Please read this Fundomate Deposit Account Agreement (the “Agreement”)
carefully and retain it for your future reference. This Agreement
contains the general terms, conditions and disclosures related to the
demand deposit account (the “Account”) made available to eligible
businesses by Fundomate (“Program Partner”), the program partner
responsible for managing the Account program, in partnership with Blue
Ridge Bank, N.A. (“the Bank”).
When you see the words “we,” “us,” or “our” in this Agreement, it refers
to the Bank, the Program Partner acting as agent for the Bank, and any
of the Bank’s affiliates, successors, assignees, agents or service
providers. When you see the words “you” or “your,” it refers to you, the
commercial owner of the Account, as well as your Authorized Users,
representatives, officers, agents and successors.
By opening or continuing to hold an account with us, you agree to be
bound by this Agreement as well as any other agreement or document we
may provide to you from time to time in connection with the Account.
IMPORTANT NOTE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A
WAIVER OF CLASS ACTIONS AND YOUR RIGHT TO A JURY. THE TERMS OF
ARBITRATION AND THE WAIVER APPEAR IN SECTION 8 OF THIS AGREEMENT.
- Account Overview
- How to Contact Us
You may contact us with any questions or concerns regarding your Account.
All communication between you and us will be handled by the Program
Partner. The best way to contact us is through Online Banking Services
(see Section 1.3 below). You may also contact us by Email at support@fundomate.com
and by telephone at 1-855-739-8883, Monday through Friday, 7am to 4pm
PST.
- Type of Account and Eligibility
The Account is a non-consumer demand deposit account used to hold your
business deposits and make certain types of payments and transfers.
To open an Account, you must be a sole proprietorship, corporation,
unincorporated association, limited liability company, limited liability
partnership, or partnership (collectively, “Business Entity”) within
the fifty (50) United States, the District of Columbia, and all U.S.
territories. Other eligibility requirements may apply. This Account
may only be used for business purposes and cannot be used for any personal,
family or household purposes.
We may decline to open an Account for any reason at the sole discretion
of the Bank or Program Manager. We are not liable for any damages or
liabilities resulting from refusal of an Account relationship.
- Online or Mobile Access To Your Account
When you open an Account, you will also be enrolled in an online business
banking service or mobile application (collectively, “Online Banking
Services”) offered by the Program Manager that you can use to access
your Account, view information about your Account and conduct certain
transactions. You may also be given access to various features through
the Online Banking Services separate from your Account. If you cancel
your enrollment in the Online Banking Services at any time, we may
close your Account (see Section 3.12 below).
Unless otherwise specified in this Agreement, the Online Banking Services
and any if its features are governed by the Program Manager’s Terms
and Conditions available at https://fundomate.com/page/terms-of-use, and Privacy Policy available at https://fundomate.com/page/privacy-policy. Please review these documents carefully because by using the
Online Banking Services, you agree to be bound by them. These
services are not provided or controlled by the Bank or this
Agreement, and you agree not to hold the Bank liable for issues
that may arise from your use of the services or features.
- Paperless Account
To open an Account, you must agree to go “paperless.” This means that
you must (1) provide us with and continue to maintain a valid email
address and (2) accept electronic delivery of all communications that
we need or decide to send you in connection with your Account by agreeing
to our Terms of Use document available at https://fundomate.com/terms-of-use.
- Authorized Users
You may be given the ability to designate additional individuals (“Authorized
Users”) who you authorize to access your Account and/or conduct transactions
through your Account. By establishing an Authorized User, you understand
that any transaction authorization, instruction or any other action
concerning your Account that your Authorized User engages in shall
be deemed authorized by you and valid and we are under no obligation
to investigate the authorization, instruction or activity. You also
agree that you will not hold us liable for acting upon any such authorization,
instruction or activity. We will continue to treat all actions taken
by your Authorized User as authorized by you until you revoke the Authorized
User’s access to your Account by notifying us by email at support@fundomate.com.
We also reserve the right to terminate your Authorized User’s access
to the Account for any reason and without advance notice.
- How To Open an Account
An Account may be opened by visiting our website at https://financeapp.fundomate.com/ and completing the registration and verification process.
Any person completing the Account opening process or otherwise
completing any Account opening requirements represents and agrees
that they:
-
Are fully authorized to execute all documents or otherwise
complete our requirements in their stated capacity
-
Have furnished all documents or other information necessary to
demonstrate that authority
-
Will furnish other documents and complete other requirements
as we may request them
-
Certify that, to the best of his or her knowledge, all
information provided to us, including information concerning
beneficial owners, is complete and correct
We may refuse to recognize any resolution affecting the Account
that appears to us to be incomplete or improperly executed.
Important information about procedures for opening a new
Account: 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 identifying
each person who opens an Account. This means that when you open an
Account, we will ask for information that allows us to identify
you. We may also ask for a driver’s license or other identifying
documents for your business, Authorized Users, account owners, and
your officers, directors, beneficial owners, controlling
shareholders and others.
- Minimum Deposits and Balances
There is no minimum deposit required to open an Account and no minimum
balance you need to maintain in your Account.
- Interest Disclosures
This account is not interest-bearing. No interest will be paid on this
Account.
- Authority
You agree that we may honor and rely upon the instructions or the execution,
delivery and/or negotiation of any check, substitute check, draft,
withdrawal order, instruction or similar instrument (collectively,
“items”) or document by any of your authorized agents regardless of
the necessity or reasonableness of such action, the circumstances of
any transactions affected by such action, the amount of the transaction,
the source or disposition of any proceeds and regardless of whether
the relevant items or documents result in payment to the authorized
agent or an individual obligation of the authorized agent or anyone
else. “Authorized agents” include Authorized Users and any person who
has signed a signature card, who is authorized by this Agreement, any
resolution or otherwise to access or use the Account. It also includes
any person who has been permitted by you or another authorized agent
to act on your behalf in dealing with us.
You agree that you may not deny the authenticity, validity,
binding effect and authorization of any action we take in reliance
upon the instructions, items or documents provided by an
authorized agent unless you have previously revoked such person’s
authority to access or use your Account via Online Banking
Services. and we have confirmed our acceptance of your notice.
- Power of Attorney and Attorneys-In-Fact
We may allow you to give another person (known as an “attorney-in-fact”)
power of attorney to act on your behalf for your Account. You must
obtain written approval from us before we will honor any power of attorney.
Contact us via Online Banking Services for approval if you plan to
create a power of attorney. Please be aware that it may take up to
two (2) weeks for us to review your request. If approved, we will honor
orders and instructions from your attorney-in-fact until (1) we receive
a written revocation from you; (2) we are notified that you or your
attorney-in-fact have died or become incapacitated; or (3) we terminate
our acceptance of the power of attorney. We may terminate our acceptance
at any time, for any reason and without notice to you, and you agree
not to hold us liable for any damages that may result from such action.
You also agree to hold us harmless for any actions we take based on
the instructions of your attorney-in-fact, including if it is later
determined that your power of attorney was invalid or improperly executed.
- Death or Incapacitation
You agree that if we receive notification or if we have reason to believe
that you or any Authorized User has died or become legally incapacitated,
we may place a hold on your Account and refuse all transactions until
we know and have verified the identify of your successor. Until we
receive notice and any required proof of death or incapacitation, we
may continue to accept deposits and process transactions to your Account.
Your estate will be responsible for repaying us for any tax liability
resulting from payment of your account balance to your estate. You
agree to hold us harmless for any actions we take based on our belief
that you have died or become incapacitated. If certain payments originating
from government entities are deposited into your Account after your
death, we may be required to return those payments to the originator
upon notice.
- Our Relationship With You
By opening an Account, we are establishing an Account relationship
with you and committing to act in good faith and to the exercise of
ordinary care in our dealings with you as defined by the Uniform Commercial
Code as adopted by the State of Virginia. This Agreement and the Account
relationship do not create a fiduciary relationship or any other special
relationship between you and us.
- Third-Party Service Providers
We work with one or more third-party service providers, including Unit
Finance Inc. (“Unit”), in connection with your Account. Unit may assist
us in processing transactions, handing account operations, and providing
technological connection to the Program Partner and the Bank. By using
your Account, you license and authorize us to access information maintained
by Unit and/or other third parties, on your behalf as your agent, and
you expressly authorize such third parties to disclose your information
to us. In particular, you agree that Unit may perform any functions
on your Account that we are otherwise authorized to perform and that
Unit’s access and use of your information will be governed by the terms
of Unit’s Privacy Policy, available at https://www.unit.co/clients-privacy-policy.
- Confidentiality and Our Privacy Policy
Your privacy is very important to us. Under this Agreement, we will
only disclose information about your Account or the transactions you
make in accordance with our Privacy Policy, available at
https://www.mybrb.com/privacy-policy.html. Unit may also disclose information concerning your Account and
transactions that it obtains as a third-party service provider in
accordance with its Unit’s Privacy Policy, available at https://www.unit.co/clients-privacy-policy. By opening an Account, you agree to both our and Unit’s privacy
policies. In addition, we disclose your information to Unit to
facilitate the Account and for other ancillary purposes. You agree
to Unit’s use of your information in accordance with the terms of
Unit’s Privacy Policy, available at https://www.unit.co/clients-privacy-policy.
