Terms of Service
Revised Date: March 15, 2023
Welcome to theseriesfi.comwebsite (hereinafter the “Site”), a website of All Blue Labs, Inc., a Delaware corporation (“Series” “we,” or “us”). This page explains the terms you may use the financial services we make available to you on our site or our mobile application (collectively the “Services”).
You also agree to receive all notices and other communications from us electronically. Series reserves the right to make unilateral modifications to these terms and will provide notice of these changes by posting an updated version to our legal page.
“Company” or “You” means the legal entity that is applying for or that has opened an Account to use the Services and the individual applying for the Account. If you are the individual applying for the Account for a business, you represent and warrant that you are an authorized representative of Company with authority to bind Company to this Agreement, and that you agree to this Agreement on Company’s behalf.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Scope of the Services; Use of the Services; Eligibility
- Eligibility. This is a legal and binding contract between you and Series. You must read and agree to these terms before using the Services. If you do not agree, you may not apply for an Account or use the Services. You may only apply for an Account or use the Services for business purposes. If you are a legal entity formed and registered in the United States and can form a binding contract with Series, only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use of or access to the Services for consumer or non-commercial purposes, by anyone under 18 is strictly prohibited and in violation of this Agreement. There may be other eligibility requirements applicable to specific Services.
- Scope of the Services. Your Account gives you access to various Services, including the demand deposit account (“Deposit Account”), the Series Card, and other services as made available from time to time by Series and by Evolve Bank & Trust (our “Banking Services Provider”). Any other functionality that we may establish and maintain from time to time and in our sole discretion.
- Applying for an Account. You will need to provide your Company information and certain personal information (collectively, “Company Information”), when you apply for an Account for business purposes. Company Information may include your registered business name and state of incorporation, the business address, ownership details, the nature of the business, and other business information we may request from time to time; the name, contact information, and date of birth of beneficial owners and certain other personnel, and other personal information; and a corporate registration certificate, proof of address, personal identification, and any other documentary information used to verify business and personal information. We provide Company Information to our Banking Services Provider and other third-party service providers to determine your eligibility for the Services along with meeting requirements set by State and Federal laws. We rely on the accuracy of the Company Information you provide us when opening and maintaining your Account. We may deny your applications, suspend the provision of the Services to you, or close your Account if Company Information is out of date, incomplete, or inaccurate. At any time during the term of this Agreement and as part of your use of the Services, we may require additional Company Information from you to verify your identity and the identity of your business, to obtain other information about your business, to open and maintain accounts and aspects of the Services, to assess your financial condition, and to evaluate the risks associated with your business. You expressly consent and authorize us to retrieve additional Company Information about the Company and its owners or directors from our vendors and other third parties to solely to assess the history and risks of the business and to prevent fraud, including by obtaining information from credit reporting agencies and information bureaus. You authorize and direct such third parties to compile and provide such information to us. You acknowledge that this may include names, addresses, credit history, and other data. You acknowledge that we may use Company Information to verify any other information you provide and that any information we collect may affect our assessment of your overall risk to our business.
- Account Management and Security. You are solely responsible for the activity that occurs on your Account, and you must keep your Account password secure. We encourage you to use “strong” passwords (for recommendations on what constitutes a strong password, check NIST SP 800-63B) with your Account. You must notify Series immediately of any breach of security or unauthorized use of your Account. Series will not be liable for any losses caused by any unauthorized use of your Account. We may suspend access to your Account if we believe that your Account has been compromised.
- Prohibitions. You may not use the Account or the Services (a) for any purpose that is unlawful or prohibited by this Agreement or State or Federal laws; (b) for any personal, family, household, or other use or purpose that is not related to the Company’s business purpose in case of a business Account; (c) for the benefit of an individual, organization, or country identified on the United States Office of Foreign Assets Control’s Specially Designated Nationals List, or (d) for any third parties unaffiliated with Company.
- Acceptable Use. By registering for and using the Services, you are confirming that you will not use the Services (i) to accept payments in connection with any illegal, unauthorized, or not bona fide transactions; (ii) to handle, process, or transmit funds for any third party; or (iii) to conduct any of the restricted business activities or practices listed here:
- Any illegal activity, goods, or services
- Money and legal services (including financial institutions, money transmission, prepaid cards, check cashing, wire transfers, money orders, currency exchanges or dealers, credit counseling services, bill pay services, crowdfunding, insurance, bail bonds, or collections agencies or collections attorneys)
- Buyer or membership clubs, including dues associated with such clubs
- Credit protection or identity theft protection services
- Direct marketing or subscription offers or services or unauthorized multi-level marketing businesses
- Infomercial sales
- Internet/mail order/telephone order pharmacies or pharmacy referral services (where the fulfillment of medication is performed with an Internet or telephone consultation, absent a physical visit with a physician, including re-importation of pharmaceuticals from foreign countries)
- Inbound or outbound telemarketers
- Rebate based businesses
- Up-sell merchants
- Betting, including lottery tickets, casino gaming chips, Fantasy Football, off-track betting, and wagers at races
- High-risk products and services, including telemarketing sales
- Service station merchants
- Automated fuel dispensers
- Adult entertainment-oriented products or services (in any medium, including Internet, telephone or printed material)
- Sales of (i) firearms, firearm parts or hardware, and ammunition; or (ii) weapons and other devices designed to cause physical injury
- Drug paraphernalia
- Occult materials
- Hate or harmful products
- Escort services
- Internet/mail order/telephone order of age restricted products (e.g., tobacco)
At any time and without notice, we may suspend or terminate your Account or your access to any of the Services if you engage in activities that violate the letter or spirit of this section. Our determination of whether a violation of this section has occurred will be final and binding, and any action taken with respect to enforcing this section will be at our sole discretion. We may, at our discretion, permit businesses that conduct any of the activities above to use the Services with restrictions as determined by us. Series may modify this section at any time by posting a revised version in this Agreement along with a written notice and update to our Site.
The Series Services
- Deposit Account. Your Deposit Account is a demand deposit account held with our Banking Services Provider and is subject to the terms of this Agreement and the additional terms of our Banking Services Provider. The Federal Deposit Insurance Corporation fully insures your funds up to $250,000. Your Deposit Account will be used in connection with the provision of the other Services under this Agreement. You may also use your Deposit Account to the extent provided in the terms of our Banking Services Provider.
- Series Virtual and Physical Cards. Your Series Account gives you access to virtual and physical cards (the “Series Card” or “Series Cards”) that you can use to make purchases for your business using funds in your Series Deposit Account. You may not use the Series Cards for any non-business purpose, such as for personal or household purchases, when issued in conjunction with your Business Account.
- Requesting and Receiving Series Cards. When you sign up for a Series Deposit Account for your business, you may be issued one physical Series Card. You may request additional virtual and physical Series Cards for your employees, contractors, or other people affiliated with your business.
- Spending Limits, Payments, and Refunds. The available funds limit spending on your Series Card(s) in your Deposit Account. Your Series Card transactions will be settled as they occur by debiting your Series Deposit Account an amount equal to each Series Card transaction. Refunds to your Series Card will be applied to your Series Deposit Account. Use your Series Card for preauthorized, recurring, or subscription payments. You should regularly monitor the available funds in your Deposit Account to ensure that funds are available to make those payments. If funds are not available at the time a preauthorized, recurring or subscription payment is attempted on your Series Card, the transaction will ordinarily be declined. We will generally decline transactions attempted on your Series Card that would overdraw your Deposit Account. If, however, we do not decline a transaction and that transaction does overdraw your account, we may limit your ability to use other features or spend additional funds from your Deposit Account until your Deposit Account has a positive balance and the transaction that has overdrawn your account has been paid. For more information related to the manner in which your Series Card transactions are debited and settled, refer to the Series Card Agreement.
- Disputes. If you have a dispute about a purchase on your Series Card that you cannot resolve with the merchant directly (a “Disputed Charge”), please contact us at email@example.com as soon as possible, and in all cases within 60 days of the charge. We cannot help you with the Disputed Charges you reported to us more than 60 days after the charge appears on your account. Disputed Charges will remain debited from your Deposit Account while we determine the outcome of the dispute. We will resolve all disputes in a commercially reasonable timeframe. If we determine you should be reimbursed, we will credit the amount of the Disputed Charge back to your Deposit Account and you will not be charged any fees. If we determine that the Disputed Charge was valid, your Deposit Account will not be reimbursed, and you will be charged a fee as set forth in the Fee Schedule. You assign and transfer to us any rights and claims, excluding tort claims, that you have against a merchant for any Disputed Charge that is fully or partially credited to your Deposit Account. We may assign and transfer the rights you assign and transfer to us under this provision to the Series Card Issuer.
- Records, Fees, and Communication. All transaction records and periodic statements may be found in your dashboard for your Account. All fees associated with the Series Cards may be found in the Series Card Agreement.
- Other Series Card Terms. Series Cards are issued by Evolve Bank & Trust (”the Issuer.”) You agree to the applicable Evolve Bank & Trust terms and conditions. You agree that any future changes to the relevant Evolve Bank & Trust terms and conditions will apply to your Series Card, whether or not Series or Evolve Bank & Trust alerts you to those changes to the Evolve terms and conditions.
- Mobile Remote Deposit Capture. By creating a Mobile Deposit, you may remotely deposit paper checks into your Deposit Account through the Series app. When making a Mobile Deposit, you are also subject to the Evolve Bank & Trust Deposit Account Agreement & Service Terms, including the Funds Availability Disclosure section of those terms. A “Mobile Deposit” is the information that is transmitted to us allowing for the deposit, processing, and collection of the item deposited. You may only deposit items made payable to you as the business entity that is named on the Deposit Account. We reserve the right to reject any Mobile Deposit for any reason.
- Depositing your Check. You are responsible for creating an accurate Mobile Deposit. To deposit your check, you must endorse the check, enter the correct amount of the check (you are liable for any errors you make during the deposit process), create a check image using the camera on your mobile device to take a picture of the front and back of your check. You may only deposit eligible items through the mobile remote deposit capture service. To mitigate the risk of fraud or the presentment of duplicate items, you agree to mark on the original paper check that the item has been deposited electronically. You also agree to retain all checks deposited via mobile remote deposit capture for at least two business days after the deposit is made and to destroy all deposited checks as soon as reasonably possible, and in no event later than 30 days after the deposit.
- Returned Items. You acknowledge and agree that we may charge you any fees associated with a returned item if a check is returned to us for any reason.
- Representations and Warranties. In addition to any other representations and warranties applicable to your Deposit Account, concerning each Mobile Deposit, you make any representation or warranty that would have applied had you deposited the original paper check. This includes representations and warranties on your behalf when we transfer, present, or originate the Mobile Deposit created from your check image. These representations and warranties include but are not limited to, that: (a) the transmissions contain accurate images of the front and back of the original checks; (b) the transmissions contain all necessary endorsements; and (c) no depository bank, drawee, drawer, or endorser will be asked to make a payment based on an item that it has already paid.
- Digital Checks. You may send digital checks to payees from your Deposit Account. Payees can print the digital check or present the digital check via email or other electronic means to the payee’s bank for deposit. By creating and authorizing the issuance of a digital check or remotely created check (“RCC”), you authorize Series to honor the RCC in the amount and to the payee stated on the RCC even though the RCCs do not contain your signature. You authorize Series to debit your Account for any claim or return based upon an unauthorized RCC and you agree to indemnify and hold Series harmless from and against any claims, liabilities, costs and expenses (including attorney’s fees) resulting directly or indirectly from any breach of the foregoing warranty.
Fees and Payment
- Payment Method. You must keep a valid payment method on file with us to pay for all fees owed. We will debit fees from your Deposit Account or another payment method that you authorize. Series will charge the payment method that you authorize for all applicable fees until the Services are terminated, and any and all outstanding fees have been paid in full. If we cannot process payment of fees using your payment method on file, we will make a second attempt to process the payment using the payment method on file within three (3) days. If the second attempt is unsuccessful, we will notify you, and may suspend and revoke access to the Services. If the Services are suspended, your Services will be reactivated upon payment of any amounts owed. If the outstanding fees remain unpaid for sixty (60) days following the date of suspension, then Series reserves the right to terminate your Account. You may change your payment method through your account settings.
- Applicable Fees. Your use of the Services is subject to the fees on the Fee Schedule, which may be updated from time-to-time at our discretion. For fees owed under this Agreement, we will automatically charge you using the payment method you have on file with us and by agreeing to this Agreement, you authorize us to do this. You will be charged via invoice each month on your billing date (“Billing Date”) for all outstanding fees that have not previously been charged or collected. All fees are exclusive of applicable taxes. You are responsible for all applicable taxes that arise from or as a result of your use of the Services.
- Collection and Right to Set-Off. You agree to pay all amounts owed to us on demand. Your failure to pay amounts owed to us under this Agreement is a breach and you will be liable for any costs we incur during collection in addition to the amount you owe. Collection costs may include attorneys’ fees, costs of arbitration or court proceeding, collection agency fees, applicable interest, and other related costs. We may collect amounts you owe to us under this Agreement by deducting any amounts you owe to use from your Deposit Account. You further grant us a security interest in and right to set off against the Deposit Account.
- Limited License. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Services as permitted by the features of the Services. Series reserves all rights not expressly granted herein in the Services and the Series IP (as defined below). Series may terminate this license at any time for any reason or no reason. The Services and all materials therein or transferred thereby, including, without limitation, all software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and other content available on the Site (the “Series IP”), and all Intellectual Property Rights related thereto, are the exclusive property of Series and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Series IP. Use of the Series IP for any purpose not expressly permitted by this Agreement is strictly prohibited. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
- Feedback. You may choose to, or we may invite you to, submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction, and will not place Series under any fiduciary or other obligation, and that we are free to use your Feedback without any additional compensation to you, or to disclose your Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by accepting your submission, Series does not waive any rights to use similar or related ideas previously known to Series, developed by its employees, or obtained from sources other than you.
- Copyright Complaints. If you believe that any material on the Site infringes upon any copyright which you own or control, you may send a written notification of such infringement to our Designated Agent at firstname.lastname@example.org or at All Blue Labs Inc., 548 Market Street, San Francisco, CA 94104
- To meet the notice restrictions under the Digital Millennium Copyright Act, the notification must be a written communication that includes the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- To meet the notice restrictions under the Digital Millennium Copyright Act, the notification must be a written communication that includes the following:
Site Data and Privacy
Third-Party Links and Information
You agree to defend, indemnify and hold harmless Series and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, our Banking Services Provider, and our third-party service providers, from and against any and all third-party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising out of, related to, or resulting from: (a) your use of and access to the Services, including any data or content transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) your intentional misconduct; or (f) any other party’s access and use of the Services with your unique username, password or other appropriate security code.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Series OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, Series ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE INFORMATION PROVIDED TO YOUR THROUGH THE SERVICES IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
Series DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND Series WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Series, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICES. UNDER NO CIRCUMSTANCES WILL Series BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Series ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL Series, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $100.00.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OROLID ANY OTHER BASIS, EVEN IF Series HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
Term and Termination
This Agreement is effective when you submit your application to us and continues until terminated by either you or us, or per the Banking Services Provider’s agreements, third-party payment processor agreements, or as otherwise outlined in this Agreement. You may terminate this Agreement by paying all amounts you owe and providing notice to us. You will still be responsible for any charges, fees, fines, and other losses caused by your action or inaction prior to terminating this Agreement. We may terminate this Agreement, and/or suspend your Account for any reason, by providing you written or electronic notice, or we may terminate this Agreement immediately in the event you breach or violate any of the terms of this Agreement, as determined in the sole discretion of Series. Please note we further reserve the right to cancel or suspend the onboarding process or your Account itself including all Series services if at any time if we discover or learn of any possible suspicion, connections or involvement with illegal, illicit or immoral activities.
Governing Law, Arbitration, and Class Action/Jury Trial Waiver
- Governing Law. You agree that: (i) the Services shall be deemed solely based in California, except as may be outlined in the Bank Provider Agreements; and (ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences concerning the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. Subject to Section 11.B, you agree that the federal or state courts located in San Francisco County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings if the Arbitration provision below is found to be unenforceable.
- Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM Series. For any dispute with Series, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that Series has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims arising from protection of Intellectual Property Rights, breach of Confidential Information, which will be resolved through litigation per Section 11.A, or for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS. Claims with amounts claimed greater than $250,000 will apply the JAMS Comprehensive Arbitration Rules and Procedures; and Disputes with amounts claimed less than or equal to $250,000 will apply the JAMS Streamlined Arbitration Rules. The arbitration will be conducted in San Francisco County, California, unless you and Series agree otherwise. If JAMS cannot administer the Claim, either party may petition the US District Court for the Northern District of California to appoint an arbitrator. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Either party may commence arbitration by providing a written demand for arbitration to JAMS and the other party detailing the subject of the Claim and the relief requested. Each party will continue to perform its obligations under this Agreement unless that obligation or the amount (to the extent in dispute) is itself the subject of the Claim. Nothing in this Section shall be deemed as preventing either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights. Proceedings and information related to them will be maintained as confidential, including the nature and details of the Claim, evidence produced, testimony given, and the outcome of the Claim, unless such information was already in the public domain or was independently obtained. Company and Series, and all witnesses, advisors, and arbitrators, will only share such information as necessary to prepare for or conduct arbitration or other legal proceedings, or enforcement of the outcome, unless additional disclosure is required by law.
- Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained an account or used the services for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this Agreement, you and Series are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
By providing us with a telephone number for a mobile device, including a number that you later convert to a mobile device number, you are expressly consenting to receiving communications—including but not limited to prerecorded or artificial voice message calls, text messages, and calls made by an automatic telephone dialing system—from us and our affiliates and agents at that number, about any product or services offered by Series. This express consent applies to each such telephone number that you provide to us now or in the future. Calls and messages may incur access fees from your mobile services provider. You understand that you need not provide this consent as a condition of obtaining goods or services from Series, and that you may decline to provide or revoke your consent at any time by firstname.lastname@example.org by any other method that reasonably ensures we receive your revocation.
By providing us with a telephone number, you agree that Series may record any telephone conversation with you (or any another individual) during any telephone call to or from that number for training purposes, whether or not the call was initiated by you, and whether or Series disclosed the fact that the call was recorded during the call.
- Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you but can be transferred or assigned by Series without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
- Notification Procedures and Changes to the Agreement.You consent to us providing notices to you under this Agreement electronically and understand that this consent has the same legal effect as a physical signature. We will provide notices to you electronically through your Account, and via text or SMS to the phone numbers provided to us by you. If you sign up to receive certain Series notifications or information via text or SMS, you may incur additional charges from your wireless provider for these notices. You agree that you are solely responsible for any such charges. Notices affecting the terms of this Agreement will be sent to you and are considered received 24 hours after they are sent. You understand that you may not use the Services unless you consent to receive notices from us electronically. You may only withdraw consent to receive notices electronically by closing your Account. Notices may include alerts about the Services, your Account, and your Deposit Account and may provide you the ability to respond with information about Deposit Account transactions or your Account. You may disable notification preferences to limit the use of certain Service features or to decrease financial risks to the Company. You are required to maintain a regularly updated web browser, and computer and mobile device operating systems to receive notices correctly. You will be responsible for all costs imposed by internet or mobile service providers for sending or receiving notices electronically. Contact us immediately at email@example.com if you are having trouble receiving notices from us.
- Entire Agreement/Severability. This Agreement, with any amendments and any additional agreements you may enter into with Series in connection with the Services, shall constitute the entire Agreement between you and Series concerning your Account and the Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
- No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. Series’ failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
- Legal Orders. We may respond to and comply with any subpoenas, warrants, liens, or any other legal order we receive related to your use of the Services. We are not responsible to you for any losses you incur due to our response to such legal order. We may hold funds or provide information as required by the issuer of the legal order or take any other actions we believe are required of us under legal orders. Where permitted, we will provide you reasonable notice that we have received such an order.
- Survival. Any and all provisions of this Agreement reasonably giving rise to continued obligations of the parties will survive termination of this Agreement.
- Relationship. No joint venture, partnership, employment, or agency relationship exists between you and Series as a result of this Agreement or your use of the Site.
Series Account Agreement
Effective October 26, 2021
The following terms and conditions constitute an agreement (Agreement) between you and Evolve Bank & Trust governing the use of your Series account (”Series Account”). This Agreement also refers to and includes other disclosures we may provide to you, which are incorporated by reference. As used in this Agreement, Customer, you and your mean the owner of the Series Account, any person responsible for paying back all amounts you owe us under this Agreement, and any other person you may authorize to use and access your Series Account (”Authorized User”). The terms we, us, our, Bank and Evolve mean Evolve Bank & Trust. By opening or continuing to use a Series Account, you agree to this Agreement. Please keep a copy of this Agreement for your records.
PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS AN ARBITRATION AGREEMENT IN SECTION V.C.23 AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. UNLESS YOU ACT PROMPTLY TO REJECT THE ARBITRATION AGREEMENT, IT REQUIRES THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. IMPORTANTLY, THE ARBITRATION AGREEMENT INCLUDES OPT OUT PROVISIONS.
Important Information About Your Series Account
- Your Series Account consists of a Series deposit account (Deposit Account) and a Series Visa debit card (Series Card) provided by Evolve. Evolve also issues cards or other devices to access your Account.
- Within your Series Account, you may set up multiple Authorized Users to manage their use of your Series Account. Each Authorized User can also be issued a Series Card, which is associated with Series Account.
- You and your Authorized User(s) may never spend more than the amount you have in your Deposit Account with your Series Card or with transactions on your Deposit Account.
- You are responsible for all activity conducted on your Series Account by an Authorized User, and all transactions Authorized Users make will be treated as if you had made the transaction yourself.
- Our Security Interest in Your Deposit Account. You hereby grant to us, as of the date you enter into this Agreement, a security interest in all right, title and interest in any Deposit Account you have with us, and all funds deposited therein, now owned or hereinafter acquired (collectively, the Collateral), to secure your performance under this Agreement, including your duty to pay us for all obligations you owe us under this Agreement, present or hereinafter occurring, when payments are due, for every transaction made with your Series Account by you, an Authorized User, or any other person that you or an Authorized User permits to use your Series Account (”Security Interest”).
- Our Right to Exercise the Security Interest. You irrevocably and unconditionally relinquish possession and control over the Collateral, and you pledge and assign as security to us all of your right, title, and interest in it. You must take any action we request to perfect or protect our first lien position Security Interest in the Collateral. You waive the benefit of any homestead or other exemptions in the Collateral. The Security Interest will be governed by Uniform Commercial Code - Article 9 (as adopted by the applicable state law) whether Article 9 applies by its terms or not. We do not have to give you any prior notice to apply the funds in your Deposit Account or other Collateral or its proceeds to satisfy your obligations. You expressly agree that our rights under this Security Agreement extend to any electronically deposited federal or state benefit payments (including Social Security benefits) to the extent permitted by law. If you do not want your benefits applied in this way, you may change your direct deposit instructions at any time with the person or organization paying the benefits. In addition, you grant us a right of setoff to your Deposit Account to secure all amounts you owe us under this Agreement. This right of setoff does not apply to your Deposit Account if prohibited by law. You agree to hold us harmless from any claim arising as a result of our exercise of our right of setoff or Security Interest.
- YOU MAY LOSE FUNDS IN YOUR DEPOSIT ACCOUNT. If you are in default of any obligation under this Agreement, or your Series Account is closed for any reason, you authorize us to withdraw funds from your Deposit Account and apply such amounts to the balance you owe us without sending you notice or demand for payment. We may do this in addition to the other rights we have under law or this Agreement. The application of your funds to the balance you owe under this Agreement will not affect your obligation to pay us in full. You are responsible for the repayment of all amounts you owe us under this Agreement.
- Legal Proceedings. You represent that (a) there are no current lawsuits or bankruptcy proceedings that might affect our interest in your Deposit Account; and (b) you have not and will not attempt to transfer any interest in your Deposit Account to any other person or offer your Deposit Account as collateral or security for any other obligation. If any person seeks to attach your Deposit Account, for example by legal garnishment, you agree that we may deem all amounts you owe us, immediately payable and apply the funds in your Deposit Account as payment of those amounts. If we must hire an attorney to defend or enforce our rights under the Security Agreement, you will pay our reasonable attorneys' fees and court costs, unless prohibited by law.
Truth In Savings Disclosures
IMPORTANT INFORMATION ABOUT YOUR DEPOSIT ACCOUNT
- RATE INFORMATION. The interest rate on the balance in your Deposit Account that is eligible to earn interest is 0.0% with an annual percentage yield (APY) of 0.0%. Your interest rate and APY may change.
- Determination of Rate. At our discretion, we may change the interest rate on your Deposit Account.
- Frequency of Rate Changes. We may change the interest rate on your Deposit Account at any time.
- Limitations on Rate Changes. There are no maximum or minimum interest rate limits.
- COMPOUNDING AND CREDITING. Interest will be compounded daily and will be credited to your Deposit Account monthly. If you close your Deposit Account before interest is credited, you will not receive the accrued interest.
- MINIMUM BALANCE REQUIREMENTS. No minimum balance requirements apply to your Deposit Account.
- BALANCE COMPUTATION METHOD. We use the average daily balance method (less to calculate interest on your Deposit Account). This method applies a periodic rate to the average daily balance in your Deposit Account for the Cycle. The average daily balance may be calculated based on your ledger balance or your Available Balance. To get the average daily balance, we add the balance in the Deposit Account for each day of the Cycle, and divide that figure by the number of days in the Cycle. You will not earn interest on any balance in your Deposit Account that is not classified as Available Balance.
- ACCRUAL ON NON CASH DEPOSITS. Interest begins to accrue no later than the Business Day we receive credit for the deposit of non-cash items.
- TRANSACTION LIMITATIONS. You may not make transactions that would cause the Spent Money to exceed the total balance in your Deposit Account. If you have more than one Sub-Account, you may not make transactions with any Sub-Account that would cause the Spent Money in the Deposit Account to exceed the total Available Balance in the Deposit Account, if you exceed these limits, we may close, suspend, or freeze your Deposit Account.
- FEES AND CHARGES. Please refer to the separate Fee Schedule provided to you with this Agreement for information about fees and charges associated with your Deposit Account. A Fee Schedule will be provided to you at the time you open a Series Account, periodically when fees or charges change, and upon request.
This section applies to all features of your Series Account
About your Series Account
- Evolve. The Series Account is provided by Evolve Bank & Trust.
- Business Days. Our Business Days are every day except Saturdays, Sundays, and holidays.
- Writing to Us. You may e-mail us at firstname.lastname@example.org. You may also write to us at 548 Market Street, San Francisco, CA 94104. We will deem any and all notices to us effective upon receipt by us.
- Your Account. Your Series Account includes a Deposit Account and a Series Card.THE SERIES CARD IS A DEBIT CARD. Within your Series Account, you may set up one or Authorized Users.
- Spending Limit. You may never spend more than the amount you have in your Deposit Account with your Series Card or with transactions on your Deposit Account. If you make a transaction that causes you to exceed the balance on your Series Account, you agree to immediately make a deposit to your Series Account to return your Series Account to good standing. Our general practice is to decline any transaction that would cause you to exceed any Available Balance in your Series Account. Even if we have permitted you to exceed your Available Balance before, we are not required to do it in the future. We may determine the amount of Available Balance, for the purpose of deciding whether a transaction will cause you to exceed the Available Balance only once, and at any time between the time you authorize the transaction and when we decline the transaction or send a notice of the declined transaction.
- The App. You can access your Series Account through the Series mobile application (App). You may log in to the App at any time to view and update information about your Account and initiate online transactions. Your use of the App is subject to the Series Terms of Service.
- Periodic Statements. We will make available to you one periodic statement (Statement) for your Series Account per month, covering activity on your Series Card and Deposit Account during each monthly cycle (Cycle). We may make your Statements available through the App, or by e-mail. We have made the Statement available to you on the day we notify you that the Statement is available. If your Deposit Account balance has charged off, we may provide you with quarterly Statements.
Opening Your Series Account
- Identifying You. To help the United States Government fight terrorism and money laundering, federal law requires us to obtain, verify, and record information that identifies each person that opens an Account. What this means for you: when you open a Series Account, we will ask you for your name, street address, email, phone number, last four digits of your Social Security Number (SSN), and date of birth, and other information that will allow us to identify you. To open a Series Account with us, you must be at least 18 years old, a U.S. citizen or a resident alien with a valid SSN and have a residential address in the U.S. or U.S. territory where we offer the Series Account. We may also ask to see your driver license or other identifying documents that will allow us to identify you. You must tell us when this information changes. We may ask you for additional documents to verify any changes. We may restrict or close your Series Account if we cannot verify your information, or if you do not provide it as requested.
- Consumer Reporting Agencies. You authorize us to obtain information about you from time to time from consumer reporting agencies, check verification services, and other third parties for the purpose of considering your application for a Series Account or any other purpose permitted by law.
- TIN/Backup Withholding. We are required by federal law to obtain your correct taxpayer identification number (TIN) in order to avoid potential backup withholding and to report interest income paid to you in connection with your Series Account. If you are subject to backup withholding or if the Internal Revenue Service (IRS) notifies us that we do not have a correct TIN for you, we may be required to withhold and remit to the IRS a percentage of interest paid (backup withholding) to your Deposit Account. Amounts withheld are reported to the IRS as federal tax withheld and will be reflected on your IRS Form 1099-INT, Interest Income. A TIN may be your SSN if your Series Account is in your name and you are either a U.S. citizen, permanent resident, or otherwise eligible to receive an SSN.
