Commercial Deposit Account Agreement
IMPORTANT - PLEASE READ CAREFULLY. THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION.
Customer service contact information
Servicer: BILL.com, LLC
Mailing address: 6220 America Center Drive, Suite 100, San Jose, CA 95002
Support URL: help.bill.com
This agreement (the “Agreement”) contains the terms and conditions governing the deposit account (the “Account”) made available and provided by Column National Association, referred to as “Bank,” “we,” “our,” and “us.” Bank is a nationally chartered depository financial institution and a member of the Federal Deposit Insurance Corporation (“FDIC”). “Account Owner” refers to the legal owner of the Account. “You” and “your” means the Account Owner, authorized signer, and any other person authorized to operate your Account. When we say “We may” or “Bank may” do something, that means you authorize us and agree to such action. You may submit a request to open the Account via the BILL Website (as defined in this Agreement). BILL.com, LLC (“Servicer”) is a service provider that performs certain services related to your Account on our behalf. Bank may refuse to process any transaction(s) that it believes may violate the terms of this Agreement or Applicable Law.
Your deposits with us are insured by the FDIC up to the maximum limits allowed by law. Information and tools describing how deposit insurance coverage works are provided by the FDIC at www.fdic.gov or by calling 1-877-ASK-FDIC or 1-800-925-4618 (for the hearing impaired).
By agreeing to these terms, you agree to be bound by Bank’s Privacy Notice (available at https://column.com/legal/privacy-notice) and Privacy Policy (available at https://column.com/legal/california-consumer-privacy-policy).
By agreeing to these terms, you acknowledge that you have or will have agreed to the terms contained in the following documents:
- BILL Terms of Service (available at https://www.bill.com/legal/terms-of-service)
- BILL Privacy Policy (available at https://www.bill.com/privacy)
1. Definitions
“Applicable Law” means, with respect to either party and as may be amended and in effect from time to time, any applicable laws, statutes, regulations, rulings, orders, and/or guidance, including the Rules, that legally apply to either party.
“Authorized Users” means individuals for whom you may request and assign Login Credentials to access your Account.
“Business Day” means Monday through Friday, excluding federal holidays.
“Collected Balance” means the balance in your Account at the close of each Business Day, consisting of funds transfers and electronic deposits, plus those non-cash items on deposit for which you have received credit, and interest credited to the Account, minus all withdrawals, holds and other debits to the Account.
“Daily Balance Method” means the method used to calculate interest on your Account. We take the Daily Rate and multiply it by the Collected Balance in your Account each day.
“Daily Rate” is the interest rate applicable to your Account divided by 365 days (or 366 days in a leap year).
“Eligible Instruction” means any instruction related to your and your Authorized Users' use of the Account that is submitted in compliance with the Security Procedures through the BILL[Servicer] App.
“Login Credentials” means the unique username and password that you create for access to your Account through the BILL App.
“Principal Protection USD” means a wire transfer request for the beneficiary to receive the principal amount sent in USD or other designated currency.
“Security Procedures” means the Login Credentials and Servicer’s dual-factor authentication process for use in securely accessing your Account through the BILL App.
“BILL App” means Servicer’s mobile device software application that allows you to access your Account on a mobile device and/or the BILL Website.
“BILL Website” means Servicer’s website at https://www.bill.com that allows you to access your Account online.
“USD” means United States Dollars.
2. General provisions
The Account is available to legal entity commercial customers located in the fifty United States and the District of Columbia. No sole proprietorships are eligible. We may decline to open an Account for you for any reason, or for no reason; this includes if you have had or currently have any other relationships or accounts that you did not maintain in a satisfactory manner. We are not liable for any damages or liabilities resulting from the refusal of Account. You must agree to accept electronic, rather than paper communications and can retrieve account information through the BILL Website.
By requesting the Account, you acknowledge and agree:
- That your use of the Account is for a commercial or business purpose and you will not use the Account for any consumer (personal, family, or household) purpose.
- That if you are an individual executing this Agreement on behalf of, or for the benefit of, any corporation, partnership, or other entity with which you are associated, that you represent and warrant that you have the legal authority to bind such organization to this Agreement.
- That you are of legal age in the jurisdiction where you live and have the legal capacity to enter into this Agreement.