- Cell Phone Communications
By providing us with your telephone number for a cellular phone or
other wireless device, you are expressly consenting to receiving non-marketing
communications at that number, including but not limited to prerecorded
or artificial voice message calls, text messages, and calls made by
an auto-dialer, from us and our affiliates and agents. This consent
applies to all telephone numbers you provide to us now or in the future.
Your telephone or mobile service provider may charge you for these
calls or messages. You also agree that we may record or monitor any
communications for quality control and training purposes.
- Our Business Days
Our business days are Monday through Friday, excluding federal holidays.
-
Your Account Responsibilities
We strive to keep your Account secure and provide you with tools and
services to help you manage your Account. However, there are certain
things you should do to protect your Account and your funds.
- Notify Us If Your Information Changes
You must notify us immediately if there is a change to your business
or trade name, the names of any individual or Authorized User with
access to your Account, telephone number, mailing address, email address
or any other information you have provided us so that we can continue
to provide you with statements and important notices concerning your
Account.
-
Keep Track of Your Transactions and Available Balance
It is very important that you keep track of your transactions and the
funds in your Account that are available for you to use (“Available
Balance”) by reviewing your transaction history. It is also important
to understand that your Available Balance may not reflect transactions
you have authorized that have not yet been presented to us for payment.
You are also responsible for reviewing your Account statements as they
are made available to you for errors or unauthorized activity. If you
identify an error or unauthorized activity, you must notify us promptly
to avoid losing your money. Please refer to Sections 3.10, 4.5, 4.6,
and 6.10 for information concerning errors and unauthorized activity.
- Protect Your Account Information
It is very important that you protect your Account information to prevent
unauthorized transactions and fraud. Keep your Account number, debit
card, ATM card and statements secure at all times, and be careful about
who you share this information with. If the Program Partner provides
you with access to Online Banking Services, make sure to also keep
your computer or mobile device secure at all times and avoid accessing
the Online Banking Services when others can see your screen.
If your Account number, debit card, ATM card, mobile device or Online
Banking Services login credentials are lost or stolen, notify us immediately
to keep your losses to a minimum. Please refer to Section 4.5 for information
and applicable deadlines for notifying us of losses or theft.
- Split Transactions
You can instruct a merchant to charge your Card for part of a purchase
and pay any remaining amount with cash or another card. This is called
a “split transaction.” Some merchants do not permit split transactions.
If you wish to conduct a split transaction, you must tell the merchant
the exact amount you would like charged to your Card. If you fail to
inform the merchant you would like to complete a split transaction
and you do not have sufficient available funds in your Account to cover
the entire purchase amount, your Card is likely to be declined.
- Card-Not-Present Transactions
You may make retail card purchases without presenting your Card by
providing information from your Card, such as transactions done by
internet or telephone. Conducting transactions in this way has the
same legal effect as if you used the plastic Card itself. For security
reasons, the amount or number of such transactions you may make may
be limited.
- General Rules Governing Your Account
You understand that any payment instruction or activity performed using
any Online Banking Services provided to you by the Program Partner shall
be deemed authorized by you and valid and we are under no obligation to
investigate the instruction or activity.
- Deposits Into Your Account
You may make deposits into your Account using any of these methods
described below. We do not charge you any fees for making deposits.
| Deposit Method | Limitations for Your Account |
| Direct Deposits* | No limits |
| Inbound domestic wire | No limits |
| * The recipient’s name on any direct deposit or ACH
transfer must match the name on the Account or the deposit
may be returned to the originator.
|
We do not accept deposits by mail, or cash, paper check or
foreign currency deposits: We are not liable for deposits of any kind that you mail to us,
including if it is lost in transit, lost in the mail, or otherwise
not received by us.
- Cash: We do not accept deposits made in cash.
If you mail us a cash deposit, we will send the cash back to
you.
- Paper Checks: If you mail a paper check to
us, including personal or business checks, money orders or
cashier’s checks, we may apply the check to any negative
balance you may have on your Account or send the check back to
you.
- Foreign Currency: We do not accept any
deposits in foreign currency. Any deposits received in foreign
currency, whether in the form of cash or check, will be sent
back to you.
We will send all items back to the address we have for you on file
and we are not liable if you do not receive the items.
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.
For more information about deposits and when funds from a deposit
will be made available to you, please refer to Section 3.2.
- Our Funds Availability Policy
It is our policy to make deposits made to your Account each business
day available for withdrawal according to the table below. The end
of the business day is referred to as the "deposit cut-off time". If
you make a deposit before our cut-off time on a business day that we
are open, we will consider that day to be the day of your deposit.
However, if you make a deposit after our cut-off time or on a day we
are not open, we will consider the deposit to be made on the next business
day that we are open.
| If you make a deposit via… | The cut-off time is… | And those funds are available… |
| Direct deposit | 3:00 PM ET | Same business day |
| Domestic wire | 1:00 PM ET | Same business day |
| Internal transfer between two accounts you have with us | N/A | Immediately |
| Cash Deposit at in-network ATM | 3:00 PM ET | Next Business Day |
The availability of funds transferred to your Account from a
linked bank account held by another financial institution follow
different rules. Please refer to Section 3.6 for more information.
In addition, the availability of any funds credited to your
Account as a result of transactions initiated via the ACH
Origination Service also follow different rules. Please refer to
Section 5 for more information.
- ACH Credit Transactions and UCC Article 4A
Credit given by us with respect to an ACH credit entry is
provisional until we receive final settlement for such entry
through a Federal Reserve Bank. If we do not receive final
settlement, you acknowledge and agree that we are entitled to a
refund of the amount credited to you in connection with the ACH
credit entry, and the party making payment to you via such entry
shall not be deemed to have paid you in the amount of such entry.
Under the operating rules of the National Automated Clearing House
Association, which are applicable to ACH transactions involving your
Account, we are not required to give next day notice to you of receipt
of an ACH item and will not do so. However, we will continue to notify
you of the receipt of ACH items through your Account statements.
We may accept on your behalf payments to your Account which have been
transmitted through one or more Automated Clearing Houses and which
are not subject to the Electronic Fund Transfer Act and your rights
and obligations with respect to such payments shall be construed in
accordance with and governed by the laws of the state of Virginia,
unless otherwise specified in a separate agreement that the law of
some other state shall govern.
- Problems that Could Occur With Deposits
If a deposit or transfer to your Account is returned or rejected by
the paying financial institution for any reason, or if there is an
error or mistake involving a deposit or transfer, we may deduct the
amount of the deposit, transfer, or error without prior notice to you.
If there are insufficient funds in your Account at the time, your Account
may become overdrawn. Please refer to Section 3.11 concerning overdrafts
for more information.
- Withdrawals From Your Account
You may withdraw funds up to the amount of your Available Balance in
your Account using any of the following methods.
| Withdrawal Method | Limitations for Your Account |
| ACH transfers from your Account to a linked bank account
at another institution* (See Section 3.6) And ACH
transfers from your Account to a third party’s bank
account via the ACH Origination Service (See Section 5)*
|
$10,000/day
$100,000/month
|
|
ACH transfer to a merchant or other third party you
authorize to withdraw from your Account using your routing
number and account number
| No Limit |
|
Purchases or other POS transactions using your debit card
at merchants that have agreed to accept that card
| $5,000/day |
| ATM withdrawals using your debit card or ATM card | $1,000/day |
| Outbound domestic wire | $100 minimum per wire transfer |
| * You may transfer funds between your Account and another
bank account. The linked bank account must be located in
the United States. |
If you have been issued a debit card or ATM card for your Account,
there may also be limitations that apply to your use of the card.
Please refer to the applicable cardholder agreement provided to
you with your card for information on any applicable limitations
and other terms.
You cannot withdraw funds by check, and we do not permit you to
create checks drawn on your Account.
Before permitting a withdrawal or other transaction, we may
request that you provide us with additional information or
documentation that we deem necessary to confirm your identity or
to prevent illegal activity. We may refuse the transaction if you
do not comply with our request.
- Transfers To or From Linked Bank Accounts
You may be provided with the ability to link another bank account you
have with another financial institution (“linked bank account”) to
your Account with us to make inbound and outbound ACH transfers between
the linked bank account and your Account through the Online Banking
Services. An “inbound transfer” moves funds into your Account from
a linked bank account. An “outbound transfer” moves funds from your
Account to a linked bank account. We will facilitate transfers to a
linked bank account separate and apart from any access we provide you
to the ACH Origination Service (see Section 5 below).
For inbound transfers, we will debit your linked bank account and
credit your Account with us on the next business day after you
initiate the transfer. The funds you transfer to your Account will
be made available to you by the fifth (5th) business day after the
funds have been credited to your Account.
For outbound transfers, we will debit your Account with us and
credit your linked bank account on the next business day after you
initiate the transfer. The financial institution that holds your
linked bank account determines when those funds will be made
available to you in your linked bank account.
The cut-off time for both inbound and outbound transfers is 3:00
PM ET. Transfer requests that you make on a business day before
the cut-off time will be considered initiated on that day.
Transfer requests that you make after the cut-off time, or on a
day that is not a business day, will be considered initiated the
following business day.
There are limits to the dollar amount of both inbound and outbound
transfers you can make. Please see Sections 3.1 and 3.5.
You agree that you will only attempt to link a bank account for
which you have the authority to transfer funds. You also agree to
indemnify and hold us harmless from any claims by any business or
person related to the linked bank account, including any other
owner of the linked bank account. You may only link a bank account
that is a deposit account, such as a checking, savings or money
market account.