- Identifying your business (if applying for a business account).You will need to provide Company information and certain personal information (collectively, “Company Information”), when you apply for an Account. Company Information may include your registered business name and state of incorporation, the business address, ownership details, the nature of the business, and other business information we may request from time to time; the name, contact information, and date of birth of beneficial owners and certain other personnel, and other personal information; and a corporate registration certificate, proof of address, personal identification, and any other documentary information used to verify business and personal information. We provide Company Information to our Banking Services Provider and other third-party service providers to determine your eligibility for the Services. We rely on the accuracy of the Company Information you provide us when opening and maintaining your Account. We may deny your applications, suspend provision of the Services to you, or close your Account if Company Information is out of date, incomplete, or inaccurate. At any time during the term of this Agreement and as part of your use of the Services, we may require additional Company Information from you to verify your identity and the identity of your business, to obtain other information about your business, to open and maintain accounts and aspects of the Services, to assess your financial condition, and to evaluate the risks associated with your business. You expressly consent and authorize us to retrieve additional Company Information about Company and its owners or directors from our vendors and other third parties to solely to assess the history and risks of the business and to prevent fraud, including by obtaining information from credit reporting agencies and information bureaus, and you authorize and direct such third parties to compile and provide such information to us. You acknowledge that this may include names, addresses, credit history, and other data. You acknowledge that we may use Company Information to verify any other information you provide to us, and that any information we collect may affect our assessment of your overall risk to our business.
- Ownership of Series Account. This is an individual account or business account based on your application type.
- Authorized Users. You may authorize one or more Authorized Users to use and access your Series Account, or any Sub-Account, subject to our approval. The Authorized User must be at least 18 years of age. We reserve the right to limit the number of Authorized Users of your Series Account. We may require you to submit certain information about each person you request to make an Authorized User on your Series Account or a Sub-Account. Authorized Users will have access to certain information about your Series Account and will be able to make transactions with your Series Account. You will be responsible for an Authorized User use of the Series Account, and use of the Series Account by anyone else they allow to use the Series Account, even if you did not want, or agree to, that use. We may also limit an Authorized User ability to use the Series Account. The Authorized User is designated to conduct transactions on your behalf. You do not give up any rights to act on the Series Account, and the Authorized User may not in any manner affect the rights of the owner or beneficiaries, if any, other than by using the Series Card and making transactions on the Series Account. We undertake no obligation to monitor transactions to determine that they are on the owner's behalf. The Authorized User authority is automatically terminated by the death of any owner of the Series Account. However, we may continue to honor the transactions of the Authorized User until: (a) we have received written notice or have actual knowledge of the termination of authority, and (b) we have a reasonable opportunity to act on that notice or knowledge. We may refuse to accept an Authorized User for any reason, at our sole discretion.
- Removing an Authorized User. If you want to remove an Authorized User from your Series Account, you must contact us and request their removal. Authorized Users may remove themselves from your Series Account upon request. You also must immediately destroy all Series Cards in their possession, change or destroy any other Access Credentials (as defined below in Section V.C.1) in their possession, and cancel any arrangements, such as automatic or scheduled transactions, they may have set up on your Series Account. The Authorized User will be able to use your Series Account until we receive the request to remove the Authorized User from your Series Account and we have acted on your notice. During this time, you will still be responsible for all transactions the Authorized User makes using your Series Account. You will be responsible even if these transactions do not appear on or post to your Series Account until after you remove the Authorized User from the Series Account. We reserve the right to remove any Authorized User from your Series Account for any reason. When you or we remove an Authorized User for any reason, we may revoke the Authorized User’s Series Card, close any Sub-Account the Authorized User used, issue a new Series Card with a different number, close your existing Series Account and issue a new Series Account with a new account number, and/or require you to change other Access Credentials. Any funds that remain in the Wallet associated with the closed Sub-Account will remain in your Deposit Account.
- Linking External Accounts. You may choose to link your Series Account to an account you have with another financial institution in the U.S. or a U.S. territory where we offer the Series Account. We will call that other account a Linked External Account. You can use your Linked External Account to transfer money to or from your Deposit Account. Any Linked External Account must be owned by you and must be a personal account (not a business or commercial account). Your request to establish a Linked External Account is subject to our verification and approval. In our discretion, we may limit the number of Linked External Accounts you may have at one time, block any transaction you make with your Linked External Account, or disconnect any Linked External Account.
Series Card Terms
For the terms of your Series Card (if applicable), please see the Series Card Agreement provided to you at the time of opening your Series Account and requesting a Series Card.
Deposit Account Terms
This section governs your use of your Deposit Account.
- Limited Deposit Account Access. Your Deposit Account is only accessible through the App on your mobile or web device. You may only make withdrawals and transactions from your Deposit Account by initiating permitted transactions on the App. You will not be able to make withdrawals or deposits on your Deposit Account at branch locations or by telephone.You may also use your Series Card to debit your Deposit Account.
- FDIC Insurance. Funds in your Deposit Account are insured by the Federal Deposit Insurance Corporation (FDIC) and backed by the full faith and credit of the United States, up to the applicable limit. The amount of insurance coverage you have may depend on the balance in your Deposit Account and the ownership, type of, and balances held in any other accounts you have with us. For additional information, please visit the FDIC website atwww.fdic.gov.
- Deposit Requirements. Deposits must be made in U.S. Dollars. Deposits made by ACH are subject to the NACHA Operating Rules and Operating Guidelines and the rules of any regional clearing houses we may use from time to time (collectively, the ACH Rules). Before final settlement of any deposit, we act only as your agent. We will give only provisional credit until collection is final for any items we accept for deposit (including items drawn on us). You authorize us to attempt to collect previously returned items without giving you notice, and in attempting to collect we may permit the payor bank to hold an item beyond an applicable deadline. Actual credit for deposits of, or payable in, foreign currency will be at the exchange rate in effect on final collection in U.S. dollars. We will treat and record all transactions received after the Cutoff Time (defined below) on a Business Day we are open, or received on a day we are not open for business, as if initiated on the next Business Day that we are open. At our option, we may take an item for collection rather than for deposit.
- Permitted Deposits. Deposits to your Deposit Account may be made using one of the following payment methods:
- External Debit Card. You may use the App to authorize us to charge a debit card issued by an external U.S. bank and deposit the funds in your Deposit Account. You are responsible for any fees charged by the issuing bank for using your debit card.
- Linked External Account. You may authorize us to initiate ACH transfers from a Linked External Account to your Deposit Account. Use the App to set up, review, change or cancel your scheduled transfers.
- Person-to-Person Transfer with Series Users.You can receive transfers to your Deposit Account initiated by another Series user, using the person-to-person transfer services (P2P Transfer) provided in the App pursuant to Section IV.D below.
- Direct Deposit. You can direct a third party, such as an employer, to electronically deposit your paycheck, retirement benefits, or other income to your Deposit Account by ACH or wire transfer. Direct deposits may not be initiated in the App.
- We may permit you to make deposits by other means we make available from time to time.
- Deposit Records and Receipts. We and our service providers may rely on the account number on any record of a deposit you make, even if that account number is associated with a name that is different from the name you have provided. It is not our responsibility to detect any inconsistency between the account number you provide and the name. You may use the App or call us to confirm that we have received a deposit. If you make a deposit, we may provide a confirmation of your deposit, but the amount on your deposit confirmation may not reflect the amount of funds we actually receive. We may confirm the funds you deposit and, after review, may adjust your Deposit Account for any errors including any errors on your deposit request or similar records. If we give you a confirmation for a deposit that you then cancel, the confirmation is void and you may not claim those funds.
- Our Right to Refuse Deposits. We may refuse a deposit, or part of a deposit, at any time. We also may refuse a deposit after initially accepting it. We will not be liable to you for refusing a deposit, even if it causes us to decline any transactions you have already made.
- When You Can Withdraw Funds You Have Deposited. Please see the Funds Availability Policy for information about when funds you deposit will be available for withdrawal. If funds from a deposit become available and you can withdraw them, that does not mean the item you have deposited is good, has cleared, or has been paid by the paying bank. It is possible that the item will be returned unpaid months after we have made the funds available to you and you have withdrawn them.
- Our Right to Charge Back Deposited or Cashed Items. If you make a deposit and (a) the sending bank returns it to us unpaid; (b) the sending bank demands that we repay them because the deposit was unauthorized; or (c) the sending bank or the originator of a transfer demands that we return the item because it was unauthorized, sent to the wrong account number or procured by fraud, we may pay the return or demand, and subtract the funds from your balance. If we have reason to believe that any of the events in the previous sentence has occurred or may occur or that the item should not have been paid or may not be paid for any other reason, we may place a hold on the funds or move them to a bank-managed administrative account until we determine who is entitled to them.
- All Deposits Are Credited Subject to Final Settlement in Cash or Credits. We have the right to forward all deposited items to correspondents including all Federal Reserve Banks, and we will not be liable for default or neglect of any correspondents for loss in transit, and no correspondent will be liable except for its own negligence. You specifically authorize us or our correspondents including the Federal Reserve Banks to handle such items in accordance with provisions of Regulation J (12 CFR Part 210), as revised or amended from time to time by the Federal Reserve Board. In the event we are subject to local clearinghouse rules, you specifically authorize us to handle such items in accordance with the rules and regulations of the clearinghouse. If we permit you to withdraw funds from your Deposit Account before final settlement has been made for any deposited item, and final settlement is not made, we have the right to charge your Deposit Account or obtain a refund from you. In addition, we may charge back any deposited item at any time before final settlement for whatever reason. We will not be liable for any damages resulting from the exercise of these rights. Except as may be attributable to our lack of good faith or failure to exercise ordinary care, we will not be liable for dishonor resulting from any reversal of credit, return of deposited items or for any damages resulting from any of those actions.
B. Withdrawals and Transfers
- Available Balance. You may withdraw or transfer all or any part of the Available Balance in your Deposit Account at any time, provided that the withdrawal will not cause you to exceed the Spending Limit(s) and any other limitations in this Agreement or limits you set on the Deposit Account by using the App. We determine your Available Balance by taking your previous day balance, plus any pending credit transactions (excluding pending returns), such as ACH direct deposits, and subtracting (a) pending charges such as, electronic payments, according to the Processing Order (defined in Section IV.B.9 below) (b) amount of deposits that are not yet available for withdrawal under ourFunds Availability Policy, and (c) any holds on your balance, such as holds on funds to comply with court orders or other legal requirements, or as authorized by the Security Agreement. We reserve the right to use a different method in certain states if required by law. We may permit Authorized Users to withdraw only the portion of the Available Balance which is designated to the Sub-Account(s) they are authorized to use. However, we are not required to do so unless required by applicable law.
- Withdrawal Rules. By initiating a withdrawal of funds from your Deposit Account, you authorize us to make the transaction you select. Withdrawals may be made in U.S. dollars by using the App to authorize a transfer of funds to a Linked External Account, to make a P2P transfer to another Series user, or to make a transfer to another type of account or payee we may permit from time to time. Withdrawals to a Linked External Account and P2P transfers are processed as ACH transactions. Please see theElectronic Fund Transfer Agreement for more information. We may subtract from your Deposit Account balance the amount of any withdrawal, P2P Transfer, or other debit transaction that you, or any Authorized User, or person you or an Authorized User authorized, initiated or approved. We may require you or any person you authorize to provide us with identification, documentation or information that is acceptable to us before allowing the transaction. You may not make any withdrawal in an amount that exceeds the applicable Available Balance. We may refuse to permit Authorized Users to make any withdrawal in an amount that exceeds the Available Balance applicable to the Deposit Account they are authorized to use. We may refuse any withdrawal or transfer request by any method on forms not approved by us, or that we do not specifically permit for your Deposit Account, or that does not include all information we require, or that is greater in number than the frequency permitted, or which is greater or less than any withdrawal limitations. We will use the date the transaction is completed by us (as opposed to the date you initiate it) to apply the frequency limitations. In addition, we may place limitations on your Deposit Account until your identity is verified. We reserve the right to establish (and change) maximum dollar limits for withdrawal transactions from time to time. Even if we honor a nonconforming request, we are not required to do so later.
- Cutoff Time. Online requests to transfer funds to or from your Deposit Account must be received by us by 2:00 PM PT on a Business Day to be initiated on that Business Day. Online transfer requests received by us after 2:00 PM PT or on a day that is not a Business Day generally will be initiated on the next Business Day.
- Right to Require Advance Notice of Withdrawals. We reserve the right to require seven days' notice in writing before each withdrawal.
- Account Numbers on Fund Transfers. If you instruct us to send a fund transfer, such as an ACH transfer, we, our service providers, and every other bank involved in the transfer may rely on any bank number or account number you provide. If the fund transfer instruction gives both a bank number or account number and a name, and the name identifies a different person from the bank or account owner identified by number, we and other banks that handle the fund transfer may still rely exclusively on the number. We have no duty to detect any inconsistency between the bank number or account number and the name.
- Withdrawal Authority. Any person who signs to open your Deposit Account or has authority to make withdrawals (including Authorized Users) may, acting alone, withdraw or transfer all or any part of your Deposit Account balance at any time. Each of you (until we receive written notice to the contrary) authorizes each other person who signs or has authority to make withdrawals to endorse any item payable to you or your order for deposit to your Deposit Account or any other transaction with us.
- Rules for ACH Transfers. This Agreement is subject to Article 4A of the Uniform Commercial Code Fund Transfers, as adopted in the state in which you have your Deposit Account with us. If you originate a fund transfer and you identify by name and number a beneficiary financial institution, an intermediary financial institution or a beneficiary, we and every receiving or beneficiary financial institution may rely on the identifying number to make payment. We may rely on the number even if it identifies a financial institution, person or account other than the one named. You agree to be bound by automated clearing house association rules, such as the NACHA Rules. These rules provide, among other things, that payments made to you, or originated by you, are provisional until final settlement is made through a Federal Reserve Bank or payment is otherwise made as provided in Article 4A-403(a) of theUniform Commercial Code. If we do not receive such payment, we are entitled to a refund from you in the amount credited to your Deposit Account and the party originating such payment will not be considered to have paid the amount so credited. If we receive a payment order to credit your Deposit Account, we are not required to give you any notice of the payment order or credit.
- Multiple Signatures. We are not required to comply with any multiple-signature requirement, even if you have otherwise instructed us to do so.
- Processing Order. The following Processing Order dictates the order in which we will process your transactions on your Deposit Account each Business Day. All credit transactions are processed first. Debits or withdrawals (such as ACH transactions) will be processed in the order in which they are received by us. The processing order of these items is important because if there is not enough money in your Deposit Account to pay for the items in the order they are processed in accordance with the processing order, we may decline the transaction, or it may cause an overdraft on your Deposit Account.
- Overdrafts. Our general practice is to decline to pay any transaction that would cause an overdraft on your Deposit Account (i.e., your Available Balance is less than the amount of that item plus all other items received but not yet paid) (Overdraft), or would cause a negative Available Balance in any Wallet. Even if we have paid these items before, we are not required to do it in the future. We can change our practice of paying these items on your Deposit Account without notice to you. We may determine the amount of Available Balance for the purpose of deciding whether to return an item for insufficient funds at any time between the time we receive the item and when we return the item or send a notice in lieu of return. We need only look at your Available Balance in your Series Account once to decide if the item would cause an Overdraft or negative Available Balance, but if we choose to make a subsequent determination, the Available Balance at the subsequent time will determine whether there are insufficient available funds. It is your responsibility to avoid overdrawing your Deposit Account and maintain an Available Balance in your Series Account.
- Overdraft Fees. You agree that we may charge fees for Overdrafts as set forth in the Fee Schedule.
- Your Responsibility to Pay Overdrafts. You are liable for any Deposit Account or Wallet shortage resulting from charges or Overdrafts, whether caused by you, an Authorized User, or any another person to whom you provide access to your Series Account. If we pay a transaction that causes an Overdraft or negative Available Balance, you must immediately pay the amount of any Overdraft and restore the Available Balance to at least $0.00. You have no right to defer such payments, and you are liable regardless of whether you signed the item or benefitted from the charge or Overdraft. If you fail to pay an Overdraft, we also may report you to consumer reporting agencies, close your Series Account, or both. This could affect your ability to open accounts with us or other banks in the future. We may also apply funds in your Deposit Account to cure a negative Available Balance. You authorize us to use the money from any subsequent deposits to your Deposit Account to pay any Overdraft or apply the deposit to cure a negative Available Balance. Subsequent deposits include any federal or state benefit payments that you choose to deposit in your Deposit Account (including direct deposit of Social Security benefits), unless prohibited by law. You understand and agree that if you do not want your benefits applied in this way, you may change your direct deposit instructions at any time. We may still pursue collection of the amount you owe (including suing you) after it is charged off.
- Waiver of Notices. To the extent permitted by law, you waive any notice of non-payment, dishonor or protest regarding any items credited to or charged against your Deposit Account. For example, if you authorize a transaction and it is returned unpaid or we receive a notice of nonpayment, we do not have to notify you unless required by federal Regulation CC or other law.
D. Person to Person Transfers
You may use your Series Account to make person-to-person transfers (P2P Transfers) to other Series users.
- Payment Authorization. By authorizing a P2P Transfer, you authorize us to debit your Deposit Account for the amount you request to send, plus applicable fees if any, on or after the date of your authorization. We will send that amount (less fees, if any) to your designated recipient. By authorizing a P2P Transfer, you also authorize us to initiate any other transactions necessary to correct errors or reverse payments that are rejected or returned. You may not use an external bank account or any other payment method to fund a P2P Transfer. You are solely responsible for ensuring you have a sufficient Available Balance in your Deposit Account necessary to complete any payments initiated through the P2P Transfer service, and that the transaction will not cause you to exceed any Spending Limit. You agree to reimburse us for any fees, costs, or expenses we incur as a result of insufficient or unavailable funds in connection with any P2P Transfer you initiate.
- Restrictions on P2P Transfers to Series Users Without Series Account. If you send a P2P Transfer to a recipient who does not have a Series Account, you authorize us to hold the funds you send on behalf of your recipient, and we will issue promotional credit (Credit) to the recipient in lieu of cash. You understand that the recipient cannot redeem the Credit for cash unless and until the recipient open a Series Account. To send a P2P Transfer, you must provide the recipient valid mobile telephone number, which is capable of receiving SMS or text messages. If the recipient does not have an online account on the Series website (Online Account), the recipient will receive an SMS message notifying them of your P2P Transfer, with instructions for opening an Online Account or Series Account and claiming the Credit. Once the recipient has an Online Account, the recipient will receive Credit in the amount of the P2P Transfer you send. An Online Account is not a Series Account and your recipient may not use an Online Account to redeem the Credit for cash. If the recipient opens a Series Account, the Credit will be automatically redeemed for cash and deposited in their Series Account. Credit has no cash value until and unless we redeem the Credit for cash, and credit it to a Deposit Account. Credit is issued solely for promotional purposes and is not FDIC-insured. Credit expires 30 days after the date it is issued, if it is not used or redeemed for cash. If the recipient fails to claim the Credit or their Online Account is inactive for an extended period of time, it may be deemed unclaimed or abandoned under applicable state law. See the Series Terms of Service for more information.
- Transaction Limits. You may not make P2P Transfers that would cause you to exceed any transaction limits set forth in provision of this Agreement. You may not make any P2P Transfer that would case you to exceed any applicable Spending Limit. We may reject or reverse any transaction that would cause you or the recipient of the P2P Transfer to exceed limits applicable to their Series Account, or if we determine in our sole discretion that the P2P Transfer was invalid for any reason. You may not make P2P Transfers to conduct business, commercial or merchant transactions. We reserve the right to change these transaction limitations at any time, in our sole discretion, with or without notice to you, unless required by law.
- Stop Payment. All P2P Transfer requests may be processed as soon as we receive them, and we may be unable to stop the P2P Transfer. Our ability to stop a P2P Transfer once you have initiated it will depend on when you notify us of your desire to stop the transaction, and whether we have begun to process the P2P Transfer or have a reasonable opportunity to act on your request to stop the payment.
- Refunds, Reversals and Chargebacks. P2P Transfers may be invalidated or reversed by us if, among other reasons, we send cash or Credit to you or your recipient in error, the funding transaction is declined or reversed, the P2P Transfer was unauthorized or unfunded, or the P2P Transfer was made for activities or reasons that violate this Agreement, the Series Terms of Service or any other agreement you have with us. If the P2P Transfer you send or receive is invalidated for any reason, you may be liable to us for the full amount of the P2P Transfer, and we may recover the amount of the P2P Transfer (plus applicable fees, if any) from you. We may recover the amount of the P2P Transfer from the sender or recipient of the P2P Transfer in our sole discretion (subject to applicable law). When recovering the amount of an invalidated P2P Transfer from you, we may apply any funds sent to you in a subsequent P2P Transfer, from your Deposit Account or any incoming deposit to your Deposit Account, engage in collection efforts to recover such amounts from you, place a limitation or restriction on your Series Account, or take any other action authorized by this Agreement, Series Terms of Service or any other agreement you have with us.
- Other Restrictions. Your ability to make P2P Transfers is subject to all other terms and restrictions set forth in the Series Terms of Service, which are incorporated herein by reference. In the event of a conflict between the Terms of Service and this Agreement, this Agreement shall control.
V. ADDITIONAL TERMS
This section applies to all features of your Series Account.
- Communications, Statements, Notices of Errors, and Other Notices
- Delivery of Notices. You agree that we and our service providers may communicate with you by mail, telephone, email, fax, prerecorded message, automated voice, text message or other means allowed by law regarding your Series Account. Any legal disclosures, notices and communications and other Series Account-related correspondence that we mail to you will be sent via U.S. Mail to the last mailing address shown in our records for your Series Account. Notices will be deemed to have been delivered on the day we mailed it to you, or made it available electronically. We are not responsible for items lost in, or not delivered by, mail or e-mail. Some notices may only be available electronically or in paper form. Notice to any owner of your Series Account is notice to all owners and Authorized Users.
- Notices You Send Us. Any written notice you give us is effective after we actually receive and act on it, and it must be given to us according to the specific delivery instructions provided elsewhere, if any. We must receive it in time to have a reasonable opportunity to act on it. If the notice is regarding a check or other item, you must give us sufficient information to be able to identify the item, including the item number, amount, date and payee.
- Electronic Communication. Your Series Account is an electronic account. We may send communications electronically, such as by email or text message, rather than through U.S. mail or other means, unless the law says otherwise. If you give us your email address, you agree that we may send servicing messages (such as fraud alerts and hold alerts) related to your Series Account to that address. You may be required to agree to communicate with us by electronic means in order to open a Series Account. If you revoke your consent to electronic communications, we may declare you to be in default of this Agreement (see Section III.F.1), close your Series Account or take other actions described in Section III.F.2 of this Agreement and the Electronic Communications Agreement.
- Telephone Communication. We may record and/or monitor any of our telephone conversations with you. If we do record, we do not have to keep the recordings, unless the law says we must. When you give us your mobile number, we have your permission to contact you at that number about all of your Evolve accounts. Your consent allows us and our service providers to use text messaging, artificial or prerecorded voice messages and automatic dialing technology for informational and service calls, but not for telemarketing or sales calls. This communication may include contact from companies working on our behalf to service your Series Account. Message and data rates may apply. You may change these preferences by email@example.com.
- Change in Contact Information. We require you to provide an e-mail address, mobile telephone number, and physical street address if your mailing address is a P.O. box. You are responsible for promptly notifying us of any change to any such contact information or your name. In some instances, we may request additional information for verification purposes. Any notice we mail to you (or email to you if you have told us to communicate with you electronically) will be binding when sent to the last (postal or electronic) address in our records. We may change your address if we receive an address change notice from the U.S. Postal Service (USPS) or if a company in the business of providing correct addresses informs us that the address in our records no longer matches your address. Even if you elected to receive electronic communications from us, there may still be some legal information that we need to send you via the USPS.
- Communications Equipment and Services. You are responsible for obtaining and maintaining all telecommunications, mobile, broadband, computer, hardware, software, equipment and services needed to access and use your Series Account online; view, save and/or print your Series Account documents online; receive any messages or documents you have consented to receive electronically; and for paying all related charges. We are not required to act on any instruction or message from you provided by SMS/text, or telephone voice mail, message service or answering machine. Whenever this Agreement or applicable law requires or allows you to give us written notice, we will not consider SMS/text to be written notice.
B. Closing and Restricting Your Series Account
- You May Close Your Account. You may request to close your Series Account at any time for any reason. However, we are not required to close your Series Account at your request if you have pending transactions, your Deposit Account is overdrawn, or your Deposit Account is subject to legal process (such as a garnishment, attachment, execution, levy or similar order). In those cases, we will restrict your Series Account against all future withdrawals and other transactions, other than under legal process until pending transactions are paid or returned, the balance on your Deposit Account is no longer negative, and any legal restriction on your Series Account has been released.
- We May Close Your Account. We may also close your Series Account at any time, for any reason or no reason, with or without prior notice to you. We will have no liability for any action we take under this section
- Rules for Closing Your Account. We may restrict your Series Account in preparation for closing. As we do so, we will not pay any additional interest on your Deposit Account, and we may limit deposits to, or withdrawals from, your Deposit Account. We may prohibit further transactions on your Series Card(s). Items presented for payment may be dishonored. When you close your Series Account, you are responsible for leaving enough money in your Deposit Account to cover any outstanding items to be paid from your Deposit Account. We may send you written notice that we have closed your Series Account. We will return the Available Balance in your Deposit Account less any outstanding unpaid Series Card transactions, fees, claims, setoffs or other amounts you owe us, either electronically to a Linked External Account or by check sent to you by mail. This Agreement will survive the closing of your Series Account and you are still responsible for obligations incurred prior to or in connection with the closing of your Series Account. After your Series Account is closed, we have no obligation to accept deposits or pay any outstanding transaction requests, but we may reopen your Deposit Account if we receive a deposit. This Agreement will survive the closing of your Account and you are still responsible for obligations incurred prior to or in connection with the closing of your Account.
- Restricting Your Account; Blocking and Delaying Transactions. There are many reasons we may decline or prevent transactions to or from your Series Account, but we generally do it to protect you or us, or to comply with legal requirements. We may decline or prevent any or all transactions to or from your Series Account in our sole discretion, as permitted by applicable law. We may refuse, freeze, reverse or delay any specific withdrawal, payment or transfer of funds to or from your Deposit Account, or we may remove funds from your Deposit Account to hold them pending investigation, including in one or more of the following circumstances:
- You maintain your Deposit Account at zero balance for at least 180 days;
- You reside in or relocate outside of the U.S. or any U.S. territory where we offer the Series Account;
- You attempt to use your Series Account designated for personal use, instead for business purposes;
- Your Series Account is involved in any legal or administrative proceeding;
- We receive conflicting information or instructions regarding Series Account ownership, control or activity;
- We suspect that you may be the victim of a fraud, scam or financial exploitation, even though you have authorized the transaction(s);
- We suspect that any transaction may involve illegal activity, including violations of anti-money laundering laws and regulations, or may be fraudulent;
- We are complying in our sole judgment with any federal, state or local law, rule or regulation, including federal asset control and sanction rules and anti-money laundering rules, or with our policies adopted to assure that we comply with those laws, rules or regulations; or
- We reasonably believe that doing so is necessary to avoid a loss or reduce risk to us.
C. Other Account Terms
- Security. It is your responsibility to protect the devices on which you access your Series Account, your Series Card(s), the username, password, biometrics or other data you use to log into the App (Access Credentials). Do not share this information with anyone. If you give another person permission to use this information, you may be held fully liable for any transactions they make with your Series Account, even if that person exceeded the authority you gave them. Please notify us immediately if you believe your Series Account has been accessed without your permission. See the Electronic Fund Transfer Agreement and Section III.E of this Agreement for more information about your rights and responsibility in the event of unauthorized use of your Series Account.
- Assignment of Agreement and Successors. You may not assign or transfer any interest in your Series Account unless we agree in writing. Any permitted assignment of your Series Account is subject to our setoff rights. This Agreement will be binding on your personal representative, executors, administrators and successors, and on our successors and assigns.
- Power of Attorney. A power of attorney is a document you sign that authorizes someone else, called the agent, to act on your behalf. If you sign a power of attorney, the agent can sign on your behalf and do anything you could do regarding your Series Account, including withdrawing or spending all of the money in your Deposit Account. Do not sign a power of attorney unless you trust the agent to act in your best interest. If you choose to add an agent, you must provide a power of attorney form that we agree to accept. We may rely on a copy of an original power of attorney. We are not required to investigate the facts relating to any power of attorney provided to us on your behalf, including whether your signature on the power of attorney is authentic or whether the agent continues to have authority. We may follow or refuse to follow the agent instructions at any time, including if we suspect fraud or abuse on your Series Account, unless applicable law requires otherwise. We may also refuse an agent request to become a joint owner or a beneficiary of a Series Account, but we have no liability to anyone if we do so. We have no liability when we follow or refuse to follow any instructions from an agent, for example, if your agent misuses the authority you have given them.
- Death or Incompetence. You agree to notify us promptly if any person with a right to use your Series Account dies or is adjudicated incompetent. We may continue to honor your transactions and instructions until: (a) we know of your death or adjudication of incompetence, and (b) we have had a reasonable opportunity to act on that knowledge. You agree that we may pay or certify transactions made on or before the date of death or adjudication of incompetence for up to 10 days after your death or adjudication of incompetence unless ordered to stop payment by someone claiming an interest in the Series Account.
