic Finance Charges to the daily balance as described above. W e notwithstandmg the foregoing,unless a higher rate appliesunder any other provision,the APR for all balances except Cash Advances will add any other Charge to the appropriated.dilyb as of the date of the transaction. be equal to the Prime Rate plus 12.99%if during any Review Period any portion of any Minimum Amount Due is not credited to your periodic ~i~~~ charges are added to the balance at the Account by its Payment Due Date. The "Review Period" is the period, end of the billing period forwhich Fin.mce charges are ln constituting appmximatelyone ~ ; dtwelve consecutive billing 4 any such billing period, we will i m p a minimum Finance charge periods endingwith the Closing Date of the Current billing period, of $0.50,which will be added to the balance with the highestAPR whether or not you received a statement for each such billing period. unless,for our convenience and in our solediscdon,we chaase to add D. Notwithstandingthe foregoing,the DPR (and correspondingAPR) it to a balance with a lowerAPR.in oursale dimtion, we also may on all balances will increase to the Default Rate if during the Review round any calculatiolw:made in determining the FiXuIce Charges on Period (i) payment of your Minimum Amount Due is not credited your Account in any way that is convenient tous. Any such rounding to your Aecount by the Payment Due Date in any two billing periods may apply to or cause variations in your DPRs. or (ii) a payment on your h u n t is not honored by your bank " " or other financial institution. The "Review Period" is the period, W may 8w.w a Late Ra if a p~yment at least the Minimum Amount e of approximalcly Fat, of twelveconsecutiw? billlng one Due is not credited to your Acm~i.11t the PaymentDue Date. The by periods ending with the closing D~~ billie amount of the Late Fee depends on the amount of the Previous Balance whether or not you rewived a statementfor each such billing which the LateFeeappears, as If the Default Rate is applied, it will apply to your Account for a PrmeolwBalan@ la&? minimum of twelve consecutive billing periods, beginningwith the than $100 current billing period. The Default Rate is a DPR which cornponds $15 $lWto$l000 to an APR equal to the Prime Rate plus 21.99%. $29 Greaterthan $Im $35 E. The "Prime Rate" is determined once with respect to each billing period. The Prime Rate for each billing period is the Prime Rate mher foes (orsu-rsection) of 7k publishedin the Money W may charge the following fees to your h u n t , subjectto applicable e wSIreslJournal On (a) the day of that pdod (b) Or law, Except as othemise noted, these feeswill be added to the Purchase the day that is two dap prior to the Closing Date of that billing peri- Balance, od, whichever is higher. In each case, if such a day is not a custom1. *oredPaymenh-We may charge a fee of $38when* Y publication day for ne~1 $reet~oumal, we will hehe, similar instrument, or electronicpayment order that we receive publicationday, If % the closest preceding day that is a rdyment on your Account is not honored upon first p-tment ~ a l ~ ~ r e e t ~ u rceases or nal publication,we may refer to If a Card is presented in connectionwith cashing a check at an the Prime Rate published in any other newspaper of general ,.idaAmerican Express Trawl Senrice Office or other authorizrdlocation tion in N~ york, N~~ yak or we may a derence and the check is not honored, we may charge a fee of $38.(We will rate at our sole discretion. Any increase or decrease to an APR also add a Charge to the Cash Advance balance of your c o u n t in the resulting fmm a change in the prime ~ ~takes effectas of the first t e mu"ofthecheckthatwasnothonored) day of the billing period. An increase in the Prime Rate means that o 2. C* ofSbtemenh-We may charge a fee of $5 for each billing the variable APRs (and correspondingDPRs) applicable to your pericd for which a copy of a billing statement is lwluested.we will not h u n t will increase and you may incur higher Finance Charges charge this fee for any request for acopy of any of the billing stateand may have a higher Minimum Amount Due. menb forthe three biilingperiodsimmediatelyprior to the request Average Daily Balance Method for Calculation 3. AmuntRe-W%F@-We may charge a =-opening fee of $25 if of Finance Charges ~ ~ ~ and you request reinstate~ ~ W use the ~ w ~ a i l galance method calculate tynance charges e m y~ honored' on your Amount. Under this method, we calculate the Finance Charges on your Account by applying the DPR to the Avenge ~ a i l y ~alance . 