Time Deposit Terms and Conditions
|Time Deposit Term: 23 months||Product: 23 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"). BBVA USA 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 BBVA USA until the end of the term stated above. Current interest rates and annual percentage yields can be obtained by calling 1-844-BBVAUSA or visiting www.bbvausa.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:
- (i) a Multiple Party Account with right of survivorship so that at the death of an owner, ownership of the account passes to the surviving owners, and not to the deceased owner’s estate; or
- (ii) a Multiple Party Account with right of survivorship and P.O.D. by designating one or more beneficiaries of the account, so that at the death of the last surviving owner, ownership passes to P.O.D. beneficiaries and is not part of the last surviving owner’s estate; or
- (iii) a Multiple Party Account without right of survivorship, so that at the death of any owner, the deceased owner’s interest passes as part of the deceased owner’s estate. (This option is not available in FL or AL)
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 and BBVA USA. BBVA USA, Member FDIC, or any other affiliate bank of BBVA USA Bancshares, Inc. For the purposes of Section 8 only, these items also include the directors, officers and employees of BBVA USA and its affiliates.
You, Your and Yours. The account owner or, if the account is a multiple party account, any and all account owners.
2. Account Operations
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.
Telephone Calls: Calling, Monitoring and Recording. By providing us with your home telephone number or cellular telephone number, you authorize us, and our affiliates to contact you using any Automatic Telephone Dialing System, Prerecorded Voice, Voicemail, or Messaging Service. In addition, you agree that we may also contact you at any telephone number that we obtain for you in the future using any Automatic Telephone Dialing System, Prerecorded Voice, Voicemail, or Messaging Service. As examples, we may place calls to you about fraud alerts, deposit holds, and amounts you owe us (collection calls) on your accounts. This express consent applies to each telephone number that you provide to us nor or in the future. You agree to notify us promptly if any of your contact information changes. Calls and messages may incur charged from your communications provider.
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 BBVA USA 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.
3. Account Transactions
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.
4. Multiple Party, Minor and UTMA Deposits
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.
5. Early Withdrawal
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 USA 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.
7. Balance Computation Method
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.
8. Abandoned/Unclaimed Accounts; Terminated Accounts
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.
9. Set Off
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.
11. Interest Reporting
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.
12. Applicable Law
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:
- (i) if you opened your account in person, at the branch where you opened your account;
- (ii) if you opened your account by mail, at the location where the mail was received by us; or
- (iii) if you opened your account electronically or by telephone and your address is in a state where we have bank branches, in the state where your address is when you open your account, otherwise, your account will be maintained in Alabama.
13. Additional Provisions
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.
15. Electronic Fund Transfer Disclosures and Agreement
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: 1-844-228-2872 and make the appropriate selection from the voice menu, OR WRITE: BBVA, Customer Service Department, P.O. Box 10566, Birmingham, Alabama 35296.
BBVA USA 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:
- Preauthorized Electronic Fund Transfers: If you have arranged to have direct deposits made to your account, you may call us to determine if the deposit has been made. If you have arranged for regular payments of varying amounts to be made from your account, the person you agree to pay should tell you ten (10) days before each payment the amount of the payment and when it will be made.
- Periodic Statements: You will receive a statement of your account each month you make an Electronic Fund Transfer. You will otherwise receive a statement at least quarterly if you either: (i) select "external transfer" as the interest payment method for your account or (ii) fund your account using an Electronic Fund Transfer. Your periodic statement will show the details of any Electronic Fund Transfer you made and the details of any Preauthorized Electronic Fund Transfers to or from your account that you instructed us to make.
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: 1-844-228-2872 and making the appropriate selection from the voice menu, or by WRITING US at: BBVA USA, 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.
16. Dispute Resolution
Either you or we may ask to settle disputes by arbitration. Arbitration is a way of working out disputes without going to court. If you or we ask for arbitration, we would all meet with a person called an arbitrator. An arbitrator is like a referee or a judge. The arbitrator will listen to what you and we have to say. The arbitrator will decide who is right. The arbitrator’s decision is called an award. The party who wins the award can take it to any court that could have heard the dispute and get an official judgment.
Please read the rest of this section carefully. It explains how arbitration works.
Some Legal Rights May Not Be Available in Arbitration: After any party asks for arbitration of a dispute, neither you nor we can ask a court to hear that dispute.
There will be no jury trial of that dispute. You cannot be part of any class action relating to that dispute. The right to get information from each other and other procedures may be more limited in arbitration than in court. With a few limited exceptions, the arbitrator’s award will be final and unchangeable. Other rights that you or we would have in a court also may not be available in arbitration.
What Disputes Are Covered: Any dispute that arises from or relates to this Agreement, your Account and any transaction involving the Account or any service or product related to your Account will be settled by arbitration unless it is described below in “What Disputes Are Not Covered.”