- No Waiver. If we fail to exercise any right, that does not mean that we waive that right or any other right, and we may still enforce all of our rights in the future.
- Headings and Rules of Construction. The headings in this Agreement are for convenience or reference only and will not govern the interpretation of the provisions. Unless it would be inconsistent to do so, words and phrases used in this Agreement should be construed so the singular includes the plural and the plural includes the singular.
- Changes to this Agreement. We may change the terms and conditions of this Agreement, including fees and features of your Series Account, at any time. We will notify you in advance of any such change when required by applicable law. If we have notified you of a change to this Agreement and you continue to use your Series Account after the effective date of the change, you have agreed to the change. Notices will be made available on our App and website, or delivered electronically using the most recent contact information we have on file for you.
- Legal Actions Affecting Your Account. If we are served with a subpoena, restraining order, writ of attachment or execution, levy, garnishment, search warrant, or similar order relating to your Series Account (Legal Action), we will comply with that Legal Action. Or, in our discretion, we may freeze the assets in your Deposit Account and not allow any payments out of your Deposit Account, or use of the Series Card(s) for obligations secured by your Deposit Account, until a final court determination regarding the legal action. We may do these things even if the legal action involves less than all of your funds in your Deposit Account. In these cases, we will not have any liability to you if there are insufficient funds to pay your items because we have withdrawn funds from your Deposit Account or in any way restricted access to your funds in accordance with the legal action. Any fees or expenses we incur in responding to any legal action (including attorneys' fees and our internal expenses) may be charged against your Series Account. The Fee Schedule may specify additional fees that we may charge for certain legal actions.
- Illegal Activities. You agree not to use your Series Account for any illegal activity. We may refuse any gambling transaction, whether lawful or not.
- Inactive and Unclaimed Accounts. Each state has laws that govern when accounts are considered inactive or abandoned, and when we are required to send a customer funds to the state. We encourage you to make sure your Series Account remains active by signing in to the App or making transactions. After a specified period of time determined by the law of the state of your residence (as shown in our records), if we are not able to locate you, we will be required to deliver your Deposit Account to the state as abandoned property. You will then need to apply to the state for return of your funds. If your Series Account is or has been inactive, we may, in our discretion, refuse to honor requests for withdrawals or other transactions on your Series Account until after we have verified that you have authorized the request.
- Reporting to Consumer Reporting Agency; Disputes. We may report information about you or your Series Account to a consumer reporting agency. If you believe that we have reported inaccurate or incomplete information about your Series Account to a consumer reporting agency, you have the right to file a dispute with that consumer reporting agency. You may also submit a dispute directly to us by writing to us at firstname.lastname@example.org. Provide your name, address and phone number; your Series Account number; the specific information you are disputing; an explanation of why it is inaccurate or incomplete; and any supporting documentation.
- Rules Governing Your Account. Except as otherwise provided in the Arbitration Agreement, this Agreement and your Series Account are subject to applicable federal laws, the laws of the State of Tennessee without regard to internal principles of conflicts of law, and other applicable rules such as the operating letters of the Federal Reserve Banks and payment processing system rules (except to the extent that this Agreement can and does vary such rules or laws). Changes in these laws may change the terms and conditions of your Series Account. We will notify you of any changes as required by law. Except as otherwise provided in theArbitration Agreement, if any provision of this Agreement is found to be unenforceable according to its terms, all remaining provisions will continue in full force and effect. If this Agreement conflicts with any statements made by one of our employees or by a third-party service provider, this Agreement will govern.
- Fees. You agree to the terms of this Agreement and the Fee Schedule. You authorize us to deduct these charges, without notice to you, directly from the balance as accrued. You will pay any additional reasonable charges for services you request which are not covered by this Agreement.
- Attorneys' Fees Resulting from Collection or Dispute. You will be liable for our costs as well as for our reasonable attorneys' fees, to the extent permitted by law, whether incurred as a result of collection or in any other dispute involving your Series Account. This includes you and any Authorized User(s); or a third party claiming an interest in your Series Account. This also includes any action that you or a third party takes regarding the Series Account that causes us, in good faith, to seek the advice of an attorney, whether or not we become involved in the dispute. All costs and attorneys' fees can be deducted from your Deposit Account balance when they are incurred, without notice to you.
- Limitation of Liability. You agree that we, our service providers, agents, officers, directors, and employees (and the same of our service providers, subsidiaries and affiliates themselves) (collectively, the Indemnified Parties) will not be liable for anything we do when following your instructions. In addition, the Indemnified Parties will not be liable if any such Indemnified Party does not follow your instructions if we reasonably believe that your instructions would expose us to potential loss or civil or criminal liability, or conflict with customary banking practices. To the extent you are entitled to relief under this Agreement, the total liability of the Indemnified Parties to you will not exceed $500, except as otherwise required by applicable law. THE INDEMNIFIED PARTIES WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES REGARDLESS OF THE FORM OF ACTION AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF WE FAIL TO STOP PAYMENT ON AN ITEM, OR PAY AN ITEM BEARING AN UNAUTHORIZED SIGNATURE, FORGED SIGNATURE, OR FORGED ENDORSEMENT OR ALTERATION, OUR LIABILITY, IF ANY, WILL BE LIMITED TO THE FACE AMOUNT OF THE ITEM. This section will survive termination of your Series Account and termination of this Agreement.
- Indemnification. You agree to indemnify and hold the Indemnified Parties harmless from and against losses arising in connection with the services provided under this Agreement, except for losses arising out of our own gross negligence or willful misconduct. You further agree to hold the Indemnified Parties harmless from losses arising out of actions taken or omitted in good faith by any Indemnified Party in reliance upon instructions from you. The Indemnified Parties are not responsible for any actions or omissions by any third party. If you give us instructions that we believe may expose us to potential liability, we may refuse to follow your instructions and we will not be liable to you if we refuse to follow your instructions. If we do choose to follow your instructions, we may ask you for certain protections such as a surety bond or an indemnity agreement in a form that is satisfactory to us. This section will survive termination of your Series Account and termination of this Agreement.
- Filing a Lawsuit or Arbitration. You must file any lawsuit or arbitration against the Indemnified Parties within two years after the cause of action arises, unless federal or state law or an applicable agreement provides for a shorter time. This limit is in addition to limits on notice as a condition to making a claim. If applicable state law does not permit contractual shortening of the time during which a lawsuit must be filed to a period as short as two years, you and we agree to the shortest permitted time under that state laws. We abide by applicable federal and state record retention laws and may dispose of any records that we retained or preserved for the period set forth in these laws. Any action against us or another Indemnified Party must be brought within the period that the law requires us to preserve records, unless applicable law or this Agreement provides a shorter limitation period or applicable law requires a longer limitation period. This section is subject to Section V.C.22, which may require you to submit your claims to arbitration. This section will survive termination of your Series Account and termination of this Agreement.YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE BANK OR ANY OTHER INDEMNIFIED PARTY ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
- Location of Legal Proceedings. If you file any lawsuit or other legal proceeding against an Indemnified Party that is connected in any way to your Series Account or services, you agree to do so in an appropriate court in the State of Tennessee. If we file any lawsuit or legal proceeding that is connected in any way to your Series Account or this Agreement, you consent to jurisdiction and venue in an appropriate court in the State of Tennessee. If any party chooses to have disputes resolved by arbitration, the Arbitration Agreement governs the process and location of the arbitration proceedings.
- Pre-Judgment Interest Rate. If either you or we are awarded a judgment against the other in connection with your Series Account, the rate of interest earned before judgment on the judgment amount will be the rate of interest your Deposit Account earned during that period unless state law requires a different rate.
- Unlawful Internet Gambling Notice. Restricted transactions as defined in Federal Reserve Regulation GG are prohibited from being processed through this Series Account or relationship. Restricted transactions generally include those in which credit, electronic fund transfers, checks, or drafts are knowingly accepted by gambling businesses in connection with the participation by others in unlawful Internet gambling.
- Severability. Any provision of this Agreement that limits the Bank liability does not negate the Bank duty (if any) under applicable law to act in good faith and with ordinary care. If any provision of this Agreement is determined to limit the Bank liability in a way prohibited by applicable law, or to be otherwise unenforceable, the parties agree to replace such provision with a provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable, and this Agreement will be enforceable as so modified.
- ARBITRATION AGREEMENT PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS. YOU HAVE THE RIGHT TO OPT OUT OF THIS ARBITRATION AGREEMENT AS DESCRIBED BELOW.Agreement to Arbitrate This section is referred to as the Arbitration Agreement. If you have a dispute with the Bank or any other Indemnified Party, and are not able to resolve the dispute informally, you and we agree that upon demand by you, the Bank or any other Indemnified Party, the dispute will be resolved through the arbitration process set forth in this section.Arbitration You agree that if you have a dispute or claim that has arisen or may arise between you and the Bank or any other Indemnified Party, whether arising out of or relating to this Agreement (including any alleged breach), your Series Account and services provided under this Agreement, any advertising, any aspect of the relationship or transactions between us, and you are not able to resolve the dispute or claim informally, you and we agree that upon demand by you, the Bank or any other Indemnified Party, the dispute or claim will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement. except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Arbitration Agreement, you and the Bank are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.Parties Subject to this Arbitration Agreement This Arbitration Agreement applies whenever there is a claim between you and us. If a third party, such as an Indemnified Party other than the Bank, is also involved in a claim between you and us, or if a dispute arises between you and an Indemnified Party other than the Bank relating to this Agreement or your Series Account, then the claim will be decided with respect to the third party in arbitration as well, in accordance with this Arbitration Agreement, and it must be named as a party in accordance with the rules of procedure governing the arbitration. No award or relief will be granted by the arbitrator except on behalf of, or against, a named party.THIS ARBITRATION AGREEMENT DOES NOT APPLY TO YOU IF, AS OF THE DATE OF THIS AGREEMENT, YOU ARE A COVERED BORROWER UNDER THE FEDERAL MILITARY LENDING ACT. IF YOU WOULD LIKE MORE INFORMATION ABOUT WHETHER YOU ARE COVERED BY THE MILITARY LENDING ACT, IN WHICH CASE THIS ARBITRATION PROVISION DOES NOT APPLY TO YOU, PLEASE CONTACT US AT email@example.com Exclusions You and we retain the right to pursue in small claims court (or an equivalent state court) any dispute that is within that court jurisdiction, so long as the disputes remain in such court and advance only an individual claim for relief. If either you or we fail to submit to binding arbitration of an arbitrable dispute following lawful demand, the party so failing will bear all costs and expenses incurred by the other in compelling arbitration.Your Right to Opt Out If you do not want this Arbitration Agreement to apply to your Series Account, you may opt out by sending us written notice of your decision within 30 days of the opening of your Series Account. Such notice must clearly state that you wish to cancel or opt out of the Arbitration Agreement section of this Agreement. It should include your name, address, Series Account number, and your signature and must be mailed to Series ATTN: LEGAL, 2660 3 Street, Apt 211, San Francisco, CA 94107. This is the sole and only method by which you can opt out of this Arbitration Agreement. Your exercise of the right to opt-out will not affect any remaining terms of this Agreement and will not result in any adverse consequence to you or your Series Account. You agree that our business records will be final and conclusive evidence with respect to whether you cancelled or opted out of this Arbitration Agreement in a timely and proper fashion.
Prohibition of Class and Representative Actions and Non-Individualized Relief YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE BANK OR ANY OTHER INDEMNIFIED PARTY ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND THE BANK AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON OR PARTY CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION. Pre-Arbitration Dispute Resolution The Bank and Indemnified Parties are always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to your satisfaction by emailing customer support firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (Notice). The Notice to the Bank or Indemnified Party should be sent to Series, 2660 3rd Street, Apt 211, San Francisco, CA 94107. The Notice must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought. If you do not resolve the claim with the Bank or Indemnified Party within 60 calendar days after the Notice is received, you or the Bank or Indemnified Party, as applicable, may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by any party will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or the Bank is entitled.
Arbitration Procedures Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association (AAA) rules and procedures, including the AAA Consumer Arbitration Rules (collectively, the AAA Rules), as modified by thisArbitration Agreement. For information on the AAA, please visit its website,http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA consumer arbitration page,http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistentArbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of thisArbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless the parties to the arbitration agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Costs of Arbitration Payment of all filing, administration, and arbitrator fees (collectively, the Arbitration Fees) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, the Bank will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, the Bank will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, the Bank will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys' fees will be governed by the AAA Rules.Confidentiality All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.Severability If a court or the arbitrator decides that any term or provision of thisArbitration Agreement (other than theProhibition of Class and Representative Actions and Non-Individualized Reliefsection above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and thisArbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of theProhibition of Class and Representative Actions and Non-Individualized Reliefsection are invalid or unenforceable, then the entirety of thisArbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of thisArbitration Agreement will continue to apply.
Future Changes to this Arbitration AGREEMENT Notwithstanding any provision in this Agreement to the contrary, if the Bank makes any future change to thisArbitration Agreement (other than a change to the Notice Address) while you have a Series Account, you may reject any such change by sending the Bank written notice within 30 days of the change to the Notice Address. By rejecting any future change, you are agreeing that you will arbitrate any dispute covered by thisArbitration Agreement in accordance with the terms of thisArbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
This Fee Schedule lists the fees that may be applicable to your Series Account. You agree to pay all fees applicable to your Series Account. We reserve the right to add or change fees at a later time, and we will notify you of any changes to our fees and this Fee Schedule, as required by applicable law. We may subtract these fees from your balance, even if the fee makes your balance negative.
Series Banking Services FeesSeries will apply the following fees:
Account Monthly Fee
- $0 per account
- Incoming: $0 per ACH transfer received
- Outgoing: $0 per ACH transfer sent
- Incoming: $0 per wire transfer received
- Outgoing: $0 per wire transfer sent
- Incoming: $0 per wire transfer received
- Outgoing: $0 per wire transfer sent
Remote Check Deposit
- $0 per check
- $0 per transaction
- $0 per transaction
- $0 per transaction
- $0 per transaction
FUNDS AVAILABILITY POLICY
PURPOSE. The information here describes our policy of holding deposited items in a Deposit Account before funds are made available to you for withdrawal.
DETERMINING THE AVAILABILITY OF YOUR DEPOSIT. Our policy is to delay the availability of funds from your deposits. The length of the delay varies based on the type of deposit as set forth below. During the delay, you may not withdraw the funds, and we will not pay transactions from your Deposit Account using these funds.
The length of the delay is counted in Business Days from the day of your deposit. If you make a deposit before 2:00PM PT on a Business Day, we will consider that day to be the day of your deposit. However, if you make a deposit after 2:00PM PT or on a day that is not a Business Day, we will consider the deposit made on the next Business Day.
Same Day Availability. Electronic direct deposits (e.g., ACH, person-to-person transfers, and other EFTs your Deposit Account supports) will be available on the day we receive your deposit.
Next Day Availability. Funds from the following deposits are available on the first Business Day after the day we receive your deposit:
- The first $200.00 of check deposits.
Second Business Day. Unless otherwise provided by this Agreement, all other funds from deposits will be made on the second Business Day after the day of your deposit.
Longer Delays May Apply. Funds you deposit may be delayed for longer than two Business Days under the following circumstances:
- We believe a you initiated will not be honored;
- Your deposits total more than $2,500 in any one day;
- You have overdrawn your Deposit Account repeatedly in the last six months; or
- There is an emergency, such as failure of communications or our systems.
- If we delay availability for one of these reasons, funds may not be available until the seventh Business Day after the day of your deposit. We will notify you if we delay your ability to withdraw funds for any of these reasons, and we will tell you when the funds will be available. If you will need the funds from a deposit right away, you should ask us when the funds will be available.
Special Rules for New Accounts. If you are a new customer, the following special rules will apply during the first 60 days your Deposit Account is open.
- Funds from electronic direct deposits to your Deposit Account will be available on the first Business Day after we receive the deposit.
- Funds from deposits of cash, wire transfers, and the first $2,500 of a day's total deposits of cashier's, certified, teller's, traveler's, and federal, state and local government checks will be available on the first Business Day after the day of your deposit if the deposit meets certain conditions.
- The excess over $2,500 will be available no later than the ninth Business Day after the day of your deposit.
- Funds from all other deposits will be available on the third Business Day after the day of your deposit.
Your Responsibility for Deposits. Even if we have made funds available to you and you have withdrawn the funds, you are still responsible for deposits that are returned to us unpaid and for any other problems involving your deposit.
ELECTRONIC FUND TRANSFER AGREEMENT
Electronic Fund Transfers: Your Rights and Responsibilities
This disclosure contains important information about your use of electronic fund transfer (EFT) services provided by the Bank in connection with your Series Account. Whenever you accept or authorize EFTs to your Deposit Account, you agree to these terms and conditions, in addition to any other applicable limitations in this Agreement concerning deposits to and withdrawals from your Deposit Account. Please read this document carefully and retain it for future reference.
Business Days. Our Business Days are every day except Saturdays, Sundays, and holidays on which banks in California are legally authorized to be closed.
Types of Available EFTs
- Online ACH Transfers. You may use the App and request ACH transfers between your Deposit Account and a Linked External Account.
- P2P Transfers. You can make or receive transfers between your Deposit Account and the Deposit Account of another Series user, using the person-to-person transfer services (P2P Transfer) provided in the App. P2P Transfers are subject to additional terms and conditions.
Limits on the Type, Frequency or Amount of EFTs. Your Deposit Account may be subject to limitations on the amount or number of withdrawals that you may make from your Deposit Account, including EFTs. Please see Article IV of this Agreement and the Truth in Savings Disclosures. For security reasons, we may also, in our sole discretion, set limits on the dollar amounts of EFTs and on the number of EFTs that may be requested or initiated. To protect the security of the Bank or your Deposit Account, we may suspend your use of EFTs, as permitted by law.
Managing Your Account Balance. You agree that the amount of any EFT debit transaction you authorize will not exceed the Available Balance in your Deposit Account used to make the transaction, or your Spending Limit. We do not have to allow any EFT that would create an overdraft in your Deposit Account. We may in our sole discretion choose to permit an EFT that would create an overdraft in your Deposit Account. If we are unable to complete an EFT or perform any other EFT service for any reason associated with your Deposit Account, the EFT or other service may not be completed and we will not notify you unless required by applicable law.
Your Rights and Responsibilities
The use of EFT services described in this Agreement creates certain rights and responsibilities regarding these services as described below.
Documentation of Your EFTs
Periodic Statements. All EFT transactions will be reported on your periodic statement. See Section II.A.8 of this Agreement for more information.
Direct Deposits. If you have arranged to have direct deposits made to your Deposit Account at least once every 60 days, the company making the deposit may tell you every time they send us the money. You may also email us email@example.com find out whether or not the deposit has been made.
Confirmation. You may write to us firstname.lastname@example.org to find out whether any EFT you request was successfully completed.
Preauthorized and Other Regular (Automatic) Debits
Right to Stop Payment and Procedure for Doing So
If you have told us in advance to make regular payments out of your Deposit Account, you can stop any of the payments. Here is how:
Email to us at email@example.com in time for us to receive your request three Business Days or more before the payment is scheduled to be made. If you contact us to stop a payment, please have the following information ready: your account number, the date the transfer is to be made, to whom the transfer is being made, and the amount of the scheduled transfer. If you call, we may also require you to put your request in writing and get it to us within 14 days after you call. We may charge you (see Fee Schedule for exact fees) for each stop-payment order you give. Stop-payment orders may expire after six months from the date of your stop-payment request, and you may be required to renew it in order to ensure its continued effectiveness.
Liability for Failure to Stop Payment of Preauthorized Transfer
If you order us to stop a preauthorized automatic debit three Business Days or more before the transfer is scheduled and we do not do so, we will be liable for your losses or damages.
Notice of Varying Amounts
If you have authorized regular payments out of your Deposit Account, and these regular payments may vary in amount, we or the person you are going to pay will tell you, 10 days before each payment, when it will be made and how much it will be. You may choose instead to get this notice only when the payment would differ by more than a certain amount from the previous payment, or when the amount would fall outside certain limits that you set.
Our Refusal to Pay a Preauthorized or Other Regular (Automatic) Debit
We reserve the right to refuse to pay a regular (automatic) debit, for example, if your Deposit Account has insufficient funds to cover such transfer or if we are unable to verify the ownership of or other information about the account to which the funds will be transferred. You may write to us firstname.lastname@example.org request information about a refusal by us to pay a regular (automatic) debit.
Your Liability for Unauthorized Transfers
During your online Series Account set-up, you will be invited to register your phone number and create Access Credentials to protect your Series Account from unauthorized access. You are responsible for maintaining ownership of the mobile device associated with the phone number and security of your other Access Credentials.
Tell us AT ONCE if you believe that any Access Credentials or device you use to access your Series Account has been lost or stolen, that an EFT has been made without your permission, or that someone has transferred or may transfer money from your Deposit Account without your authorization. You may write to us email@example.com or such other address as we may provide to you from time to time). Using our mobile chat messenger from the Series application is the best way of keeping your possible losses down. You could lose all the money in your Deposit Account. If you tell us within two Business Days after you learn of the loss or theft of your Access Credentials or device, your liability will be limited to $50 if someone accesses your Deposit Account without your authorization.
If you DO NOT tell us within two Business Days after you learn of the lost or theft of your Access Credentials or device, and we can prove we could have stopped someone from using your Access Credentials or device without your permission if you had told us, you could lose as much as $500.
Also, if your statement shows transfers that you did not make, tell us AT ONCE. If you do not tell us within 60 days after the statement was mailed to you, you may not get back any money you lost after the 60 days if we can prove that we could have stopped someone from taking the money had you told us in time. If a good reason (such as a long trip or a hospital stay) kept you from telling us, we will extend the time periods.
If you grant authority to make transfers to another person who exceeds the authority granted, you are fully liable for any transfers until you notify us that transfers by that person are no longer authorized.
In Case of Errors or Questions about your EFTs
Write to us firstname.lastname@example.org as soon as you can, if you think your statement or receipt is wrong or if you need more information about a transfer listed on the statement or receipt. We must hear from you no later than 60 days after we send the FIRST statement on which the problem or error appeared.
(1) Tell us your name and your account number (if any).
(2) Describe the error or transfer you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information.
(3) Tell us the dollar amount of the suspected error.
If you tell us orally, we may require that you send us your complaint or question in writing within 10 Business Days.
We will determine whether an error occurred within 10 Business Days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your Deposit Account within 10 Business Days for the amount you think is in error, so that you will have use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within 10 Business Days, we may not credit your Deposit Account.
For errors involving new Series Accounts, point-of-sale, or foreign-initiated transactions, we may take up to 90 days to investigate your complaint or question. For new Series Accounts, we may take up to 20 days to credit your Deposit Account for the amount you think is in error.
We will tell you the results within three Business Days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation.
Our Liability for Failure to Make a Transfer. If we do not complete a transfer to or from your Deposit Account on time or in the correct amount according to this Agreement, we will be liable for your losses or damages. However, there are some exceptions. We will not be liable, for instance:
- If, through no fault of ours, you do not have enough money in your Deposit Account to make the transfer.
- If the transfer would go over the credit limit on your overdraft line of credit, if you have one.
- If an automated teller machine where you are making a transfer does not have enough cash. If a system or terminal you use to make a transfer was not working properly and you knew about the breakdown when you started the transfer.
- If circumstances beyond our control (such as fire or flood) prevent the transfer despite reasonable precautions that we have taken.
- There may be other exceptions stated in this Agreement.
Charges for Transfers or the Right to Make Transfers
We may assess a fee for each EFT, or stop-payment order. Please see the applicable Fee Schedule to determine the applicable amount. The circumstances under which such charges will be assessed, as well as the amount of the charge, are included in the current Fee Schedule.
We will disclose information to third parties about your Series Account or the transfers you make:
(1) Where it is necessary for completing transfers;
(2) In order to verify the existence and condition of your Series Account for a third party, such as a credit bureau or merchant;
(3) In order to comply with government agency or court orders;
(4) To persons authorized by law in the course of their official duties;
(5) To our employees, auditors, service providers, attorneys, or collection agents in the course of their duties;
(6) As disclosed in our Privacy Notice; and,
(7) If you give us your written permission.
Amendments. We may change any provision of thisElectronic Fund Transfer Agreement in our discretion. If we do, we will give you notice if and to the extent required by applicable law.
Termination. We reserve the right to terminate your use of any or all of our EFT services for any reason and at any time without notifying you. You also have the right to terminate your use of the EFT services described in this Agreement at any time by calling us or writing to us. If you call, we may require you to put your request in writing and get it to us within 10 Business Days after you call. (Please note that e-mail, SMS/text or online notification will not meet the notice requirements of this section.) If you terminate your use of our EFT services and you have arranged for automatic (regular) transfers involving third parties, you are required to inform any third parties that the transfers will cease. Any termination of your use of our EFT services, whether initiated by you or us, will not affect any of your or our rights and obligations under this Agreement that have arisen before the effective date of such termination.
Series Visa Commercial Cardholder Agreement
- Terms and Conditions for Series Visa Card
This Cardholder Agreement (“Agreement”) outlines the terms and conditions under which the Series Visa (the “Card”) has been issued to you by Evolve Bank & Trust (Member FDIC) (the “Bank”). The Bank has retained a Program Manager to provide certain services on the Bank’s behalf. “Program Manager” for the Series Visa is Solid Financial Technologies, Inc. “Card Account” means the records we maintain to account for the value of transactions associated with the Card. "You" and "your" means the person or persons who have received the Card and who are authorized to use the Card as provided for in this Agreement. “We,” “us,” and “our” means the Bank, our successors, affiliates, assignees and our third-party service providers. The Card will remain the property of the Bank and must be surrendered upon demand. The Card is nontransferable, and it may be canceled, repossessed, or revoked at any time without prior notice, subject to applicable law. Please read this Agreement carefully and keep it for future reference.
This Agreement is provided to you in electronic format pursuant to the E-Signature and Electronic Disclosure Agreement that you accepted and agreed to when you opened your Card Account. By accepting and/or using this Card, you agree to be bound by the terms and conditions contained in this Agreement.
Please keep for future reference the customer service telephone number, (707) 492-5949, or the toll-free telephone number on the back of your Card in case the Card is lost, stolen or destroyed.
THIS AGREEMENT IS SUBJECT TO MANDATORY ARBITRATION PURSUANT TO THE FEDERAL ARBITRATION ACT AND A WAIVER OF CLASS ACTION PROVISION. SEE SECTION XIX BELOW.
- The Card
- The Card is a debit card that is funded by your Card Account. The Card allows you to access funds deposited to your Card Account by you or on your behalf. The funds in your Card Account will be FDIC-insured pursuant and subject to applicable law. You may access the funds in your Card Account by using your Card or Card Number or by Automated Clearing House (“ACH”) debit using your Account Number. The Card is not a credit card or a gift card and may not be gifted, sold or transferred. You will not receive any interest on your funds in the Card Account. The expiration date of the Card is listed on the Card. However, the funds in your Card Account will not expire, regardless of the expiration date listed on the Card. If your Card Account becomes inactive and subject to escheatment under state law, we may remit funds in your Card Account to the state of your residence, and you may claim the funds from the state.
- You agree that the Card will be used primarily for personal, family and household purposes only and not for business use. You may not use the Card for illegal gambling or any other illegal transaction. We reserve the right to cancel, close or restrict use of the Card and Card Account, including by refusing the processing of any transaction, if we believe you have violated this Agreement or any applicable law.
- You must activate the Card and complete the activation process, including setting a Personal Identification Number (“PIN”), before it may be used. You should memorize your PIN and not write down your PIN or keep your PIN with your Card. If you believe that anyone has gained unauthorized access to your PIN, you should advise the Bank and Program Manager immediately, following the procedures in Section XVII (Your Liability for Unauthorized Transfers) below. You may need to provide personal information in order for your identity to be verified and for completion of the activation process. You agree to sign the back of the Card immediately upon receipt.
- Virtual Card. You may have the option of accessing your Account with, in addition to your physical card, a virtual card represented by a 16-digit account number (“Virtual Card”). The Virtual Card may either be single-use, meaning the 16-digit account number will expire after a single transaction, or recurring-use, meaning you may use your 16 digit account number for multiple transactions. You may not use your Virtual Card to obtain cash anywhere.
The fees relating to the use (including misuse) of your Card or Card Account are set forth in this Agreement and the attached fees exhibit (Exhibit 1) (the “Fees”). Exhibit 1 is incorporated herein by reference. Fees incurred pursuant to the terms of this Agreement will be withdrawn from your Card Account and will be assessed even if there is no remaining balance in your Card Account, unless prohibited by law. You agree to pay all Fees associated with the Card. We may from time to time amend the Fees, at our sole discretion, as set forth in Section XX (Other Terms). If you request a service that is not included in Exhibit 1 and there is a fee for such service, such fee will be disclosed at the time you request the service and you agree that any such fee may be deducted from your Card Account.