4. W e It.amfferss-We m y charge a fee of $15 each time a wire transfer (as your Accountis initiatedand described below) separatelyfor each b a l m subjectto Finance Charges. 5. Stop Payment ? z f - W e may charge afee of $29 each time we Different periodic rates may be used for differentbalanca. For example, receive a q u e s t to stop paymenton a convenience check drawn on different DPB may be applied toseparate balanws,such as Purchase, your kcount. Cash Mvance, and Promotional Balances. To get the Average Daily Balance for each balance, we (1) take the beginning balance for each 6. 0uer.limit FB-We may charge a fee of $35 in each billing period the New Balance on your statement exceedsyour credit line. day (includingunpaid Finance Charges from previous billing periods), (2) add any new transactions, debits, orfees, (3) subtractany payments pamdjon -we pee 7. con,mhce uugd~alane ~7/d ormdibcredlled as of that day, and (4) make any appropriate adjustmay assersatrmaction fee for each Balance Transfer andeach ments. or ear6 day af& thefirs1 day o the b i l l i n g N , w f convenience checkdnwn on your Account,as disclosedin the appli&an amount o m k t q u a 1 lo thepevious l y k l i l y balance f cable Promotional Offer,in the materials accompanyingthe m u & l a b ~h e DPRfa balance. gives us the daily balance convenience che& or at the time of the transaction. Tnis fee is a forthe p d m l balance forthat day and the beginning balance for ~ Finance Charge and, if assessed,will be added tothe same Purchase that balance for the next day. If this balance is negative, It is considered or~ashMvance balance as the mnwniencec h e c k to be zero. Then,we add up all the daily balances for each bdanct for ~ a l ~ ~ or convenience e made payable to cash or to the billing period and divide the total by p e havewr, unlessotheryou,a bank,brokerageorsimilar asset billing period. This gives us the Average Daily Balance for that balance. &il& in the applicablePromotional Offer,in the materials accompanyingtheconveniencec h d , or at the time of the bansacIf you multiply the Average Daily Balance for each balance by the tion, therewill be atransactionfee of 3%,withaminimum of $5. number of days in the billingpeM and the DPRforthatbalance, the rsult will be the Finance Charge assessed on that balance, except for 8. ATMFB-We will impose a fee each time a Card is used to obtain variations caused by rounding. The total Finance Charge for the billing cash or any other senices from an ATM. This fee will be 3%of the period is calculated by adding the Finance Charges assesed on all or other senicesobtained (including of the cash balanm of the h u n t 7% mehdof calculaling tbe Auerage Daily T any additional fee imposed for use of the AM by its operator), with a Balance andRtumce C6arge r w l h in l i l y compounding of minimumof $5, Thisfeewill be added to the Cash Advance balance, Pinunce Cbargm W may use mathematical formulas which produce e S'"~@n"on'Clmca"atim equivalent results to calculate the Average Daily Balance,Finance Inaddition to any other actionswe may take under this Agreement,we Charge,and related amounts, For example,we may utilizecomputer may suspend or cancel your Account or any feature offered in wnnecor oher computational hatare designedto tion with your kcount, we may reduce your credit line or cash advance limit (includingto a level below your outstandingbalance), and/or we may suspend or cancel the authorizationciany Additional Cardmember to make Charges to your Account, at oursole discretion at any time, with or without cause,whether or not your Account i s without and giving you notice, subject to applicable law Any such action on our part will not cancel your obligation to pay all Charges due on your h u n t under the terms of this Agreement in effect at the time of such action or ~ ~ ' J b ~ e q u eamended, and you agree to P ~ us all such Charges n~ly Y despite any such action. W may ad* third parties who accept the Card e that the Card(s) issued to YOU andlor Additional ~ a r d m e m have h been cancelled. if we ~ancel Card or it expires,you may no longer the Use it and YOU must destroy it or return it to us 06 if we request, to a third paay. If you want to cancel the Account or any Additional Cards, you notify us and If we agree to reinstate your Account aftera cancellation,the new Aeement we send you (or, if we do not send you a new A@ement, this Awement as it may be amended) will govern your reinstatedhunt. When we reinstate your Account,we may reinstate any Additional Cads issued in connection with Account, and bill you the applicable m"dfee(s).