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 THAT IDENTIFIES EACH PERSON WHO OPENS AN ACCOUNT. WHAT THIS MEANS FOR YOU: WHEN YOU OPEN AN ACCOUNT, WE WILL ASK FOR INFORMATION THAT WILL ALLOW US TO IDENTIFY YOU, INCLUDING CERTAIN IDENTIFYING DOCUMENTS. WE MAY USE INFORMATION FROM THIRD PARTIES TO HELP US DETERMINE IF WE SHOULD OPEN YOUR ACCOUNT OR KEEP YOUR ACCOUNT OPEN.
To the fullest extent permitted by law, this Agreement, notices and other communications (collectively, “Communications”) from Bank to you regarding your Account(s) and related services with Bank may be provided to you electronically, and you consent and agree to receive Communications in an electronic form. You may print a paper copy of or download any electronic communication and retain it for your records. All Communications in electronic format will be considered to be “in writing,” and to have been received on the day of posting, whether or not you have received or retrieved the Communication. Bank reserves the right to provide Communications in paper format at its discretion. Your consent to receive Communications electronically is valid until you revoke your consent by notifying Bank of your decision to do so by contacting Servicer at the information set forth above. If you revoke your consent to receive Communications electronically, Bank reserves the right to terminate your right to use the Account and related services, and you accept sole liability resulting from such termination of your Account and related services, to the extent permitted by law. Except as expressly provided otherwise in this Agreement, Bank may mail, send electronically, or otherwise make Communications available to you. If Communications are mailed to you, they will be delivered to you at the postal address on file. If Communications are sent to you electronically, they will be delivered to you at the email address on file or otherwise made available to you, including through the BILL App and BILL Website. Bank retains printable versions of notices to the extent required by Applicable Law. Regardless of the method in which a Communication is delivered or made available to you, you agree to review Communications promptly.
By providing a phone number, you are expressly consenting to receive Communications at that number from Bank and Bank’s agents, including Servicer. Such Communications may include, but are not limited to, text messages, prerecorded or artificial voice message calls and/or calls made by an automatic telephone dialing system. This express consent applies regardless of the call’s purpose.
Bank and Servicer may monitor and/or record telephone calls between you and Bank or Servicer, including to assure the quality of Bank's or Servicer’s Account service team or as required by Applicable Law. You agree that any recorded communications may be admitted as evidence in any litigation, arbitration, controversy, hearing, or other proceeding.
3. Account ownership and use
Your Account is subject to the terms and conditions set forth in this Agreement. This Agreement will cover all of your Accounts with us and a single Rate and Fee Schedule will apply to your Accounts.
Your Account is offered under this Agreement for the purposes of conducting deposit, withdrawal, and funds transfer transactions. The individual executing this Agreement must provide us, through the BILL App or BILL Website, with evidence to our satisfaction of the authority of the individuals who act on behalf of the Account Owner. With regard to any transactions or other matters involving the Account, we may act on the instructions of the person(s) authorized in the resolutions, banking agreement, or certificate of authority to act on behalf of the Account Owner. You agree to notify us in writing of any changes in the person(s) authorized or the form of ownership. If we receive conflicting instructions or a dispute arises as to authorization with regard to the handling of the Account, you agree we may place a hold on the Account until such conflict or dispute is resolved to our satisfaction and we will not be liable for dishonored items as a result of such hold.
You are liable to us for all debit balances in the Account, including, without limitation, overdrafts and account charges, and promise to pay, upon demand, any and all debit balances, all fees and charges, and Bank's reasonable attorneys’ fees and all costs and expenses of collection, including, but not limited to, those incurred at trial and on any appeal.
Your Account shall be owned and titled in the name of one (1) legal entity who shall solely retain the right to direct the deposit or transfer of funds.
Your use of the Account is subject to all applicable rules and customs of any clearinghouse or other association involved in transactions.
4. Security procedures
You may only access your Account through the BILL App and BILL Website and subject to the Security Procedures.
You are solely responsible for safeguarding your Login Credentials.
In addition to your own Login Credentials, you may request and assign Login Credentials to a maximum of four (4) Authorized Users. You are solely responsible for causing your Authorized Users to safeguard their Login Credentials and to use them only in accordance with this Agreement, and you are solely responsible for disabling Login Credentials for any individual that is no longer authorized to access the BILL App or BILL Website and initiate transactions on your Account on your behalf. You, and not Bank, are responsible for any use or misuse of your or your Authorized Users’ Login Credentials, and you must promptly notify Servicer of any confidentiality breach or unauthorized use of your Login Credentials or your Account.