- Authorized Users
You are responsible for all authorized transactions initiated and fees incurred by use of the Card. If you permit another person to have access to the Card or Card number, we will treat this as if you have authorized such use and you will be liable for all transactions and fees incurred by those persons
- Authorized Representatives. “Authorized Representatives" are persons with authority to act on your behalf. Unless a restriction that we have acknowledged in writing is specifically stated in your authorizing resolution: (i) an Authorized Representative will have authority to appoint the authorized users or secondary cardholders; and (ii) each Authorized Representative may do these things acting alone, unless we require otherwise. We may, but are not obligated to, accept oral instructions from your Authorized Representatives. As between you and us, all actions of an Authorized Representative shall be deemed within the scope of such person’s authority. We are not required to verify or confirm the purpose or propriety of any action by your Authorized Representatives and are not re- sponsible for any misapplication or misappropriation of funds by your Authorized Representatives.
- B. Secondary Cardholder. You may be allowed to issue additional Cards linked to your Account to a secondary cardholder(s). We will treat the transactions initiated by the secondary cardholder as authorized by you and you will be liable for all transactions, fees and other liabilities related to such secondary cardholder.
- Using the Card and Card Account and Limits
Subject to the limitations set forth in this Agreement, you may use your Card and Card Account, as applicable, to access funds in your Card Account, including to purchase goods or services wherever your Card is honored as long as you do not exceed the value available in your Card Account and aggregate purchases do not exceed the limits set forth in Exhibit 2. There may be Fees associated with some of these transactions. For fee information, see the Exhibit 1 attached to this Agreement.
- You will be provided with the Bank’s routing number and assigned a 16 digit account number (the “Account Number”) once your identity has been verified. The Bank’s routing number and your assigned Account Number are for the purpose of initiating direct deposits to your Card Account and authorized ACH debit transactions only. If you do not have sufficient funds in your Card Account, debits to your Card Account may be declined and your payment will not be processed. You also may be assessed an ACH decline fee (see Exhibit 1).
- With your PIN, the Card may be used to obtain cash at any Automated Teller Machine (“ATM”) in the U.S. displaying the Visa or MoneyPass acceptance marks, subject to your applicable daily cash withdrawal limit set forth in Exhibit 2. The Card cannot be used at international ATMs without prior notice. Fees may apply (see Exhibit 1 for details). ATM owner-operators may impose their own fees and lower limits on cash withdrawals. All ATM transactions are treated as cash withdrawal transactions and subject to your daily cash withdrawal limit. You may use your PIN at any Point of Sale (“POS”) device, as permitted by a merchant that bears the Interlink acceptance marks, and subject to your daily purchase limit. Each time you use the Card, you authorize the Bank to reduce the value available in your Card Account balance by the amount of the transaction and any applicable fees.
- Foreign Transactions. The Card may only be used to conduct transactions within the 50 United States, District of Columbia and U.S. Territories (Puerto Rico, Guam, Northern Marianas, the U.S. Virgin Islands, and American Samoa). The Card may be used to conduct international transactions, including, without limitation, transactions conducted on international merchant websites or mobile applications accessible within the United States; provided the merchant accepts the Visa or any other logo on the Card. All debits to your Card Account will be posted in U.S. dollars. Transactions made in a foreign currency are converted into U.S. dollar amounts by Visa, using its then current currency conversion procedure and rate. The currency conversion rate used on the processing date may differ from the rate in effect on the transaction date or periodic statement posting date. Foreign transactions are subject to foreign transaction fees, as set forth in Exhibit 1, and will be included in the amount charged to your Card Account.
- Card Not Present Transactions. If you initiate a transaction without presenting your Card (such as for a mail order, internet or telephone purchase or an ACH debit), the legal effect will be the same as if you used the Card itself. For security reasons, the amount or number of such transactions you may make may be limited.
- The total amount of purchases, transfers, reloads and cash withdrawals (including withdrawals inside a bank office) that you can perform in any single day or over any other period is limited to the amounts set forth in the enclosed Exhibit 2. For security reasons, you may be further limited as to the number or dollar amount of transactions you can make with your Card. We may, at our discretion, modify the limits from time to time. You will be notified of any change in the manner provided by applicable law prior to the effective date. Card limits are subject to periodic review and may be changed based on your Card Account history, activity, and other factors, including but not limited to your Card activity. We retain sole discretion to apply and change limits.
- You may add funds to your Card Account at any time. The maximum deposit amount is set forth in Exhibit 2. You agree to present the Card and meet identification requirements to complete deposit transactions as may be required from time to time. Deposit locations may have their own deposit limits that may be less than our allowable amount. Deposit locations also may assess a fee to deposit funds to your Card Account. You also may direct deposit funds to your Card Account by providing the Bank’s routing number and your assigned Account Number to your employer or other direct deposit payor. You cannot deposit funds into your Card Account by check or money order.
- Split Transactions and Authorization Holds
- Split Transactions. If you do not have sufficient funds in your Card Account, you can instruct the merchant to charge a part of the purchase to the Card and pay the remaining amount with cash or another card. These are called “split transactions.” Some merchants do not allow cardholders to conduct split transactions. Some merchants will only allow you to do a split transaction if you pay the remaining amount in cash. If you fail to inform the merchant that you would like to complete a split transaction before swiping your Card, your Card is likely to be declined.
- Authorization Holds. When you use your Card to purchase goods or services or to make a cash back withdrawal transaction, the merchant may attempt to obtain preauthorization for the transaction. If the merchant makes such a request, a “hold” is placed on your Card Account balance for the amount of the preauthorization request (which may vary in some cases from the amount of the actual purchase, depending on the merchant or purchase type), until the merchant sends the final payment amount of your purchase, or for up to sixty (60) days, even if you fail to make the purchase. During the hold period, you may not have access to the preauthorized amount in your Card Account. We will not be responsible if any transactions are not completed because of the hold. If the preauthorization request varies from the amount of the actual transaction, the actual transaction amount will be debited from your Card Account, even if this results in your Card Account balance becoming negative. You remain responsible for any negative balances in your Card Account. If you use the Card at an automated fuel dispenser (“pay at the pump”), the transaction may be preauthorized for an amount up to $100.00. If the Card is declined, but you have sufficient funds available in your Card Account, you should use the Card to pay for the purchase inside with the cashier. If you use the Card at a restaurant, a hotel, for a car rental purchase, or for similar purchases, the transaction may be preauthorized for the purchase amount plus up to 20% to ensure there are sufficient funds available to cover tips or incidental expenses incurred. You do not have the right to stop payment on any purchase or payment transaction originated by use of the Card.
VII. Obligation for Negative Balances
Each time you initiate a Card transaction, you authorize the Bank to reduce the funds available in your Card Account by the amount of the transaction and all associated fees. You are not allowed to exceed the available amount in your Card Account through an individual transaction or a series of transactions (creating a “negative balance”). Nevertheless, if any transaction causes the balance in your Card Account to go negative, including any purchase transactions where the retailer or merchant does not request authorization, you shall remain fully liable to us for the amount of any negative balance and any corresponding transaction fees. You may also be liable for any related Insufficient Funds/NSF Fee(s) as set forth in Exhibit 1. We reserve the right to bill you for any negative balance or to recoup such negative balance from any other Card we have issued to you. You agree to pay us promptly for the negative balance and any related fees. We also reserve the right to cancel your Card if you create one or more negative balances with your Card. If you fail to pay us amounts owed under this Agreement, we may refer your Card Account and collection of amounts owed to a collection agency.
VIII. Recurring Transactions
If you intend to use your Card for recurring transactions, you should monitor your balance and ensure you have funds available in your Card Account to cover the transactions. “Recurring transactions” are transactions that are authorized in advance by you to be charged to your Card at substantially regular intervals. We are not responsible if a recurring transaction is declined because you have not maintained a sufficient balance in your Card Account to cover the transaction. If these recurring transactions vary in amount, the recipient of the recurring transaction should inform you, ten (10) days before each payment, when it will be made and how much it will be. You may choose instead to get this notice only when the payment would differ by more than a certain amount from the previous payment, or when the amount would fall outside certain limits that you set. If you have provided instructions for recurring transactions from your Card Account, you can stop the payment by notifying us orally at (707) 492-5949 or in writing to email@example.com at least three (3) business days before the scheduled date of the transfer. If you call, we also may require you to put your request in writing and get it to us within fourteen (14) days after you call. If you order us to stop one of these payments three (3) business days or more before the transfer is scheduled, we will be liable for your direct losses or damages. If you have authorized a merchant to make the recurring transaction, you also should contact the applicable merchant in order to stop the recurring transaction.
- Preauthorized Credit.
If you have arranged to have direct deposits made to your Card Account at least once every sixty (60) days from the same person or company and you do not receive a receipt/statement (paystub), you can call us at (707) 492-5949 to find out whether or not the deposit was made.
You may obtain information about the amount of funds available in your Card Account by using the Program Manger’s mobile application or visiting the Program Manager’s website. This information, along with a 12-month history of Card transactions, is available by logging into your account using the Program Manager’s mobile application or website. You also have a right to obtain a 24-month written history of Card transactions by sending an email to firstname.lastname@example.org or by calling (707) 492-5949. Pursuant to the E-Signature and Electronic Disclosure Agreement, we will deliver any account statements required by law to you in electronic form. This means you will not automatically receive paper statements. You are responsible for keeping track of your available Card Account balance. Merchants generally will not be able to determine your available balance. It is important to know your available Card Account balance before making any transaction.
- Return and Refunds
If you are entitled to a refund for any reason for goods or services obtained with the Card, you agree to accept credits to your Card Account for refunds and agree to the refund policy of the merchant. Neither the Bank nor Program Manager is responsible for the delivery, quality, safety, legality or any other aspects of the goods or services you purchase from others with the Card. If you have a problem with a purchase you made with the Card, or if you have a dispute with the merchant, you must handle it directly with the merchant. The amounts credited to your Card for refunds may not be available for up to five (5) days from the date the refund transaction occurs.
You should get or request a receipt at the time you make a transaction or obtain cash using your Card. You agree to retain your receipts to verify your transactions. You can get a receipt at the time you make a withdrawal from your Card Account using one of our ATM terminals (if available)
XIII.CARD CANCELLATION, SUSPENSION AND LIMITS AND CARD REPLACEMENT
We reserve the right, at any time and in our sole discretion, to limit your use of the Card, including limiting or prohibiting specific types of transactions. The Bank may refuse to issue a Card, revoke Card privileges or cancel your Card with or without cause or notice, other than as required by applicable law. If you would like to cancel the use of your Card, you may do so by calling (707) 492-5949 or the number on the back of your Card. You agree not to use or allow others to use an expired, revoked, cancelled, suspended or otherwise invalid Card. The cancellation of Card privileges will not otherwise affect your rights and obligations under this Agreement. Not all services described in this Agreement are available to all persons or at all locations. We reserve the right to limit, at our sole discretion, the provision of any such services to any person or in any location. Any offer of a service in this Agreement shall be deemed void where prohibited. We can waive or delay enforcement of any of their rights under this Agreement without losing them.
If you need to replace the Card for any reason, call (707) 492-5949 or send an email to email@example.com to request a replacement. You will be required to provide personal information which may include the last four digits of your Card number, your full name and knowledge of the Card transaction history. If you believe the Card has been lost or stolen, you may immediately disable it by calling us at (707) 492-5949. We may cancel any Card that has been disabled for sixty (60) calendar days or longer.
- Our Liability for Failure to Complete Transactions
In no event will Bank or Program Manager be liable for consequential damages (including lost profits), extraordinary damages, special or punitive damages. Neither Bank nor Program Manager will be liable, for instance: (1) if, through no fault of Program Manager or of the Bank, you do not have enough funds available in your Card Account to complete the transaction; (2) if a merchant refuses to accept your Card or provide cash back; (3) if an ATM where you are making a cash withdrawal does not have enough cash; (4) if an electronic terminal where you are making a transaction does not operate properly, and you knew about the problem when you initiated the transaction; (5) if access to your Card has been blocked after you reported your Card lost or stolen; (6) if there is a hold or your funds are subject to legal process or other encumbrance restricting their use; (7) if Program Manager or the Bank has reason to believe the requested transaction is unauthorized; (8) if circumstances beyond Program Manager or the Bank’s control (such as fire, flood or computer or communication failure) prevent the completion of the transaction, despite reasonable precautions that Program Manager or the Bank has taken; or (9) any other exception stated in this Agreement with you.
XVI. Lost or Stolen Cards or Unauthorized Transfers
If you believe your Card or PIN has been lost, stolen or compromised, call (707) 492-5949 or the number on the back of your Card or contact us by email at firstname.lastname@example.org or write us at 2660 3rd Street, Apt 211, San Francisco, CA 94107. You should also call us at the number set forth in this Section or write us at the address set forth in this Section if you believe an electronic transfer has been made using the information from your Card or Card Account without your permission.
XVII. Your Liability for Unauthorized Transactions
- Immediate Contact. The Card is a commercial Card and does not provide consumer protections for lost or stolen Cards or unauthorized transactions. Treat the Card like cash. Until you or an Authorized User reports a Card as lost or stolen or reports an unauthorized transaction on a Card, you are fully responsible for all transactions, even if the Card is lost, stolen or used for unauthorized transactions. Contact customer service IMMEDIATELY if you or Authorized User believes: (i) a Card has been lost or stolen, (ii) some- one has gained unauthorized access to any access information for your Card, or (iii) someone has transferred or may transfer funds from the Card without permission. Reporting a lost/stolen Card or unauthorized transactions through (707) 492-5949 or emailing us at email@example.com or by logging into the Website to deactivate the Card is the best way to minimize possible losses.
- Visa Zero Liability. Under Visa Zero Liability Protection, you will not be held responsible for unauthorized transactions if you have used reasonable care in safeguarding your Card from loss or theft and you promptly reported to us when you became aware that your Card was lost or stolen. Visa Zero Liability applies to purchases made in store, over the telephone, online or via a mobile device and ATM transactions. Visa Zero Liability may not apply to certain Visa payment cards that are used for commercial purposes.
- Notifications After 60 Days of Your Statement is Made Available. If you become aware of and/or your statement shows transactions that you did not make, notify us immediately. however, if you fail to report an unauthorized use that appears on a periodic statement within 60 days of when your periodic statement was made available to you, 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.
- Your Responsibility. If you and Authorized User permit another person to have access to a Card, we will treat this as if you or Authorized User has authorized such person to use the Card, and you will be liable for all transactions and fees incurred by such person, even if they exceed the authorization granted. You will further be responsible for any transactions made and any fees incurred by the Authorized User even if the Authorized User exceeds the scope of the authority granted to such Authorized User by you. If you want to withdraw permission for an Authorized User to use a Card, then transactions made with the Card will be considered unauthorized only after you notify us that the per- son is no longer authorized to use the Card.
XVIII. Your Right to Dispute Errors
When an unauthorized transaction or other error occurs in the Card Account, including unauthorized transactions that occur because the Card has been lost or stolen, we will cover you for the full amount of every eligible unauthorized transaction or other error as long as you follow the procedures discussed in this Section. We must hear from you no later than sixty (60) days after we sent you the FIRST statement on which the problem or error appeared.
- Tell us your name and account number.
- Describe the error or transfer you are unsure about and explain as clearly as you can why you believe it is an error or why you need more information.
- Tell us the dollar amount of the suspected error.
If you tell us verbally, we may require that you send us your complaint or question in writing within ten (10) business days.
We will determine whether an error occurred within ten (10) business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to forty-five (45) days (ninety (90) days for those transactions at merchant POS terminals, processed on a new account, or initiated outside the United States) to investigate your complaint or question. If we decide to do this, we will credit your account within ten (10) business days for the amount you think is in error so that you will have full use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within ten (10) business days, we may not credit your account.
For errors involving new accounts (an account where the first deposit to the account occurs less than 30 days before the error), we may take up to twenty (20) business days to credit your account for the amount you think is in error.
We will tell you the results within three (3) business days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation.
XIX. Digital Wallet
- Adding a Card. You can add your Card to a digital wallet by following the instructions of the digital wallet. The digital wallet may not be accepted in all places where your Card is accepted. We may terminate the ability for you to add the Card to a digital wallet at any moment.
- Remove Your Card from the Digital Wallet. You should contact the digital wallet provider to remove a Card from the digital wallet. We can end or suspend your ability to use a Card with the Digital Wallet at any time.
- Card Responsibility. You are solely responsible for maintaining the security of your digital wallet credentials (including user identification, password or other access credentials). If you share these credentials with any other person, you expressly authorize them to access your personal information, access your accounts and initiate charges to your Cards using the digital wallet service.
- Fees. We currently do not impose a fee for using your Card at a Digital Wallet, but we reserve the right to impose a fee in the future. Please note that a Digital Wallet provider or another third party enabling or associated with your use of a Digital Wallet may charge a fee for using your Cards in a Digital Wallet.
- No Liability for the Digital Wallet. We are not provider of the digital wallet and we are not responsible for providing the digital wallet service to you. We are only responsible for supplying information securely to the digital wallet provider to enable usage of the Card in such digital wallet. We are not responsible for any failure of the digital wallet or the inability to use the digital wallet for any transaction. We are not responsible for the performance or non-performance of the digital wallet provider or any other third parties regarding any agreement you enter into with the digital wallet provider or associated third‐ party relationships that may impact your use of the digital wallet. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE DIGITAL WALLET SERVICE IS AT YOUR SOLE RISK, AND WE ARE NOT RESPONSIBLE FOR THE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, OR ACCURACY.
This Section sets forth the circumstances and procedures under which Claims (as defined below) shall be arbitrated instead of litigated in court upon the election of either party.
- Definitions: As used in this Arbitration Section, the term “Claim” means any claim, dispute or controversy between you and Bank, Program Manager or any of their agents or retailers, arising from or relating to the 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 Section or the Agreement. “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. 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 (i) your Card, or the Cards of any additional cardholders designated by you; (ii) the amount of available funds on the Cards; (iii) advertisements, promotions or oral or written statements related to the Cards, goods or services purchased with the Cards; (iv) the benefits and services related to the Cards; and/or (v) your enrollment for any Card. As used in this Arbitration Section, the terms “we” and “us” shall for all purposes mean the Bank, Program Manager, their respective wholly or majority owned subsidiaries, affiliates, licensees, predecessors, successors, and assigns, and all of their agents, employees, directors and representatives. In addition, “we” or “us” shall include any third party using or providing any product, service or benefit in connection with any Cards (including, but not limited to merchants who accept the Card, third parties who use or provide services, 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 us (or files a Claim with or against us) in connection with a Claim asserted by you. As solely used in this Arbitration Section, the terms “you” or “yours” shall mean all persons or entities approved by us to have and/or use a Card, including but not limited to all persons or entities contractually obligated under any of the Agreements and all additional cardholders.
- Initiation of Arbitration Proceeding/Selection 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 Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”), as selected by 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 thirty (30) days after you receive notice of our election to select the other organization 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: (i) JAMS at 1920 Main Street, Suite 300, Los Angeles, CA 92614; website at www.jamsadr.com; and (ii) AAA at 335 Madison Avenue, New York, NY 10017; website at www.adr.org.
- Significance of Arbitration: IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE CODE OF PROCEDURES OF JAMS OR AAA, AS APPLICABLE (THE “CODE”). FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. THE ARBITRATOR SHALL NOT CONDUCT A CLASS ARBITRATION OR A JOINT ARBITRATION, EXCEPT AS SET FORTH BELOW. THE ARBITRATOR’S 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 on 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’s authority to resolve Claims is limited to Claims between you and us alone, and the arbitrator’s 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.
- Location of Arbitration/Payment of Fees: Any arbitration shall take place in Memphis, Tennessee, unless otherwise agreed in writing by the parties. At your written request, we will consider in good faith making a temporary advance of all or part of the filing administrative and/or hearing fees for any Claim you initiate as to which you or we seek arbitration. At the conclusion of the arbitration (or any appeal thereof), the arbitrator (or panel) will decide who will ultimately be responsible for paying the filing, administrative and/or hearing fees in connection with the arbitration (or appeal). If and to the extent you incur filing, administrative and/or hearing fees in arbitration, including for any appeal, exceeding the amount they would have been if the Claim had been brought in the state or federal court which is closest to your billing address and would have had jurisdiction over the Claim, we will reimburse you to that extent unless the arbitrator (or panel) determines that the fees were incurred without any substantial justification.
- Arbitration Procedures: This Arbitration Section 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 Section 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. In conducting the arbitration proceeding, the arbitrator shall not apply the Federal or any 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 request party, within fifteen (15) days of receiving the requesting party’s notice. The granting or denial of such request will be in the sole discretion of the arbitrator who shall notify the parties of his/her 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’s 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 organization will then notify the other party that the award has been appealed. The arbitration organization will appoint a three-arbitrator panel which will conduct arbitration pursuant to its Code and issue its decision within one hundred twenty (120) days of the date of the appellant’s written notice. The decision of the panel shall be by majority vote and shall be final and binding.
- Continuation: This Arbitration Section shall survive termination of your Card as well as voluntary payment of the debt in full by you, any legal proceeding by us to collect a debt owed by you, and any bankruptcy by you or us. If any portion of this Arbitration Section is deemed invalid or unenforceable under any principle or provision of law or equity, consistent with the FAA, it shall not invalidate the remaining portions of this Arbitration Section, the Agreement or any prior agreement you may have had with us, each of which shall be enforceable regardless of such invalidity.
XXI. Other Terms.
- The Card and your obligations under this Agreement may not be assigned. The Bank may transfer its rights under this Agreement. Use of the Card is subject to all applicable rules and customs of any clearinghouse or other association involved in transactions. The Bank does not waive its rights by delaying or failing to exercise them at any time. If any provision of this Agreement shall be determined to be invalid or unenforceable under any rule, law, or regulation of any governmental agency, local, state, or federal, the validity or enforceability of any other provision of this Agreement shall not be affected. This Agreement will be governed by the law of the State of Tennessee except to the extent governed by federal law.
- By activating the Card or by retaining, using or authorizing the use of it, you represent and warrant to us that: (i) you are at least 18 years of age (or older if you reside in a jurisdiction where the majority age is older); (ii) you are a U.S. citizen or legal alien residing in the fifty (50) states of the United States (“U.S.”) or the District of Columbia; (iii) you have provided us with a verifiable U.S. street address (not a P.O. Box); (iv) the personal information you provide to us in connection with the Card is true, correct and complete; (v) you received a copy of this Agreement and agree to be bound by and to comply with its terms; and (vi) you accept the Card.
- The terms and conditions of this Agreement may be revised by posting a revised version herehttps://seriesfi.notion.site/Series-Visa-Commercial-Cardholder-Agreement-6ec59c21aa904e81b67a16b5f2990758. You will be notified of any change in the manner provided by applicable law prior to the effective date of the change. However, if the change is made for security purposes, the Bank or Program Manager can implement such change without prior notice. We may cancel or suspend the Card or this Agreement at any time. You may cancel this Agreement by returning the Card to the Bank. Your termination of this Agreement will not affect any of the Bank’s or Program Manager’s rights or your obligations arising under this Agreement prior to termination. In the event your Card is cancelled, closed or terminated for any reason, any remaining available funds associated with the Card Account will be returned to you, subject to any contrary provision in this Agreement and applicable law.
Exhibit 1: Fees (1)
|Fee Description||Fee Amount and Frequency||Additional Details|
|Fee for Out-of-Network ATM Withdrawals||$0||Transactions at MoneyPass ATMs are fee free.|
|Foreign ATM Transaction Fee||3% of transaction amount||This is our fee. You may also be charged a fee by the ATM operator or other third party.|
|ATM Cash Deposit Fee||$4.00||Cash deposits are only available at select MoneyPass ATMs|
Exhibit 2: Transaction Limits (1)
|Transaction Type||Dollar Limit per Day|
|Points of Sales (Merchants) Transactions||$1,000 daily|
|ATM Cash Withdrawal||$500 daily|
|ATM Cash Deposit (if MoneyPass)||$1,000 daily|
Debit and Credit Agreement
VERSION 3 - 12/21/2022
This Debit and Credit Card Agreement contains the terms and conditions that govern your Series (aka – “All Blue Labs, Inc.” or “Bank”) for your Mastercard® or Visa® credit card account. The first time you or someone you authorize uses your credit card account to purchase goods or services or to get a cash advance means that you have accepted this agreement and you will be responsible for all authorized users of the account. Any authorized user of the account agrees to comply with the terms of this agreement and is jointly liable with you for his or her use of the account.
Debit/Credit Card: The Debit/Credit Card (aka – the “Card”) may be used to initiate withdrawals at ATMs and points of sale and may be used to purchase goods and services. By using your Card, you authorize us and/or our agents to debit your Account. We reserve the right to refuse to make any transfer for security, credit, legal/regulatory, or other reasons, as we determine in our sole discretion. You are responsible for all transactions you authorize using the Card, including any losses, charges, or penalties incurred as a result. You may be charged for your use of the Card at ATMs. The Card is the property of the Bank, and if your Account is closed or your Card privileges are cancelled, you agree to stop using the Card and destroy it.
PURCHASES: You can use your credit card to purchase goods and services at participating merchants, subject to your available credit. We will add the amount of each purchase to a part of your account we call purchases.
CASH ADVANCES: You can obtain cash advances in any of the following three ways, subject to your available credit: using your credit card at a designated automated teller machine (ATM), presenting your credit card to a bank displaying a Mastercard® or Visa® sign, or using convenience checks that we may issue to you. By using an ATM, with a Personal Identification Number (PIN) that has been issued to you, you can obtain cash advances (loans) up to the limitations described herein, and subject to applicable ATM cash availability and regulations. We add the amount of each cash advance to the part of your account we call cash advances. You can obtain cash advances up to an aggregate amount of $1,010 in any calendar day beginning at 12:00 midnight (Central Time) and ending at 11:59:59 p.m. (Central Time) by presenting your credit card at any bank displaying a Mastercard or Visa sign or at an ATM, subject to the limitations stated in this agreement and further subject to applicable cash availability and the regulations of the bank or the ATM operator. Notwithstanding the foregoing, the amount of any cash advance that you may obtain during a single transaction from an ATM cannot exceed $500.
You may use convenience checks we may issue to you in connection with your account to obtain cash advances up to your available credit. We may dishonor any check if your account is delinquent, it would cause your account to exceed your credit limit, or you are otherwise in violation of any provision of this agreement. You may stop payment on a convenience check if we have not paid the check and we receive your stop payment request by 5:00 p.m. Central Time on the business day prior to the business day on which we receive your check. If we do not receive your stop payment request by the time specified in this agreement, we are not required to stop payment on the check. You may notify us to stop payment orally or in writing. You may be required to send written confirmation of an oral stop payment request within 14 days. Your written stop payment request expires in six months from receipt by us of written confirmation unless you renew it in writing.
BALANCE TRANSFERS: You can transfer balances from other credit card accounts to your account up to your available credit by using convenience checks that we may issue to you. Balances that you transfer from other credit card accounts will be treated as a cash advance for purposes of this agreement.
MONTHLY STATEMENTS: The Bank will send you a statement at the end of each monthly statement period on which there is a debit or credit balance of more than $1 or on which interest charges have been imposed. The statement will show all transactions, the unpaid balance on your account (called “New Balance”), your available credit (your credit limit less the New Balance), the Minimum Payment Due, the Total Payment Due and the Minimum Payment Due Date.
PAYING INTEREST: Your Minimum Payment Due Date will be at least 21 days after the close of each billing cycle. We will not charge you any interest on purchases first appearing on your current billing statement (new purchases), or any portion thereof, paid by the Minimum Payment Due Date shown on that statement if you paid the New Balance on your previous billing statement in full by the Minimum Payment Due Date shown on that statement. We will begin charging interest on cash advances and balance transfers on the transaction date. CREDIT
LIMIT: The Bank assigns you a credit limit when your account is approved. You promise not to allow your unpaid balance to exceed your credit limit. If we allow you to make a purchase and/or obtain a cash advance which causes your balance to exceed your credit limit, you agree to pay the Bank the excess immediately. Permitting you to exceed your credit limit does not prevent the Bank from enforcing your credit line in the future. The Bank may increase your credit limit from time to time, at your request or upon review of your account. The Bank will notify you in writing if your credit limit is lowered for any reason.
YOUR PAYMENT PROMISE: You agree to pay the Bank for all purchases and cash advances made on your account, together with interest charges when such charges are applicable according to the terms of this agreement.
MAKING PAYMENTS: The Minimum Payment Due on each statement will be equal to the sum of all past due amounts plus the current billing cycle payment. The Total Payment Due on each statement will be equal to the sum of the Minimum Payment Due plus the amount by which your balance exceeds the credit limit and in no event will exceed the New Balance. The current billing cycle payment will be equal to 1% of the New Balance shown on that statement (excluding any interest charge and late fee assessed for that billing cycle and, if applicable, one-twelfth of any annual fee assessed to your account) plus any interest charge and late fee assessed for that billing cycle plus, if applicable, one-twelfth of any annual fee assessed to your account. The Minimum Payment Due will not be less than $25, unless the entire New Balance or the interest charges on your account are less than $25, in which case the Minimum Payment Due will be equal to the entire New Balance. If the entire New Balance is greater than $25 and consists only of interest charges, the Minimum Payment Due will be equal to the interest charges. For each Minimum Payment Due that is greater than $25, the Minimum Payment Due will be rounded to the next highest whole dollar. Credits to your account which result from credits initiated by merchants from whom you purchased goods or services using your credit card or credits issued by the Bank shall not constitute a payment. If you pay more than the Minimum Payment Due, the excess is credited to your account, and your balance is reduced accordingly. The Bank may not require you to make the Minimum Payment Due during certain designated billing cycles. When the Bank offers you this skip-payment option, and you do not make the Minimum Payment Due during any billing period, interest charges will continue to apply to your account as provided in this agreement.