- No Illegal Activity, Internet Gambling and Right to Refuse
Transactions
You must not use your Account for any illegal purposes or, regardless
of whether it is legal or illegal, for internet gambling. We may deny
any transaction or refuse to accept any deposit that we believe is
related to illegal activity, online gambling or for any other reason
at our discretion.
- How We Post Transactions To Your Account and Determine Your
Available Balance
-
Posting Overview
To understand how we post transactions to your Account, it is important
to first understand the difference between your Available Balance
and your ledger balance. Your Available Balance is the amount of
money you have in your Account at any given time that is available
for you to use. Your ledger balance is the balance in your Account
at the beginning of the day after we have posted all transactions
to your Account from the day before. We use your Available Balance
to authorize your transactions throughout the day and determine
whether you have sufficient funds to pay your transactions. Here
are some additional terms that are helpful to understand:
-
Credit and debit – A credit increases your balance and a
debit decreases your balance.
-
Post or posted – Transactions that are paid from or
deposited to your Account. Posted transactions will either
increase or decrease both your Available Balance and your
ledger balance.
-
Pending – Transactions that we receive notice of and are
scheduled to post to your Account. Pending transactions
affect your Available Balance, but not your ledger
balance.
-
Card authorization and settlement – When you use a debit
card to make a purchase, the transaction occurs in two
steps: card authorization and settlement. Card
authorizations reduce your Available Balance, but not your
ledger balance. Settlement reduces both your Available
Balance and your ledger balance. Card authorizations are
removed when settlement occurs or after a certain number
of days have passed, whichever is sooner. Please see
Section 3.8.4 for more information about card
authorizations and settlement.
-
Posting Order
We receive transactions throughout the day and post them to your
Account as they are received and in the order that they are received.
Note that for debit card transactions, we consider the transaction
received when the merchant requests settlement, which may occur
several days after you authorize the transaction. See Section 3.8.4
for additional information concerning how debit card transactions
are processed.
We may change the order in which we post transactions to your
Account at our discretion and without notice to you. It is
therefore important for you to keep track of the deposits you
make and the transactions you authorize to make sure there are
sufficient funds in your Account to cover all transactions and
any applicable fees.
-
Determining Your Available Balance
To determine your Available Balance, we start with your ledger
balance at the beginning of the business day, add any pending credits
or deposits that we make available to you, and subtract any card
authorizations and pending debits. All transactions are debited
or credited from your Available Balance in the order received.
You may check your available balance via Online Banking
Services. Keep in mind that your Available Balance may not
reflect every transaction you have initiated or previously
authorized. For example, your Available Balance may not
include transactions you have authorized that we have not
received.
-
Debit Card Authorizations
If you are issued a debit card with your Account, you will be
able to use your card to pay for goods or services or conduct
other transactions with a merchant. When you engage in a
transaction with a merchant using your debit card, the
merchant will request preauthorization (“card authorization”)
for the transaction. If there are sufficient available funds
in your Account, we will approve the request and reduce your
Available Balance for as long as the card authorization
remains on your Account.
Your Available Balance will generally be reduced by the amount
of the card authorization.
The card authorization will remain on your Account until the merchant
sends us the final amount of the transaction and requests payment
(“settlement”). In most cases, If the merchant does not request
settlement, or the merchant is delayed in requesting settlement,
the card authorization will automatically be removed after three
(3) days. However, certain merchants such as hotels may hold for
a period of up to seven (7) days.
It is important to understand that the merchant controls the timing
of card authorizations or settlement. A merchant may request settlement
after the card authorization has been removed from your Account.
This means that if you use the funds in your Account after the
card authorization has been removed and the merchant later requests
settlement, your Account may become overdrawn. A merchant may also
request settlement for an amount that is different than the card
authorization. Therefore, it is important that you keep track of
your transactions and your balance. Once we have approved a card
authorization, we cannot stop the transaction and you will be responsible
for repaying any negative balance that may occur.
- Statements
Statements will periodically be provided to you via Online Banking
Services as long as your Account is not inactive. You will receive
a statement monthly as long as you have transactions on your Account
during the statement period. If there were no transactions on your
Account, we may not provide you with statements or may provide you
with statements on a less frequent basis. You will not receive paper
statements.
-
Errors On Your Account and Limitations of Liability
You agree to carefully review your statements and promptly report to
us any errors or unauthorized activity by email at support@fundomate.com
within thirty (30) days after we make the statement available to you.
Unless otherwise specified in this Agreement or required by law, if
you do not provide us with timely notice of an error or unauthorized
activity, we will deem our records concerning your Account to be correct
and you agree that we will not be liable to you for any loss you suffer
relating to the error or unauthorized activity. You further agree that
we may debit or credit your Account at any time and without notice
to you to correct an error or address unauthorized activity.
In any case, our maximum liability to you will never exceed the
amount of actual damages proven by you. Our liability may also be
further reduced by the amount of the loss that is caused by your
own negligence or lack of care, as well as any recovery of the
loss you obtain from third parties. Please refer to Section 4.5
for additional information concerning errors and unauthorized
transactions involving electronic fund transfers and related
limitations of liability. There may also be other limitations of
liability contained in this Agreement.
- Overdrafts, Nonsufficient Funds and Negative Balances
We do not permit you to overdraw your Account. If the Available Balance
in your Account is not sufficient to cover any transaction you have
authorized, we may return the transaction or refuse to process the
transaction. However, there may be instances where your Account can
still go into the negative, such as if a deposit you make is returned.
You must make a deposit immediately to cover any negative balance.
If your Account has a negative balance for sixty (60) calendar days
or more, we may close your Account.
- Closing Your Account and Account Suspensions
You can close your Account at any time and for any reason via
Online Banking Services. We reserve the right to refuse your
request if you have a negative balance on your Account. We
recommend that you transfer or withdraw any funds you may have in
the Account prior to submitting a request to close the Account to
avoid delays in receiving your funds.
We may also suspend or close your Account at any time at our
discretion, with or without reasonable notice, to the extent not
prohibited by law. Reasonable notice depends on the circumstances,
and in some cases, it might be reasonable for us to immediately
close or suspend your Account without providing prior reasonable
notice. For instance, if we believe you are using your Account for
fraudulent or illegal purposes or in violation of law or
regulation, this Agreement, any other agreement you may have with
us or Unit, or if you otherwise present undue risk to us or Unit,
we may immediately close your Account. We may also close your
Account if you have not made any deposits or withdrawals from your
Account in over twelve (12) months. In addition, cancelling your
enrollment in the Online Banking Services with the Program Partner
will result in our closure of the Account and our return of your
funds. We are not responsible to you for any damages you may
suffer as a result of the closure or suspension of your Account.
If your Account is closed with a balance greater than $1.00, we
will return any funds you may have in the Account to you by ACH
transfer to another bank account or by paper check. We reserve the
right not to return the funds to you if the balance in your
Account is $1.00 or less. The closure of your Account or
termination of this Agreement does not impact any right or
obligation that arose prior to closure or termination, or any
right or obligation that, by its nature, should survive
termination (including, but not limited to, any indemnification
obligation by you, our limitations of liability, and any terms
governing arbitration).
In the event that you do not have any outstanding obligation under
any Funding Product or that you do not have an active Account, you
may terminate these Terms at any time by ending your use of the
Platform and the Service and notifying Fundomate at
admin@fundomate.com. However, any amounts due to us as a result of
your use of the Platform or the assumption of any Funding Product
will be due and payable in accordance with the terms and
conditions applicable to the respective Funding Product and the
Termination shall not affect any amount so due.
- Dormancy, Inactivity and Unclaimed Property
State law and our policy govern when your Account is considered
dormant. Your Account is usually considered dormant if you have
not accessed your Account, communicated to us about your Account
or otherwise shown an interest in your Account within the period
of time specified under applicable law. Each state has varying
laws as to when an account becomes dormant, and we may be required
to send the balance in your Account if it becomes dormant to the
state of your last known address. We will make reasonable efforts
to contact you if required by applicable law before transferring
the remaining balance of your Account to the applicable state.
After we surrender the funds to the state, you must apply to the
appropriate state agency to reclaim your funds. You can avoid the
surrender of your funds by simply conducting transactions,
contacting us about your Account or replying to any abandoned
property notices we may provide to you.
We may also place your Account in an inactive status if you have not
had any transaction for at least six (6) months. If your Account becomes
inactive, you may not receive statements or be able to conduct certain
transactions. Inactive Accounts must be reactivated. Contact us via
Online Banking Services to reactivate your Account.