-

Ddault W may consideryour Account to be in default at any time If you fail to e pay us any amount when it is due, or Y you breach any other p ~ ~ m iore s "liga!ion under t h i s ~ ~ n e n t Subjectto applicable law, we may also consideryour h u n t to be ,n ddault at any time if any statement made by you tous in connection with this Account or any other credit program was false or misleading; if you breach any promise or obligation under any other agreement that you may have with us or with any of our diliates; if w m i v e infonnae tion indicatingthat you are bankrupt,intend to file badmptcy, or are unable to pay your debts as they become due; or we meive information leading us to conclude that you are otheiwisenot creditworthy. In evaluating your creditworthiness,you agree that we may rely on information our credit c h ~ t e b t i areg&e5 of your performanceon this , ~ m u n tW may also consider your kcaunt in default in the event of .e your death. In the event of your default, and subject to any limitations or requiremen6 of applicable law, we may require payment of a portion of your outstandingbalance greater than the Minimum Amount Due, declare im the entire amount of your obligations to us m payable, and/or suspend or cancel your h u n t and/or any featulp that w l may be offered in connection with the Account. You a reasonable costs, includingreasonable attorneys' fees, inmrred by us (1) in connection with the collection of any amount due on y o u r b u n t , whether or not any arbitration, litigation, or similar p d n g s idtiated; and (2) In reasonably~rotecting ourselves from any los$ harm, or risk relating to any defaulton YOU Account.
in Cur,encies TIansactiDns if you incur a Charge in a foreigncurrency, it will beconvertedinto U.S.

+l

~ ~ ~ ~ dollars on the date it is processedby us or our agents. Unles a particular ~ rate is required by applicable law, you authorize us to chow aco~mrsion rate that is acceptable to us forthat date, ~urrentl~, conveaion rate we the use for a Charge in a foreign currency is no greater than (a) the highest officialmnversion rate published by a governmentagenq or (b) the highest interbankconversion rate identified by us from customq banking source$ on the conversion date or the prior busines day, in each instance increased by 2%.This conversion rate may differ fmm mks in effect on the date of your Charge. Chargesconwted by establishments (such as airlines) will be hilled at the masuch establishmentsuse. ~ ~and ~~~~i~~~ d ~ i ~ subject to law,we have the rightto add, m*ordeIete any benefit, senrice, or Feature that may acmmpany yourkcaunt at any time andwithout to you,

8rbitration
"'We: pdum
sets circ-tan@ and ThisArbitration under which C'aims maybe of litigatedin court' Definitiom: h used in this Arbitration Pmvislon, the term "Claim"

orconmqbehveenyouand us arising my claim, relating toyourAecount,thisAgreemenf the Electmnic Or pdor agreemed TnnsferSenicesAgreement,and any other that you may have had w i t h , or the r e I a t i o n s h i p he except forthevalidiR ability or scope of this Ahitration P m ~ o or the Agreements. For n purposes of this Arbitration Provision, 'you" and "us" also includes any corporate parent, or wholly or malority owned subsidiaries,afiliates, any licenses, predecessars, successors, assigns,any purchaser of any accounts, all agents, e m p l o p , dimton and RpmntatiW of any d the foregoing,and other pelsons referred to below in the definitionof
Illeans