IRREGULAR PAYMENTS: The Bank may accept late payments, partial payment, or checks or money orders labeled “payment in full” without losing its rights under this agreement.
APPLYING PAYMENTS: Any payment received in excess of the Minimum Payment Due will be allocated first to the balance bearing the highest annual percentage rate and then to each successive balance bearing the next highest rate until the excess payment is exhausted. The amount of any payment received that is equal to or less than the Minimum Payment Due and credits will be allocated in the manner we determine. In most instances, we will allocate such payments and credits to balances with lower annual percentage rates before balances with higher rates.
CREDITING PAYMENTS: Payments received by 5:00 p.m. (Central Time) will be credited to your account as of the date of receipt if received in readily identifiable form in the specified manner and at the specified location. Payments received after 5:00 p.m. (Central Time) will be credited to your account as of the next calendar day if received in readily identifiable form in the specified manner and at the specified location.
PROCESSING PAYMENTS: The Bank may process payments made by check electronically by transmitting the routing number, account number and check serial number to your bank. The Bank may also electronically represent checks that are returned for insufficient or uncollected funds.
INTEREST CHARGES: The Bank figures the interest charge on your account by multiplying the applicable daily periodic rate to the “Average Daily Balance” of purchases and “Average Daily Balance” of cash advances, and then multiplying the products by the number of days in the billing cycle. The annual percentage rate is shown on the monthly statement for the billing period covered by each statement. The “Average Daily Balance” of purchases and cash advances is computed separately as follows: For Purchases–Average Daily Balance (including New Purchases): To get the “Average Daily Balance,” the Bank starts with the beginning balance of purchases on your account each day, including billed and unpaid interest charges related to purchases, and adds any new purchases on which interest is charged and other debit adjustments and subtracts any payments or credits. This gives the Bank the daily balance. At the end of each day, the Bank multiplies the daily balance by the daily periodic rate. The result is then added to the daily balance to determine the next day’s beginning balance. If the daily balance is negative, then it is considered to be zero. At the end of the statement period, the Bank adds up all the daily balances for the billing cycle and divides by the total number of days in the billing cycle to get the “Average Daily Balance.” This method of calculating the “Average Daily Balance” involves daily compounding of interest charges. For Cash Advances–Average Daily Balance (including New Advances): To get the “Average Daily Balance,” the Bank starts with the beginning balance of cash advances on your account each day, including billed and unpaid interest charges related to cash advances, and adds any new advances and other debit adjustments and subtracts any payments or credits. This gives the Bank the daily balance. At the end of each day, the Bank multiplies the daily balance by the daily periodic rate. The result is then added to the daily balance to determine the next day’s beginning balance. If the daily balance is negative, then it is considered to be zero. At the end of the statement period, the Bank adds up all the daily balances for the billing cycle and divides by the total number of days in the billing cycle to get the “Average Daily Balance.” This method of calculating the “Average Daily Balance” involves daily compounding of interest charges. There is no time in which you can pay the balance of cash advances in order to completely avoid interest charges. Interest Rate Adjustments: The Annual Percentage Rate (“APR”) is a variable rate (other than on purchases for the period from the date your account is open until the last day of the 12th billing cycle after your account is open) and will be adjusted according to the Index Rate. The Index Rate is the Prime Rate published in The Wall Street Journal on the last business day of the month immediately preceding the month in which the billing cycle commences. The daily periodic rate is determined by dividing the APR currently in effect by 365, and then truncating that number to the nearest one hundred thousandth percent. The rate so determined will remain in effect until the first day of the next billing cycle, when it will be adjusted again. The APR is 0% on purchases for the period from the date your account is open until the last day of the 12th billing cycle after your account is open (promotional period). This is a daily periodic rate of 0%. The APR is 26.65 percentage points above the Index Rate on purchases after the last day of the promotional period and on cash advances. This APR as of the date set forth below is 30.65%, which is a daily periodic rate of .08396%. The APR (other than during the promotional period) will increase if there is an increase in the Index Rate. An increase in the Index Rate may result in an increase in the minimum monthly payment. The APR (other than during the promotional period) will decrease if there is a decrease in the Index Rate. The APRs will never be increased above the maximum rate permitted by law.
CASH ADVANCE FEE: For each cash advance obtained, or recorded during a billing period, by presenting your credit card at any bank or other financial institution displaying the Mastercard or Visa sign, by using a convenience check that we may issue to you, or by using an ATM, you may be charged a fee by us of the greater of $3 or 3 percent of the amount of such advance and may also be charged a fee by the other bank, financial institution or ATM operator. For the purchase of any foreign currency, money order, wire transfer, person-to-person money transfer, or other item that is directly convertible to cash made using your credit card, you may also be charged a fee of the greater of $3 or 3 percent of the amount of such transaction. This fee as well as any fee charged by another bank, financial institution or ATM operator will be added to your cash advance balance. If a fee charged by another bank, financial institution or ATM operator causes the amount of an advance to exceed the applicable limit, it will be declined.
LATE PAYMENT FEE: If the Minimum Payment Due is not received by the Bank by the Minimum Payment Due Date, you may be charged a late payment fee of up to $30 for the first late payment and up to $41 for any additional late payment that occurs during the next six billing cycles after a late payment. Notwithstanding the foregoing, in no event shall such fee exceed the amount of the Minimum Payment Due immediately prior to the assessment of such fee, which may include any past due amount from prior billing cycles. This fee will be added to your purchases balance. RETURNED
PAYMENT FEE: If a payment of any type (including without limitation payment by check or electronic funds transfer) made to your account is returned or otherwise not honored for any reason, you may be charged a fee of up to $30 for the first returned payment and up to $41 for any additional returned payment that occurs during the next six billing cycles after a returned payment. Notwithstanding the foregoing, in no event shall such fee exceed the amount of the Minimum Payment Due immediately prior to the date on which the payment was returned to us or otherwise not honored. This fee will be added to your purchases balance.
REPLACEMENT CARD FEE: If your card is lost or stolen and/or you request that a new card be issued to you, you may be charged a fee of $10. If you request that a new or replacement card be issued to you on an expedited basis, you may be charged a fee of $25. These fees will be added to your purchases balance.
LIMITS ON CARD USE: The Bank is not required to authorize a purchase or cash advance if: (1) it would cause your balance to exceed your credit limit; (2) payment of your entire balance has been accelerated; (3) your credit card has expired; (4) we have revoked your right to use your credit card; or (5) your account has been closed. Any purchase or cash advance authorized by the Bank, even if the Bank is not required to, will be governed by the terms and conditions of this agreement. Your credit card may not be used for any illegal transaction.
COLLECTION COSTS: If your account is more than thirty (30) days delinquent, the Bank may refer your account to collection, including the Bank’s own collection department, and you agree to pay all collection costs, including reasonable attorney’s fees and, as liquidated damages, the sum of $100 to compensate the Bank for the additional costs incurred in collection. It is expressly agreed that the exact amount of collection costs are difficult to ascertain and that $100 represents the Bank’s best estimate of this cost and not a penalty. This amount will be added to your purchases balance.
JOINT ACCOUNT: If this is a joint account, each person who signed the application (1) may obtain purchase and cash advances (but the total of these cannot exceed the credit limit); (2) will be responsible for paying all amounts owed; and (3) can close the account.
AUTHORIZED USER: You may, with the Bank’s permission, designate one or more other persons as an “Authorized User” of your account. If you do so, you will be responsible for all purchases, cash advances, fees and interest charges resulting from such authorized use. The Authorized User shall also be responsible for all purchases, cash advances, fees and interest charges resulting from his or her use of the account but the Bank is not required to seek recovery from the Authorized User before requiring payment by you. If you decide to terminate another person’s authorized use of your account the Bank must receive written notice from you together with the return of all credit cards issued to such person, cut in half. You remain responsible for payment of the purchases made or cash advances taken by the Authorized User up to the time the Bank receives your notice and the credit card(s). In addition, the Bank may but is not required to close your existing account and issue you a new card and account number.
TRANSFER or ASSIGNMENT: Your rights under this agreement belong to you only and may not be transferred or assigned. Your obligations, however, are binding upon your heirs and legal representatives.
SECURITY AND SET-OFF: This account is unsecured. The Bank waives its right of set-off as well as any security interest the Bank may have for this account under any other agreement with you.
AUTHORIZATIONS: Purchases and cash advances may require the Bank’s authorization. The Bank may limit the number and/or the maximum dollar amount of authorization in a given day. You agree that neither the Bank nor its agents shall be liable for refusing an authorization request.
REFUSING A CREDIT CARD: The Bank will not be legally responsible in any way if anyone refuses to accept your credit card. NOTICES: Any notice sent by the Bank will be considered effective when it is delivered personally to you or mailed, postage prepaid to the last address the Bank has for you in its records. Notice from you will be considered effective when the Bank receives it at the address shown on this agreement. If this is a joint account, the Bank can notify one of you and the notice will be effective for both of you. Similarly, one of you can notify the Bank and the Bank will consider it to be notice from both of you.
CHANGING THIS AGREEMENT: The Bank may change this agreement at any time without prior notice, except where such notice is required by applicable Federal or California law, including, without limitation, changing the interest rates and the way the Bank computes interest charges or the Minimum Payment Due.
CLOSING YOUR ACCOUNT/ENTIRE BALANCE IMMEDIATELY DUE: You may close your account at any time. Simply notify the Bank in writing, stop using your account and destroy your credit card(s). The Bank may also close your account at any time it deems necessary. If the Bank closes your account for any of the following reasons, your entire balance will be immediately due and payable, without notice or demand by us: (1) you miss a payment; (2) you break any of your promises under this agreement or any other agreement you made with the Bank; (3) anything you told the Bank in applying for this account is untrue; (4) you exceed your credit limit; (5) you become insolvent or involved in bankruptcy proceedings; (6) you make an assignment for the benefit of creditors; (7) you die; or (8) we reasonably deem the prospect of payment of the balance on your account to be in jeopardy for any reason. Otherwise, the Bank will notify you in writing when your account is closed and you agree to immediately cease using your account and destroy your credit cards. No matter who closes the account, the Bank will keep all rights it has and you will still have to pay the balance on your account, even if any transactions are made after the account is closed, together with any interest charges and any applicable fees or other charges, whether imposed before or after your account is closed. The outstanding balance on your account is immediately due in full if the account is closed for any of the reasons listed above. If either of us gives notice of the closing of the account for any reason other than one of the reasons listed above (including failure of your account to be renewed), the outstanding balance on the account is due in full within thirty (30) days after the date of such notice. Your account will continue to accrue interest charges and be subject to applicable fees until it is paid in full.
REINSTATEMENT: If your account is closed for any reason, your account may be considered for reinstatement, but you may be required to provide the Bank with a new application. Your credit card(s) remain the Bank’s property. You agree to return them to the Bank or our agent immediately if asked.
CONVERTING FOREIGN CURRENCY: All foreign purchases and cash advances made with your credit card will be converted by the Bank and Mastercard or Visa, depending on which card is used, to United States dollars before being posted to your account. The currency conversion rate used to determine the transaction amount in United States dollars is prescribed in the Mastercard or Visa operating regulations or conversion procedures, as applicable, in effect at the time the transaction is processed. Mastercard and Visa currently use a currency conversion rate that they select from the range of rates available in wholesale currency markets for the applicable central processing date, which rate may vary from the rate Mastercard or Visa itself receives, or the government-mandated rate in effect for the applicable central processing date. The currency conversion rate calculated in this manner that is in effect on the processing date may differ from the rate in effect on the transaction date or the posting date.
LOST OR STOLEN CARDS: Notify us immediately if your credit card or account number is lost or stolen or you believe someone is using the card or account number without your permission. We reserve the right not to reinstate lost or stolen accounts.
EVIDENCE: The Bank can use a copy, microfilm, microfiche, or other electronic image of any monthly statement, or other document to prove what you owe to the Bank or that a transaction has taken place in the event the Bank must go to court for any reason. The copy, microfilm, microfiche or other electronic image will have the same validity as the original.
WAIVER: The Bank may waive or delay enforcing any of its rights under this agreement without losing such rights, and may waive or delay enforcing any of its rights as to one person obligated under this agreement without affecting the obligations of any other person.
AUTOMATIC ACCOUNT INFORMATION UPDATES. You may arrange for merchants and other third parties to store your account information for recurring billing or other purposes. When you arrange for merchants and other third parties to store your account information, you understand and agree that we may provide updated information, which may include changes to the expiration date, account number, and account status, to these merchants and other third parties. If you do not want your updated account information to be shared, please contact us using the number on the back of your card, contact the merchant or other third party or remove your credit card information from the merchant or third party.
COMMUNICATION: You agree that we and our representatives may monitor or record any calls between you and us. To service and manage your account or to collect amounts you owe to us, you authorize us and our representatives to contact you at any telephone number and email address (1) you have provided to us, (2) from which you called or emailed us, or (3) which we obtained and believe we can reach you at. You must notify us if your number or email address changes. We and our representatives may contact you in any way, such as calling, texting or email, and may contact you using an automatic telephone dialing system and/or using pre-recorded voice messages in accordance with applicable law. We and our representatives may call you, which includes text messages, about any current or future accounts or applications and about any products you have or may have with us at any telephone number you provide. We may contact you on a mobile, wireless or other device, even if you are charged for it by your provider. Some of the legal purposes that we may contact you to service and manage your account include identifying suspected fraud or identity theft, obtaining information, and providing you information about products and services.
APPLICABLE LAW: This agreement will be governed by the law of the State of California. If there is any conflict between any of the terms and conditions of this agreement and applicable law, this agreement will be considered changed to the extent necessary to comply with the law. The other provisions shall not be affected.
ARBITRATION: THIS ARBITRATION PROVISION DOES NOT APPLY TO YOU IF AND FOR AS LONG AS YOU ARE A “COVERED BORROWER,” AS THAT TERM IS DEFINED IN THE DEPARTMENT OF DEFENSE REGULATION THAT IMPLEMENTS THE MILITARY LENDING ACT (“MLA”), AND YOU ARE SUBJECT TO THE MLA AND ITS IMPLEMENTING REGULATION. YOU AND WE HEREBY AGREE THAT EITHER YOU OR WE MAY, WITHOUT THE OTHER’S CONSENT, REQUIRE THAT ANY CLAIM (AS DEFINED BELOW) BE RESOLVED BY MANDATORY BINDING ARBITRATION GOVERNED BY THE FEDERAL ARBITRATION ACT AND CALIFORNIA LAW. FOR PURPOSES OF THIS ARBITRATION PROVISION, “CLAIM” MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE THAT AROSE IN THE PAST OR THAT ARISES IN THE PRESENT OR IN THE FUTURE UNDER OR RELATING IN ANY WAY TO THIS CREDIT CARD AGREEMENT, THE VALIDITY OF THIS ARBITRATION PROVISION, YOUR CREDIT CARD ACCOUNT, OR THE ADVERTISING, APPLICATION OR APPROVAL OF YOUR ACCOUNT, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON STATUTE, COMMON LAW, CONTRACT, REGULATION, ORDINANCE, TORT, CONSTITUTIONAL PROVISION, OR ANY LEGAL THEORY OF LAW OR ANY OTHER LEGAL OR EQUITABLE GROUND AND REGARDLESS OF WHETHER SUCH CLAIM IS FOR INJUNCTIVE, DECLARATORY, OR EQUITABLE RELIEF. CLAIMS SUBJECT TO ARBITRATION ALSO INCLUDE CLAIMS THAT ARE MADE AS COUNTERCLAIMS, CROSS CLAIMS, THIRD PARTY CLAIMS, INTERPLEADERS, OR OTHERWISE. IF YOU OR WE ELECT ARBITRATION OF A CLAIM, NEITHER YOU NOR WE SHALL HAVE THE RIGHT TO PURSUE OR LITIGATE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY, INCLUDING THE RIGHT TO CONDUCT DISCOVERY OR TO APPEAL, NOR SHALL YOU HAVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION OR OTHER REPRESENTATIVE ACTION (SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION) OR THE RIGHT TO CONSOLIDATE DISPUTES BY OR AGAINST OTHERS IN ANY ARBITRATION OR TO ACT IN ANY ARBITRATION IN THE INTEREST OF THE GENERAL PUBLIC. 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. §§ 1-16, as it may be amended. This arbitration provision applies to any and all Claims that you have against us and/or any of our subsidiaries, affiliates, agents, licensees, predecessors, successors, assigns, and against all of their respective officers, directors, employees, agents, and assigns, or that we have against you. As used in this arbitration provision, the term Claim is to be given the broadest possible meaning. If you or we elect to arbitrate a Claim, the arbitration will be conducted as an individual action. Neither you nor we agree to any arbitration on a class or representative basis, and the arbitrator shall have no authority to proceed on such basis. This means that even if a class action lawsuit or other representative action is filed, such as that in the form of a private attorney general action, any Claim between us related to the issues raised in such lawsuit or action will be subject to an individual arbitration claim if either you or we elect so. As an exception to arbitration, you retain the right to pursue in a small claims court any Claim that is within the court’s jurisdiction and proceeds on an individual basis. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. The only claims that may be joined in an individual action under this arbitration provision are (1) those brought by us against you and any co-applicant, joint cardholder, or authorized user of your account, or your heirs or your trustee in bankruptcy, or (2) those brought by you or any co-applicant, joint cardholder, or authorized user of your account, or your heirs or your trustee in bankruptcy against us. You or we may elect arbitration under this arbitration provision with respect to any Claim, even if the Claim is part of a lawsuit brought in court. You or we may make a motion or request in court to compel arbitration of any Claim brought as part of any lawsuit. The party filing a Claim in arbitration must choose either of the following two arbitration administrators: American Arbitration Association or JAMS. These administrators are independent of us. The administrator does not conduct the arbitration. Arbitration is conducted under the rules of the selected arbitration administrator by an impartial third party chosen in accordance with the rules of the selected arbitration administration and as may be provided in this arbitration provision. You may obtain copies of the current rules of each of the foregoing arbitration administrators, information about arbitration and arbitration fees, and instructions for initiating arbitration by contacting the arbitration administrators as follows. American Arbitration Association JAMS 335 Madison Avenue, Floor 10 1920 Main Street, Suite 300 New York, NY 10017-4605 Irvine, CA 92614 (800) 778-7879 (949) 224-1810 www.adr.org www.jamsadr.com In the alternative, if all parties agree, an independent third party selected by the parties may serve as arbitrator. If one of the arbitration administrators listed above is for any reason unable to provide timely arbitration services, the parties agrees that the other arbitration administrator shall administer the arbitration. If for any reason neither of the designated administrators is able to provide timely arbitration services, and the parties are unable to agree upon a third party to conduct the arbitration, then either party may apply to the federal district court in which the consumer resides for an order appointing an arbitrator pursuant to 9 U.S.C. § 5. Arbitration conducted pursuant to this arbitration provision shall be governed by the applicable procedures and rules of the arbitration administrator selected to arbitrate a Claim unless they conflict with this arbitration provision, in which case this arbitration provision will govern. Such procedures and rules may limit the amount of discovery available to you or us. The arbitrator shall apply substantive law consistent with the Federal Arbitration Act and applicable statutes of limitations, and will recognize claims of privilege recognized at law. The arbitrator will take reasonable steps to protect confidential information, including the use of protective orders to prohibit the disclosure of such information outside the arbitration, if requested to do so by you or us. The arbitrator will have the power to award damages or other relief permitted by applicable law to any party to the arbitration proceeding but will not have the power to award relief to, against, or for the benefit of any person who is not a party to the proceeding. Judgment upon any arbitration award may be entered in any court having jurisdiction. You or we may choose to have a hearing in arbitration and to be represented by counsel. Any arbitration hearing that you attend in person shall be held at a place chosen by the arbitrator or arbitrator administrator within the federal district in which you reside at the time the Claim is filed or at some other place to which you and we agree in writing. Failure or delay in enforcing this arbitration provision at any time or in connection any particular Claims will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims. This arbitration provision does not prohibit either of us from exercising any lawful rights or using other available remedies to preserve, foreclose or obtain possession of real or personal property; exercise self-help remedies, including setoff and repossession rights; or to obtain provisional or ancillary remedies such as injunctive relief, attachment, garnishment, or the appointment of a receiver by a court of competent jurisdiction. Any statute of limitations applicable to any Claim applies to any arbitration between us. Arbitration fees shall be determined by the rules or procedures of the selected arbitration administrator, unless limited by applicable law. Please check with the arbitration administrator to determine the fees applicable to the arbitration you may file. If applicable law limits the amount of fees and expenses to be paid by you, no allocation of fees and expenses to you shall exceed this limitation. Unless inconsistent with applicable law, each of us shall bear the expense of our own attorney, expert, and witness fees, regardless which of us prevails in the arbitration. This arbitration provision shall survive: (1) termination or changes in the credit card agreement, your account, and the relationship between you and us concerning your account, such as the issuance of a new account number or transfer of a balance from one account to another account; (2) the bankruptcy of any party or any similar proceeding initiated by you or on your behalf; and (3) payment of the debt in full by you or by a third party. If any portion of this arbitration provision dealing with class action, class arbitration, private attorney general action, other representative action, joinder, or consolidation is deemed invalid or unenforceable, the invalid or unenforceable portion shall not be severable and the entire arbitration provision shall be unenforceable. If any other portion of this arbitration provision is deemed invalid or unenforceable, the remaining portions shall remain in full force and effect.
YOUR BILLING RIGHTS: Keep this Document for Future Use This notice tells you about your rights and our responsibilities under the Fair Credit Billing Act. What To Do If You Find a Mistake on Your Statement If you think there is an error on your statement, write to us at: SeriesFi, 2660 3rd Street, #211, San Francisco, CA 94107
In your letter, give us the following information: · Account information: Your name and account number. · Dollar amount: The dollar amount of the suspected error. · Description of problem: If you think there is an error on your bill, describe what you believe is wrong and why you believe it is a mistake. You must contact us: · Within 60 days after the error appeared on your statement. · At least three business days before an automated payment is scheduled, if you want to stop payment on the amount you think is wrong. You must notify us of any potential errors in writing. You may call us, but if you do we are not required to investigate any potential errors and you may have to pay the amount in question.
What Will Happen After We Receive Your Letter. When we receive your letter, we must do two things: 1. Within 30 days of receiving your letter, we must tell you that we received your letter. We will also tell you if we have already corrected the error. 2. Within 90 days of receiving your letter, we must either correct the error or explain to you why we believe the bill is correct. While we investigate whether or not there has been an error: · We cannot try to collect the amount in question, or report you as delinquent on that amount. · The charge in question may remain on your statement, and we may continue to charge you interest on that amount. · While you do not have to pay the amount in question, you are responsible for the remainder of your balance. · We can apply any unpaid amount against your credit limit. After we finish our investigation, one of two things will happen: · If we made a mistake: You will not have to pay the amount in question or any interest or other fees related to that amount. · If we do not believe there was mistake: You will have to pay the amount in question, along with applicable interest and fees. We will send you a statement of the amount you owe and the date payment is due. We may then report you as delinquent if you do not pay the amount we think you owe. If you receive our explanation but still believe your bill is wrong, you must write to us within 10 days telling us that you still refuse to pay. If you do so, we cannot report you as delinquent without also reporting that you are questioning your bill. We must tell you the name of anyone to whom we reported you as delinquent, and we must let those organizations know when the matter has been settled between us. If we do not follow all of the rules above, you do not have to pay the first $50 of the amount you question even if your bill is correct.
Your Rights If You Are Dissatisfied With Your Card Purchases.
If you are dissatisfied with the goods or services that you have purchased with your card, and you have tried in good faith to correct the problem with the merchant, you may have the right not to pay the remaining amount due on the purchase. To use this right, all of the following must be true: 1. The purchases must have been made in your home state or within 100 miles of your current mailing address, and the purchase price must have been more than $50. (Note: Neither of these are necessary if your purchase was based on an advertisement we mailed to you, or if we own the company that sold you the goods or services.). 2. You must have used your credit card for the purchase. Purchases made with cash advances from an ATM or with a check that accesses your credit card account do not qualify. 3. You must not yet have fully paid for the purchase. If all of the criteria above are met and you are still dissatisfied with the purchase, contact us in writing at: SeriesFi, 2660 3rd Street, #211, San Francisco, CA 94107. After we finish our investigation, we will tell you our decision. At that point, if we think you owe an amount and you do not pay, we may report you as delinquent to the appropriate credit bureau
Series Electronic Communications Agreement
It is our goal to provide you with as many digital banking options as possible, including providing information to you electronically. We are required by law to give you certain information in writing. This means you have the right to receive that information on paper. With your consent, we can provide it to you electronically, instead.
In this Agreement:
- "We," "us," "our," and "Series" mean All Blue Labs, Inc.
- "You" and "your" mean the person giving this consent, and also each additional account owner, authorized signer, authorized representative, delegate, product owner and/or service user identified on any Series product that you apply for, use or access.
You agree to receive electronic Communications from us.
As part of your relationship with us, we will provide you with Communications. By accepting this Agreement, you consent to receive Communications in electronic form for any products, services and accounts that you have or apply for, either now or in the future. You also consent to the use of electronic signatures in your relationship with us.
We may still choose to provide you with information on paper even though you have consented to receive it electronically. In some cases, we are not permitted by law to deliver certain Communications to you electronically. However, if the law changes in the future and permits additional Communications to be delivered electronically, this Agreement will automatically cover those Communications as well.
We may deliver electronic Communications to you in several ways.
When we deliver electronic Communications to you, we will either: (1) email them to you; (2) post them on our website; (3) present them on-screen or for download through one of our online or mobile banking services; (4) include them in other electronic Communications that we are delivering to you, such as electronic account statements; or (5) in the manner specified in any other agreement we have with you. If we are not emailing or presenting the information to you directly, we will tell you where you can go to view that information.
If you seek to obtain a new product, service or account with us, we may remind you that you have already consented to receiving electronic Communications and using electronic signatures in your relationship with us. If you choose not to receive electronic Communications or use electronic signatures in connection with the new product, service or account, that choice does not mean you have withdrawn your consent with respect to any other product, service or account.
You will need some technology to receive electronic Communications.
To receive and retain electronic Communications from us, you will need the following:
- A computer or mobile device with an operating system that supports everything below;
- A connection to the internet;
- A current version of a web browser that we support. You should check the system requirements periodically for updates to supported software;
- A hard drive or other data storage unit;
- A valid, active email address; and
- A current version of a program that displays PDF files (such asAdobe® Reader®).
If our hardware and software requirements change, and that change would create a material risk that you would not be able to access or retain electronic Communications, we will give you notice of the change. Continuing to use our electronic services after receiving notice of updates to our system requirements signifies your acceptance of the change and reaffirmation of your consent.
Please keep your contact information up to date.
It is your responsibility to keep all of your contact information current so that we can send you electronic Communications. You can update your email address and other contact information by editing your profile in Series. You may also contact us at firstname.lastname@example.org
You may have the option to receive paper copies.
We may choose to make paper copies of certain electronic Communications available upon request. You can request paper account statements via email to email@example.com
You can withdraw your consent to receiving electronic Communications.
You have the right to withdraw this consent at any time. Withdrawing consent may terminate your access to certain electronic services. You may also no longer be able to use certain Series products. After we have processed your withdrawal, future Communications required to be in writing will be delivered to you on paper, subject to applicable fees. To withdraw your consent to receiving electronic Communications, you may contact us via email at firstname.lastname@example.org Your withdrawal of consent will become effective only after we have had a reasonable opportunity to act upon it.
Solid Platform Terms of Service
Effective May 1, 2021
If you do not agree to these Terms of Service, you must immediately stop using our services.
NOTICE OF BINDING ARBITRATION
ANY CLAIM, DISPUTE OR CONTROVERSY OF WHATEVER NATURE ARISING OUT OF OR RELATING TO THE TERMS OF SERVICE SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE PROCESS DESCRIBED IN THE SECTION TITLED “BINDING ARBITRATION” BELOW. PLEASE READ THE SECTION TITLED “BINDING ARBITRATION” CAREFULLY.
- Introduction to “Solid”
Solid Financial Technologies, Inc. and our affiliates or subsidiaries (collectively “Solid,” “we,” “us,” or “our”) is banking as a software (BaaS) layer between banks, and the financial technology platforms using our services (“Platform”). We provide Platforms banking services (e.g. bank transfers or accounts) to you through Solid’s bank partners (collectively “Banks”).
Check out our website (solidfi.com) or feel free to email us at email@example.com to learn more about Solid.
- Your customer relationship to Solid
By using our services offered through Platforms or our website or mobile application, you became a customer of Solid. You agree to these Terms of Service when you use the services. You understand that all bank and transaction-related services are provided directly by the Bank, except as it relates to specific services provided to you by your Platform. Similarly, Platform is responsible for providing their services to you pursuant to your agreements with Platform. Solid’s services allow you to easily communicate with banks and other financial institutions through Platforms. By using our service, you grant us the right, power, and authority to act on your behalf to access and transmit your personal and financial information, and requests for services between Bank, Platform, and any other financial institutions (as applicable).
- Your representations and promises or affirmations to us.
By using our services or by accessing Solid’s or a Platform’s website or phone application, you acknowledged and agree that:
- Restriction on acceptance and use of our services.