- Account Fees and Fee Schedule
You agree to pay all fees and charges applicable to your Account. All
fee amounts will be withdrawn from your Account and will be assessed
regardless of whether you have sufficient funds in your Account, except
where prohibited by law. Fees are subject to change at any time. We
will provide you advance notice of any changes where required by law.
| Fee Description | Fee Amount and Frequency | Additional Details |
| Monthly service fee | $0 per month | |
| Minimum Balance fee | $0 | |
| Stop payment fee | $12 per stop payment request | |
| Domestic wire fee | $0 incoming/15 outgoing wire | |
| International transaction fee | Default: Block International Transactions of the
transaction | You will be charged this fee for any ATM or POS
transactions conducted outside the United States.
|
| Returned deposit fee | $2/ACH return | |
| ATM Transaction fee | $0 | You may also be charged a fee, including for balance
inquiries, by the ATM operator or other third party. |
| Out-of-network ATM transaction Fee | $2.50/transaction
$0/Balance inquiry |
You may also be charged a fee, including for balance
inquiries, by the ATM operator or other third party. |
| * You may also be charged a fee, including for balance
inquiries, by the ATM operator or other third party. |
- Electronic Fund Transfers
Your Account allows you to withdraw funds up to the Available Balance or
make deposits through Electronic Fund Transfers (“EFTs”). EFTs are transactions
that are processed by electronic means and include, among others, ACH transfers,
debit or ATM card transactions and direct deposits. This Section provides
you with information and important disclosures and terms about the EFTs
that are permitted on your Account. You may also receive additional services
through Online Banking Services provided by the Program Partner, that allow
you to initiate EFTs to and from your Account that are not described in
this Agreement. You will be provided separate agreements and disclosures
applicable to those services by the Program Partner.
- Types of EFTs Supported by Your Account
Your Account allows the following types of EFTs:
-
Direct deposits from your employer or other source of income
-
Transfers from your Account or to a linked bank account (see
Section 3.6)
-
Transfers to or from your Account to a merchant or other third
party by providing the third party with your Account routing
number and account number
- Purchases or other transactions using your debit card
- ATM withdrawals using your debit card or ATM card
- Limitations on EFTs
There are limitations on the frequency and amount of transactions you
can make to or from your Account. These limits are different for each
type of transaction. For limits that apply to transactions that credit
or deposit funds into your Account, please refer to Section 3.1 concerning
deposits. For limits that apply to transactions that debit or withdraw
from your Account, please refer to Section 3.5 concerning withdrawals.
For limits that apply to transfers to or from your Account from a linked
bank account, please refer to Section 3.6. These security-related limits
may change from time to time.
If you have been issued a debit card or ATM card for your Account,
there may also be transaction limitations that apply to your use
of the card. Please refer to the applicable cardholder agreement
provided to you with your card for information on any limitations
and other terms.
- Documentation of Your Transactions
We will provide you information about each transaction that debits
or credits your Account on your statements. Please refer to Section
3.9 for information about statements. You may also be able to view
your transaction history and other information through Online Banking
Services provided to you by the Program Partner. You may also contact
us via email at support@fundomate.com or by phone at 1-855-739-8883
for information concerning your Account or your transactions.
If you are provided with a debit card or ATM card, you can get receipts
at the time you make a withdrawal at an ATM or a purchase at a point-of-sale
terminal when using your card.
- Preauthorized Transfers, Stop Payments and Notices of Varying
Amounts
If you authorize us or another company or person to withdraw from your
Account on a regular basis (such as when you sign up for “autopay”
to pay a recurring bill or invoice), it is called a Preauthorized Transfer.
You may request that we place a stop payment on Preauthorized Transfers,
as well as get notification when the amount of a particular withdrawal
will be different from the amount of the last withdrawal.
-
How to Request a Stop Payment
If you authorize a third party to take payments from your Account
on a regular basis through a Preauthorized Transfer, you can place
a stop payment on those payments via Online Banking Services at
least three (3) business days before the next payment is scheduled
to be made.
You must provide us with (1) your name, (2) your Account number,
(3) the company or person taking the payments, and (4) the date
and amount of the scheduled payment you wish to stop. If you want
all future payments from that company or person stopped, be sure
to tell us that as well. If you do not provide us with the correct
information, such as the correct payee or the correct amount of
the payment you wish to stop, we may not be able to stop the payment.
-
Notices of Varying Amounts
If these regular payments vary in amount, the person or company
you are paying will tell you ten (10) days before each payment
when it will be made and how much it will be. You may be given
the option to only get this notice when the payment will differ
by more than a certain amount from the previous payment, or when
the amount will fall outside certain limits that you set.
- Questions About Your EFTs and Reporting Errors or Unauthorized
EFTs
You may contact us at 1-855-739-8883 or email at support@fundomate.com
with questions concerning EFTs that occur on your Account.
You may also contact us using those methods to report errors or
unauthorized EFTs. Be sure to contact us immediately if you
believe that an error or unauthorized EFT has occurred or may
occur concerning your Account, or if your Account, debit card, ATM
card or Online Banking Services login credentials have been lost,
stolen or compromised. You must contact us no later than thirty
(30) days after we sent the FIRST statement on which the error or
unauthorized EFT appeared. You must provide us with the following
information:
- Tell us your name and Account number.
-
Describe the error or the EFT 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 orally, we may require that you send us your
complaint or question in writing by email within ten (10)
business days.
After receiving your notice of error or unauthorized EFT, we will
investigate and provide you with the results and any corrections
we make to your Account within a commercially reasonable time.
- Our Liability for a Failure To Complete A Transaction,
Unauthorized Transactions or Failure to Stop a Payment
We will respond to notices of errors or unauthorized EFTs and requests
to stop payments in a commercially reasonable manner and time. You
agree that in no event will we be liable in an amount exceeding the
lesser of five thousand dollars ($5,000) or the actual amount of your
loss. You also agree that we will not be liable for any amount of loss
that you may incur if you:
-
Do not tell us about an error or unauthorized EFT within
thirty (30) days after the first statement showing the error
or unauthorized EFT is made available to you; or
-
If you do not provide us with the information necessary to
place a stop payment on a Preauthorized Transfer in a timely
manner.
In addition, we are not liable for any losses you may incur in any
of the following circumstances:
-
If the Available Balance in your Account is not sufficient to
complete the transaction through no fault of ours.
- If the ATM you use does not have enough cash.
-
If the failure is due to an equipment or system breakdown,
such as a problem with the Online Banking Services provided by
the Program Partner, that you knew about before you began a
transaction.
-
The failure was caused by an Act of God, fire or other
catastrophe, or any other cause beyond our control despite
reasonable precautions we have taken.
-
If your funds are not available due to a hold or if your funds
are subject to legal process.
-
If we do not complete a transaction because we or Unit has
reason to believe the transaction is unauthorized or illegal.
- If your Account is closed or inactive.
-
There may be additional exceptions stated in our or Unit’s
agreements with you or permitted by law.
- ACH Origination Service
- Description of ACH Origination Service
The ACH Origination Service allows you to instruct us to create and/or
send a NACHA formatted file on your behalf to execute the transfer
of funds to/from another financial institution to disburse/concentrate
funds or to make payments/collect funds to/from another party via the
System. All transactions executed through the ACH Origination Service
described above will be collectively known as (“ACH transactions”.)
The ACH Origination Service is only accessible through the Online Banking
Services. Your use of and access to the ACH Origination Service is
separate and apart from your ability to facilitate transfers via ACH
to a linked bank account (see Section 3.6). Not all capabilities described
in the Agreement with respect to the ACH Origination Service may be
available on all Accounts.
We will facilitate only Internet-Initiated/Mobile Entry (“WEB”) and
Corporate Credit or Debit Entry (“CCD”) ACH transactions through the
ACH Origination Service. We will select, at our sole discretion, whether
to facilitate any given ACH transaction as a WEB transaction or CCD
transaction.
Unless otherwise defined in this Agreement, capitalized terms that
appear in this Section 5 shall have the meanings set forth in the Operating
Rules (the “Rules”) of the National Automated Clearing House Association
(“NACHA”).
- Processing Deadlines
Except as provided in Security Procedures in Section 5.5 below, we
shall (i) process entries received from you to conform with the file
specifications set forth in the Rules, (ii) transmit such entries as
an Originating Depository Financial Institution to the Federal Reserve
Bank, and (iii) settle for such entries to the specified accounts as
provided in the Rules.
We shall transmit such entries to the Federal Reserve Bank by the deadline
of the ACH one business day prior to the Effective Entry Date shown
in such entries, provided (i) such entries are received 3:00 PM ET
on a business day, (ii) the Effective Entry Date is at least two (2)
days after such business day, and (iii) the Federal Reserve is open
for business on such business day. A “business day” is a day in which
the Federal Reserve Bank is opened to the public for carrying on substantially
all of its business, other than a Saturday, Sunday, or legal holiday.
If any of the requirements of clause (i), (ii), or (iii) listed above
are not met, we shall use reasonable efforts to transmit such entries
to the Federal Reserve Bank by the next deposit deadline on which the
Federal Reserve is open for business.
-
Payments to Third Parties – Special Rules for ACH Credit Entries
As a feature of your Account, payments you request to make to
third parties using the ACH Origination Service (i.e., credit
entries) are processed differently by us to provide the third
parties you wish to pay with options for receiving your payment.
When you initiate a request to pay a third party through the ACH
Origination Service, we will first notify the third party and
offer them the option to either accept the transfer of funds
through an ACH credit entry or more quickly by opening an Account
with us.
When you make a request to initiate a payment to a third party, funds
in the amount of your requested payment will be immediately transferred
from the transaction portion of your Account to a sub-account where
it will be held until the third party you wish to pay chooses how to
receive your payment. See Section 5.3.3 for more information concerning
the sub-account. We will then notify the third party via email of your
pending payment and present them with the option to accept your payment
through an ACH credit entry or more immediately by opening an Account
with us.