Or

Exhibit 19, Page 143

Case 3:07-cv-04765-CRB
FDR815126 9/8/06 11:07 P M
Page 3

Document 1-5

Filed 09/17/2007

Page 9 of 23

"Claims." "Claim" includes daims of every kind and nature, including but not limited to, initial claims, wuntedaims, cmclaims and thidparty daims and claims based upon contract, to& fraud and other intentional tea, statutes, regulations,w m o n law and eqllity. "Claim" also includes claims by or against any third party us~ng providing any or product,setvice or benefit in connection with any account (includin& but not limited to, cledit bureaus, third parties who a q t the Card. third parties who use, provide or oarricipate in feebased or free benefit prog&, enmllmenklvlces a d msds programs, credit insurance companies,debt collectorsand all of their agents, employws,directos and representatives) if and ody if, such third party is named as amparty with you or us (or files a Claim with or g a in mnnection with a Claim assertedby you or us against the other. The term "Claim" is to be given the broadest possible meaning that will be enforced and includes,by way d example and without limitation, any claim, b u t e or contmveny that adses from or relates to (a) any d the accounts created under any of the Agreements,or any balances on any such m u n t s , (b) adveltisemenh, promotions or o d or written statements related to any such accounts, goods or servlm financed under any of the accounts or the terms of financing, (c) the benefits and seni m related to Cardmembelship(including fee-based or free benefit programs, enmllment services and rewards programs), and (d) your application for any account W shall not elect to use abitration under e the Arbitration Provision for any Claim that you properly file and pursue in a small claims colut of your state or municipalityso long as tlw Claim is individual and . pending only in that court. . Initiation o Arbiirczlion l+omdmg/Seledion f ofidminhtrator: Any Claim shall be resolved, upon the election by you or us, by ahitration pusuant to this Arbitration Provision and the code of procedures of the national arbitration organization to which the Claim is referred in effect at the time the Claim Is filed (the "Code"), except to the extent the Code conflicts with this Agreement. Claims shall be referred to either the National Arbitration Forum ("NAF")or the American Arbitration M a t i o n ("MA"), as selected by the patty electing to use ahitration. If a selection by us of either of t h w organizations is unacceptable to you, you shall have the right within 30 days after you receive notice of our election to select the other ornanization listed to serve as .hibation administrator For a copy of the pkdures, to file a Ckdim or for other information about these organizations, contact them as follows: NAF at P.O. Box 50191, Minneapolis,MN 5540% website: www.arbitration-forum.com. APA at 335 Madison Avenue, New York NY 10017; website: www.adt.org. S@tfiurne of Arbih.atim: IF ARBITRATION IS CHOSEN B ANY Y PARTY WITH RESPECT TO ACLAIM, NEITHER Y U NOR WE WILL O HAVE THE RIGKT TO LITIGATE THAT CWM IN COURT OR HAYE A JURY TRIAL O THAT CUIM. FURTHER, Y U AND WE WILL NOT HAVE N O THE RIGHT TO PARTICIPATE IN AREPRESENTATIVE CAPACITY O AS R AMEMBER OF ANY CLASS OF CWMANTS PERTAININGTO ANY CWM SUBJECTTO ARBITRATION. EXCEPT AS SET FORTH BELOW, THE ARBITRATOR'SDECISION WU B FINAL AND BINDING. NOTE THAT E OTHER RIGHTS THAT Y U OR WE WOULD HAVE IF Y U WENT TO O O COURT ALSO MAY NOT B AVAIIABLE IN ARBITRATION. E Restr&ns on Arbitration: IF EITHER PARIY ELECTS TO RESOLVE A CLAIM B ARBITRATION, THAT CLAIM SHALL BE ARBITRATED O AN Y N INDMDUAL BASIS. THERE SHW BE N RIGHT OR AUTHORITY FOR O ANY CWMS TO B ARBITRATED O A CLPSS ACTION BASIS OR O E N N BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATlYE CAPACITYON BEHALF OF THE GENERAL PUBLIC, OTHER CARDNdMBERS OR OTHER PERSONS SIMIIARIY SIrUA'lTD.Tile ahitrator's authority to resolve Claims is limited to Claims behmeen you and us alone, and the ahitrator's authority to make awards is limited to awards to you and us alone. Furthermore, claims brought by you against us, or by us against you, may not be joined or consolidatedin abitration with Claims brought by or against someone other than you, unless agreed to in writing by all parties. No ahitration award or decision will have any preclusive ehct as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Nolwithstanding any other provision in this Agreement (including but not limited to the "Continualion" provision below) and without waiving either party's right to appeal such decision, should any portion s of this " R e s ~ n on Arbitrczlion" provision be deemed invalid or unenforceable, then the entire Arbitration Provision (other than this sentence) shall not apply. ArbiLration Pmcedum:This Arbitration Provision is made pursuant to a transaction involving interstate wmmerce, and shall be governed by the Federal Arbitration kt, 9 U.S.C. Sections 1-16, as it may be amended (the "EN). The arbitration shali be gowned by the applicableCode, except that (to the extent enforceable under the WU) this Arbitration Provision shali contml if it is inconsistentwith the applicable Code. The ahitrator shall apply applicable substantivelaw consistent with the F A A