You are at least 18 years old (or legal age of capacity of your state) and you have the right, authority, and capacity to enter into these Terms of Service. If you are accepting these Terms of Service on behalf of any legal entity, including any company, organization, government, or governmental agency, you have been authorized to do so and to act on behalf of such legal entity:
- True and accurate information.
The information and instructions you provide us are true, accurate, and complete, as you are solely responsible for such information and instructions. Additionally, you will provide all information requested by us, such as your name, email address, phone number, date of birth, social security number or tax identification number, photo ID, online login credentials or your account and routing numbers for your bank or credit union account (“Bank Account”), and such other information as we may request from time to time. You agree to update us if the information changes (collectively, your “User Data”). We may use third parties to verify all or a portion of your information.
- Verification of your information.
- Password security.
If Platform or we provide you with login credentials (e.g. username, password or PIN) to access our services, (i) you will keep this information secure and confidential; (ii) you will not share such information with third parties; and (iii) you understand that you are responsible for all activity any person conducts using your login credentials to access our services, regardless of whether or not you authorized the activity.We will never ask you for your login credentials by phone or email.
- Authorization to debit your account.
By using our transactions services to send funds via the Automated Clearing House (“ACH”) from your linked Bank Account(s) to your Account, Platform, or a third party, you authorize us (as an agent of Bank) to debit the Bank Account indicated by you for the amount and on the date provided by you. You understand that because this will be an electronic transaction, and funds may be withdrawn from your account as soon as the above-noted transaction date. You will not dispute your Platform, Bank, or Solid debiting my account, so long as the transaction corresponds to the terms indicated in the transaction web form provided to you.
- Limits on access to services.
We may limit or suspend your access to our services or take other actions against you if the information you provide us is incorrect or you otherwise breach these Terms of Service as further detailed in these Terms of Service.
- Compliance with the law and your agreements.
Your use of our services does not violate any laws or regulations or any agreements with any third parties.
- Platform services are not endorsed.
We do not provide any endorsements or guarantees for any individual or entity using Solid’s services (including the Platform you accessed to use our services), nor any third party offers, goods or services featured on our websites. Information regarding third-party offers, goods, and services is provided on our websites for informational purposes only, and may not be true, accurate, or reliable.
- USA PATRIOT Act notice.
Important information about procedures for using our services under the USA PATRIOT Act of 2001: To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for you: When you use our services, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see a form of identification with your photograph or other identifying documents.
- Your conduct.
You understand and agree that you will not:
- Use our services, without Solid’s prior written consent, to transact with or operate services relating to (i) credit repair, (ii) debt consolidation, (iii) payday loans, (iv) title loans, (v) telemarketing, (vi) tobacco sales, (vii) travel clubs, (viii) sweepstakes, (ix) choice of law, (x) marijuana or controlled substance supply, (xi) tribal and entities that are not governed by the U.S. or states, (xii) mail order or telephone order companies, (xiii) business located outside of the U.S., (xiv) adult entertainment, (xv) stored value cards, (xvi) illegal or fraudulent goods or services, including, but not limited to, illegal substances, counterfeit goods, stolen goods, illegal or controlled substances, and substances that pose a risk to consumer safety (including synthetics, “potpourri not for human consumption”, and other similar items), illegal online gambling / wagering, pyramid schemes, counterfeit goods, unlicensed sale of firearms or weapons, (xvii) any type of money laundering, or (xviii) other businesses that operate or engage in any business regulated by FinCEN, including money service businesses, e-money business, and businesses selling money orders or traveler’s checks, and virtual or crypto-currency marketplaces and exchanges;
- Provide false or inaccurate information to us, including an attempt to falsify your identity, such as by providing false account information or false documents;
- Defraud us, Bank, or other Solid users in any way;
- Receive or attempt to receive duplicate compensation for a disputed payment from the recipient, Solid, Bank, and/or other financial institutions;
- Engage in activity that indicates, in Solid or the Bank’s discretion, that there may be a high level of risk associated with you, your Account, or any of your Solid account activity; or
- Otherwise breach the terms of these Terms of Service or the policies herein.
- Our services.
Solid provides software services to you and Platforms to give you the ability to send and receive funds from third parties, in addition, to open up an Account. All funds transfer services are provided by Bank, as Solid does not receive, hold, or transmit funds. Our software allows you to send funds transfer instructions to Bank. Any funds balance displayed by Solid’s software are held in your Account, or otherwise held by Bank or Platform for your benefit, as applicable (“Account Balance”).
Solid MAKES NO REPRESENTATIONS OR WARRANTIES RELATING TO YOUR FUNDS OR ACCOUNT BALANCES INCLUDING FEDERAL DEPOSIT INSURANCE CORPORATION (“FDIC”) INSURANCE COVERAGE. SUCH REPRESENTATIONS AND WARRANTIES MAY BE FOUND IN YOUR SPECIFIC ACCOUNT AGREEMENT OR AGREEMENT WITH YOUR PLATFORM. UNLESS NOTIFIED OTHERWISE BY SUCH AGREEMENTS, YOUR ACCOUNT BALANCES MAY LOSE VALUE IN THE EVENT BANK, THE BROKER-DEALER, OR PLATFORM ENTERS A RECEIVERSHIP.
- Bank account services.
We provide software services to facilitate your requests for services relating to your Account as detailed in such agreements. We are not responsible or liable if your request for such services is limited, delayed, or denied for risk, compliance, or other reasons.
- Transaction-only services.
- Other services.
We may from time to time offer additional services or remove services without prior notice to you. You agree to be bound by the terms and conditions of such services as they may be offered to you.
Fees for services offered under your Account are detailed in the specific Account agreements. If you use our Transaction services listed in Section 4(b), you may be charged a transaction fee by Platform or us as detailed in your agreement with Platform. Transactions completed on our website or mobile application may include a transaction fee as detailed when you make a transaction request.
In the event that a sender or the sender’s financial institution requests a reversal of payment or Solid decides against you in a dispute against you, we reserve the right to charge you a $15.00 fee in addition to the full amount of the transaction (collectively, the “Reversal Dues”). You agree to immediately reimburse for the Reversal Dues. Additionally, you authorize us to recover any Reversal Dues outstanding to Solid or Bank by debiting your available Account Balance. If you have an insufficient Account Balance, you authorize Solid and our Bank to take any of the following actions to recover the remaining amounts from you:
- Debit the Bank Account(s) linked to our services;
- Suspend your use of our services and require your immediate payment; or
- Engage in collection efforts.
- Protecting you and resolving disputes.
Solid is always looking for ways to protect you from abusive business practices, security-related issues, and other issues you may encounter with Platform and our Banks. If you have a complaint against how Platform or Bank is providing services to you or using your User Data, just let us know by emailing us at firstname.lastname@example.org per below. We cannot warranty or guarantee anything under this section, but if we are able to help, we will work with you to resolve your complaint so long as such assistance is commercially reasonable and does not violate any agreements with third parties, regulations, or laws. Disputes relating to your Account shall be governed by your specific account agreements. Below is more information on how we can try to help you with other Disputes (as defined below).
- Dispute resolution.
You understand and agree that we are not responsible for the goods or services that you pay for using our services, including but not limited to those offered by your Platform and other third parties. Each Platform and seller that you purchase from is responsible for providing the goods and services that you purchase and for providing all customer service related to those goods and services. We recommend that you review Platform’s and, if applicable, a seller’s policies before completing your purchase. You are responsible for resolving any disputes that you may have with a
Platform or a seller. If you have exhausted all options for resolving a complaint about abusive business practices, security-related issues, or other dispute with a Platform or a seller, you may choose to file a dispute claim with Solid (“Dispute”) by following the steps in this “Disputes” Section.
- Release of Solid.
By filing a Dispute, you understand and agree that:
You are asking us to assist in resolving the dispute in its sole discretion and that such assistance or Solid’s decision may not be satisfactory to you;
Solid’s assistance in resolving the dispute does not guarantee any particular outcome or any action on our part; and
You release Solid and our officers, directors, agents, employees, subsidiaries, and suppliers from all claims, demands, and damages of any kind arising out of your dispute with a seller and Solid’s review of your Dispute.
- How to file a Dispute. To file a Dispute, follow these steps:
- Abusive business practices, security issues, or other non-transaction-related disputes. If you have a complaint about a Platform relating to abusive business practices, security issues, handling of your User Data, or related issues, email us at email@example.com with the following information:
- The email associated with your account;
- The name of the website, mobile application, and Platform relating to such Dispute;
- The details of your Dispute with the Platform, including any steps already taken to resolve the issue, and copies of supporting documentation (e.g. email correspondence, related agreements, and
promises or affirmations, etc.); and
- How these issues have negatively affected you.
- Transaction-related disputes or unauthorized activity. Within 45 days of the original disputed transaction or immediately if the Dispute relates to unauthorized activity, email us at firstname.lastname@example.org with the following information:
- The email associated with your account and names of both parties, if available;
- The name of the website, phone application, and Platform relating to such Dispute;
- The transaction ID number;
- The amount of the transaction; and
- The details of the unauthorized activity or your disagreement with the recipient, including any steps already taken to resolve the issue, and copies of supporting documentation (e.g. when you first noticed such unauthorized activity, email correspondence, receipts, shipping confirmations, etc.).
Provide any additional information or documentation that we may request. Once Solid has decided the outcome of the Dispute, the parties will be notified of the decision. You are required to comply with the decision and complete any actions required by such decision.
All disputes relating to an Account shall be governed by the specific Account agreement and this section shall not apply.
- Your liability and actions against you.
- Your liability.
You are responsible for all Reversal Dues, claims, fees, fines, penalties, and other liabilities incurred by Solid, Bank, other Solid users, a Platform, or third parties arising from your breach of these Terms of Service or your use of our services. You agree to reimburse Solid, Bank, other Solid users, Platforms, or third parties for any and all such liability.
- Actions we may take.
If we determine, in our sole discretion, that you may have breached these Terms of Service, that you or your account activity presents risk or security concerns, or if we are unable to verify your identity, we may take actions to protect Solid, Bank, Platforms, our users, or other third parties from Reversal Dues, claims, fines, penalties, and any other liability. These actions may include, but are not limited to, the following:
- Suspending your access to your Account or other Solid related services;
- Suspending your access to your funds held in your Account, or otherwise held with Bank or Platform for your benefit for up to 90 days;
iii. Taking action as set out in the “Reversals” Section to recover amounts that you owe;
- Closing your Account held by Bank or Platform for your benefit;
- Contacting Platforms, our users or third parties who have purchased goods or services from you, contacting the financial institution associated
with your Bank Account(s), and/or warning other Solid users, law enforcement, or other impacted third parties of your actions;
- Refusing to provide our services to you in the future; and
vii. Taking legal action against you.
- Notice of limit or suspension. We will provide you with notice if we take any of the above actions against your Account or other accounts held by Bank or Platform for your benefit. If we limit or suspend such accounts, we will provide you with notice of our action.
- Solid services are in the US Only.
Solid’s services are based in the United States of America. We make no claims whether these services can be appropriately used outside of the United States. If you access our services from outside of the United States, you do so at your own risk. You are solely responsible for ensuring compliance with local laws.
- Solid can terminate these Terms of Service at will.
We reserve the right, at our sole discretion, to restrict, suspend, or terminate these Terms of Service and your access to all or any part of our services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of our services at any time without prior notice or liability.
- Terminating your agreement with Solid.
If you wish to terminate your use of the services and the Terms of Service, email us at email@example.com. However, if you terminate the Terms of Service with Solid, this will result in your Account Agreement being terminated and may impair your ability to use Platform’s services. You accept sole responsibility and any liabilities resulting from an impairment of Platform’s services or termination of your agreements with Platform, to the fullest extent permitted by law.
- Terminating your agreement with Platform or your Account.
If you wish to terminate your agreement with Platform or your Account, you must notify the parties of such agreements in accordance with such agreements.
- Notice + electronic communication.
To the fullest extent permitted by law, these Terms of Service, notices, and other communications (collectively, “communications”) from Solid to you regarding these Terms of Service may be provided to you electronically via Solid, Bank, or Platform (on behalf of Solid), and you consent and agree to receive those communications in an electronic form. Electronic communications may be posted on the page you are on now and the pages within the Platform’s website or application, pages within the Solid website (https://solidfi.com/) or applications, and/or delivered by Solid, Bank, or the Platform (on behalf of Solid) to your email address(es) provided to Platform and us. You may download or print a paper copy of any electronic communication and retain it for your records. All communications in electronic format will be considered to be "in writing," and to have been received no later than twenty-four (24) hours after posting or dissemination, whether or not you have received or retrieved the communication. Solid reserves the right to provide communications in paper format. You agree to give us notice of any change of your postal or email address.
Your consent to receive communications electronically is valid until you revoke your consent by notifying us of your decision to do so. If you revoke your consent to receive communications electronically, Solid may terminate your right to use the services under these Terms of Service and, as a result, your ability to use the Bank or Platform services, and you accept sole liability for resulting from an involuntary termination of the Bank’s or Platform’s services, to the extent permitted by law.
You may give notice to Solid by emailing Solid at firstname.lastname@example.org
“Business Day” for the purpose of these Terms of Service means every day is a business day except Saturdays, Sundays, and federal and state holidays.
Solid may revise these terms of Service at any time without notice. By using the Platform’s or Bank’s services, Solid services or website, you are agreeing to be bound by the then current version of these Terms of Service and any amendments to the Terms of Service upon your continued use of our services.
- IMPORTANT LEGAL PROVISIONS
- NO WARRANTIES.
THE SERVICES UNDER THE TERMS OF SERVICE, Solid’S WEBSITE, AND ITS CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
THE Solid SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATION OF WARRANTY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. USE OF THE Solid SERVICES IS AT YOUR OWN RISK. Solid, BANKS, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER Solid NOR BANK HAVE CONTROL OF, OR LIABILITY FOR, ANY PRODUCTS OR SERVICES OFFERED BY PLATFORMS OR THAT ARE PAID FOR USING OUR SERVICES AND CANNOT ENSURE THAT ANY PLATFORM OR OTHER THIRD PARTY YOU TRANSACT WITH WILL COMPLETE THE TRANSACTION. NEITHER Solid NOR BANK REPRESENT OR WARRANT THAT OUR SERVICES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, SECURE, TIMELY, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Solid OR THROUGH OUR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. NEITHER Solid NOR BANK SHALL BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS OR SYSTEM FAILURES THAT MAY AFFECT THE PROCESSING, COMPLETION, OR SETTLEMENT OF OUR SERVICE TRANSACTIONS. THIS DISCLAIMER OF WARRANTY SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION
Solid MAKES NO REPRESENTATIONS OR WARRANTIES RELATING TO YOUR FUNDS OR ACCOUNT BALANCES INCLUDING FEDERAL DEPOSIT INSURANCE CORPORATION (“FDIC”) INSURANCE COVERAGE OR SECURITIES INVESTOR PROTECTION CORPORATION (“SPIC”) INSURANCE COVERAGE. SUCH REPRESENTATIONS AND WARRANTIES MAY BE FOUND IN THE SPECIFIC ACCOUNT AGREEMENT OR AGREEMENT WITH YOUR PLATFORM. UNLESS NOTIFIED OTHERWISE BY SUCH AGREEMENTS, YOUR ACCOUNT BALANCES MAY LOSE VALUE IN THE EVENT BANK OR BROKER DEALER ENTERS A RECEIVERSHIP.
- Force majeure.
You understand and agree we will not be held responsible for any losses or damages resulting from suspension of service due to extraordinary events or circumstances beyond our control. In such an event, Solid or Bank may suspend the services and access to your Account held by Bank or Platform for your benefit.
- LIMITATION OF LIABILITY.
IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL, AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE Solid’S, BANK’S, PLATFORM’S SERVICES OR WEBSITES OR PHONE APPLICATIONS OR CONTENT THEREIN WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless Solid and their respective officers, directors, employees, agents, and suppliers (collectively “Disclaiming Entities”) from and against any third party claim, suit, demand, loss, liability, damage, action, proceeding or suits and related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) arising out of or relating to (i) your breach of any provision of these Terms of Service; (ii) your actions and omissions in connection with your accounts or our services; (iii) our actions and omissions, provided that they are taken/omitted in accordance with this Terms of Service or your instructions; or (iv) your violation of any laws and regulations; or (v) your negligent or reckless act or omission or willful misconduct of your employees, contractors, or agents. This provision shall survive the termination of these Terms of Service.
- Binding Arbitration.
Any controversy or claim arising out of or relating to these Terms of Service, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. In any arbitration arising out of or related to the Terms of Service, the arbitrators will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defenses on which it prevails, and any opposing awards of costs and attorneys’ fees awards will be offset.
No class actions or similar process, and no joinder or consolidation of any claim with a claim of any other person or entity, shall be allowable in arbitration, without the written consent of both parties. The arbitrator shall have no authority to entertain any claim on behalf of a class, group, person, or entity who is not a named party to the arbitration, nor shall any arbitrator have authority to make any award for the benefit of, or against, any class, group, person, or entity who is not a named party to the arbitration. In the event that there is a dispute about whether limiting arbitration to non-class proceedings, or to the named parties, is enforceable under applicable law, then that question shall be resolved by a court rather than by an arbitrator, and to the extent, it is determined that resolution of a claim must proceed on a class basis, it shall so proceed in a court of competent jurisdiction rather than in arbitration.
The place of arbitration shall be San Francisco, CA, except to the extent, the arbitration involves Bank and/or your Account, or a third-party service provider of Solid as a party to the dispute, then Solid may in its sole discretion move the place of arbitration to the location of such arbitration proceedings to which you have previously agreed to in such agreements (See, your specific Account Agreement Arbitration sections for more information of the place of arbitration).
ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND NEITHER PARTY WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT. IN ARBITRATION THE PARTIES WILL NOT HAVE THE SAME RIGHTS THAT APPLY IN COURT, SUCH AS THE RIGHT TO A TRIAL BY JUDGE OR JURY AND THE RIGHT TO PARTICIPATE OR BE REPRESENTED IN PROCEEDINGS BROUGHT BY OTHERS SUCH AS CLASS ACTIONS OR SIMILAR PROCEEDINGS. IN ADDITION, THE RIGHT TO DISCOVERY AND THE RIGHT TO APPEAL MAY ALSO BE LIMITED OR ELIMINATED IN ARBITRATION. ALL OF THESE JUDICIAL RIGHTS ARE WAIVED WITH RESPECT TO CLAIMS THAT THE PARTIES ELECT TO ARBITRATE.
All claims, findings, and settlements under this “Binding Arbitration” shall be confidential information of Solid. You shall not disclose or reveal to employees, agents, Platform, or other third parties unless such information is already publicly available. Due to the unique nature of the confidential information, monetary damages may be inadequate to compensate us for your violation or threatened violation may cause irreparable injury to us and, in addition to any other remedies that may be available, in law, in equity or otherwise, we shall be entitled to seek injunctive relief against the threatened breach of confidentiality or the continuation of any such breach by you.
- Other legal terms.
The Terms of Service are governed by the laws of the State of California. You agree to submit to the exclusive personal jurisdiction of the state and federal courts in the State of California except as detailed in the “Binding Arbitration” Section. If any provision of these Terms of Service is found to be invalid by a competent court, the invalidity of such provisions shall not affect the validity of the remaining provisions. Likewise, if we choose to terminate any provision in accordance with the termination provision, that termination shall not affect the termination of other provisions.
If we fail to act on or enforce, any provision in the Terms of Service, this shall not be construed as a waiver of that, or any other, provision. We will only grant waivers to specific provisions, for specific instances, in writing. The Terms of Service constitute the entire agreement between you and us with respect to this website and supersedes all previous or contemporaneous agreements. The section headings are merely provided for convenience and shall not be given any legal import. You may not assign your rights and obligations under these Terms of Service. The Terms of Service will inure to the benefit of our successors, assignees, licensees, and sublicensees.
Evolve Bank & Trust - Business Account Terms
This document, as amended or supplemented by the attached disclosures and pricing guides, (collectively, the “Account Terms”) contains the general terms, conditions and disclosures for the Evolve Bank & Trust transaction account (the “Account”) and constitutes an agreement between the Bank (as defined below) and you. For purpose of these Account Terms, the term “Account” may also collectively include Sub-Deposit Accounts.
References to the “Bank,” “we,” “us,” or “our” means Evolve Bank & Trust and any of its affiliates. References to “you” and “your” means any person or entity that holds, owns or has authority to use, whether individually or on behalf of another person or entity, the Account. The Account Terms may be supplemented or amended as set forth in Section V(E) (Miscellaneous Terms). Bank services and access and use of your Account may be provided to you through the website and/or mobile phone application of our service provider (the “Service Provider,” and its website and mobile phone application, the “Service Provider Platform”). The Service Provider may offer you additional services through its Service Provider Platform, pursuant and subject to the terms and conditions between you and the Service Provider (the “Services” and such terms and conditions, the “Service Provider Terms”). Please see Section II (The Account) for additional information.
By opening or continuing to maintain an Account with us, you agree to be bound by these Account Terms, and all applicable agreements, disclosures, and other documents, as well as by all applicable federal or state laws, statutes and regulations. Please keep a copy of these Account Terms.
We may decline to open an Account for any reason, or for no reason. We are not liable for any damages or liabilities resulting from refusal of an Account relationship.
THESE ACCOUNT TERMS IS SUBJECT TO MANDATORY ARBITRATION PURSUANT TO THE FEDERAL ARBITRATION ACT AND A WAIVER OF CLASS ACTION AND JURY PROVISION. PLEASE CAREFULLY READ SECTION IV (ARBITRATION AND WAIVERS).
- The Account.
- Availability. The Account is available to an entity legally operating in the U.S. and with a U.S. physical address. The Account is only available for business purposes only, and you must not use it for personal, family or household purposes. You are not entitled to open an Account under these Account Terms if you are not a corporation, unincorporated business association, partnership, limited liability company, incorporated nonprofit organization or sole proprietorship. We reserve the right to close your Account if we determine that it is used for any impermissible purpose, as we may determine from time to time.
You must also agree to go paperless. This means that: (1) you must keep us supplied with your valid email address and telephone number; and (2) you must agree to accept electronic delivery of all communications that we need or decide to send you. Please see the Evolve Bank & Trust Electronic Communication Consent for additional details.https://seriesfi.notion.site/Evolve-Bank-Trust-Electronic-Communication-Consent-1c020653d9b54fde9e16628b0ecfc502
- Account Type and Ownership.
The Account is a transaction account that pays a variable rate of interest and allows you to make certain payments and transfers to third parties. The Account is a business account that may be used only for business purposes. The Account may not be opened as a joint account.
You cannot give a security interest or pledge your Account to someone other than us without first getting our express written consent. We are not required to give consent to a security interest or pledge to someone else. Unless we agree in a separate writing otherwise a security interest or pledge to someone else must be satisfied or released before any right to withdraw from the account can be exercised.
- Opening an Account. To open an Account, you must submit to us an application and all information that we may require. You represent to the Bank that you are authorized to do business in the manner indicated to us and that the acts of person(s) opening the Account have been ratified. You agree that the Bank may rely on such representations without requiring additional information or documentation and that you will furnish such information upon request. You are solely responsible for meeting any legal requirements to establish and maintain the type of Account requested and have a duty to inform us of the status of any change to your organization, including any change to the type of entity. Federal regulations require that you provide us with information concerning the beneficial owners of a legal entity at Account opening. You may also be asked to provide such information at other times (and on any qualifying account) upon request of the Bank. You shall have a continuing obligation to provide any other documentation we may request from time to time, including any information required under our customer identification program to establish your identity. If at any time we determine that the beneficial ownership information you provided to us was false, incorrect, or of concern to the Bank, or if you refuse to provide us with the information when requested, we may close, block, restrict or freeze any or all of your Accounts.
We reserve the right to require the Account holder(s) to furnish us with such resolutions, agreements or documents as we may reasonably request to evidence the authority of individuals to act on behalf of the Account holder(s). We will honor such an authorization until we receive written notice of change from the governing body of the organization. It is mutually agreed that the power and authority of each person named as authorized to take action with respect to the Account shall continue in full force and effect until we receive actual written notice of revocation, whether the same be brought about by dissolution of the Account holder or otherwise.
By opening an Account, you agree that we can gather personal information about you and/or your beneficial owners from oneor more consumer reporting agencies, governmental entities and/or other third parties. You also agree that we have the right to access follow-up consumer reports while your Account is open for maintenance, review or collection purposes.
Your Account will not be considered "opened" until it is funded. This means your balance must be at least a penny. Once your account is considered “opened,” there is no minimum balance required and no maximum balance limit. However, we may, at our sole discretion and at any time, require a minimum balance and set a maximum balance limit.
- Service Providers. You understand that we have engaged Service Providers to perform a number of services for you under these Account Terms, including, but not limited to, identity verification, compliance monitoring, risk mitigation and management, managing your transfer instructions and other related services. Service Providers, along with their partners and agents, are the servicer of your Account. In that capacity, Service Provider may act on our behalf, perform our obligations or enforce our rights under these Account Terms. A Service Provider may also offer Services in connection with your Account to allow you to provide us with payment instructions and to view certain Account information using the Service Provider Platform. You understand that any payment instruction provided to us or activity performed in connection with your Account (including electronic fund transfers (“EFTs”)) using the Services shall be deemed authorized and valid and Bank is under no obligation to investigate the instruction or activity.
To the fullest extent permitted by law, we will not have any liability in connection with the Services and disclaim all warranties, either express or implied or statutory, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose and lack of viruses related to the Services. In no event shall we be liable for: (1) damages caused other than by our own gross negligence or intentional misconduct; or (2) indirect, special, incidental, consequential or punitive damages whatsoever (including, but not limited to, damages for lost profits, disclosure of confidential information, or loss of privacy) arising out of or in any way related to the use of or inability to use the Services, even if we have been advised of the possibility of such damages.
III. Using Your Account and Account Disclosures.
- Debit Card. In connection with your Account, we may (but are not obligated to) issue you a debit card (the “Card”) that will automatically link to the Account. If a Card is made available to you, it is subject to a debit card agreement by and between you and us.
The Card may be used to initiate withdrawals at ATMs and points of sale and may be used to purchase goods and services. By using your Card, you authorize us and/or our agents to debit your Account. We reserve the right to refuse to make any transfer for security, credit, legal/regulatory, or other reasons, as we determine in our sole discretion. You are responsible for all transactions you authorize using the Card, including any losses, charges, or penalties incurred as a result. You may be charged for your use of the Card at ATMs. The Card is the property of the Bank, and if your Account is closed or your Card privileges are cancelled, you agree to stop using the Card and destroy it.
- Linking Accounts. You may link your bank account at another financial institution (“Linked Account”) to your Account in order to transfer funds between your Linked Account and your Account. You represent and warrant: (1) that you have the right to authorize any and all charges and debits to the Linked Account; (2) the Linked Account is held at a depository institution located in the U.S.; (3) you are individually or jointly the owner of the Linked Account; and (4) the Linked Account is a business purpose or commercial account. You will indemnify and hold us harmless from any claims by any person related to the Linked Account, including any other owner of the Linked Account. You are not permitted to link your Account with a credit, debit, gift, or other type of card issued by a third party or another bank. You may deposit funds into or withdraw funds from your Account by using the Service Provider Platform to initiate an Automated Clearing House transfer (“ACH Transfer”) to or from the Linked Account. We do not accept requests made otherwise to initiate ACH Transfers. Requests for ACH Transfers to debit the Linked Account that are made before 4:00 PM MT on a business day, shall be considered received on the business day the request is made. Requests for ACH Transfers to debit the Linked Account that are made after 4:00 PM MT on a business day or on a non-business day, shall be considered received the next business day.
- ACH Transfer Initiated by an External Bank or Through a Third Party. You may deposit funds into or withdraw funds from your Account by having an external bank (directly or through a third party) initiate an ACH Transfer to or from your Account at the Bank. The external account that you are depositing funds into or withdrawing funds from must be at an external bank located in the U.S.
- Internal Transfer Between Accounts at the Bank. We may (but are not obligated to) permit you to initiate a transfer of funds between your accounts at the Bank through a Service Provider Platform. We do not accept requests made otherwise to initiate internal transfers.
- Deposits. When you make a deposit, we will act only as your collection agent and will not be responsible beyond the exercise of good faith and ordinary care. All deposits are provisionally credited subject to our receipt of final payment. If a deposit or transfer of funds into your Account is returned or rejected by the paying financial institution for any reason, you agree that we may deduct the amount of the deposit or transfer against your Account, without prior written notice to you.
- You may make a deposit into your Account by ACH Transfers or any other method we make available to you. You may also arrange for recurring deposits, such as direct deposits, to be made electronically to your Account.
- Foreign Currency and Cash Deposits. We do not accept any deposits denominated in any foreign currency. We do not accept any deposits in cash, whether in U.S. dollars or any foreign currency. All deposits are considered to be non-cash deposits.
- If we permit you to deposit a check into your Account, you agree not to deposit a check drawn on the same Account into which the check is being deposited. If available, you also agree not to deposit by ATM, mobile banking check deposit, or by mail any item that is drawn on a foreign bank or that is not denominated in US dollars. We may refuse a deposit, limit the amount of a deposit or return all or a portion of a deposit. We are not responsible for any deposit you mail to us that we do not receive. We will forward any items you deposit for collection to the bank on which the items are drawn. We may give you provisional credit for any item you deposit, which we may revoke at any time if we do not receive final payment for that item. All deposits to your Accounts, regardless of how made, are subject to verification, final payment, and our Deposit Availability Disclosure.