If the third party chooses to open an Account with us, your payment
will be processed as an internal transfer that will be immediately
available to the third party once the third party’s Account has been
established. If the third party chooses not to open an Account, your
payment will be processed as an ACH credit entry through the ACH Origination
Service pursuant to the terms of this Section 5. If the third party
does not respond to the notification within two (2) calendar days,
the transaction will be cancelled and funds in the amount of your requested
payment will be transferred from your sub-account back to the transaction
portion of your Account.
-
Effective Entry Date for Payments to Third Parties and Effect
on Processing Deadlines
ACH credit entries will be processed according to the deadlines
described in Section 5.2, except that the Effective Entry Date
with respect to such entries will be one (1) business day after
the day that the third party whom you wish to pay responds to the
notification of your payment by choosing to receive your payment
by ACH.
Internal transfers will be processed at the time an Account is
established for the third party whom you wish to pay.
-
Cancellation or Amendment of Payments to Third Parties
You may cancel a request to pay a third party at any time through
the Online Banking Services provided the third party has not yet
responded to the notification of your payment request. We will
immediately transfer funds in the amount of the cancelled payment
from your sub-account to the transaction portion of your Account.
[You cannot amend or modify a payment request. To change a payment
request, you must cancel the request and initiate a new request.]
If the third party has responded to the notification and chosen
to receive your payment through an ACH credit entry, Section 5.11
will apply to any request to cancel or amend the payment. If the
third party whom you wish to pay has responded to the notification
and chosen to receive your payment by opening an Account, you will
not be able to cancel or amend your payment request and we will
not be able to stop it.
-
Sub-Account Use for Payments to Third Parties
To facilitate your requested payments to third parties via the
ACH Origination Service, a single sub-account will be created and
associated with the Account; all funds that you request to make
as payments to third parties will be held in this sub-account until
they are accepted by the third party, canceled or modified by you,
or returned to the Account after forty-eight (48) hours without
acceptance by the third party. The sole purpose of the sub-account
is to facilitate your requests for payments to third parties.
Separate statements for your sub-account will periodically be provided
to you via Online Banking Services as long as your Account is not
inactive. You will receive a sub-account statement monthly as long
as you have requested to make or completed payments to third parties
during the statement period. If there were no third-party payments
requested or made during the month, we may not provide you with
statements or may provide you with statements on a less frequent
basis. You will not receive paper statements.
The sub-account is considered a part of the Account and will follow
all rules and provisions of this Agreement.
- ACH Rules
When engaging in any transaction through the ACH Origination Service,
you agree to comply with the Rules. You can obtain a copy of the Rules
from NACHA at 13450 Sunrise Valley Drive, Suite 100 Herndon, VA 20171;
instructions for obtaining a copy of the Rules are also available at
www.nacha.org. You agree to comply with and be bound by the Rules.
In the event you violate any of the applicable Rules and NACHA imposes
a fine on us because of your violation, we may charge the fine to you.
We agree to inform you of revisions to the Rules of which we have knowledge.
Our current process does not support the origination of IAT’s (International
ACH Transactions).
- Security Procedures
Our security procedures or security requirements are integrated into
the Online Banking Services, and you acknowledge and agree that these
security procedures are a commercially reasonable method of providing
security against unauthorized payment orders. You agree to submit ACH
origination requests solely through the Online Banking Services.
- Our ACH Origination Obligations
In a timely manner and in accordance with the Rules, we will process,
transmit and settle for the entries received from you, which comply
with the terms of this Agreement and/or any addendums or future addendums.
- Warranties
You warrant and agree that:
-
Each entry is accurate, timely, and has been authorized by the
party whose account will be credited or debited, and otherwise
complies with the Rules.
-
Each debit entry is for an amount, which on the settlement
date with respect to it, will be owing to you from the party
whose account will be debited, is for a sum specified by such
party to be paid to you, or is a correction of a previously
transmitted erroneous credit entry.
-
You have complied with all pre-notification requirements of
the Rules.
-
You will comply with the terms of the Electronic Funds
Transfer Act, if applicable, or Uniform Commercial Code
Article 4A if applicable, and the laws of the United States.
You shall otherwise perform your obligations under this
Agreement in accordance with all applicable laws and
regulations. You shall indemnify us against any loss,
liability or expense (including attorney’s fees and expenses)
resulting from or arising out of any breach of any of the
foregoing warranties or agreements.
- Authorized Daily Dollar Limits
There are limitations on the frequency and amount of ACH transactions
you can originate from your Account using the ACH Origination Service.
For limits that apply to transactions that credit or deposit funds
into your Account, please refer to Section 3.1 concerning deposits.
For limits that apply to transactions that debit or withdraw from your
Account, please refer to Section 3.5 concerning withdrawals. These
security- and related limits may change from time to time.
Inherent to the implementation of any ACH Origination Service is a
degree or risk assumed by us. It is possible for you to expose us
to significant financial liability if you do not have sufficient
funds on deposit in the Account to settle ACH transactions or
returns. We reserve the right to periodically request and review
your financial information and revoke your access to ACH
Origination Service if we believe, in our sole discretion, that
you cannot financially support your liability for ACH transactions
originated from the Account.
The following types of ACH transactions may be originated using
the Account and the Online Banking Services: CCD and WEB.
- Provisional Credit
You acknowledge that the Rules make provisional any credit given for
an entry until the financial institution crediting the account specified
in the entry receives final settlement. If the financial institution
does not receive final settlement, it is entitled to a refund from
the credited party and the originator of the entry shall not be deemed
to have paid the party.
- Settlement
You will maintain the Account during the term of this Agreement. You
will maintain in the Account as of the applicable settlement date immediately
available funds sufficient to cover all credit and debit entries initiated
by you. You authorize us to debit the Account on the applicable settlement
date in the amount of each entry. In the event there are not sufficient
available funds in the Account to cover your obligations under this
Agreement, you agree that we may debit any account maintained by you
with us or that we may set off against any amount we owe to you, to
obtain payment of your obligations under this Agreement.
- Cancellation or Amendment
You shall have no right to cancel or amend any entry/file after its
receipt by us. However, we shall use reasonable efforts to act on a
request, in writing, by an Authorized User to cancel an entry/file
before transmitting it to the Federal Reserve Bank. Any such request
shall comply with the security procedures described in Section 5.5
above. You may be required to submit a new transfer request in writing
or electronically through the Online Banking Services. We shall have
no liability if the cancellation or change is not affected.
- Reversals
You may request the reversal of an entry for erroneous or duplicate
transactions that have been transmitted to the Federal Reserve by contacting
us through the Online Banking Services.
- Rejection of Entries
We shall reject any entry, including an on-us entry, which does not
comply with the requirements of this Agreement and may reject any entry
if you are not otherwise in compliance with the terms of the Agreement.
We shall notify you by email or via the Online Banking Services of
such rejection no later than the business day such entry would otherwise
have been transmitted by us to the ACH or, in the case of an on-us
entry, its effective entry date.
- Returned Entries
We shall notify you by email or via the Online Banking Services of
the receipt of a returned entry from the Federal Reserve no later than
one business day after the business day of such receipt. We shall have
no obligation to re-transmit a returned entry if we complied with the
terms of this Agreement with respect to the original entry.
You agree not to exceed ninety-five percent (95%) of any thresholds
set forth in the NACHA Rules for returns on the basis that the Transaction
was unauthorized, returns for administrative reasons, or all returns
regardless of the cause in any thirty (30) day period. You further
agree not to exceed one-half percent (0.5%) returns on the basis that
the Transaction was unauthorized in any thirty (30) day period irrespective
of whether any NACHA thresholds have been exceeded. Returns on the
basis that the transaction was unauthorized will be assigned a NACHA
return status of R07 (“authorization revoked by customer”), R10 (“customer
advises not authorized”), or R29 (“corporate customer advises not authorized”).
We reserve the right to limit, suspend, or terminate your ACH Origination
Service privileges for any violation of this Section 5.14.
- Notifications of Change
We shall notify you of all notifications of changes that we receive
related entries that you transmit by email or via the Online Banking
Services no later than five (5) business days after receipt thereof.
- Fees
You agree to pay us for ACH Origination Service provided under the
Agreement in accordance with the current schedule of fees in Section
3.14 above. We may change our fees from time to time upon written notice.
- Audits
We shall have the right to audit any records for compliance with the
agreements and Rules relating to ACH Transactions originated by you.
- ACH Origination Service Liability, Limitations on Liability &
Indemnity
WE SHALL BE RESPONSIBLE ONLY FOR PERFORMING THE ACH ORIGINATION SERVICE
EXPRESSLY PROVIDED FOR IN THIS AGREEMENT AND SHALL BE LIABLE ONLY FOR
OUR GROSS NEGLIGENCE IN PERFORMING THIS SERVICE. WE SHALL NOT BE RESPONSIBLE
FOR YOUR ACTS OR OMISSIONS (INCLUDING WITHOUT LIMITATION THE AMOUNT,
ACCURACY, TIMELINESS OF TRANSMITTAL OR AUTHORIZATION OF ANY FILE RECEIVED
FROM YOU) OR THOSE OF ANY OTHER PERSON. WE ARE AUTHORIZED BY YOU TO
PROCESS TRANSACTIONS IN ACCORDANCE WITH THE INFORMATION THAT WE RECEIVE
IN THE ISSUED FILE TRANSMISSION FROM YOU. YOU SHALL BE SOLELY RESPONSIBLE
FOR THE INFORMATION CONTAINED IN THE FILE, AND WE SHALL HAVE NO RESPONSIBILITY
FOR ERRONEOUS DATA PROVIDED BY YOU. YOU WILL INDEMNIFY AND HOLD US
HARMLESS FROM AND AGAINST ANY LOSS, CHARGE, LIABILITY, COST, FEE OR
EXPENSE (INCLUDING ATTORNEYS’ FEES AND EXPENSES) WE SUFFER OR INCUR
RESULTING FROM ANY THIRD-PARTY LAWSUIT, CLAIM, ARBITRATION OR OTHER
ACTION, ACTUAL OR THREATENED, ARISING UNDER OR IN CONNECTION WITH THIS
AGREEMENT.
