This document, as amended or supplemented by the attached disclosures and pricing guides, (collectively, the “Business Account Terms”) contains the general terms, conditions and disclosures for the Evolve Bank & Trust transaction account (the “Business Account”) and constitutes an agreement between the Bank (as defined below) and you. For purpose of these Business Account Terms, the term “Business Account” may also collectively include Sub-Deposit Accounts.
References to the “Bank,” “we,” “us,” or “our” means Evolve Bank & Trust and any of its affiliates. References to “you” and “your” means any person or entity that holds, owns or has authority to use, whether individually or on behalf of another person or entity, the Business Account. The Business Account Terms may be supplemented or amended as set forth in Section V(E) (Miscellaneous Terms). Bank services and access and use of your Business Account may be provided to you through the website and/or mobile phone application of our service provider (the “Service Provider,” and its website and mobile phone application, the “Service Provider Platform”). The Service Provider may offer you additional services through its Service Provider Platform, pursuant and subject to the terms and conditions between you and the Service Provider (the “Services” and such terms and conditions, the “Service Provider Terms”). Please see Section II (The Business Account) for additional information.
By opening or continuing to maintain a Business Account with us, you agree to be bound by these Business Account Terms, and all applicable agreements, disclosures, and other documents, as well as by all applicable federal or state laws, statutes and regulations. Please keep a copy of these Business Account Terms.
We may decline to open a Business Account for any reason, or for no reason. We are not liable for any damages or liabilities resulting from refusal of a Business Account relationship.
THESE BUSINESS ACCOUNT TERMS ARE SUBJECT TO MANDATORY ARBITRATION PURSUANT TO THE FEDERAL ARBITRATION ACT AND A WAIVER OF CLASS ACTION AND JURY PROVISION. PLEASE CAREFULLY READ SECTION IV (ARBITRATION AND WAIVERS).
A. Availability. The Business Account is available to an entity legally operating in the U.S. and with a U.S. physical address. The Business Account is available for business purposes only, and you must not use it for personal, family or household purposes. You are not entitled to open a Business Account under these Business Account Terms if you are not a corporation, unincorporated business association, partnership, limited liability company, incorporated nonprofit organization, sole proprietorship or otherwise acting in an independent contractor or self-employed capacity. We reserve the right to close your Business Account if we determine that it is used for any impermissible purpose, as we may determine from time to time.
You must also agree to go paperless. This means that: (1) you must keep us supplied with your valid email address and telephone number; and (2) you must agree to accept electronic delivery of all communications that we need or decide to send you. Please see the Evolve Bank & Trust Electronic Communication Consent for additional details.
B. Business Account Type and Ownership.
The Business Account is a transaction account that allows you to make certain payments and transfers to third parties. It is a business account that may be used only for business purposes. The Business Account may not be opened as a joint account.
You cannot give a security interest or pledge your Business Account to someone other than us without first getting our express written consent. We are not required to give consent to a security interest or pledge to someone else. Unless we agree in a separate writing otherwise a security interest or pledge to someone else must be satisfied or released before any right to withdraw from the account can be exercised.
C. Opening a Business Account. To open a Business Account, you must submit to us an application and all information that we may require. You represent to the Bank that you are authorized to do business in the manner indicated to us and that the acts of person(s) opening the Business Account have been ratified. You agree that the Bank may rely on such representations without requiring additional information or documentation and that you will furnish such information upon request. You are solely responsible for meeting any legal requirements to establish and maintain the type of Business Account requested and have a duty to inform us of the status of any change to your organization, including any change to the type of entity. Federal regulations require that you provide us with information concerning the beneficial owners of a legal entity at Business Account opening. You may also be asked to provide such information at other times (and on any qualifying account) upon request of the Bank. You shall have a continuing obligation to provide any other documentation we may request from time to time, including any information required under our customer identification program to establish your identity. If at any time we determine that the beneficial ownership information you provided to us was false, incorrect, or of concern to the Bank, or if you refuse to provide us with the information when requested, we may close, block, restrict or freeze any or all of your Business Accounts.
We reserve the right to require the Business Account holder(s) to furnish us with such resolutions, agreements or documents as we may reasonably request to evidence the authority of individuals to act on behalf of the Business Account holder(s). We will honor such an authorization until we receive written notice of change from the governing body of the organization. It is mutually agreed that the power and authority of each person named as authorized to take action with respect to the Business Account shall continue in full force and effect until we receive actual written notice of revocation, whether the same be brought about by dissolution of the Business Account holder or otherwise.