~~~ ~

and applicable stales:d limitations and shall honor claims d privilege recognized at law and, at the timely request of either patty, shall provide a brief written explanation of the basis for the decision. The arbitration pmceeding shall not be governed by any Federal or state rules of civil p d u r e or N ~ d evidence. Either party may submit a request to the S ahitrator to expand the mpe of dimvery under the applicable Code. The party submitting such a request must provide a copy to the other o m . who mav submit obiections to the ahitrator with a CODY of the bbje'ctions pmhded to the requestingpatty, within f d k n (ljj days of wiving the requeting party's notice. The grantingor denial of such a request will be in the sole discretion of the ahitrator, who shall notify the parries d h i i e r decision within twenty (20) days of the objecting party's submission.The arbitrator shall take reasonable steps to preserve the privacy of individuals, and of busines matters.Judgment upon the awad rendered by the ahitrator may be entered in any court having jurisdiction. The arbitator's decision will be final and binding, except for any right of appeal provided by the FAA. However, any party can appeal that awad to a three-ahitrator panel administeredby the same ahitration organization, which shall cmider anew any aspect of the initial award objected to by the appealing party. The appealing patty shall have thirty (30) days from the date of entry of the written ahitration award to notlfy the ahitration organization that it is exercising the right of appeal. The appeal shall be filed with the arbitration organization in the form of a ddted writing. The arbitration organization will then notify the other party that !he award has been appealed. The arbitration organization will appoint a $ae-arbitrator panel that will conduct arbitration p&uant to iis Code and is& its decision within one hundnd and twenty (130) daysof the date of the ap[x.ll,mt'swritkn notiu.. The decision of the p e l shall k by majunty vote and shali be final and binding. 1 Loution ofArbIhation/PaymenI Fees:Any arbitration hearing that you attend shall take place in the f eral judicial district of your midence. You will be responsible for paying your share, if any, of the arbitration fees (including filing, administrative,hearing and/or other fees) provided by the Cade, to the extent t amount of the filing fees you would been broupht in the state or fedwal that wouldhave jurisdiction over the Claim. W will be q n n i b l e for e paying the remainder of any arbitration fees. At your written request,we will consider in good faith making a temporaty advance of all or part of your share of the arbitration fee for any Claim you initiate as to which you or we seek arbitration.You will ot be aswed a y ahibdtion fees n in excess of your share if you do not prevail in any arbitration with us. Continuatim: This Arbitration Pro ision shall sunive termination of your accounts as well as volunt;uy payment of the Acwunt balance in full by you, any legal pm~eding you or us to wliect a debt owed by by the othec any bankruptcy by you or s, and any sale by us d your Account (and in the case 04 sale, its rms shall apply to the buyer of any of your Account). Except as 0th [wise provided in the "Restrictions on Arbitration" provision above, if ny portion of this Ahitration Pmvision (other than the " R e s ~ o n on Arbitration" provision) is s deemed invalid or undomable, it shall not invalidate the remaining portions of this Ahitration Provisio , the Agreementor any predecessor agreement you may have had with s, each dwhich shall be enfomable regardless of such invalidity.

Use af Card a t Federal Government Agencies American Express has entered into mntrack that enable the Card to be accepted at celtain federal governmentagencies and departments ("Agencies"). k with Card transactionsat commercial establishments, when you choose to use your Card at an Agency, certain Charg information is necessarilycollected by us. Charge information from Card transactions at Agencies may be used for processing Charges and oawnents. billine and collectionsactivitiesand mav be aameated for , reporting, analysrs and marketing activities. ~ddltional "Lutine uses" of Charge informationby Agencies are published periodically in the Federal Reiter.