Any instruction communicated to Bank will be effective as your instruction, whether or not authorized, and regardless of the actual identity of the sender thereof, if it is an Eligible Instruction accepted by Bank in good faith. Bank is not obligated to act on any instruction other than Eligible Instructions. You are solely responsible for the accuracy and completeness of each Eligible Instruction.
5. Interest Rates and Fees
Information on applicable rates and fees is set forth in Exhibit 1 (“Rate and Fee Schedule”). You authorize Bank to access your Account to debit any fees, charges, or costs owed to Bank, even if doing so creates an overdraft.
The Rate and Fee Schedule states the current interest rate applicable to your Account. There is no initial deposit or minimum balance required to qualify for the interest rate set forth in the Rate and Fee Schedule and to earn interest on the funds in your Account.
Your Account has a variable interest rate. That means we may, at our discretion, change the interest rate at any time and as often as we choose, without limits, and we will provide you with any notice required by Applicable Law. Interest begins to accrue on the Business Day we received the deposit in accordance with the Funds Availability Policy described in Section 9 below.
We use the Daily Balance Method for calculating interest on your Account. This method applies a Daily Rate to the Collected Balance in your Account each day. We reserve the right to not pay interest on any deposit that is recalled, returned, or returned to us unpaid.
Interest will be accrued daily and credited to your Account on a monthly basis. We pay interest only in whole cents. Therefore, at the end of each interest payment period, any fractional amount of interest less than one cent may be rounded down.
6. Deposits
The following terms apply to deposits made to your Account:
The sole method available for depositing funds into your Account is by requesting that Servicer initiate a funds transfer from another bank account on your behalf.
You cannot deposit cash or any form of deposit denominated in a foreign currency into your Account. Any attempt to mail us any deposit consisting of cash or foreign currency will be sent back to the address we have on file for you. We are not liable if you do not receive the returned funds. You may not make deposits into your Account at any automated teller machine (“ATM”).
We may refuse a deposit, or part of a deposit, at any time and for any reason. We also may refuse a deposit after initially accepting it. We will not be liable to you for refusing a deposit, even if it causes us to decline any transactions you have already made.
When a deposit is made to your Account, we will credit your Account for the amount of the deposited items. We reserve the right to review the deposit and confirm the amount you deposited but are not required to do so. If after any review we determine that the amount credited to your Account is incorrect, we may adjust your Account for the amount of the discrepancy but reserve the right not to do so if the discrepancy would not be a disadvantage to you.
Bank is not liable for any deposits not received by Bank.
7. ACH Transactions
The Automated Clearing House (“ACH”) is an electronic funds transfer system allowing money to be transmitted between participating banks. If made available to you by Bank, these transfers are governed by the operating rules, guidelines, and guidance in effect from time to time of the National Automated Clearing House Association (“NACHA”) (collectively, the “Rules”). Unless otherwise defined, all capitalized terms used in this section have the meanings assigned in the Rules.
In connection with ACH transactions on your Account, you agree that:
We may accept on your behalf payments to your Account, which have been transmitted through ACH and which are not subject to the Electronic Fund Transfer Act. Your rights and obligations with respect to such payments shall be construed in accordance with and governed by the laws of the State of California, which are applicable to ACH transactions involving your Account. You authorize any ODFI to initiate, pursuant to the Rules, ACH debit entries to your Account, including for electronic presentment or re-presentment of checks written or authorized by you.
If your Account receives funds via ACH, then any credit to the Account for such funds is provisional until Bank receives final settlement through a Federal Reserve Bank or has otherwise received payment as provided under the Uniform Commercial Code, Section 4A-403(a), as adopted by the State of California. If Bank does not receive final settlement or payment of an ACH credit, you are hereby notified and agree that Bank is entitled to recover from the Account or you, without prior notice or demand, the amount of the provisional credit, in whole or in part, and any applicable returned fee (even if it results in an overdraft on your Account) and the party originating the payment will not be considered to have paid you the amount of the credit.
We are not required to give you a separate notice of our receipt of an ACH transfer. To determine if a transfer has been credited to your Account, you can review transactions on your Account via the BILL App or BILL Website or you can contact Servicer at the contact information above.
8. Withdrawals
The following terms apply to withdrawals from your Account:
The sole method available for withdrawing funds from your Account is by requesting that Servicer initiate a funds transfer from another bank account to the Account on your behalf.