By opening a Business Account, you agree that we can gather personal information about you and/or your beneficial owners from one or more consumer reporting agencies, governmental entities and/or other third parties. You also agree that we have the right to access follow-up consumer reports while your Business Account is open for maintenance, review or collection purposes.
Your Business Account will not be considered "opened" until it is funded. This means your balance must be at least a penny. Once your account is considered “opened,” there is no minimum balance required and no maximum balance limit. However, we may, at our sole discretion and at any time, require a minimum balance and set a maximum balance limit.
D. Service Providers. You understand that we have engaged Service Providers to perform a number of services for you under these Business Account Terms, including, but not limited to, identity verification, compliance monitoring, risk mitigation and management, managing your transfer instructions and other related services. Service Providers, along with their partners and agents, are the servicer of your Business Account. In that capacity, Service Provider may act on our behalf, perform our obligations or enforce our rights under these Business Account Terms. A Service Provider may also offer Services in connection with your Business Account to allow you to provide us with payment instructions and to view certain Business Account information using the Service Provider Platform. You understand that any payment instruction provided to us or activity performed in connection with your Business Account (including electronic fund transfers (“EFTs”)) using the Services shall be deemed authorized and valid and Bank is under no obligation to investigate the instruction or activity.
To the fullest extent permitted by law, we will not have any liability in connection with the Services and disclaim all warranties, either express or implied or statutory, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose and lack of viruses related to the Services. In no event shall we be liable for: (1) damages caused other than by our own gross negligence or intentional misconduct; or (2) indirect, special, incidental, consequential or punitive damages whatsoever (including, but not limited to, damages for lost profits, disclosure of confidential information, or loss of privacy) arising out of or in any way related to the use of or inability to use the Services, even if we have been advised of the possibility of such damages.
A. Debit Card. In connection with your Business Account, we may (but are not obligated to) issue you a debit card (the “Card”) that will automatically link to the Business Account. If a Card is made available to you, it is subject to a debit card agreement by and between you and us. The Card may be used to initiate withdrawals at ATMs and points of sale and may be used to purchase goods and services. By using your Card, you authorize us and/or our agents to debit your Business Account. We reserve the right to refuse to make any transfer for security, credit, legal/regulatory, or other reasons, as we determine in our sole discretion. You are responsible for all transactions you authorize using the Card, including any losses, charges, or penalties incurred as a result. You may be charged for your use of the Card at ATMs. The Card is the property of the Bank, and if your Business Account is closed or your Card privileges are cancelled, you agree to stop using the Card and destroy it.
B. Linking Business Accounts. You may link your bank account at another financial institution (“Linked Account”) to your Business Account in order to transfer funds between your Linked Account and your Business Account. You represent and warrant: (1) that you have the right to authorize any and all charges and debits to the Linked Account; (2) the Linked Account is held at a depository institution located in the U.S.; (3) you are individually or jointly the owner of the Linked Account; and (4) the Linked Account is a business purpose or commercial account. You will indemnify and hold us harmless from any claims by any person related to the Linked Account, including any other owner of the Linked Account. You are not permitted to link your Business Account with a credit, debit, gift, or other type of card issued by a third party or another bank. You may deposit funds into or withdraw funds from your Business Account by using the Service Provider Platform to initiate an Automated Clearing House transfer (“ACH Transfer”) to or from the Linked Account. We do not accept requests made otherwise to initiate ACH Transfers. Requests for ACH Transfers to debit the Linked Account that are made before 4:00 PM MT on a business day, shall be considered received on the business day the request is made. Requests for ACH Transfers to debit the Linked Account that are made after 4:00 PM MT on a business day or on a non-business day, shall be considered received the next business day.
C. ACH Transfer Initiated by an External Bank or Through a Third Party. You may deposit funds into or withdraw funds from your Business Account by having an external bank (directly or through a third party) initiate an ACH Transfer to or from your Business Account at the Bank. The external account that you are depositing funds into or withdrawing funds from must be at an external bank located in the U.S.
D. Internal Transfer Between Accounts at the Bank. We may (but are not obligated to) permit you to initiate a transfer of funds between your accounts at the Bank through a Service Provider Platform. We do not accept requests made otherwise to initiate internal transfers.