This means that disputes about the following are covered:
- This Agreement, your Account or any transaction involving the Account or any service or product related to your Account;
- Any advertisement, promotion or oral or written statement related to this Agreement or your Account;
- Any relationships that result from this Agreement or any relationship you have with us that is not also subject to a different agreement to arbitrate (including, as far as applicable law will allow, relationships with third parties who are not parties to this Agreement or this arbitration provision);
- The validity, interpretation, scope or enforceability of this Agreement (except for any challenge to the enforceability of this Dispute Resolution section or any dispute about the parts of this section about class disputes); and
- Whether it is too late to settle a dispute because of any statute of limitations, estoppel, waiver, laches or similar legal rule.
It doesn’t matter whether the dispute is based on contract, fraud, tort, intentional tort, statute, regulation, constitution, common law, equity or otherwise. It also doesn’t matter when the dispute began (whether before this Agreement, now or in the future). This arbitration provision will continue to apply after this Agreement ends and/or after you or we close the Account.
What Disputes Are Not Covered:
This arbitration provision does not cover any dispute:
- That you or we could take to a small claims court, which usually limits its cases based on the amount of the claim; or
- About the parts of this arbitration provision that prohibit class disputes.
No Class Disputes: You cannot join together in a dispute with anyone other than people who use your Account. Even if other people have disputes similar to a dispute that you or we ask to arbitrate, those people and their disputes cannot be part of any arbitration between you and us. You cannot arbitrate any dispute on a class action, private attorney general or other representative basis. Only a court, and not an arbitrator, may decide whether this provision prohibiting class disputes can be enforced.
Who Will Arbitrate: The American Arbitration Association (“AAA”) or JAMS ADR (“JAMS”) may arbitrate any dispute, or you and we may agree upon a different arbitrator. For more information about arbitration, contact the AAA (www.adr.org or 1-800-778-7879) or JAMS (www.jamsadr.com or 1-800-352-5267). If for any reason the AAA or JAMS is unable or unwilling to arbitrate, or you and we cannot agree on an arbitrator, we will use another national or regional arbitration group.
The number of arbitrators will depend on the total dollar amount of all disputes by both you and us. If the total is $250,000 or less, one arbitrator will hear the dispute(s). If the total is over $250,000, three arbitrators will hear the dispute(s).
Each arbitrator must be an active member in good standing of the bar for any state in the continental United States, and either: (a) actively engaged in the practice of law for at least 5 years or (b) a retired judge.
What Rules Apply: The arbitration of any dispute will be conducted according to the rules of the arbitrator (“Rules”). If an arbitrator other than the AAA is chosen, the Rules of the AAA will be applied to any circumstance that is not addressed by the Rules of the chosen arbitrator. If the total of all disputes is $250,000 or less, we will use any expedited procedures in the Rules. If this Agreement and the Rules say something different, we will follow this Agreement and not the Rules.
How To Start Arbitration: Either you or we may start an arbitration by giving written notice to the other party. At a minimum, this notice must describe the subject of the dispute and the result requested in arbitration by the party giving the notice. If you ask us to arbitrate, you can choose the AAA or JAMS, or suggest another national or regional arbitration group to arbitrate the dispute. If we ask you to arbitrate, we will give you 10 days to choose the AAA or JAMS, or to suggest another national or regional arbitration group. In either case, if you suggest an alternative to the AAA and JAMS, we will work with you to determine if you and we can agree on a different group or arbitrator. If you and we are unable to agree, the arbitration will be conducted by the AAA or, if the AAA is not available, by a similar arbitration group. The party asking for arbitration must file a notice with the arbitration group following the Rules in effect at that time.
When a Party May Ask for Arbitration: You or we may ask for arbitration before or after a lawsuit has been filed. You or we must ask for arbitration within the statute of limitations that would apply to the same dispute in court. If it is too late to resolve the dispute in court, it is also too late to resolve it in arbitration.
What the Arbitrator(s) Must and May Not Do:
Each arbitrator must:
- Limit discovery to information that is directly relevant to the dispute and is not considered confidential or otherwise protected from being made public. Discovery is the process by which you and we ask each other for information about the dispute;
- Make decisions and awards based on the evidence and applicable substantive law and the rules of evidence used in federal courts;
- Make decisions and awards only with respect to claims made by or against you individually;
- Give a brief written explanation of the basis for the award upon request of either party; and
- Make specific findings of fact and conclusions of law to support any award greater than $25,000.
- Not make any award that would require you and us to continue any relationship we may have under this Agreement or otherwise.