We may refuse or restrict withdrawals and transfers from your Account in our sole discretion for any purpose permitted by Applicable Law. You are not permitted to overdraw your Account. If there are available funds to cover some, but not all, of the withdrawals or other debits to your Account on a single business day, we may post the withdrawals or debits in any order we may choose at Bank’s sole discretion.
If there are insufficient funds available in your Account to cover a withdrawal or debit presented against your Account, we may reject such withdrawals in our sole discretion. Even if we choose to pay one or more overdrafts as a courtesy to you, in our sole discretion, we are not obligated to cover any future overdrafts and fees or interest may apply to any overdraft we permit. If your Account balance becomes negative for any reason, you must make a deposit immediately to cover the negative balance. If your Account has a negative balance for thirty (30) calendar days or more we reserve the right to close the Account. In the event you fail to pay the amount of any overdraft and Bank refers your overdrawn Account to an attorney for collection, you agree to pay all reasonable expenses, including, but not limited to, reasonable attorneys’ fees and court costs incurred by Bank as a result of your account being overdrawn.
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.
9. Funds Availability
Bank reserves the right to decide the order of the items Bank will pay and which items will be returned (if any). Bank’s posting order may not be the same as the order in which you conducted a transaction and could result in overdraft fees if you do not have available funds at the time the item is paid. Generally, Bank posts the following transaction types (to the extent applicable to your Account) after the close of each Business Day in the following order:
- Deposits and credits Bank receives before the close of each Business Day will be posted before any withdrawals.
- Your debits and withdrawals will be posted in date/time order, based on the date and time associated with each transaction.
Bank makes funds available according to the type of deposit and when the funds are applied or credited to your Account and in accordance with Applicable Law. Some types of deposits may not be available for immediate use. When Bank delays the availability of funds or places a hold on a deposit made to your Account, you may not withdraw those funds, and Bank will not use them to pay any debits. Bank has the right to refuse any deposit. The length of the delay in the availability of funds varies depending on the type of deposit. If final payment is not received on any item you have deposited into your Account, you agree to pay Bank the amount of the returned item if such item has already been credited to your Account. You may only deposit funds that are immediately available.
Bank receives deposits each Business Day. Servicer will make best effort to initiate a deposit to your Account the same day of the request unless otherwise agreed to separately with Servicer. There may be a Business Day delay between you initiating the request and Servicer completing the deposit to your Account, depending on the time the request is received. If a deposit is made to your Account by electronic payment before 5pm Pacific Time on a Business Day, we will consider that day to be the day of your deposit. However, if a deposit is made to your Account after 5pm Pacific Time or on a non-Business Day, we will consider that the deposit was made on the next Business Day.
Deposits made by electronic payment, excluding those by ACH debit transactions, will be made available to you the day that the deposit is received but no later than the first Business Day after the day that the deposit is made.
Deposits made by any other permissible deposit method will be made available no later than the second Business Day after the day that the deposit is made.
We reserve the right, subject to Applicable Law, to hold funds pending settlement or for such period of time as we deem necessary, in our sole discretion, to cover items which may be returned unpaid.
Accounts open less than thirty (30) days may be limited in functionality. Funds credited to your Accounts may be made available provisionally or delayed for a reasonable amount of time in accordance with Applicable Law. Certain transfer limits may be lower during this time for certain features and services, or as allowed under Applicable Law or regulation.
10. Funds transfers
You may not initiate any funds transfers from your Account. You acknowledge and agree that the only way of transacting on your Account is through Servicer initiating funds transfers on your behalf.
Bank may impose and adjust transaction limits on your Account, in its sole discretion. Applicable transaction limits will be disclosed to you through the BILL App and BILL Website.
You acknowledge that you are responsible for reconciling all transactions and balances against those maintained by Bank. You further acknowledge and agree that you and Bank have not agreed upon any procedures for the detection of errors and you are solely responsible for any errors not caused by Bank.
You acknowledge that any funds transfers made on the Account may be governed by the rules of any funds transfer system through which any payment order is made, including the Fedwire Funds Service, National Settlement Service, any other Federal Reserve payment system, NACHA, payment systems offered by The Clearing House, the Society for Worldwide Interbank Financial Telecommunications , or any other funds transfer system (each and collectively a “Funds Transfer System”). By submitting a funds transfer request, you agree to and accept any rule of such Funds Transfer System, to the extent applicable to any transaction. The beneficiary’s bank must be a member of the Funds Transfer System, or ultimately have a correspondent bank that is a member or participant of the Funds Transfer System, as applicable to the funds transfer request.