E. Deposits. When you make a deposit, we will act only as your collection agent and will not be responsible beyond the exercise of good faith and ordinary care. All deposits are provisionally credited subject to our receipt of final payment. If a deposit or transfer of funds into your Business Account is returned or rejected by the paying financial institution for any reason, you agree that we may deduct the amount of the deposit or transfer against your Business Account, without prior written notice to you.
G. Payment Instructions.
I. Insurance Coverage. The Federal Deposit Insurance Corporation (“FDIC”) insures deposits according to the ownership category in which the funds are insured. Not all accounts may be insured. Unless otherwise stated by us or the FDIC, the Business Account is insured by the FDIC up to the standard maximum deposit insurance amount per depositor, per ownership category (the “Standard Insurance Amount” or “SIA”). For purposes of determining the SIA applicable to your Business Account, you need to consider all accounts that you also hold at the Bank in the same ownership category. To determine SIA applicable to your Business Account with us and for any other FDIC insurance requirements that may apply, please visit the FDIC’s website at www.fdic.gov/deposit/deposits or call the FDIC directly at 1-877- ASKFDIC (1-877-275-3342). You can also use the FDIC’s Electronic Deposit Insurance Estimator (EDIE) at www.fdic.gov/edie. Please see subsection L below for additional information regarding FDIC insurance coverage for Sub-Deposit Accounts.
J. Court Processes and Claims Against Your Business Account. If we receive a levy, attachment, or other legal process against you or any party to your Business Account, we may refuse to permit withdrawals or transfers from your Business Account until the legal process is dismissed or satisfied. Any levy, attachment, or other legal process will be subject to our right of set-off and security interest. You are responsible for any losses, costs, or expenses we incur as a result of any dispute or legal proceeding involving your Business Account. If we receive a claim against the funds in your Business Account, or if we know of or believe that there‘s a dispute as to the ownership or control of funds in your Business Account, we may, in our discretion: (1) place a hold on your Business Account and refuse to pay out any funds until we‘re satisfied that the dispute is settled; (2) close your Business Account and send the balance to the named account holder(s); (3) require a court order to act; or (4) take any other action we feel is necessary to protect us. We will not be liable to you for taking any such action.
K. Statements. We will deliver or make available to you periodic statements for your Business Account at least four (4) times a year, unless your Business Account is determined to be inactive. The Business Account statement will describe payments or transfers made in connection with your Business Account. You agree to notify us promptly if you do not receive your statement by the date you normally would expect to receive it. Your periodic statement may be accompanied by items or a facsimile of those items listed on the statement, unless the item or an image of the item is unavailable for any reason. You agree that the statement and items all have been delivered or made available to you in a reasonable manner. We will not be responsible for any indirect, special or consequential damages under any circumstances for our inability to provide copies of an item. Our liability, if any, will not exceed the face amount of an item in question.
L. Sub-Deposit Accounts. We will, from time to time, place your funds provided to us in a deposit account or omnibus custody account (“Sub-Deposit Account”) with other depository institutions (each an “Insured Depository Institution”). You will not be charged a fee for our placement of your funds or in connection with the Sub-Deposit Account. We also will act as the agent/custodian with respect to your Sub-Deposit Account pursuant to this subsection. You consent to us placing funds with Insured Depository Institutions. If you do not consent to our placement of funds with Insured Depository Institutions, you should not open a Business Account or deposit funds with us.
The Sub-Deposit Account will be established by an Insured Depository Institution that has entered into agreements with us. Your funds in the Sub-Deposit Account will bear the interest rates and APY you have agreed to with us (if any). All payments with respect to the Sub-Deposit Account by the Insured Depository Institutions will be made to us, and we will credit the funds to your Business Account.
Your only rights with respect to the Sub-Deposit Account is to demand we repay you all amounts in your Business Account, including those transferred to the Sub-Deposit Account. The Sub-Deposit Account may not be transferred to another institution, except by us or the Insured Depository Institution. You may terminate our role as your agent/custodian and our ability to deposit funds you provide us in the Sub-Deposit Account. Any termination will result in a return of funds in accordance with law and closing of your Business Account and any Sub-Deposit Account opened specifically for you.
