Arbitration Agreement

 

TERMS AND CONDITIONS

Agreement to Arbitrate & Class Action Waiver

 

This Arbitration Agreement ("Agreement"), applies to Customer(s) ("you") who is/are in the process of: (1) purchasing or leasing a vehicle(s) including any negotiations or application(s) for credit or other dealings or interactions with Acura of Pembroke Pines ("Dealership"), hereafter including its employees, agents, successors, assigns, subsidiaries, parents and affiliates); (2) servicing or repairing any vehicle(s) with the Dealership; (3) reviewing, negotiating or executing any documents or agreements during the course of interactions with the Dealership; (4) all communications and messages received or exchanged between you and the Dealership (collectively, "Customer(s)/Dealership Dealings"). You and the Dealership agree that arbitration will be the sole method of resolving any claim, dispute, or controversy (collectively "Claim") that either party has arising from Customer(s)/Dealership Dealings. Such Claims include, but are not limited to, the following: (1) Claims in contract, tort, regulatory, statutory, equitable, or otherwise; (2) Claims relating to any representations, promises, undertakings, warranties, covenants or service; (3) Claims regarding the interpretation, scope, or validity of this Agreement, or arbitrability of any issue; (4) Claims between you and Dealership, and (5) Claims arising out of or relating to your application for credit, this Agreement and/or any and all documents executed, presented or negotiated during Customer(s)/Dealership Dealing, or any relationship with third parties who do not sign this Agreement that arises out of the Customer(s)/Dealership Dealings.  To the extent that you have signed any other applicable arbitration agreement with the Dealership which is in conflict with this Agreement, then this Agreement shall not apply, and the terms of the other applicable arbitration agreement shall remain in full force and effect. The sole exceptions to the foregoing requirement to arbitrate are that: (1) either party may assert individual claims in small claims court if those claims otherwise qualify for small claims court and as long as the matter remains in such court and is not removed or appealed to a court of general jurisdiction and advances only on an individual (non-class, non-representative basis); and (2) each party may bring suit in court to enjoin infringement or other misuse of intellectual property rights. 

If you and Dealership have a Claim and our customer service team is unable to resolve the concern, you and Dealership agree to make a good faith effort to resolve it informally prior to initiating a formal arbitration proceeding. The party that intends to initiate an arbitration proceeding must first send a verified Notice to the other party that describes the Claim. The Notice must include the initiating party's name and contact information (address, telephone number, and email address), sufficient information to enable the other party to identify any transaction at issue; and a detailed description of (1) the Dispute, (2) the nature and basis of the claims, and (3) the nature and basis of the relief sought, with a detailed calculation. Your Notice shall be sent by email to: claim.notice@czag.net or by mail to the Dealership, Attn: Legal Department, Craig Zinn Automotive Group, 1841 North State Road 7, Hollywood, FL 33021. You must personally sign the Notice. Dealership's Notice shall be sent to the most recent contact information we have on file for you. If requested by the party that receives the Notice, the other party must personally appear at and participate in a telephone settlement conference (if a party is represented by counsel, counsel may also participate) to discuss the Dispute. If the Dispute is not resolved within sixty (60) days after receipt of the Notice (which period can be extended by agreement of the parties), you or Dealership may commence a formal dispute resolution proceeding consistent with the process set forth below. Compliance with and completing this informal dispute resolution process is a condition precedent to filing any formal dispute resolution proceeding, including a demand for arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in this informal dispute resolution process. If the sufficiency of a Notice or compliance with this informal dispute resolution process is at issue, it may be decided by a court at either party's election, and any formal dispute resolution proceeding shall be stayed pending resolution of the issue. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration.

If we are unable to resolve the Dispute through the mandatory informal dispute resolution process, you and we agree that, except as set forth herein, all claims, controversies, or disputes between you and Dealership will be resolved entirely through binding individual arbitration, rather than in court.

 

To begin an arbitration proceeding, after satisfying the condition precedent identified above, either party may contact the American Arbitration Association ("AAA"), at 1-800-778-7879, or www.adr.org and serve the other party with required notice to start the arbitration process. The Parties may mutually agree in writing to use another arbitration forum and/or qualified arbitrator. By entering into this Agreement, you give up your right to participate as a class representative or class member on any claim you may have against Dealership including any right to class arbitration or consolidation of individual arbitrations.

 

The AAA consumer rules for arbitration will apply as modified by this section. The arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any Dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement section including, but not limited to, a claim that all or any part of it is void or voidable. Payment of all filing, administration and arbitrator fees will be governed by the AAA's applicable consumer rules.

 

The parties shall be responsible for their own attorneys' fees and costs in arbitration, unless they are authorized by law or the arbitrator determines that a claim was frivolous or brought for an improper purpose or in bad faith. The arbitrator shall have the authority under Federal Rule of Civil Procedure 11 to issue sanctions against any party and counsel as a court would. In addition, the provisions of Federal Rule of Civil Procedure 68 shall apply and be enforced by the arbitrator. The arbitration may be conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location as set forth in the AAA rules. You and a Dealership representative shall personally appear (with counsel if you and we are represented) at an initial telephone conference with a case manager before an arbitrator is appointed and at a hearing should one be scheduled by the arbitrator. Notwithstanding anything to the contrary, Dealership will pay all fees and costs that we are required by law to pay.