You acknowledge and agree that because this is a commercial-purpose account, the Electronic Funds Transfer Act and any similar protections available under consumer financial protection laws do not apply to your Account. Contact Servicer immediately if you believe your Login Credentials have been compromised or if you believe someone has transferred or may transfer money from your Account without your permission. You are responsible for monitoring and reconciling all activity in your Account. You must report any suspected unauthorized transaction to us immediately.
11. Deposit Sweeps
When you open an Account, you agree to participate in Bank’s deposit sweep program (“Deposit Sweep Program”) and agree to be bound by the Deposit Sweep Program terms and conditions (the “Sweep Agreement”). Pursuant to the Sweep Agreement, you agree to appoint Bank as your agent and custodian for the limited purpose of depositing Account funds into deposit accounts (each a “Deposit Sweep Account”) at one or more other depository institutions (each, a “Network Institution”). Deposits that we place for you in Deposit Sweep Accounts (“Deposit Sweep Balances”) are “deposits,” as defined by Applicable Law, at the Network Institutions. Subject to the terms and conditions of the Sweep Agreement, your Deposit Sweep Balances may be eligible for FDIC insurance. Refer to the Sweep Agreement for more details.
12. Miscellaneous provisions
Except as otherwise provided in this Agreement, in the event you must contact Bank or send Bank any notice required by this Agreement, you must do so by contacting Servicer. Servicer’s contact information is set forth at the top of this Agreement.
Except as otherwise expressly provided in this Agreement, Bank is not required to act upon any communication, notice, or instruction received from you or any other person or to provide any notice or advice to you or any other person with respect to any matter. Notwithstanding the foregoing, if Bank acts upon any communication, notice, or instruction, then Bank has a reasonable time in which to act, after actual receipt of the notice or instruction.
Bank does not waive its rights by delaying or failing to exercise them at any time.
You may not use your Account for any illegal or unlawful transaction, and we may decline to authorize any transaction that we believe poses an undue risk of illegality or unlawfulness. A non-exhaustive list of prohibited activities and transactions can be found at https://www.bill.com/legal/acceptable-use-policy. We reserve the right to place a hold on your Account if we suspect irregular, fraudulent, suspicious, unlawful or otherwise unauthorized activity. We may attempt to notify you of such a hold but are not required to provide notice prior to placing the hold or thereafter. We also may attempt to contact you to obtain additional information regarding the activity in your Account. We reserve the right to maintain any hold and restrict access to the Account until we receive the requested information. You agree that we may maintain such hold until all issues, including claims against you or us, concerning the funds held in your Account have been resolved fully to our sole satisfaction. We also reserve the right to reject any incoming credit transaction that we suspect is involved in fraudulent or suspicious activity. Bank will not be held liable for any loss you incur if your Account is restricted or subject to a hold. Notwithstanding the foregoing, we may collect on any debt arising out of any illegal or unlawful transaction, to the extent permissible under Applicable Law.
You certify that you do not engage in, and during the life of this Agreement will not engage in, any activity or business that is unlawful under the Unlawful Internet Gambling Enforcement Act of 2006, 31 USC 5361, et seq., (the “UIGEA”). You may not use your Account or any other service we offer to receive, transfer, or credit funds, instruments or proceeds that arise out of a business that is unlawful under the UIGEA. You agree that if anyone asks us to process a transaction that we believe is restricted under the UIGEA, we may block the transaction and take any other action we deem to be reasonable under the UIGEA and this Agreement. You may not use your Account for online gambling or any illegal transactions. Bank may refuse to process any transaction that it believes may violate the terms of this Agreement or Applicable Law. You acknowledge and agree that Bank has no obligation to monitor, to review or to evaluate the legality of your transactions. To the fullest extent permitted by law, you agree to pay for any transaction that you authorized, even if that transaction is determined to be illegal.
We may place administrative holds on the funds in your Account (refuse payment or withdrawal of the funds) if they become subject to a claim adverse to (A) your own interest; (B) others claiming an interest as survivors or beneficiaries of your Account; or (C) a claim arising by operation of law. The hold may be placed for such period of time as we believe reasonably necessary to allow a legal proceeding to determine the merits of the claim or until we receive evidence satisfactory to us that the dispute has been resolved. We will not be liable for any items that are dishonored as a consequence of placing a hold on funds in your Account for these reasons.