- You may only deposit with us funds that are immediately available, which under applicable law are irreversible and are not subject to any lien, claim or encumbrance.
- Except as provided below, you may make withdrawals from your Account up to the available balance in your Account by any means that we make available to you. We may refuse a withdrawal request exceeding the available funds in your Account even if you make a deposit later in the business day after we refuse your withdrawal request. If your available balance is not enough to pay a transaction you make, we may assess an insufficient or unavailable funds fee, regardless of whether we pay the transaction. We may allow withdrawals at any time, but reserve the right to require seven (7) days written notice of intention to withdraw funds from your Account if your Account is a negotiable order of withdrawal (NOW) account.
- You are not permitted to make withdrawals from your Account by creating a check drawn on your Account. If you attempt to make any transactions with your Account using a credit, debit, gift or other type of card issued by a third party or another bank or by creating a check drawn on your Account, we will reject and/or return the transaction without notice to you and may consider such action to be a violation by you of these Account Terms.
- Before allowing a transaction, we may request you to provide us with identification, authorization, documentation or other information that we deem necessary. We may refuse a withdrawal if you fail to comply with our request. We may tell you in advance when we are going to refuse a withdrawal request but will not be required to do so.
- You agree that any payment instructions received by us (such as requests to withdraw or transfer funds from your Account) through the Service Provider Platform or in connection with your username, passphrase, PIN or mobile device used to access the Service Provider Platform (collectively “Credentials”) will be deemed to be authorized by you. The use of any of your
Credentials by another person will be as effective as your use of the Credentials, regardless of whether the person affixing the Credential was authorized by you and regardless of the means by which the Credential was affixed. For example, if you provide your username and password used to access the Service Provider Platform to another person and that person uses that information to withdraw funds from your Account, we will deem the withdrawal to be authorized by you. Unless prohibited by applicable law, you agree to hold us harmless and indemnify us for any liability incurred for reasonably acting upon such instructions which bear any of your Credentials.
You agree to keep confidential and to take all reasonable precautions and make all reasonable efforts to protect the secrecy of all Credentials issued to you, selected by you, or utilized by you. If any of your Credentials become lost or known to another person, you agree to notify us immediately so that a replacement may be issued. If you believe your Credentials are no longer secure or confidential, or that someone has used your Credentials without your permission, please contact us immediately by calling +1 (888) 610-2324 or notifying us through the Service Provider Platform.
- We may refuse to follow any of your payment instructions if we think they are illegal or potentially harmful to us. If we follow your payment instructions, we may require other security measures to protect us from any losses we may suffer. To the greatest extent permitted by law. you agree to pay us back for any damages or losses (including, but not limited to, the reasonable costs of an attorney) that we suffer if we take an action based on your (or what appears to be your) oral, written or electronic instructions.
Posting Order of Credits and Debits.
- Posting Orders. This section summarizes how we generally post some common transactions to your Account. Posting transactions to your Account impact your Account balance. Posting a credit increases your balance, while posting a debit or hold reduces your balance. Credits include deposits and credits we make. Holds include deposit holds, Card authorizations and holds related to withdrawals and EFTs. Debits include withdrawals, transfers, payments, Card transactions and fees.
We use automated systems to process transactions and then to post transactions to your Account. When we process multiple transactions for your Account on the same day, you agree that we may in our discretion determine our posting orders for the transactions and that we may credit, authorize, accept, pay, decline or return credits, debits and holds in any order at our option.
We generally post common transaction as follows. We group the different types of transactions into categories. We use several different categories for holds, credits, and debits. Most categories include more than one transaction type. After the end of the business day, our automated systems assign each transaction received for that day to a category. We generally post all transactions within a category, using the posting order or orders that apply to that category, before we post any transactions assigned to the next category.
First, we start with the balance in your Account at the beginning of the business day, subtract holds from your balance, and make any adjustments from prior days. Next, we generally add available deposits and credits to your balance and then subtract debits from your balance based on the debit category. We subtract debits in a category from your balance in order from the highest to lowest dollar amount, unless specified otherwise herein. The first category of debits to be applied against your balance are certain Card and ATM transactions (e.g., Card transactions and ATM withdrawals and transfers). The debits within this category are subtracted from your balance in date and time order our systems receive date and time information. If we make checks available to you, this category is applied next against your balance. Check posting will be in sequential order based on the check number, and for any check for which the number cannot be read, from highest to lowest amount following the posting of number legible checks. We then subtract from your balance any other types of electronic debits in order from the highest to lowest dollar amount. These debits include ACH Transfers. Finally, we subtract from your balance most fees (such as monthly maintenance fees, overdraft fees, returned item fees, and ATM fees) in order from highest to lowest dollar amount. Some fees may show as “processing” until the next day.
- Changing Posting Orders. You agree that we may determine in our discretion the orders in which we post transactions to your Account. You agree that we may determine in our discretion the categories, the transactions within a category, the order among categories and the posting orders within a category. We sometimes add or delete categories, change posting orders within categories and move transaction types among categories. You agree that we may in our discretion make these changes at any time without notice to you.
- Posting Orders Determined at End of Day. We receive credits, debits and holds throughout the day. Regardless of when during the day we receive transactions for your Account, you agree that we may treat them as if we received all transactions at the same time at the end of the business day. During the day, we show some transactions as processing. Please note that transactions shown as processing have not been posted yet. The posting order for these transactions is determined at the end of the day, with the other transactions we receive for that day and based on the category. We do not always receive debits on the same day that you conduct them. We generally post credits and debits to your Account, and report them on your statement, in a different order than the order in which you conduct them or we receive them.
- Overdraft Fees. We generally determine at the time we post a debit to your Account whether it creates an overdraft and whether an overdraft or returned item fee applies. You should note that sometimes we authorize a transaction at a time when you have enough available funds to cover it, but because other transactions post before it and reduce your balance, the transaction creates an overdraft when we post it to your Account. You can avoid fees for overdrafts and returned items by making sure that your Account always contains enough available funds to cover all of your transactions. When your Account balance includes some funds that are subject to a hold, dispute or legal process, you should note that those funds are not available to cover your transactions. Our posting orders can impact the number of overdraft fees we charge you when you do not have enough available funds to cover all of your transactions. When several debits arrive the same business day for payment from your Account and you do not have enough available funds in your Account to cover all of the debits we receive for that day, you understand that some posting orders can result in more overdrafts, and more fees for overdraft items and returned items, than if we had used other posting orders. You agree that we may in our discretion choose our posting orders, and also change them from time to time, regardless of whether additional fees may result. When your Account balance includes some funds that are not available at the time that we post a debit, and you do not have enough available funds in your Account to cover the debit, the debit results in an overdraft and we generally charge you an overdraft fee or returned item fee for the debit. We do not show holds or distinguish between available and unavailable funds in your Account balance on your statement.
- Certain Transactions Made After Business Day Ends. During processing, we generally include in your Account balance some transactions that you make after the business day cut-off, but before the end of the calendar day. Deposits are made available based on Section VIII (Deposit Availability Disclosure). We generally subtract from your Account balance the following debits, when the transaction occurs after the cutoff time for the business day, but during the same calendar day: cash withdrawals made at an ATMs and any credit-push ACH Transfers of EFTs.
- Insurance Coverage. The Federal Deposit Insurance Corporation (“FDIC”) insures deposits according to the ownership category in which the funds are insured. Not all accounts may be insured. Unless otherwise stated by us or the FDIC, the Account is insured by the FDIC up to the standard maximum deposit insurance amount per depositor, per ownership category (the “Standard Insurance Amount” or “SIA”). For purposes of determining the SIA applicable to your Account, you need to consider all accounts that you also hold at the Bank in the same ownership category. To determine SIA applicable to your Account with us and for any other FDIC insurance requirements that may apply, please visit the FDIC’s website at www.fdic.gov/deposit/deposits or call the FDIC directly at 1-877- ASKFDIC (1-877-275-3342). You can also use the FDIC’s Electronic Deposit Insurance Estimator (EDIE) at . Please see subsection L below for additional information regarding FDIC insurance coverage for Sub-Deposit Accounts.
- Court Processes and Claims Against your Account. If we receive a levy, attachment, or other legal process against you or any party to your Account, we may refuse to permit withdrawals or transfers from your Account until the legal process is dismissed or satisfied. Any levy, attachment, or other legal process will be subject to our right of set-off and security interest. You are responsible for any losses, costs, or expenses we incur as a result of any dispute or legal proceeding involving your Account. If we receive a claim against the funds in your Account, or if we know of or believe that there‘s a dispute as to the ownership or control of funds in your Account, we may, in our discretion: (1) place a hold on your Account and refuse to pay out any funds until we‘re satisfied that the dispute is settled; (2) close your Account and send the balance to the named account holder(s); (3) require a court order to act; or (4) take any other action we feel is necessary to protect us. We will not be liable to you for taking any such action.
- Statements. We will deliver or make available to you periodic statements for your Account at least four (4) times a year, unless your Account is determined to be inactive. The Account statement will describe payments or transfers made in connection with your Account. You agree to notify us promptly if you do not receive your statement by the date you normally would expect to receive it. Your periodic statement may be accompanied by items or a facsimile of those items listed on the statement, unless the item or an image of the item is unavailable for any reason. You agree that the statement and items all have been delivered or made available to you in a reasonable manner. We will not be responsible for any indirect, special or consequential damages under any circumstances for our inability to provide copies of an item. Our liability, if any, will not exceed the face amount of an item in question.
- Sub-Deposit Accounts. We will, from time to time, place your funds provided to us in a deposit account or omnibus custody account (“Sub-Deposit Account”) with other depository institutions (each an “Insured Depository Institution”). You will not be charged a fee for our placement of your funds or in connection with the Sub-Deposit Account. We also will act as the agent/custodian with respect to your Sub-Deposit Account pursuant to this subsection. You consent to us placing funds with Insured Depository Institutions. If you do not consent to our placement of funds with Insured Depository Institutions, you should not open an Account or deposit funds with us.
The Sub-Deposit Account will be established by an Insured Depository Institution that has entered into agreements with us. Your funds in the Sub-Deposit Account will bear the interest rates and APY you have agreed to with us (if any). All payments with respect to the Sub-Deposit Account by the Insured Depository Institutions will be made to us, and we will credit the funds to your Account.
Your only rights with respect to the Sub-Deposit Account is to demand we repay you all amounts in your Account, including those transferred to the Sub-Deposit Account. The Sub-Deposit Account may not be transferred to another institution, except by us or the Insured Depository Institution. You may terminate our role as your agent/custodian and our ability to deposit funds you provide us in the Sub-Deposit Account. Any termination will result in a return of funds in accordance with law and closing of your Account and any Sub-Deposit Account opened specifically for you.
When we place funds with Insured Depository Institution and act as your agent with respect to the Sub-Deposit Account, we will ensure the records of the Insured Depository Institution are in our name, as agent or custodian. The funds deposited in the Sub-Deposit Account will be FDIC insured to the same extent as if such funds were held in the Account with us. In other words, the depositing of your funds into the Sub-Deposit Account will not otherwise increase your FDIC deposit insurance coverage. You will not receive any written confirmation of the establishment of the Sub-Deposit Account or transfer of funds to the Sub-Deposit Account; instead, we will maintain records clearly indicating the transfer and beneficial ownership of the Sub-Deposit Account. You must immediately report to us any changes in Account ownership information that you originally provided to us in connection with the submission of your application for an Account.
Our placing of funds may reflect considerations of federal and state law, our funding needs and funding needs of Insured Depository Institutions, general economic conditions or other factors determined by us in our sole discretion. We will not place funds with more than one Insured Depository Institution. We may place funds to enhance our business objectives and for balance sheet management without any benefit to you, including increased FDIC deposit insurance coverage. Further, we may receive greater benefits when we place your funds with an Insured Depository Institution than if we otherwise maintained your funds with us. We are under no obligation to place your funds with an Insured Depository Institution.
A Sub-Deposit Account will be a deposit obligation of the Insured Depository Institution that maintains the Sub-Deposit Account; provided, this does not modify our obligation to repay all amounts you deposited in your Account.
All deposits that are maintained with an Insured Depository Institution in the Sub-Deposit Account are aggregated with deposits maintained in your Account with us for purposes of the SIA. Funds you hold in one or more Accounts with us (including funds we maintain before placement with Insured Depository Institution), funds in the Sub-Deposit Account and any funds resulting from payment of interests on an Sub- Deposit Account will be aggregated for FDIC insurance purposes with all other deposits you hold in deposit accounts with us in the same ownership category and therefore may not be fully insured by the FDIC. For the avoidance of doubt, funds deposited in the Sub-Deposit Account will be treated as funds on deposit in the Account with us for FDIC insurance calculation purposes. As such, your total FDIC deposit insurance coverage for funds you provide us for deposit in your Account will not be increased by nature of any deposit of funds in the Sub-Deposit Account. Please see subjection J above for additional information on determining SIA.
We may provide your name, tax identification number and other pertinent identifying information to Insured Depository Institution, and other parties providing services in connection with the placement of your funds and the establishing and holding the Sub-Deposit Account. You hereby consent to such release of information. Nothing in this section shall be deemed to prevent us from disclosing information to a third party if required by law.
We will act as your agent in connection with the placement of your funds with the Insured Depository Institution and the establishment and maintenance of the Sub-Deposit Account. Although we will act as your limited agent in connection with the placement of your funds, we are not acting as your financial adviser. See subsection A of Section V for additional information. You hereby appoint us to act as your agent for purposes of placing funds with Insured Depository Institutions and establishing and maintaining, on your behalf, the Sub-Deposit Account. You further authorize us to collect for you all interest and other payments related to an Sub- Deposit Account, to place funds with Insured Depository Institution pursuant to the terms set forth herein, and to execute and deliver or file on your behalf all appropriate receipts, agreements, releases and other instruments, including whatever agreements may be required from Insured Depository Institution, for the purpose of establishing your ownership interest in the Sub-Deposit Account and maintaining an Sub Deposit Account.
Although there are two or more accounts associated with your funds (the account maintained with us, referred to as the Account, and the Sub-Deposit Account), your Account is considered a single account for your deposits and withdrawals, as well as for tax reporting, balance requirement, service charge, monthly statement and FDIC deposit insurance purposes. The existence of the Sub-Deposit Account and any other account maintained by us pursuant to these Account Terms is for internal purposes and will not change the manner in which you use, obtain information about or earn interest (if any) on your Account. These transfers, including the placement transfer, will not appear on your monthly statement.
- Interest and Interest Rate. If your Account is an interest bearing account, the following provisions apply. A minimum deposit of $1.00 is required to earn the Annual Percentage Yield (“APY”) disclosed to you from time to time. We only pay interest in whole cents and use standard rounding rules to calculate the amount of interest earned. This means that an amount equal to or greater than one half of one cent accrued during a monthly interest period is rounded up to the next whole cent and an amount less than one half of one cent accrued during a monthly interest period is rounded down to zero. Interest is compounded daily and credited to your Account monthly. Interest is calculated using the daily balance method. This method applies a daily periodic rate to the principal and interest that has accrued in the Account each day. This means that the interest from your Account is calculated every day on a 365-day year (and 366-day for leap year). Interest begins to accrue on the business day that we receive your deposit. If the Account is closed before interest is credited, accrued interest will be paid through the last full day before the day the Account is closed. The rate at which interest may be paid on the principal balance of the Account, and the corresponding APY at which the Account would earn interest each year if all interest paid on the Account remains in the Account, can be found on the Service Provider Platform, which may be modified by from time to time in our sole discretion. We may, at our discretion, at any time, change the interest rate and the APY.
- Prohibitions. You must not use your Card or Account for any illegal purpose or internet gambling. This prohibition includes any transaction that is illegal in the jurisdiction where you live, in the jurisdiction where the transaction is consummated, or in any other jurisdiction affected by the transaction. You are responsible for determining the legality of each of your transactions in all applicable jurisdictions before entering into the transaction. We have no obligation to monitor, review or evaluate the legality of any transaction. Nevertheless, we may deny transactions or authorizations if we believe the transaction is or may be illegal. We reserve the right to refuse or return any item that we believe is related to an illegal transaction, an Internet or online gambling transaction or a high-risk transaction. To the fullest extent permitted by law, you agree to pay for any item or transfer that you authorized, even if the transaction related to that item or transfer is determined to be illegal.
- Fees. You agree to pay all fees and charges applicable to your Accounts, which will be automatically deducted from your Accounts and may result in your Accounts being overdrawn. The amounts of these fees and charges, the manner in which they are calculated, and the ways to potentially avoid them are listed in our Fee Schedule. Fees and our Fee Schedule are subject to change at any time and without notice to you, unless required by law. Fees set forth in the Fee Schedule are charged by Bank for its services. Service Provider may charge you fees separate and apart from the fees set forth in the Fee Schedule for its Services, pursuant to the Service Provider Terms. Bank is not responsible for any fees charged by Service Provider for its Services.
- Power of Attorney/Agents. References to you also include any person who you authorize to act on your behalf, whether by following the process we require (for example, by designating an authorized signer on a signature card), or on your own (for example, by creating a power of attorney). If you name such an agent:
- We may require that you use forms we approve and require each owner to sign the form to be effective;
- The powers you give to your agent, and any limitations on those powers, are between you and your agent, even if we have express written notice of those powers. You understand and agree that we have no duty or responsibility to monitor the acts of your agent or ensure that the acts of your agent are for your benefit. For example, if you only give your agent authority to pay your bills and your agent exceeds that authority, we are not responsible for that breach of authority;
- You agree not to hold us responsible for any loss or damage you incur as a result of us following instructions given to us by your agent;
- The owner of the Account is responsible to us for any actions of your agent, regardless of whether those actions exceed the authority given or whether the agent is formally nominated by all the owners or less than all the owners;
- The agency will end after the owner notifies us in writing to end the agency and we have had a reasonable opportunity to act on it; and
- If you authorize any third person, such as a bookkeeping service, an employee, or agent of yours to retain possession of or prepare items or any transactions using your Account, you agree to assume full responsibility for any errors or wrongdoing performed or caused by such third person or any of its agents or employees if we should pay any such item.
- Bankruptcy Cost. If your Account becomes subject to a receivership, court order or bankruptcy, and we are required to implement changes as to your Account that increase our costs to maintain your Account (for example, a requirement for us to pledge property to secure your Account above the amount of any deposit insurance on your Account), you agree to reimburse us for the additional costs and any expenses incurred by us (including legal fees) to implement such required changes as to your Account.
- Monitoring and Closing Your Account. Subject to the terms herein, you can close your Account at any time and for any reason by contacting us or terminating the Account through the Service Provider Platform, if applicable. We reserve the right to refuse your request to close your Account if your Account is not in good standing or if you have a negative balance on your Account. If you intend to close your Account, you should notify us. Simply reducing your Account balance to $0.00 is insufficient notice. If you close your Account you are responsible for transactions you initiated or authorized, including those that we receive after the Account is closed. Withdrawals from your Account may be restricted prior to Account closing.
We reserve the right (but are not obligated) to monitor all Account activity for inappropriate use. We can close your Account at any time, for any reason, without advance notice. If we close your Account, we will notify you by mail, electronically or by telephone that we have closed your Account unless your Account has had a zero balance for thirty (30) days or more. If we close your Account, all collected funds (less any amounts due to us or for debits in process) will be transferred to your Linked Account. Alternatively, we may, at our discretion, mail you a check for the available balance in your Account. Written notice that the Account has been closed and a check, if any, will be sent to any address shown on our records for you, or if the Account is a jointly owned, to any account owner to whom we elect to send it. Once we have closed your Account, you agree that we can assess any service charge otherwise applicable against any remaining balance in your Account. We are not responsible to you for any damages you may suffer as a result of your Account being closed. If you attempt to make a deposit to an Account we closed, we may collect the deposit and set-off your indebtedness to us. Any funds in excess of $1.00 will be returned to you.
State laws (called "escheat" or unclaimed property laws) require us to close your Account and transfer your money to the state if your Account is dormant for a period of time as defined by your state of residence. Your Account can become dormant if, for 24 months, there is no transactional activity. If your Account becomes dormant, you may no longer receive statements, but you can still view your accounts online.
State abandoned property law establishes guidelines under which unclaimed property must be surrendered to the applicable state. Generally, the funds in your Account are considered unclaimed if you have not had any activity or communication with us regarding your Account over a period of years, defined by your state of residence. All products offered by us are subject to abandoned property laws. If your funds are surrendered to the state, you may be able to reclaim them, but your claim may need to be presented to the state. You can avoid the transfer of your money to the state simply by signing into your Account, transacting periodically, or contacting us, or replying to any abandoned property correspondence.
Fraud and Unauthorized Transactions.
- Duty to Safeguard Account. You agree to keep any Account information, Credentials, security code, password or other confidential identification number used to access your Account secure and strictly confidential and to not permit disclosure of such information to any unauthorized person. You agree to immediately notify Bank if this information has become known to, or been used by, an unauthorized person. You acknowledge that Bank has no method to determine whether a transaction conducted with use of a valid Account name, Account number, Credentials and/or security code was proper, and you therefore authorize Bank to complete any transaction involving your Account made with the use of such information.
You agree to be responsible for any transaction initiated with the use of a valid Credentials or any access device. Bank shall have no liability for any loss, claim, or damage sustained as a result of the use of your Credentials or access device whether such transaction was authorized or not and agree to indemnify and hold harmless Bank for any such transaction alleged to be unauthorized.
- Duty to Review Account Statement. You agree to review your Account statement within thirty (30) days from the statement date. Because you are in the best position to discover an unauthorized transaction, you agree that, without regard to care or lack of care by either you or Bank, we will not be liable for any transaction, subject to applicable law and payment network rules. If you choose not to receive your statements, you remain responsible to review and report any errors. If you are absent from your Account mailing address, you are responsible to make arrangements to have your statements reviewed for errors and report them in a timely manner.
- Duty of Care. You agree that you will exercise ordinary care in handling your Account. In exercising ordinary care, you shall have the duty to: carefully examine your bank statements for fraudulent or unauthorized transactions and promptly notify Bank of any such transaction; timely reconcile your statement with your internal records to detect any other Account discrepancies, including any missing or diverted deposits; implement security precautions regarding the use and access of your Accounts through any access device, Credentials, security codes, passwords, or confidential identification numbers; conduct background checks of all individuals having access to any Credentials, security or access devices or sensitive Account information; conduct background checks on all individuals who have authority to prepare Account transactions or reconcile statements; independently review the work of individuals who are responsible for reconciling statements and preparing transactions using your Account; and comply with all other duties under this Agreement or under any applicable law. Your failure to exercise ordinary care will constitute negligence and will preclude you from asserting against Bank any unauthorized transaction on your Account.
- Fraud Detection Tools. [Service Provider to insert any it may offer for UCC 4A purposes.]
- Limitation to File Claim. You agree that no legal proceeding or action may be commenced against Bank to recover any amounts alleged to have been improperly paid out of the Account due to any fraudulent or unauthorized transaction unless: (i) you have timely provided written notice as required by subsections 1 and 2 of this paragraph S (Fraud and Unauthorized Transactions), and (ii) such proceeding or action shall have been commenced within six (6) months from the date the first statement containing the unauthorized transaction was made available to you. Any proceeding or action not brought within one year from the date of the first statement containing the unauthorized transaction is forever barred.
- Duty to Cooperate. If you report any unauthorized transaction on your Account, you agree to cooperate with Bank in its investigation of the claim. This includes preparing an affidavit and report containing whatever information Bank requires concerning the Account, the transaction and the circumstances surrounding the loss. You also agree to file a criminal report against any suspected wrongdoer and waive any claims against Bank if you fail to do so or if you enter into any settlement, compromise or restitution agreement with the wrongdoer without the consent of the Bank. Bank may reverse any credit or reimbursement should you fail to file the criminal report or refuse to testify against the wrongdoer.
- Duty of Insurance. You are under a duty to maintain fidelity bond coverage on any individual who has access to your Account information, Credentials or access devices and on any individual responsible for reviewing or reconciling statements. You agree to pursue all rights under such policy or any other insurance policy you maintain before making a claim against Bank in connection with any unauthorized banking transaction. You agree to provide Bank with all reasonable information about your insurance coverage, including the name of the insurance carrier, the policy number, policy limits, and applicable deductibles. Bank’s liability, if any, will be reduced by the amount of any insurance proceeds you are entitled to receive. At Bank’s request, you agree to assign your rights under any insurance policy to Bank.
- Limitation of Liability. You agree that Bank has a reasonable time to investigate the facts and circumstances surrounding any claimed loss and that we have no obligation to provisionally credit your Account. Bank’s maximum liability is the lesser of actual damages proved or the amount of the unauthorized withdrawals, reduced by an amount which could have been avoided had you exercised ordinary care. In no event will Bank be liable for special or consequential damages, including loss of profits and opportunity or for attorneys’ fees. Bank will not be liable for any items that are forged or altered in such a way that such forgery could not be reasonably detected.
Arbitration and Waivers.
THIS ARBITRATION PROVISION WILL HAVE A SUBSTANTIAL IMPACT ON HOW LEGAL DISPUTES BETWEEN YOU AND US ARE RESOLVED. PLEASE READ THIS SECTION IV (ARBITRATION AND WAIVERS) CAREFULLY. For a dispute subject to arbitration, neither you nor we will have the right to: (A) have a court or a jury decide the dispute; (B) engage in information-gathering (discovery) to the same extent as in court; (C) participate in a class action in court or in class arbitration; or (D) join or consolidate a claim with claims of any other persons. Arbitration procedures are simpler and more limited than rules applicable in court. The decision of the arbitrator is final and binding.
- Definitions. If you have a dispute with us or our Service Provider, and we are not able to resolve the dispute informally, you and we agree that upon demand by either you or us, the dispute will be resolved through the arbitration process as set forth in this section. A “claim” or “dispute,” as used in this Section IV (Arbitration and Waivers), is any unresolved disagreement between you, us and/or our Service Provider, arising from or relating in any way to the Account or these Account Terms. The terms “claim” and “dispute” are to be given the broadest possible meaning that will be enforced and includes, by way of example and without limitation, any disagreement relating in any way to services offered in connection with an Account or any other services offered pursuant to these Account Terms; to your use of any of our banking products or services; to any means you may use to access your Account(s); to any advertisements, promotions or oral or written statements related to the Account; to the benefits and services related to an Account; or your approval, establishment or enrollment for an Account. Claims also include disagreements about the meaning, application or enforceability of this arbitration agreement. As solely used in this Section IV (Arbitration and Waivers), “we” or “us” shall include the Bank, its affiliates and service providers and their successors, employees, directors, officers and agents, and the terms “you” or “yours” shall mean each Account owner and all persons or entities approved to have, approved to use and/or given access to an Account. The term “Account,” for purposes of arbitration, includes any updated or substitute Account for you.
- Binding Arbitration and Appeals. Arbitration applies whenever there is a claim between you and us. If a third party is also involved in a claim between you and us, then the claim will be decided with respect to the third party in arbitration as well, and it must be named as a party in accordance with the rules of procedure governing the arbitration. No award or relief will be granted by the arbitrator except on behalf of, or against, a named party. Claims are subject to arbitration, regardless of on what theory they are based, whether they seek legal or equitable remedies, or whether they are common law or statutory (Federal or state) claims. Arbitration applies to any and all such claims or disputes, whether they arose in the past, may currently exist, or may arise in the future.
Judgment upon the arbitrator’s award may be entered by any court having jurisdiction. The arbitrator’s decision is final and binding, except for any right of appeal provided by the FAA. However, if the amount of the claim exceeds $25,000 or involves a request for injunctive or declaratory relief that could foreseeably involve a cost or benefit to either party exceeding $25,000, any party can, within thirty (30) days after the entry of the award by the arbitrator, appeal the award to a three-arbitrator panel administered by the forum. The panel shall reconsider anew all factual and legal issues, following the same rules of procedure and decide by majority vote. Reference in this Section IV (Arbitration and Waivers) to “the arbitrator” shall mean the panel if an appeal of the arbitrator’s decision has been taken.
- Initiation of Arbitration. Any claim must be resolved, upon the election by you or us, by arbitration pursuant to this Section IV (Arbitration and Waivers) 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 Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”), as selected by the party electing to use arbitration. If a selection by us of one of these organizations is unacceptable to you, you have the right within ten (10) days after you receive notice of our election to select the other organization 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: (i) JAMS at 1920 Main Street, Suite 300, Los Angeles, CA 92614; website at www.jamsadr.com; and (ii) AAA at 335 Madison Avenue, New York, NY 10017; website at .
In the event that JAMS or the AAA is unable to handle the dispute for any reason, then the matter shall be arbitrated instead by a neutral arbitrator selected by agreement of the parties pursuant to the AAA rules of procedure; or, if the parties cannot agree, selected by a court in accordance with the Federal Arbitration Act (Title 9 of the United States Code) (“FAA”). To the extent that there is any variance between the selected forum’s rules and this Section IV (Arbitration and Waivers), this Section IV (Arbitration and Waivers) shall control.
If you initiate the arbitration, you must notify us in writing at: 2955 Campus Drive #110, San Mateo, CA 94403. If we initiate the arbitration, we will notify you in writing at your last known address in our file.