IN NO EVENT SHALL WE BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE
OR INDIRECT LOSS OR DAMAGE THAT YOU MAY INCUR OR SUFFER IN CONNECTION
WITH THIS AGREEMENT, INCLUDING LOSSES OR DAMAGES FROM SUBSEQUENT WRONGFUL
DISHONOR RESULTING FROM OUR ACTS OR OMISSIONS PURSUANT TO THIS AGREEMENT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING PROVISIONS, WE SHALL
BE EXCUSED FROM FAILING TO ACT OR DELAY IN ACTING IF SUCH FAILURE OR
DELAY IS CAUSED BY LEGAL CONSTRAINT, INTERRUPTION OF TRANSMISSION OR
COMMUNICATION FACILITIES, EQUIPMENT FAILURE, WAR, NATURAL DISASTER,
EMERGENCY CONDITIONS, OR OTHER CIRCUMSTANCES BEYOND OUR CONTROL. NOTWITHSTANDING
THE ABOVE, WE WILL REIMBURSE YOU FOR EXPENSES INCURRED (E.G. WIRE FEES)
IN THE EVENT OF OUR FAILURE OR DELAY IN TRANSFERRING FUNDS SOLELY CAUSED
US.
N ADDITION, WE SHALL BE EXCUSED FROM FAILING TO TRANSMIT OR DELAY IN
TRANSMITTING AN ENTRY IF SUCH TRANSMITTAL WOULD RESULT IN OUR HAVING
EXCEEDED ANY LIMITATION UPON ITS INTRA-DAY NET FUNDS POSITION ESTABLISHED
PURSUANT TO PRESENT OR FUTURE FEDERAL RESERVE GUIDELINES OR IN OUR
REASONABLE JUDGMENT OTHERWISE VIOLATE ANY PROVISION OF ANY PRESENT
OR FUTURE RISK CONTROL PROGRAM OF THE FEDERAL RESERVE, OR ANY RULE
OR REGULATION OF ANY OTHER U.S. GOVERNMENTAL REGULATORY AUTHORITY.
SUBJECT TO THE FOREGOING LIMITATIONS, OUR LIABILITY FOR LOSS OF INTEREST
RESULTING FROM ITS ERROR OR DELAY SHALL BE CALCULATED BY USING A RATE
EQUAL TO THE AVERAGE FEDERAL FUNDS RATE SET BY THE FEDERAL RESERVE
BANK FOR THE PERIOD INVOLVED. AT OUR OPTION, PAYMENT OF SUCH INTEREST
MAY BE MADE BY CREDITING THE ACCOUNT RESULTING FROM OR ARISING OUT
OF ANY CLAIM OF ANY PERSON WE ARE RESPONSIBLE FOR, ANY ACT OR OMISSION
OF YOU OR ANY OTHER PERSON.
PERFORMANCE INTERRUPTION OF THE ACH ORIGINATION SERVICE FOR ANY REASON
SHALL NOT RELIEVE YOU OF YOUR OBLIGATION TO MAKE ANY TAX DEPOSIT, AND
WE WILL INCUR NO LIABILITY TO YOU FOR YOUR FAILURE TO MAKE ANY REQUIRED
TAX PAYMENT BY OTHER MEANS IN THE EVENT OF SUCH INTERRUPTIONS.
- Inconsistency of Name and Account Number
You acknowledge that, if an entry describes the Receiver inconsistently
by name and/or account number, payment of the entry may be made on
the basis of the account number even if it identifies a person different
from the named Receiver. You are solely responsible for providing correct
information for all ACH Origination Service requests through the Online
Banking Services.
- Termination
You may cancel your ACH Origination Service at any time by providing
us with written notice. Your access to the ACH Service through Online
Banking Services will be suspended within three (3) business days of
our receipt of instructions to cancel your ACH Origination Service
from any Authorized User. We shall be entitled to rely on any written
notice believed by us, in good faith, to be signed by any Authorized
User. We shall have no obligation to transmit entries if you are in
default of any of its obligations under this Agreement, including the
obligation to pay any related fees for each credit and debit entry.
You will remain responsible for all transactions that occur prior to
termination, whether termination by you or by us, and for any fees
and charges incurred prior to the date of cancellation. Any unprocessed
transactions including future dated and recurring transactions, will
be cancelled as a result of termination of your ACH Origination Service.
You agree that we can terminate or limit your access to the ACH Origination
Service for any of the following reason without prior notice:
-
If you have insufficient funds in your Account. The ACH
Origination Service may be reinstated, at our sole discretion,
once sufficient funds are available to cover any fees, pending
transfers, and debits.
-
You breach of any term of this Agreement and/or the Rules.
-
Upon reasonable notice (including immediate), for cause
(including the foregoing) or without cause, in our sole
discretion. Any unprocessed transactions including future
dated and recurring transactions will be cancelled as a result
of termination of your ACH Origination Service.
- Notice Disclosure
Under the operating rules of NACHA, which are applicable to ACH transactions
involving your Account, we are not required to give next day notice
to you of receipt of an ACH item, and we will not do so. However, we
will continue to notify you of the receipt of payments in the periodic
statements we provide you.
- Wire Transfers
The Account may permit domestic wire transfers through Online Banking Services
provided to you by the Program Partner.
- Types of Wire Transfers Supported by Your Account
Your Account may support domestic wire transfers. If wire services
are made available to you, your Account will be able to both
receive and initiate wire transfers.
We may select any means for the transmission of funds that we consider
suitable. We may make use of correspondents, agents, subagents, and
funds transfer and communication systems. Such third parties shall
be deemed your agents, and we shall not be liable for any errors, delay,
misdelivery, or failure of delivery by any of them unless applicable
law says otherwise.
We will not be liable for our inability to perform our obligations
under this Agreement when such inability arises out of causes beyond
our control, including but not limited to, any act of God, accident,
labor disputes, power failures, system failure, equipment malfunction,
suspension of payment by another bank, refusal or delay by another
bank to accept the wire transfer, war, emergency conditions, fire,
earthquake, or the failure of any third party to provide any electronic
or telecommunication service used in connection with the execution
or cancellation of a wire transfer.
- Limitations on Wire Transfers
There are limitations on the frequency and amount of transactions you
can make to or from your Account. These limits are different for each
type of transaction. For limits that apply to transactions that credit
or deposit funds into your Account, please refer to Section 3.1 concerning
deposits. For limits that apply to transactions that debit or withdraw
from your Account, please refer to Section 3.5 concerning withdrawals.
There may be limits on the beneficiaries who can receive a wire transfer
you initiate from your Account. These security-related limits may change
from time to time.
- Cut-Off Times for Wire Transfers
We have cut-off hours for processing wire transfers. If a wire request
is received by 1:00 PM ET on a Business Day and verified through our
security procedures outlined in the Section below titled “Security
Procedures,” funds will be processed the same business day. If it is
received after 1:00 PM ET or on a non-Business Day and verified through
our security procedures, funds may be processed the next business day.
We may treat any wire transfer request received at or after our cut-off
time as if it was received that business day, or the next business
day.
- Security Procedures
You agree and consent to the use of certain security procedures by
us to confirm the validity of the wire transfer request made pursuant
to this Agreement. You understand the security procedures are not designed
to detect errors in the content of the wire transfer request or to
prevent duplicate transfers. Some elements of the procedures will vary,
depending upon the method used to initiate a wire transfer.
You hereby agree that your utilization of any security procedure established
hereunder shall constitute your agreement to its use and affirmative
acknowledgment of its commercial reasonableness.
You further agree that any wire transfer request that is acted upon
in good faith by us in compliance with these security procedures, whether
or not in fact authorized by you, shall constitute an authorized wire
transfer.
- Liability for Incorrect Wire Transfers
You are responsible for providing us with the accurate name and account
number for wire transfers, and we are responsible for transmitting
money to the account number you provided.
When you provide us with a name and account number for us to process
a wire transfer, we may make payment solely on the basis of the account
number, even if the account number identifies a person different from
the beneficiary so named. We or an intermediary bank may send a wire
transfer to an intermediary bank or beneficiary's/designated recipient's
bank based solely on the bank identifying number, even if the payment
order indicates a different name. You should be very careful when providing
the account number for a wire transfer.
If you have provided us with the wrong account number, there may be
no way to correct the error or retrieve the funds. You agree that you
will pay the amount of a wire transfer even in such circumstances.
You are responsible for any losses resulting from an incorrect account
number or your misidentification of the beneficiary/designated recipient.
If you think a wire transfer is wrong or if you need more information
about a wire transfer, you must contact us via Online Banking Services
as soon as possible and no later than fourteen (14) days after you
receive your monthly statement. If you don’t tell us about an error,
we will not have any obligation to pay interest on the amount of an
unauthorized or erroneous wire transfer for which we are liable, and
you will also be liable to us for any damages or losses we may incur.