If your Account balance becomes and remains negative or you are determined to owe Bank any amounts for any reason, Bank can use the funds in your Account or any other account that you own at the Bank to repay any amount owed without further notice to or demand on you. This means Bank has the right to set off any liability, direct or contingent, past, present or future that you owe against any account you have with Bank. Further, you grant Bank a lien on and security interest in the funds on deposit in each of your Account(s) as security for the entirety of your liabilities and obligations to Bank, now or in the future.
You acknowledge that this Account cannot be opened if you are currently subject to backup tax withholding.
If legal action such as a garnishment, levy or other state or federal legal process (“Legal Process”) is brought against your Account, Bank may refuse to permit (or may limit) withdrawals or transfers from your Account until the Legal Process is satisfied or dismissed. Regardless of the terms of such garnishment, levy or other state or federal process, Bank has first claim to any and all funds in your Account for your liability under this Agreement. Bank will not contest on your behalf any such Legal Process and may take action to comply with such Legal Process as Bank determines to be appropriate in the circumstances without liability to you, even if any funds Bank may be required to pay out to comply with the Legal Process leaves insufficient funds to pay a transaction that you have authorized. Payment is made after satisfying any fees, charges or other debts owed to Bank. You agree that you are responsible for any expenses, including legal expenses and fees Bank incurs due to any Legal Process on your Account. Bank may charge these expenses to your Account. You will indemnify Bank for any losses if it does this.
An Account that is inactive for eighteen (18) months may be considered dormant. Each state has varying laws as to when an account is subject to escheatment and Bank may be required to send the balance in your Account to the state of your last known address. You understand that if your Account is inactive (dormant), we may close your Account. We reserve the right to refuse to return any unused balance amount less than $1.00. You agree that we are relieved of all responsibility if your Account balance is escheated in accordance with Applicable Law. Your Account will become inactive unless you have conducted activity in your Account, such as depositing or withdrawing funds.
Bank may disclose information to third parties about your Account or the transactions:
- To Servicer, as necessary to provide the services to you.
- Where it is necessary for completing transfers.
- To verify the existence and condition of your Account for a third party, such as a credit bureau or merchant.
- To comply with government agency, court order, or other legal or administrative reporting requirements.
- If you consent by giving Bank your written permission.
- To Bank's employees, auditors, affiliates, service providers, or attorneys as needed.
- As otherwise necessary to fulfill Bank or Servicer's obligations under this Agreement.
Bank may amend or change the terms and conditions of this Agreement at any time by posting the amended Agreement on the BILL website, and any such amendment shall be effective upon such posting to the BILL website, unless additional advanced notice is required under Applicable Law. You will be notified of any amendment(s) in the manner provided by Applicable Law prior to the effective date of the amendment(s). However, if the amendment(s) is made for security purposes or your benefit, Bank may implement it without prior notice. Bank may cancel or suspend your Account or this Agreement at any time. You may cancel this Agreement by contacting Servicer to close your Account. Your cancellation of this Agreement will not affect any of Bank's rights or your obligations arising under this Agreement prior to cancellation.
If your Account is cancelled, closed or terminated for any reason, we will return the remaining balances to you via ACH transfer to one of your external accounts on Bank's records or via paper check to the address on file. For security purposes, you may be required to supply identification, external account, and address verification documentation prior to issuing an ACH refund or refund check. Bank reserves the right to refuse to return any unused balance amount less than $1.00.
From time to time, services related to the Account may be inoperative. You agree that, except as required by Applicable Law, Bank will not be responsible for temporary interruptions in service due to maintenance, website changes, or failures, nor shall Bank be liable for extended interruptions due to failures beyond Bank's control, including, but not limited, to the failure of interconnecting and operating systems, computer viruses, forces of nature, labor disputes and armed conflicts.
This Agreement and the deposit relationship do not create a fiduciary or agency relationship with Bank. The relationship between Bank and you is that of creditor and debtor and under no circumstances will Bank owe you any fiduciary or other duty.
We shall not be responsible to you for any loss or damages suffered by you because of the failure of systems and software used by you to interface with our systems or systems and software utilized by you to initiate or process banking transactions whether such transactions are initiated or processed directly with our systems or through a third-party service provider. You acknowledge that you are solely responsible for the adequacy of systems and software utilized by you to process banking transactions and the ability of such systems and software to do so accurately.