Who Pays for Arbitration: There will be costs for arbitration. Contact the AAA or other arbitration group to find out what the arbitration charges will be. You may have to pay some of the arbitration charges unless this Agreement, an applicable law or the Rules say we must pay. If the total dollar amount of all disputes is $50,000 or less, we will pay that portion of the arbitration filing fee that is more than the cost of filing a lawsuit in the federal court where you live. You can ask us to pay some or all of the other arbitration charges you have to pay, but we don’t promise to do as you ask. At the end of the arbitration, the arbitrator(s) will decide who has to pay for any arbitration charges that are greater than those we agreed to pay. The arbitrator(s) also may order us to pay some or all of your attorneys, expert and witness fees. Unless ordered otherwise by the arbitrator(s), each of us must pay for its own attorneys, expert and witness fees, no matter who wins.
Where Will Arbitration Take Place: Any arbitration will take place in the federal judicial district near your home. Or, you and we could agree that arbitration will take place somewhere else.
What Law Applies: This arbitration provision is made pursuant to a transaction involving interstate commerce. The Federal Arbitration Act will apply to the construction, interpretation and enforceability of this arbitration provision despite any other choice of law provision in this Agreement.
Other Rights and Remedies: Nothing in this arbitration provision will limit certain other rights you or we may have. This means that you or we could, for example:
- Get an injunction, which is a court order to stop someone from doing something; or
- File an interpleader action, which is a type of lawsuit used to decide who owns property that more than one person claims to own.
If you or we do any of these things or take part in any other court case, it does not affect your or our rights under this arbitration provision.
What Happens If Part or All of This Arbitration Provision Cannot Be Enforced: Only a court and not an arbitrator can determine if any part of this arbitration provision cannot be enforced. If a court with proper jurisdiction says that any part of the “No Class Disputes” subsection above (which prohibits arbitration of class disputes) cannot be enforced, then none of the arbitration section in this Agreement will apply, and this section will be considered deleted from the Agreement. If a court with proper jurisdiction says that any other part of this arbitration provision cannot be enforced, then the rest of this arbitration subsection still will apply, including the “No Class Disputes” subsection above.
Waiver Of Jury Trial: This provision limits your rights to a jury trial. You should review this section carefully. If you and we have any dispute related to this Agreement, your Account, or any transactions involving your Account or any service or product relating to your Account and (i) neither you nor we seek to compel arbitration of the dispute, or (ii) some or all of the arbitration section is unenforceable and the dispute will be resolved in court, then you and we agree voluntarily and knowingly to waive any right each may have to a jury trial to the fullest extent permitted by law.
Attorneys’ Fees. In any action between you and us in court, the prevailing party will be entitled to receive from the other party an amount equal to the reasonable attorneys’ fees the prevailing party incurred in bringing or defending the court action.
TIME DEPOSIT ACCOUNTS ARE SUBJECT TO FEDERAL AND STATE LAWS AND REGULATIONS
Taxpayer Identification Numbers (Backup Withholding)
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 a defined percentage 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 defined percentage of 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:
- A corporation.
- A financial institution.
- An organization exempt from tax under Section 501(a), or an individual retirement plan.
- The United States or any agency or instrumentality thereof.
- A State, the District of Columbia, a possession of the United States, or any subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign government, or any agency or instrumentality thereof.
- An international organization or any agency or instrumentality thereof.
- A registered dealer in securities or commodities registered in the U.S. or a possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under Section 584(a).
- An exempt charitable remainder trust, or a non-exempt trust described in Section 4947(a)(1).
- An entity registered at all times under the Investment Company Act of 1940.
- A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup withholding include the following:
- Payments to nonresident aliens subject to withholding under Section 1441.
- Payments to partnerships not engaged in a trade or business in the U.S. and which have at least one nonresident partner.
- Payments of patronage dividends where the amount received is not paid in money.
- Payments made by certain foreign organizations.
Payments of interest not generally subject to backup withholding include the following:
- Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payer’s trade or business and you have not provided your correct Taxpayer Identification Number to the Payer.
- Payments of tax exempt interest (including exempt interest dividends under Section 852).
- Payments described in Section 6049(b)(05) to nonresident aliens.
- Payments on tax-free covenant bonds under Section 1451.
- Payments made by certain foreign organizations.
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 BBVA USA 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 BBVA USA.
- Penalty for Failure to Furnish Taxpayer Identification Number. If you fail to furnish your Taxpayer Identification Number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.
- Failure to Report Certain Dividend and Interest Payments. If you fail to include any portion of an includible payment for interest, dividends, or patronage dividends in gross income, such failure will be treated as being due to negligence and will be subject to a penalty of 5% on any portion of an underpayment attributable to that failure unless there is clear and convincing evidence to the contrary.
- Civil Penalty for False Information With Respect to Withholding. If you make a false statement with no reasonable basis which results in no imposition of backup withholding, you are subject to a penalty of $500.
- Criminal Penalty for Falsifying Information. Falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.