 

The Arbitration will be conducted by a single arbitrator, who shall follow controlling substantive law and applicable statutes of limitations in making a reasoned award based on applicable law. The arbitrator's award shall be final, binding, and conclusive on the parties and may be entered in any court of competent jurisdiction. This Agreement is subject to the Federal Arbitration Act (9 U.S.C. 1 et seq.). To the extent that any part of this Agreement  is ruled illegal or unenforceable by any finder of fact or law, so much hereof as is ruled illegal or unenforceable shall be deemed severed and the remaining provisions shall survive. Provided however, if a waiver of class action rights is deemed or found to be unenforceable for any reason in a case in which class action allegations have been made, the remainder of this Agreement shall be unenforceable; Dealer does not agree to, and will not be required to arbitrate any class action Claims.

 

Special Procedures for Mass arbitration

 

If you elect to have your claim addressed as part of a mass arbitration (defined below), you agree to the additional procedures set forth below.

 

If twenty-five (25) or more claimants submit Notices or attempt to file Demands raising similar claims, are represented by the same or coordinated counsel (regardless of whether the Notices or Demands are submitted simultaneously), and the parties cannot resolve the cases during the Informal Resolution Period, all of the cases must be resolved in arbitration through staged sets of proceedings. You agree to this process even though it may delay the arbitration of your case.

 

If these mass filing procedures apply to your case, the Tolling Period for your claims will be extended until your case is selected to proceed as part of a staged proceeding, withdrawn, opted out of arbitration (as set forth below), or otherwise resolved.

 

First Stage: In the first stage, counsel for the parties shall each select twenty-five (25) cases per side (50 cases total) to be filed in arbitration and to proceed individually in accordance with this Arbitration Agreement, with each case assigned to a separate and different arbitrator (unless the parties agree otherwise). In the meantime, any remaining cases shall not be filed or deemed filed in arbitration, nor shall any Arbitration Fees be assessed in connection with those cases unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After the first stage is completed, the parties shall engage in a global, non-binding, and confidential mediation of all remaining cases with a retired federal or state court judge, and Dealership shall pay the mediator's fee.

 

Second Stage: If the parties are unable to resolve the remaining cases after the mediation, the parties shall repeat the same process except that fifty (50) cases shall be selected per side (100 cases total) to proceed individually in accordance with this Arbitration Agreement, with each case assigned to a separate and different arbitrator (unless the parties agree otherwise). After the second stage is completed, the parties will again engage in a global, non-binding, and confidential mediation of all remaining cases with a retired federal or state court judge, with the mediator's fee paid for by Dealership.

 

If the parties are unable to resolve any remaining cases after a second global mediation session:

 

Option One: You and Dealership may, separately or by agreement, opt out of arbitration and elect to have your case heard in a court of competent jurisdiction consistent with these Terms. You may opt out of arbitration by providing an individual, personally signed notice of your intention to opt out of arbitration to Dealership via email at claim.notice@czag.net within thirty (30) days after the conclusion of the second global mediation session. Dealership may opt your case out of arbitration by sending an individual, signed notice of its intention to opt out of arbitration to your counsel via email no more than thirty (30) days following the expiration of your thirty (30) day opt-out period. Counsel for the parties may agree to adjust these deadlines.

 

OR

 

Option Two: If neither you nor Dealership elects to have your case heard in court consistent with Option One, then you agree that your case will be resolved through continuing staged proceedings as set forth below. Assuming the number of remaining cases exceeds two hundred (200), then two hundred (200) cases shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining cases is fewer than two hundred (200), then all of those cases shall be filed and proceed in individual arbitrations. No more than five (5) cases within any set of two hundred (200) cases may be assigned to the same arbitrator to proceed individually, unless the parties agree otherwise in writing. Any remaining cases shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those cases unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process.

 

Throughout the staged process above, the arbitrators for the cases are encouraged to resolve the cases within one hundred twenty (120) days of appointment or as swiftly as possible thereafter, consistent with fairness to the parties. If any case selected for a staged set of proceedings is withdrawn prior to the arbitrator's award (and without the consent of the other party), another case shall be selected to proceed individually in arbitration consistent with the process set forth above.

 

A court of competent jurisdiction will have the authority to enforce this "Mass arbitration" section and, if necessary, to enjoin the filing or prosecution of arbitrations or the assessment or collection of Arbitration Fees. This "Mass arbitration" section is intended to be severable from the rest of this Arbitration Agreement. If a court decides that the staging process set forth in this "Mass arbitration" section is not enforceable (and after exhaustion of all appeals), then all cases may be filed in arbitration, but the payment of Arbitration Fees will be assessed as the arbitrations advance and arbitrators are appointed, rather than when the arbitrations are initiated.