Bank is not responsible for the quality, safety, legality, or any other aspect of any goods or services you purchase using your Account.
All provisions of this Agreement shall survive the termination of this Agreement or closure of your Account by either party for actions arising in connection with this Agreement or your Account(s).
This Agreement shall be governed by federal law and, to the extent not superseded by federal law, the laws of the State of California. You understand that we must comply with Applicable Law, as well as the operating rules of any applicable Funds Transfer System. You agree that if there is any inconsistency between the terms of the Agreement and any Applicable Law, the terms of the Agreement will prevail to the extent any such law, regulation, or rule may be modified by agreement. If otherwise, Applicable Law shall govern but only to the extent of such inconsistency.
If any provision of this Agreement shall be determined to be invalid or unenforceable under any rule, law, or regulation of any governmental agency, local, state, or federal, the validity or enforceability of any other provision of this Agreement (or any prior agreement you may have had with us) shall not be affected.
The Account established under this Agreement are not assignable or transferable except with our consent. We must approve any pledge of the Account and any such pledge remains subject to any right we have under the Agreement and applicable state and federal law. If ownership is proposed to be transferred, we may require the Account be closed and a new account opened in the name of the transferee or pledgee.
13. Limitation of liability
Except as required by applicable law, Bank shall have no liability to you if Bank is unable to complete a transaction for any reason beyond Bank's control. Except as otherwise expressly provided in this Agreement or as otherwise required by Applicable Law, Bank, Bank's affiliates, Servicer, and their employees, contractors, officers, directors, and assigns, along with the parties with whom Bank contracts in order to offer your Account and related services, are neither responsible nor liable for any indirect, incidental, consequential, special, exemplary, or punitive damages arising out of or relating in any way to your Account, any products or services purchased using Account, or this Agreement (as well as any related or prior agreement you may have had with Bank). You waive all claims and any right to recover from Bank on any claim of negligence, breach of any implied covenant, breach of fiduciary duty, commercial unreasonableness, loss of business, or loss of business opportunity or advantage. Except as otherwise required by Applicable Law, Bank’s liability for any act or omission will not exceed your direct losses.
14. Indemnification
You agree to defend, indemnify, and hold harmless Bank and its subsidiaries, affiliated companies, employees, contractors, officers, directors, and assigns against any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, and expenses (including, without limitation, reasonable attorneys' fees) that arise from your use of the Account, your acts or omissions, or your violation of this Agreement, Applicable Law, or any third-party rights or your fraud or willful misconduct. Bank reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will cooperate in asserting any available defenses.
15. Dispute resolution
YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND BANK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND. YOU CAN OPT OUT OF THIS CLASS ACTION WAIVER BY CONTACTING BANK AT 1110 GORGAS AVE, SUITE A4-700 SAN FRANCISCO, CA 94129 WITHIN THIRTY (30) DAYS AFTER YOU FIRST ACCEPT THE TERMS OF THIS AGREEMENT, STATING THAT YOU (INCLUDE YOUR FIRST AND LAST NAME) DECLINE THIS CLASS ACTION WAIVER.
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND BANK, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT BANK AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
The arbitration will be administered by JAMS under its Comprehensive Arbitration Rules and Procedures (“Comprehensive Rules”). The Comprehensive Rules are available online at http://www.jamsadr.com/rules-comprehensive-arbitration/. Any in-person appearances will be held at a location which is reasonably convenient to both Parties with due consideration of their ability to travel and other pertinent circumstances. If the Parties are unable to agree on a location, such determination should be made by JAMS or by the arbitrator. The arbitrator's decision will follow this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. To reduce the time and expense of the arbitration, the arbitrator will not provide a statement of reasons for his or her award unless requested to do so by all Parties. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. An arbitration award and any judgment confirming it apply only to that specific case; it cannot be used in any other case except to enforce the award itself. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against Bank for you.
This Dispute Resolution Provision will survive termination of your Account, this Agreement and any bankruptcy by you or us. If any portion of this Dispute Resolution Provision is deemed invalid or unenforceable under any principle or provision of law or equity it will not invalidate the remaining portions of this Dispute Resolution Provision, this Agreement or any prior agreement you may have had with us, each of which will be enforceable regardless of such invalidity.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACTIVATE OR USE THE ACCOUNT.