.,

lnsrrra~xcaPrartuctr Natice W identify insurance providers and products that may be of interest to e you. In this role we may act on behalf of the insurance provider, as permitted by law. W receive wmpensation from insurance providers e that may vaty by provider and product Also, we may m i additional compensation or financialbenefit when AMEXAssuranceCompany or another American Express entity actsas the insurer or reinsurer for these products. The arrangements we have with provides, includingthe potential to insure or reinsure pmdum, may also influence what products and providers we identify Notices given Any nr~tjce by us shali be deemed given when deposited in the U.S. mail, Wtage prepaid, add& to you at the latest billing Addms shown or1 our records. Changing this AgraemanVAsaignnrent of this Agreement We may change the terms of or add new terms to this Agreementat any time, in accordancewith applicable law. We may apply any changed or new terms to any then-existing balances on y o w P future balances. This written Agreement is a final expression of the agreement behveen the creditor and the debtor and the wriwn Agreement may not be contradictedby evidence of any alleged oral hs agreement. W may also sell, transfer or assign ti Agreement and the e Account at any time without notice to you. You may not sell,assign or transfer your Account or any d your obligatim under this Agreement Assignment of Claims In the event you dispute a Charge and we credityour Account for all or part of such disputedCharge, we automaticallys u d to, and you are automatically deemed to assign and transfer to us, any righb and claims (excluding tort claims) that you have, had or may have against any thhd party for an amount equal to the amountwe credited to your Account Afterwe make such d , agree thatwithout our consentyou will tyou not pusue any claim against or reimbursementfrom such thidputy for the amount that we credited to your Account, and that you will cooperate with us if we decide to pursue the third party for the amount credited. Applicable Law This Agreementand your h u n t , and all questionsabout their legality, enforceabilityand interpretation, are governed by the laws of the State of Utah (without regard to internal principles ofwntlicts of law), and by applicable federal law. W are located in Utah, hold your h u n t in e Utah, and entered into this Agreementwith you in Utah. AMERICAN EXPRESS BANK, FSB TO AMERICAN EXPRESS CARDMEMBERS IN THB UNITBD

an

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1

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Waiver Our failure to exany of our rights under this Agreement,our delay in enforcing any of our rights, or our waiver of out rights on any occasion, shall not constitute a walw of uch rights on any other occasion. Consumer Reports You authorize us to request wnsumer reports about you, to make whatever credit investigationswe deem appropriate,to obtain and exchange any informationwe may receive from wnsumer reports andother sources, and to use such informationfor any urposes,subject to applicable law You authorize us to furnish informa on concerning your Account to wnsumer reportingagencies, or 0th IS, subjectto applicable law. If you believe informationwe have furnished about your Account to aconsumer reporting agency is inaccurate, you should write to us at: American Expm Credit Bureau Unit, PO. Box 7871, Ft.Lauderdde, FL 33329-7871 and identify the specific information ou believe is inaccurate. You are hereby notified that informa 'on about your Account that may have a negative impact on your credi rewrd may be submittedto a credit reportingagency if yw fail to fulfill the terms of your credit obligations.

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WATBS AND ITS TERRITORIBS. YOUR BILLING RIGHTS-KEEP THIS NOTICE FOR FUTURE USE.
Thii notice contains importantinformptiun about your rights and our

mponsibilitiesunder the "Fair Credit BillingAct"
Notify Us in Case of Errors or Questions About Your Account Statentent If you think your statement is wmng or if you need more information about a transaction on your statement,write us on a separatesheetof paper at the address for billing inquiris listed on your statement.Write to us as soon as possible. W must hear fmm you no later than 60 days after e we sent you the first statement on which the enor or problem appeared. You can also telephone us, but doingso will not presewe your rights. In your