- Payment
You must pay us the amount of the wire transfer, plus any applicable
fees, before we will execute the wire transfer request. Please see
Section 3.14 of this Agreement for fees applicable to wire transfers.
- Execution of Wire Transfers
A wire transfer request is considered accepted by us when we execute
it. Please refer to Section 6.3 concerning cut-off times for more details.
You can verify whether your wire transfer request has been executed
via Online Banking Services.
We have no responsibility to accept any incoming wire transfer(s) for
your benefit. Likewise, we have a right to reject any wire transfer
request(s) for an outgoing wire transfer for reasons including, but
not limited to, insufficient or uncollected funds in the account specified
in the wire transfer request, a request that fails any requires security
procedures, our inability to execute the wire transfer for the reasons
set out in the Section of this agreement entitled method used to make
the wire transfer above, or if we are unable to verify the authenticity
of the wire transfer request. If we stop a domestic outgoing wire transfer,
we will refund the fee.
If we determine, in our sole discretion, not to honor, execute, or
accept a wire transfer request, we will make reasonable efforts to
notify you. We will also make reasonable efforts to notify you promptly
if a wire transfer is returned to us after its execution. In either
case, we shall have no liability by reason of our delay or failure
to provide you with notice, and we shall have no obligation to resend
a wire transfer if we complied with the original wire transfer request
and such wire transfer was returned to us.
- Cancellation or Amendment of Wire Transfer
Once we receive a wire transfer request, it may not be able to be canceled
or amended. However, at our discretion, we may use reasonable efforts
to act on any request for cancellation or amendment, provided that
the method by which we are notified of a request for cancellation or
amendment complies with our security procedures. However, we shall
have no liability if such cancellation or amendment is not affected.
You agree to indemnify and hold us harmless from all liabilities, claims,
damages, costs, and expenses we may incur in attempting to cancel or
amend the wire transfer. any cancellation or amendment of a wire transfer
by us shall relieve us of any obligation to act on the original wire
transfer request.
- Our Liability for Failure to Complete a Wire Transfer
We shall be responsible only for performing the wire transfer service
expressly provided for in this Agreement; provided however, we shall
be liable only for our own gross negligence or willful misconduct in
performing such service. We shall not be liable to any third party
or for any act or omission of yours or any third party, including,
but not limited to, third parties used by us in executing a wire transfer
or performing a related act and no such third party shall be deemed
to be our agent. IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES OF
ANY KIND INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, PUNITIVE, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSSES OR EXPENSES
ARISING OUT OF OR IN CONNECTION WITH THE WIRE TRANSFER SERVICE, EVEN
IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SAME. Except as otherwise
provided by applicable law, the maximum period for which we shall be
liable for interest on any amount to be refunded or paid to you with
respect to an unauthorized, erroneous, or other wire transfer request
is thirty (30) days.
- Your Liability for Unauthorized Wire Transfers
Except as otherwise provided by law, you shall be liable for any loss
or damage to which your negligence contributed or which resulted in
unauthorized, fraudulent, or dishonest acts by your current and/or
former authorized representatives. Such liability includes instances
when a current or former authorized representative effects one or more
wire transfers or improper use of telephone security procedures to
effect a wire transfer to your detriment.
- Compliance with Anti-Money Laundering and Exchange Control
Regulations and OFAC Enforced Sanctions
You agree to observe all Anti-Money Laundering and Exchange Control
laws and regulations including economic and trade sanctions promulgated
by the Office of Foreign Assets Control of the U.S. Department of Treasury
in relation to any wire transfer, and you will use all reasonable endeavors
to assist us to do likewise. You agree that the information given to
us by you is accurate. We may disclose any information given to us
that we in our sole discretion think necessary or desirable to disclose;
except we will only disclose confidential information if required by
law, a court, or legal, regulatory, or governmental authority, or as
permitted by law to combat, prevent, or investigate issues arising
under anti-money laundering laws, economic sanctions, or criminal law.
Sometimes legal, regulatory, or governmental authorities require additional
information, either in respect of individuals, entities, or particular
transactions. You agree to promptly supply all such information, which
any such authority may require, and/or which we may be required to
supply, in relation to the individual, entity, or particular transaction.
If you, or your authorized representative, breach any such laws or
regulations, you irrevocably agree that we may retain any monies or
funds transmitted to us pursuant to this Agreement and/or not fulfill
any wire transfer request if we are required to take or refrain from
such action by any legal, regulatory, or governmental authority or
if we reasonably believe that such action may violate any laws or regulations
described herein, and such monies shall not bear interest against us.
You further agree that we may pay such monies to the appropriate legal,
regulatory, or governmental authority, if and when required by law.
- Other Legal Terms and Conditions
- No Assignments
Your Account and your obligations under this Agreement are not transferable
and not assignable as collateral for a loan or for any other purpose.
We may transfer our rights under this Agreement.
- Legal Processes and Claims Affecting Your Account
If we receive a levy, attachment, or other legal process against you
(collectively, “Legal Process”), we may refuse to permit withdrawals
or transfers from your Account until the Legal Process is dismissed
or satisfied. Any 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 is 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 are satisfied that the dispute is settled; (2) close your Account
and send the balance to the named account holder; (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.
- Limitation of Liability and Disclaimer of Warranty
EXCEPT AS REQUIRED BY 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 THIS AGREEMENT IF SUCH FAILURE OR DELAY IS CAUSED BY MAINTENANCE
OR INTERRUPTION OR MALFUNCTION OF EQUIPMENT OR COMMUNICATION FACILITIES,
UNUSUAL TRANSACTION VOLUME, 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 BLUE RIDGE
BANK, N.A. EXCEPT AS REQUIRED BY 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 OR UNIT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE
DAMAGES EVEN IF YOU ADVISE US OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT AS REQUIRED BY LAW AND NOTWITHSTANDING ANYTHING TO THE
CONTRARY, WE SHALL ONLY BE RESPONSIBLE AND LIABLE FOR OUR OWN
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN PERFORMING OUR
OBLIGATIONS UNDER THIS AGREEMENT. WE SHALL NOT BE LIABLE TO ANY
THIRD PARTY OR FOR ANY ACT OR OMISSION OF YOURS OR ANY THIRD
PARTY, INCLUDING, BUT NOT LIMITED TO, THIRD PARTIES USED BY US IN
EXECUTING ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR
PERFORMING A RELATED ACT AND NO SUCH THIRD PARTY SHALL BE DEEMED
TO BE OUR AGENT.
IN ADDITION, EXCEPT AS REQUIRED BY LAW, BLUE RIDGE BANK, N.A. IS NOT
LIABLE OR RESPONSIBLE FOR ANY SERVICES OR FEATURES OF ANY ONLINE BANKING
SERVICES PROVIDED TO YOU BY FUNDOMATE. WE ARE ALSO NOT LIABLE FOR ANY
UNAUTHORIZED ACCESS OF YOUR INFORMATION OR DATA BY A THIRD PARTY DUE
TO YOUR USE OF THIRD-PARTY COMMUNICATION CHANNELS NOT OFFERED BY US.
ALL BANK SERVICES AND ACCOUNT FEATURES ARE PROVIDED “AS IS” AND “AS
AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THE BANK’S SERVICES
OR ACCOUNT FEATURES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED,
SECURE, TIMELY, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.
- Indemnification
You agree to indemnify and hold us and our officers, directors, shareholders,
employees, successors, predecessors, representatives, principals, agents,
assigns, parents, subsidiaries and/or insurers harmless for any losses,
damages, suits and expenses, including reasonable attorneys’ fees,
that we may incur, without regard to the merit or lack thereof, arising
out of, or related in any way to (1) the matters set forth herein;
(2) our taking any action or not taking any action that we are entitled
to take pursuant to this Agreement; (3) any action or omission by you;
or (4) our action or inaction in reliance upon oral, written or electronic
instructions or information from you.
Equally, you agree to indemnify and hold Unit and its officers, directors,
shareholders, employees, successors, predecessors, representatives,
principals, agents, assigns, parents, subsidiaries and/or insurers
harmless for any losses, damages, suits and expenses, including reasonable
attorneys’ fees, that we may incur, without regard to the merit or
lack thereof, arising out of, or related in any way to (1) the matters
set forth herein; (2) our taking any action or not taking any action
that we are entitled to take pursuant to this Agreement; (3) any action
or omission by you; or (4) our action or inaction in reliance upon
oral, written or electronic instructions or information from you.
- Our Right of Set-Off and Security Interest
We have the right to set-off any liability, direct or contingent, past,
present or future that you owe against any account you have with us.
This means that we can take any funds in your Account or any other
account you have with us to pay any debt or liability you owe us. You
also agree to grant us a security interest in your Account to secure
payment of any money that you owe to us or will owe us arising under
this Agreement or any other agreements with us. You acknowledge that
this security interest is consensual and in addition to any right of
set-off. We may exercise our security interest or right of set-off
without regard to the source of the funds in your Account or prior
recourse to other sources of repayment or collateral, even if it causes
you to incur penalties or suffer any other consequence. You waive any
conditions or limits to our right of set-off to the maximum extent
permitted by law. We will notify you if we exercise our right to set-off
if required by law.
If we take any action to collect debt incurred by you or other amounts
you owe us under this Agreement 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.