- Class Action and Jury Waiver. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES BY OR AGAINST OTHERS IN ANY COURT ACTION OR ARBITRATION, OR TO INCLUDE IN ANY COURT ACTION OR ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR MEMBER OF A CLASS, OR TO ACT IN ANY ARBITRATION IN THE INTEREST OF THE GENERAL PUBLIC OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, UNLESS THOSE PERSONS ARE BENEFICIARIES ON YOUR ACCOUNT. THIS IS SO WHETHER OR NOT THE CLAIM HAS BEEN ASSIGNED. FURTHER, NEITHER YOU NOR WE SHALL HAVE THE RIGHT TO LITIGATE A CLAIM IN COURT OR HAVE A JURY TRIAL ON A CLAIM, OR TO ENGAGE IN DISCOVERY, EXCEPT AS PROVIDED FOR IN THE CODE OF PROCEDURES OF JAMS OR AAA.
- Location of Arbitration and Cost. The arbitration shall take place in the Federal judicial district located in Memphis, Tennessee, unless the parties agree to a different location in writing. The party initiating the arbitration (or appeal of the first arbitration award) shall pay the initial filing fee. All fees and costs will be allocated in accordance with the rules of the arbitration forum. Each party shall bear the expense of their respective attorneys, experts, and witnesses and other expenses, regardless of who prevails, but the arbitrator will have the authority to award attorneys and expert witness fees and costs to the extent permitted by these Account Terms, the forum’s rules, or applicable law.
- Governing Law. You and we agree that in our relationship arising from these Account Terms: (1) the parties are participating in transactions involving interstate commerce; (2) the arbitrator shall decide any dispute regarding the enforceability of this arbitration agreement; and (3) this arbitration agreement and any resulting arbitration are governed by the provisions of the FAA, and, to the extent any provision of that act is inapplicable, the laws of the State of Tennessee. The arbitrator must apply applicable substantive law consistent with the FAA and applicable statutes of limitations and claims of privilege recognized at law. At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award.
- Continuation and Severability. This Section IV (Arbitration and Waivers) shall survive termination of your Account, these Account Terms and any bankruptcy by you or us. If any portion of this Section IV (Arbitration and Waivers) is deemed invalid or unenforceable under any principle or provision of law or equity, consistent with the FAA, it shall not invalidate the remaining portions of this Section IV (Arbitration and Waivers), these Account Terms or any prior agreement you may have had with us, each of which shall be enforceable regardless of such invalidity.
- Ordinary Card; No Fiduciary Obligation. You agree that any act or omission made by us in reliance upon or in accordance with any provision of the Uniform Commercial Code as adopted in the State of Tennessee, or any rule or regulation of the State of Tennessee or a federal agency having jurisdiction over the Bank, shall constitute ordinary care. We do not assume any fiduciary obligation on your behalf. This means that we do not act as your trustee or financial advisor, and we don't assume any responsibility for your account beyond reasonable care.
- Account Disputes. If a dispute arises concerning your Account (including, for example, a dispute over who is an authorized signer or owner), or if we believe we have a claim against you or we have or receive a claim by a third party (including our affiliates) to all or a portion of the property (including money, certificates of deposit, securities and other investment property, financial assets, etc.) in your Account, or if we have concerns regarding your Account or the use of your Account, we have the right to hold any portion of the property in your Account until the dispute, claim, or concern is resolved to our satisfaction. We will not be liable to you if the hold we place on your Account leaves insufficient funds to cover outstanding transactions. If the dispute, claim or concern remains unresolved, you agree that we may at our option deposit the property in your Account with a court and ask the court to determine to whom the property belongs. If we deposit your property with a court, you agree that we may charge your Account for our costs, including attorney’s fees and expenses
Governing Law, Forum and Time Limits.
- All Accounts are opened at the Tennessee branch office of the Bank. All actions relating to your Account, including these Account Terms, will be governed by the laws and regulations of the United States and the State of Tennessee (to the extent that laws of the State of Tennessee are not preempted by Federal law). Federal and the laws of the State of Tennessee shall be applied without giving effect to principles of conflicts of law.
- To the extent any dispute arising under these Account Terms or relating in any way to your Account or your relationship with us is not arbitrated, you consent to the jurisdiction of, and agree that such dispute will be resolved by the Federal or state court located in Shelby County, Tennessee.
- You must file any lawsuit or arbitration against us within two (2) years after the claim arises, unless Federal law or the laws of the State of Tennessee or an applicable agreement provides for a shorter time. This limit is in addition to limits on notice as a condition to making a claim. If Tennessee law does not permit contractual shortening of the time during which a lawsuit must be filed to a period as short as two (2) years, you agree to the shortest permitted time under Tennessee law. Any action against us must be brought within the period that the applicable law requires us to preserve records, unless applicable law or this agreement provides a shorter limitation period.
- Reporting Information. We may report information about your Account to consumer reporting agencies, governmental agencies, and/or third-party data services. Defaults on your Account may be reflected in your business credit report.
- Compliance with Law. You agree to comply with applicable law and to not use your Account for illegal transactions or activities.
- Changes in Terms. We may change these Account Terms, or any fees and features of your Account, at any time. We will give you advance notice of any change required by law in accordance with such law. We may provide this notice to you on or with your statement, by mailing the notice to you directly or by posting the notice on the Service Provider Platform. We may change or terminate these Account Terms without notice to comply with any appropriate Federal or state law or regulation.
- Security Interest. You grant us a security interest in your Account to secure payment of any money that you owe to us arising under these Account Terms or any other agreements with us. You acknowledge and grant us the right to use any of the funds in your Account to cover any money you owe to us (a “right of set-off”). You agree that the security interests you have granted to us are consensual and in addition to any rights of set-off. We may exercise our security interest or right of set-off without prior recourse to other sources of repayment or collateral, if any, and even if such action causes you to lose interest, incur any penalty or suffer any other consequence. If we exercise our security interest or right to set-off, we will notify you to the extent required by applicable law. If the law imposes conditions or limits on our ability to take or set off funds in your Account, to the extent that you may do so by contract, you waive those conditions and limits, and you authorize us to apply funds as we deem applicable. We will consider these Account Terms as your consent for us asserting our security interest or exercising our right of set-off should any laws governing your Account require your consent.
- No Waiver of Rights. If we fail to exercise or waive a right with respect to your Account on one or more occasions, it does not mean we have waived, or are obligated to waive, the same right on any other occasion. We may release any other person obligated under these Account Terms without affecting your responsibilities under these Account Terms. In any event, no such waiver or delay by us is effective unless it is in writing and approved by us.
- Assignment. Your Account is not transferable and is not assignable as collateral for a loan or for any other purpose.
- Other Services and Conflicts. If we make available to you any of our other banking services offered in connection with your Account (e.g., check services), we may provide certain terms and conditions of the additional service to you in a separate agreement or disclosure. If a service we offer has a separate agreement, and there is a conflict between the terms of these Account Terms and the separate agreement, the separate agreement shall control.
- Severability. In the event that any court or tribunal of competent jurisdiction determines that any provision of these Account Terms is illegal, invalid, or unenforceable, the remainder of these Account Terms shall not be affected thereby. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders unenforceable any provision hereof, and to the extent that such waiver is not permitted by applicable law, the parties intend that such provision be interpreted as modified to the minimum extent necessary to render such provision enforceable.
Limitation of Liability, Disclaimer of Warranty, Indemnification and Reimbursements.
- Limitation of Liability. EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, WE ARE NOT LIABLE FOR ANY CLAIMS, COSTS, LOSSES, OR DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM OUR FAILURE TO ACT, OR ANY DELAY BEYOND TIME LIMITS PRESCRIBED BY LAW OR PERMITTED BY THESE ACCOUNT TERMS IF SUCH FAILURE OR DELAY IS CAUSED BY YOUR NEGLIGENCE, ACTS OR OMISSIONS OF THIRD PARTIES, INTERRUPTION OR MALFUNCTION OF EQUIPMENT OR COMMUNICATION FACILITIES, SUSPENSION OF PAYMENTS BY ANOTHER FINANCIAL INSTITUTION, FIRE, NATURAL DISASTERS, ELEMENTS OF NATURE, GOVERNMENT ACTION, ACTS OF WAR, TERRORISM OR CIVIL STRIFE, EMERGENCY CONDITIONS, OR OTHER CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF THE BANK, PROVIDED THE BANK EXERCISED SUCH DILIGENCE AS THE CIRCUMSTANCES REQUIRE. EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, THE BANK SHALL BE EXCUSED FROM SUCH FAILURE TO ACT OR DELAY AS LONG AS SUCH CIRCUMSTANCES PREVAIL, AND THE BANK CONTINUES TO USE ITS COMMERCIALLY REASONABLE EFFORTS TO RECOMMENCE PERFORMANCE. EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, OUR LIABILITY TO YOU FOR A CLAIM IS LIMITED TO THE FACE VALUE OF THE ITEM OR TRANSACTION, OR THE ACTUAL VALUE OF ANY FUNDS NOT PROPERLY CREDITED OR DEBITED. IN NO EVENT WILL WE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES EVEN IF YOU ADVISE US OF THE POSSIBILITY OF SUCH DAMAGES.
- To the fullest extent permitted by law, we are not liable for any Services or the Service Provider Platform and disclaim all warranties, either express or implied or statutory, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose and lack of viruses related to the Services or the Service Provider Platform.
- Indemnification. You agree to indemnify and hold us harmless from any losses, damages, suits and expenses, including reasonable attorneys’ fees, which we may incur as a result of: (i) taking any action or not taking any action that we are entitled to take pursuant to these Account Terms; (ii) any action or omission by you; or (iii) relying upon instructions or information from you.
- Disclaimer. ALL ACCOUNT FEATURES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Reimbursement for Losses. If we take any action to collect debt incurred by you or other amounts you owe us under these Account Terms or defend ourselves in a lawsuit brought by you where we are the prevailing party, you agree to reimburse us for our losses, including, without limitation, reasonable attorneys’ fees, to the extent permitted by applicable law. We may charge your Account for our losses without prior notice to you.
- Liability for Service Interruptions. From time to time, due to maintenance, malfunctions or failures of software, equipment, or telecommunications devices, as well as unusual transaction volume or similar reasons, access to your Account may not be available to you. We minimize the periods of time during which your Account is unavailable. Access to your Account may also be interrupted as a result of things beyond our reasonable control, computer failures, loss of power, failure or interruption of communication or transportation facilities, riots, strikes, or civil unrest. You agree that we shall not be responsible for any loss, damages, costs or expenses that you may suffer or incur, directly or indirectly, as a result of the unavailability of access to your Account, regardless of whether it could be shown that we could have prevented or reduced the duration of such unavailability by taking any action within our reasonable control. We shall also not be responsible for any loss, damages, costs or expenses which you may suffer or incur, directly or indirectly, as a result of your inability to access your Account caused directly or indirectly, in whole or in part, by your computer or mobile device, your inability to establish a connection to or to access the Internet, or other limitations or constraints of the Internet. The provisions set forth in this section shall apply in addition to any other provisions in these Account Terms but as applied to service interruptions for access to your Account, this section shall control.
- Section Headings and Successors. The headings in these Account Terms are only for convenience and do not in any way limit or define your or our rights or obligations under these Account Terms. These Account Terms will be binding on your personal representatives, executors, administrators, and successors.
- Change of Address or any Application Information. You must notify us through the Service Provider Platform of any change of your address, email address or phone number or any material change to information that you have provided us in your application to open an Account. Any notice we provide to you will be binding and sent to the last (postal or electronic) address in our records. We may change your address if we receive an address change notice from the U.S. Postal Service or if a company in the business of providing correct addresses informs us that the address in our records no longer matches your address.
- Communications. You acknowledge that data, including emails, may be accessed by unauthorized third parties when communicated between you and the Bank, using the Internet, telephone, or other electronic devices. We are not responsible for any misdirected data or disclosures that occur as a result of your use of third-party electronic communication channels.
- Calls and Messages. You agree that we or our agents or service providers may contact you regarding any matter for any non telemarketing reason using any kind of telecommunications technology at any email and telephone number you provide to us, including the phone number for your mobile device. You agree to receive these calls and messages, including pre-recorded or auto-dialed calls. You also agree that we may send text messages to any phone number for your mobile device you provide to us. You understand and accept that your service provider may charge you for these calls and messages consistent with applicable law. For quality control purposes and for other reasons, you permit us to record and monitor your telephone conversations and electronic communications with us (including email). Unless the law requires otherwise, you consent in advance to such recording and monitoring and we do not need to remind you of these activities at the time of the call or communication. To revoke the consent provided pursuant to this subsection, you must send ten (10) days’ prior written notice of such revocation to 2955 Campus Drive #110, San Mateo 94403.
- Survival. Termination of these Account Terms shall not impact any right or obligation arising prior to termination, and in any event, the parties agree that any right or obligation which, by its nature, should survive termination of these Account Terms will survive any such termination (including, but not limited to Sections IV (Arbitration and Waivers) and V (Miscellaneous Terms) of these Account Terms).
- Tax Reporting and Backup Withholding.
Unless you are exempt as described below, federal law requires that the Bank withhold a statutory amount of interest or dividend payments (referred to as backup withholding) if you (if your Account is an interest bearing account):
- Fail to furnish a Taxpayer Identification Number (“TIN”),
- The Internal Revenue Service (“IRS”) notifies the Bank that you furnished an incorrect TIN,
- You or the Bank have been notified by the IRS that you are subject to backup withholding, or
- You failed to certify that you were not subject to backup withholding or you failed to certify that your TIN was correct.
If a correct TIN is not furnished at the time your account is opened, backup withholding will commence immediately. If you do not have a TIN assigned to you, IRS regulations allow a sixty (60) day grace period to obtain your TIN if you have completed the proper request for such grace period. Refer to the “Taxpayer Identification Number” section below for instructions on how to obtain a TIN.
While you are waiting to be assigned a TIN, backup withholding will occur. After sixty days (60), if a certified TIN is not furnished, your account may be closed. If you furnish a correct TIN within sixty (60) of account opening, and prior to year-end, you may request a refund of the amount withheld for backup withholding.
Certain additional IRS penalties may also apply if you fail to provide your TIN.
For sole proprietorships, the Taxpayer Identification Number may be either a Social Security number or an Employer Identification Number. If a sole proprietor is a resident or nonresident alien, and is ineligible for a Social Security number, the Taxpayer Identification Number may be either an IRS “Individual Taxpayer Identification Number” (ITIN) or an Employer Identification Number (EIN). For corporations, estates, organizations, clubs, and trusts the Taxpayer Identification Number is their Employer Identification Number. If you do not have a Taxpayer Identification Number, obtain Form SS-4, Application for Employer Identification Number (for businesses and all other entities), from the local IRS office, or Form W-7, Application for IRA Individual Taxpayer Identification Number (for sole proprietors who are resident or nonresident aliens). In addition, sole proprietors who are resident or nonresident aliens must also furnish a passport, or some other government document to verify identity.
If you are exempt from backup withholding and information reporting, you must complete a certification to that effect provided by the Bank. It must also provide the Bank with its Taxpayer Identification Number to be considered exempt. The following lists payees that are exempt from backup withholding and information reporting. For interest and dividends, all listed payees are exempt except item 7 below. Payments subject to reporting under sections 6041 and 6041A are generally exempt from backup withholding only if made to payees described in items 1 through 5 below, except that a corporation that provides medical and health care services or bills and collects payments from such services is not exempt from backup withholding or information reporting. Only payees described in items 2 through 5 below are exempt from backup withholding for barter exchange transactions, patronage dividends, and payments by certain fishing boat operators.
- A corporation
- An organization exempt from tax under section 501(a), or an individual retirement plan (IRA), or a custodial account under 403(b) (7)
- The United States or an agency or instrumentality thereof
- A state, the District of Columbia, a possession of the United States, or any political subdivision or instrumentality thereof
- A foreign government or a political subdivision, agency or instrumentality thereof
- A futures commission merchant registered with the Commodity Futures Trading Commission
- A real estate investment trust
- An entity registered at all times during the tax year under the Investment Company Act of 1940
- A common trust fund operated by a bank under section 584(a)
- A financial institution
- A middleman known in the investment community as a nominee or listed in the most recent publication of the American Society of Corporate Secretaries, Inc. Nominee List
- A trust exempt from tax under section 664 or described in section 4947 Payments that are not subject to information reporting are also not subject to backup withholding. For details, see sections 6041, 6041(a), 6042, 6044, 6045, 6049, 6050A, 6050N, and 6050W of the Internal Revenue Code, and the Treasury Regulations under such sections.
Section 6109 of the Internal Revenue Code requires most recipients of dividends, interest, or other payments to give Taxpayer Identification Numbers to payors who must report payments to the Internal Revenue Service. The Internal Revenue Service uses the numbers for identification purposes and to verify the accuracy of your tax return. Payors must be given numbers whether or not recipients are required to file tax returns.
If you fail to furnish a correct Taxpayer Identification Number (TIN), you may be subject to a penalty of $50 for each such failure unless such failure is due to reasonable cause and not to willful neglect. If you fail to furnish a TIN, the Bank may refuse to open your Account. The Bank may close an Account which was opened without a TIN and you fail to subsequently provide a TIN.
If you make a false statement with no reasonable basis that results in no imposition of backup withholding, you may be subject to a penalty of $500. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. If you disclose or use a TIN in violation of federal law, you may be subject to civil and criminal penalties.
VII. Fund Transfers.
We may offer a variety of electronic banking services for your use with your Account. The purpose of this Section VII (Fund Transfer) is to inform you of some of the electronic banking services and also provide you with disclosures applicable to the services. We may also provide separate agreements to you that govern the terms of some services, including a separate agreement for Cards.
Unless we have entered into a specific written agreement with you that provides otherwise, payment orders you give to us for the transfer of funds out of the Account by wire transfer or otherwise, and payment orders we receive for the transfer of funds into the Account, will be governed by this paragraph. In addition, your rights and obligations with respect to a payment order, and our rights and obligations, will be governed by (a) any separate written agreement with us; then (b) this section; and then, to the extent not specified in a separate written agreement or this Agreement; (c) by Article 4A of the Uniform Commercial Code (“UCC 4A”) as enacted in Tennessee.
We reserve the right to refuse to accept any payment order. Payment orders are accepted when they are executed by us. We may process any payment order request (as well as any amendment or cancellation request concerning a payment order) that we believe is transmitted or authorized by you if we act in compliance with a security procedure agreed upon by you and us. Such payment orders will be deemed effective as if made by you, and you will be obligated to pay us in the amount of such orders, even though they are not transmitted or authorized by you. Unless we agree on another security procedure, you agree that we may confirm the authenticity and content of a payment order (among other ways) by placing a telephone call to you. If we cannot reach you, or if the payment order is not confirmed or approved in the manner we require, we may refuse to execute the payment order.
You agree that if a payment order or cancellation thereof identifies the beneficiary by both name and an identity number, and the name and number identify different persons or account holders, execution and payment to the beneficiary or cancellation may be made solely on the basis of the identifying number. You also agree that if a payment order identifies an intermediary bank or the beneficiary’s bank by both name and an identifying number, and the name and number identify different persons, execution of the payment order by any bank may be made solely on the basis of the identifying number. If we receive a funds transfer into any Account you have with us, we are not required to give you any notice of the receipt of the funds transfer. The funds transfer will appear on your next periodic statement. To confirm the completion of funds transfers, please contact us at email@example.com or access your Account using the Service Provider Platform. Prior to the acceptance of an outgoing payment order, the outgoing payment order may be cancelled, but may not be amended or modified, if the beneficiary’s bank is located within the United States of America and the outgoing payment order is to be paid in U.S. dollars. Other outgoing payment orders may not be cancelled, amended or modified. We must receive your cancellation in a reasonable time prior to the time we execute the outgoing payment order. Payment orders sent by Fedwire will be subject to the Federal Reserve’s Regulation J, and payment orders sent via other payment systems will be subject to the rules of those
systems. You agree that we may record all telephone conversations and data transmissions received from, made for or made on behalf of you pursuant to or in connection with a payment order.
You agree that if a payment order, or any cancellation or authorization relating thereto, but for the applicability of the Electronic Fund Transfer Act of 1978, constitutes a portion of a funds transfer as defined in UCC 4A, all actions and disputes concerning such payment order, cancellation or authorization shall be determined pursuant to UCC 4A and these Account Terms to the full extent permitted by law. If an outgoing payment order in a foreign currency cannot be completed, the exchange rate that will apply to any refund due you will be the exchange rate in effect at the time on the day the refund is made. Additional fees may be deducted from a payment order amount by other banks involved in the funds transfer process.
We may route payment at our own discretion for each outgoing wire transfer. A wire transfer is irrevocable once payment has been transmitted to the beneficiary’s bank. At your request, we may request that the beneficiary’s bank return funds previously transferred. However, you acknowledge that the beneficiary’s bank is under no obligation to comply with this request.
Other electronic transactions against your Account, whether or not initiated or authorized by you will be governed by the specific Agreement between us related to such transactions and/or all applicable rules and regulations governing such transactions, including without limitation, the rules of the National Automated Clearing House Association (“NACHA”) as may be amended from time to time.
Under NACHA rules we cannot return an unauthorized electronic transaction (ACH debit) unless you notify us no later than 5:00 p.m. Central Time on the business day following the settlement date of the transaction. Otherwise, your sole recourse is to the originator of the transaction.
Your Account is also subject to transfer limitations. The transfer limit depends on the EFT type. If a Card is made available to you, it is subject to a purchase and withdrawal limit of $1000 per day. The Card may be further limited based on fraud risk and security of the Account. All EFTs are subject to limits. Such EFT limits include limits on ATM withdrawals, cash advances and PIN or signature-based purchases. ACH Transfers to external accounts are also subject to limits on the dollar amount of electronic transfers between your Account and external accounts at other financial institutions, including Linked Accounts. All limits described here are designed to be flexible in order to protect the security and integrity of the service and accounts, including the Account, as well as you and all other users of the service. These limitations may be based on confidential fraud and risk criteria that are essential to our management of risk and the protection of you and the integrity of the service and all Accounts and may be modified at our sole discretion without advance notice.
VIII. Deposit Availability.
When a deposit is made to your Account, the funds may not be available immediately. This Section VIII (Deposit Availability Disclosure) describes when funds will be made available to you.
- Delays. We may delay the availability of funds from certain types of deposits to your Account. There are exceptions that may apply in certain circumstances (e.g., if you have overdrawn your Account repeatedly in the last six months or there is an emergency). During the delay, you may not withdraw funds and may not use the funds. Interest will be paid on deposits we receive, even if the funds are not yet available for withdrawal. We will notify you if we delay the availability of your funds, and we will tell you when you can expect your funds to be available.
- Day of Deposits. Any transaction that you conduct on Saturday, Sunday, a federal holiday, or other days on which we are closed will be handled the following business day. If we receive a deposit before 4:00 PM MT on a business day, we will consider that business day to be the day of your deposit. However, if we receive a deposit after 4:00 PM MT or on a non-business day, we will consider the deposit as having been made the next business day.
- Special Rules for New Accounts. If you are a new customer, the following special rules will apply during the first 30 days your account is open. Funds from electronic direct deposits to your Account will be available on the day we receive the deposit. Funds from deposits of cash, wire transfers, and, if made available, the first $5,000 of a day's total deposits of cashier's, certified, teller's, traveler's,
and federal, state and local government checks will be available on the same business day we receive your deposit if the deposit meets certain conditions. For example, the checks must be payable to you (and you may have to use a special deposit slip). The excess over $5,000 will be available on the ninth business day after the day of your deposit. If your deposit of these checks (other than a U.S. Treasury check) is not made in person to one of our associates, the first $5,000 may not be available until the second business day after the day of your deposit. Funds from all other check deposits may not be available until the second business day after the day of your deposit.
- Availability of ACH Transfer and EFT Deposits. Funds from wire deposits are available on the business day we receive the deposit. Funds from ACH Transfers or EFTs that you initiate through another bank will generally be available on the next business day after the day the ACH Transfer is deemed to be received by us. An ACH Transfer or EFT debit to a Linked Account or any other external account that we originate on your behalf will generally be made available on the third business day after the date the ACH Transfer or EFT is deemed to be received by us. Once they are available, you can use the funds for EFTs and ACH Transfers. Even after we have made funds available to you and you have withdrawn the funds, you remain responsible if any deposit to your Account is returned, rejected, or otherwise uncollected by Bank.
Evolve Bank & Trust Electronic Communication Consent
Effective Date: October 26, 2021
We want to provide you with communications electronically. Certain laws and regulations require us to provide communications to you “in writing,” which means you may be entitled to receive the information on paper. The E-SIGN Act allows us to provide you communications electronically and to conduct transactions with you electronically, with your consent.
Please read this Evolve Bank & Trust Electronic Communication Consent (the “Consent”) carefully prior to providing us with your consent. This Consent describes how we deliver and receive communications to and from you electronically and asks you to consent to use electronic records and signatures in our relationship with you. If you do not agree to this Consent or you later withdraw your consent provided herein, you may not be able to continue to use our services.
“We”, “us”, and “our” means Evolve Bank & Trust, its current or future affiliated companies, agents, assignees and service providers.
“You” and “your” mean each applicant, account owner and anyone else with access to the account. If there is more than one owner, then these words mean each account owner separately, and all account owners jointly.
“Product” means each and every account, product or service we offer or will offer.
The words “include” and “including,” when used at the beginning of a list of one or more items, indicates that the list contains examples and is not exclusive or exhaustive, and the items in the list are only illustrations.
Scope of Communications to be Provided in Electronic Form.
This Consent applies to all Communications and Products. By applying for or using a Product, you agree that any Communications will be provided in electronic format, to the extent allowed by law, and that paper Communications will not be sent. Your consent to receive electronic Communications and transactions includes, but is not limited to:
▪ All legal and regulatory disclosures and communications associated with the Product;
▪ The Account Terms, including any amendments thereto, and any and all agreements by and between you and us that relate to a Product;
▪ Privacy policies and notices;
▪ Responses to claims filed in connection with a Product;
▪ Statements; and
▪ All other communications between us and your concerning the Product and any related transactions, products or services.
Sometimes the law, or our agreement with you, requires you to give us a written notice. You must still provide these notices to us on paper, unless we specifically tell you in another Communication how you may deliver that notice to us electronically.
We reserve the right, at our sole discretion, to discontinue the provision of electronic Communications, or to terminate or change the terms and conditions upon which electronic Communications are provided. We will provide you with notice of any such termination or change as required by law.
Method of Providing Communications in Electronic Form.
All Communications that we provide in electronic form will be provided either (1) by e-mail or (2) by access to a website designated in an email notice from us, (3) through the any mobile application we may make available, (4) to the extent permitted by law, by access to a website generally designated in advance for such purpose, or (5) in the manner specified in any other agreement we or our affiliates have with you.
If you seek to obtain a new product, service or account with us, we may remind you that you have already consented to receiving electronic Communications and using electronic signatures in your relationship with us.
Continuing to use our Products after receiving updates to our system requirements signifies your acceptance of the change and reaffirmation of your consent.
Keeping your Records Current.
It is your responsibility to provide us with a true, accurate and complete e-mail address, street address, and other information related to this Consent and a Product, and to maintain and update promptly any changes in this information. You can update information (such as your e-mail address) by contacting us at firstname.lastname@example.org. We are not responsible for any delay or failure in the receipt of the Communications if we send the Communications to the last e-mail address you provided to us.
System Requirements for Accessing Communications.
In order to access, view, and retain electronic Communications that we make available, you must have:
▪ computers capable of running one of these compatible browsers:
▪ Internet Explorer version 9.0 or higher.
▪ Firefox version 35 or higher.
▪ Safari version 6.1 or higher.
▪ Chrome version 38 or higher.
▪ an Apple iPhone or iPad running iOS version 9.0 or higher.
▪ access to an active e-mail account with an email service provider.
We may update these requirements as necessary to preserve the ability to receive electronic Communications. If there is a substantial change in these requirements, you will be notified as required by law.
Requesting Paper Copies.
We will not send paper copies of any Communication; however, we reserve the right, but assume no obligation, to provide a paper (instead of electronic) copy of any Communication that you have authorized us to provide electronically. You can obtain a paper copy of an electronic Communication by printing it or by requesting that we mail a paper copy. To request a paper copy, call us at (707) 492-5949 during normal business hours, except for national holidays. There may be a fee associated with the request for the delivery of paper copies of any Communication provided electronically pursuant to this Consent.
Communications in Writing.
All Communications in either electronic or paper format from us to you will be considered “in writing.” You should print or download a copy of this Consent and any other Communications for your records.
Withdrawing Your Consent
You can withdraw your consent to receive Communications electronically at any time. Your withdrawal of consent will become effective after we have had a reasonable opportunity to act upon it. To withdraw your consent to receive Communications electronically, you must contact us by e-mailing at email@example.com.
If you withdraw consent, your access to all Products will be terminated and any account you have with us will be closed and funds will be returned to you in accordance with the account agreement. If you withdraw consent, the legal validity and enforceability of prior Communications delivered in electronic form will not be affected.
By applying for or using a Product or by checking any call to action (including “I Agree” or similar language), you give us affirmative consent to receive electronic Communications as described herein.
By providing your consent, you are also confirming that you have the hardware and software described above, that you are able to receive and review electronic Communications, and that you have an active email account. You are also confirming that you are authorized to, and do, consent on behalf of all the other account owners, authorized signers, authorized representatives, delegates, product owners and/or service users identified with your Products.