- Changes in Terms and Additional Services
We may change this Agreement, or any fees and features of your Account,
at any time by posting an amended Agreement on Fundomate’s website,
https://fundomate.com/business-deposit-agreement, and any such amendment shall be effective upon posting. We will
give you advance notice of any change where required by law. We
may provide such notice to you with your statement,
electronically, or by mail. 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. We may change or
terminate this Agreement without notice at our discretion or to
comply with any appropriate federal or state law or regulation.
If we make any of our other banking services available to you in connection
with your Account, we may provide certain terms and conditions for
those additional services to you in a separate agreement or disclosure.
- No Waiver of Rights
We may waive or decline to enforce any of our rights under this Agreement
without obligating ourselves to waive such rights in the future or
on any other occasion. We may release any other person obligated under
this Agreement without affecting your responsibilities under this Agreement.
- Conflicts and Section Headings
If there is a conflict between this Agreement and any other document
or statement made to you concerning the Account, this Agreement will
govern. If there is a conflict between this Agreement and any other
document or statement made to you concerning any services or products
other than the Account, the separate terms and conditions applicable
to that service or product will govern. Section headings that appear
in this Agreement are for convenience purposes only and are intended
to help you find information. They should not be construed as affecting
the meaning of the Agreement.
- Severability
If any court or tribunal of competent jurisdiction determines that
any provision of this Agreement is illegal, invalid or unenforceable,
the remainder of this Agreement shall not be affected. To the extent
permitted by law, the parties waive any provision of law which prohibits
or renders unenforceable any provisions of this Agreement, and to the
extent that such waiver is not permitted by law, you and us agree that
such provision will be interpreted as modified to the minimum extent
necessary to render the provisions enforceable.
- Governing Law, Forum and Time Limits
All actions relating to your Account and this Agreement will be governed
by the laws and regulations of the United States and the State of Virginia
where your Account will be opened, irrespective of conflict of law
principles. You agree that any dispute arising under this Agreement
or relating in any way to your relationship with us that is not arbitrated
will be resolved in a federal or state court located in Virginia and
that you will be subject to such court’s jurisdiction. Except where
prohibited by law, you agree that you must file any lawsuit or arbitration
against us within two (2) years after the claim arises unless federal
or Virginia law, or another agreement you have with us, provides for
a shorter time. If federal or Virginia law requires a longer time period
than the time periods in this Agreement, you agree to the shortest
time period permitted under the law.
- Arbitration and Waivers
BE SURE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT
IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US.
- Election to Arbitrate
You, Fundomate and the Bank agree that the sole and exclusive forum
and remedy for resolution of a Claim be final and binding arbitration
pursuant to this Section 8 (the “Arbitration Provision”). As used in
this Arbitration Provision, “Claim” shall include any past, present,
or future claim, dispute, or controversy involving you (or persons
claiming through or connected with you), on the one hand, and us on
the other hand, relating to or arising out of this Agreement, and/or
the activities or relationships that involve, lead to, or result from
this Agreement, including the validity or enforceability of this Arbitration
Provision, any part thereof, or the entire Agreement. Claims are subject
to arbitration regardless of whether they arise from contract; tort
(intentional or otherwise); a constitution, statute, common law, or
principles of equity; or otherwise. Claims include matters arising
as initial claims, counterclaims, crossclaims, third-party claims,
or otherwise. Please note that you may continue to assert Claims in
small claims court, if your Claims qualify and so long as the matter
remains in such court and advances only on an individual (non-class,
non-representative) basis. The scope of this Arbitration Provision
is to be given the broadest possible interpretation that is enforceable.
- Applicability of the Federal Arbitration Act; Arbitrator’s
Powers
This Arbitration Provision is made pursuant to a transaction involving
interstate commerce and shall be governed by and enforceable under
the Federal Arbitration Act (the “FAA”). The arbitrator will apply
substantive law consistent with the FAA and applicable statutes of
limitations. The arbitrator may award damages or other types of relief
permitted by applicable substantive law, subject to the limitations
set forth in this Arbitration Provision. The arbitrator will not be
bound by judicial rules of procedure and evidence that would apply
in a court. The arbitrator shall take steps to reasonably protect confidential
information.
- Informal Dispute Resolution
If a Claim arises, our goal is to address your concerns and, if we
are unable to do so, to provide you with a neutral and cost-effective
means of resolving the dispute quickly. You agree that before filing
any claim in arbitration, you will first submit your Claim to us via
Online Banking Services and provide us with the opportunity to resolve
your concern prior to initiating arbitration.
- Arbitration Procedures
The party initiating arbitration shall do so with the American Arbitration
Association (the “AAA”) or Judicial Alternatives and Mediation Services
(“JAMS”). The arbitration shall be conducted according to, and the
location of the arbitration shall be determined in accordance with,
the rules and policies of the administrator selected, except to the
extent the rules conflict with this Arbitration Provision or any countervailing
law. If you have any questions concerning the AAA or would like to
obtain a copy of the AAA arbitration rules, you may call 1 (800) 778-7879
or visit the AAA's web site at: www.adr.org. If you have any questions
concerning JAMS or would like to obtain a copy of the JAMS arbitration
rules, you may call 1 (800) 352-5267 or visit their web site at: www.jamsadr.com.
In the case of a conflict between the rules and policies of the administrator
and this Arbitration Provision, this Arbitration Provision shall control,
subject to countervailing law, unless all parties to the arbitration
consent to have the rules and policies of the administrator apply.
The arbitration will be held in the United States county where you
live or work, or any other location we agree to.
- Arbitration Fees
f we initiate arbitration, we shall pay all the administrator's filing
costs and administrative fees (other than hearing fees). If you initiate
arbitration, filing costs and administrative fees (other than hearing
fees) shall be paid in accordance with the rules of the administrator
selected, or in accordance with countervailing law if contrary to the
administrator's rules. We shall pay the administrator's hearing fees
for one full day of arbitration hearings. Fees for hearings that exceed
one day will be paid by the party requesting the hearing, unless the
administrator's rules or applicable law require otherwise, or you request
that we pay them and we agree to do so. Each party shall bear the expense
of its own attorneys' fees, except as otherwise provided by law. If
a statute gives you the right to recover any of these fees, these statutory
rights shall apply in the arbitration notwithstanding anything to the
contrary herein.
- Appeals
AppealsWithin thirty (30) days of a final award by the arbitrator,
any party may appeal the award for reconsideration by a three-arbitrator
panel selected according to the rules of the arbitrator administrator.
In the event of such an appeal, any opposing party may cross-appeal
within thirty (30) days after notice of the appeal. The panel will
reconsider de novo all aspects of the initial award that are appealed.
Costs and conduct of any appeal shall be governed by this Arbitration
Provision and the administrator's rules, in the same way as the initial
arbitration proceeding. Any award by the individual arbitrator that
is not subject to appeal, and any panel award on appeal, shall be final
and binding, except for any appeal right under the Federal Arbitration
Act (“FAA”), and may be entered as a judgment in any court of competent
jurisdiction.
- No Class Actions
NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE
BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS),
EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION
HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT
AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented
to in writing by all parties to the arbitration, no party to the arbitration
may join, consolidate, or otherwise bring claims for or on behalf of
two or more individuals or unrelated corporate entities in the same
arbitration unless those persons are parties to a single transaction.
Unless consented to in writing by all parties to the arbitration, an
award in arbitration shall determine the rights and obligations of
the named parties only, and only with respect to the claims in arbitration,
and shall not (a) determine the rights, obligations, or interests of
anyone other than a named party, or resolve any Claim of anyone other
than a named party; nor (b) make an award for the benefit of, or against,
anyone other than a named party. No administrator or arbitrator shall
have the power or authority to waive, modify, or fail to enforce this
Section 8.7, and any attempt to do so, whether by rule, policy, arbitration
decision or otherwise, shall be invalid and unenforceable. Any challenge
to the validity of this Section 8.7 shall be determined exclusively
by a court and not by the administrator or any arbitrator.
- Survival and Severability of Arbitration Provision
This Arbitration Provision shall survive the termination of this Agreement.
If any portion of this Arbitration Provision other than Section 8.7
is deemed invalid or unenforceable, the remaining portions of this
Arbitration Provision shall nevertheless remain valid and in force.
If there is a final judicial determination that applicable law precludes
enforcement of this Arbitration Provision’s limitations as to a particular
claim for relief or particular term, then that claim (and only that
claim) or that term (and only that term) must be severed from the Arbitration
Provision and may be brought in court. If an arbitration is brought
on a class, representative, or collective basis, and the limitations
on such proceedings in Section 8.7 are finally adjudicated pursuant
to the last sentence of Section 8.7 to be unenforceable, then no arbitration
shall be had. In no event shall any invalidation be deemed to authorize
an arbitrator to determine Claims or make awards beyond those authorized
in this Arbitration Provision.
- Judicial Forum for Claims
Except as otherwise required by applicable law, if this Arbitration
Provision is found not to apply to you or your Claim, you and the Bank
agree that any judicial proceeding (other than small claims actions)
will be brought in the federal or state courts of Virginia. Both you
and the Bank consent to venue and personal jurisdiction there. We both
agree to waive our right to a jury trial.
- WAIVER OF RIGHT TO LITIGATE
THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH
A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY
PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE
PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE
SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION
BY ANY PARTY.