When we place funds with Insured Depository Institution and act as your agent with respect to the Sub-Deposit Account, we will ensure the records of the Insured Depository Institution are in our name, as agent or custodian. The funds deposited in the Sub-Deposit Account will be FDIC insured to the same extent as if such funds were held in the Business Account with us. In other words, the depositing of your funds into the Sub-Deposit Account will not otherwise increase your FDIC deposit insurance coverage. You will not receive any written confirmation of the establishment of the Sub-Deposit Account or transfer of funds to the Sub-Deposit Account; instead, we will maintain records clearly indicating the transfer and beneficial ownership of the Sub-Deposit Account. You must immediately report to us any changes in Business Account ownership information that you originally provided to us in connection with the submission of your application for an account.
Our placing of funds may reflect considerations of federal and state law, our funding needs and funding needs of Insured Depository Institutions, general economic conditions or other factors determined by us in our sole discretion. We will not place funds with more than one Insured Depository Institution. We may place funds to enhance our business objectives and for balance sheet management without any benefit to you, including increased FDIC deposit insurance coverage. Further, we may receive greater benefits when we place your funds with an Insured Depository Institution than if we otherwise maintained your funds with us. We are under no obligation to place your funds with an Insured Depository Institution.
A Sub-Deposit Account will be a deposit obligation of the Insured Depository Institution that maintains the Sub-Deposit Account; provided, this does not modify our obligation to repay all amounts you deposited in your Business Account.
All deposits that are maintained with an Insured Depository Institution in the Sub-Deposit Account are aggregated with deposits maintained in your Business Account with us for purposes of the SIA. Funds you hold in one or more accounts with us (including funds we maintain before placement with Insured Depository Institution), funds in the Sub-Deposit Account and any funds resulting from payment of interests on an Sub- Deposit Account will be aggregated for FDIC insurance purposes with all other deposits you hold in deposit accounts with us in the same ownership category and therefore may not be fully insured by the FDIC. For the avoidance of doubt, funds deposited in the Sub-Deposit Account will be treated as funds on deposit in the Business Account with us for FDIC insurance calculation purposes. As such, your total FDIC deposit insurance coverage for funds you provide us for deposit in your Business Account will not be increased by nature of any deposit of funds in the Sub-Deposit Account. Please see subjection J above for additional information on determining SIA.
We may provide your name, tax identification number and other pertinent identifying information to Insured Depository Institution, and other parties providing services in connection with the placement of your funds and the establishing and holding the Sub-Deposit Account. You hereby consent to such release of information. Nothing in this section shall be deemed to prevent us from disclosing information to a third party if required by law.
We will act as your agent in connection with the placement of your funds with the Insured Depository Institution and the establishment and maintenance of the Sub-Deposit Account. Although we will act as your limited agent in connection with the placement of your funds, we are not acting as your financial adviser. See subsection A of Section V for additional information. You hereby appoint us to act as your agent for purposes of placing funds with Insured Depository Institutions and establishing and maintaining, on your behalf, the Sub-Deposit Account. You further authorize us to collect for you all interest and other payments related to an Sub- Deposit Account, to place funds with Insured Depository Institution pursuant to the terms set forth herein, and to execute and deliver or file on your behalf all appropriate receipts, agreements, releases and other instruments, including whatever agreements may be required from Insured Depository Institution, for the purpose of establishing your ownership interest in the Sub-Deposit Account and maintaining an Sub- Deposit Account.
Although there are two or more accounts associated with your funds (the account maintained with us, referred to as the Business Account, and the Sub-Deposit Account), your Business Account is considered a single account for your deposits and withdrawals, as well as for tax reporting, balance requirement, service charge, monthly statement and FDIC deposit insurance purposes. The existence of the Sub-Deposit Account and any other account maintained by us pursuant to these Business Account Terms is for internal purposes and will not change the manner in which you use, obtain information about or earn interest (if any) on your Business Account. These transfers, including the placement transfer, will not appear on your monthly statement.
M. Interest and Interest Rate. If your Business Account is an interest bearing account, the following provisions apply. A minimum deposit of $1.00 is required to earn the Annual Percentage Yield (“APY”) disclosed to you from time to time. We only pay interest in whole cents and use standard rounding rules to calculate the amount of interest earned. This means that an amount equal to or greater than one half of one cent accrued during a monthly interest period is rounded up to the next whole cent and an amount less than one half of one cent accrued during a monthly interest period is rounded down to zero. Interest is compounded daily and credited to your Business Account monthly. Interest is calculated using the daily balance method. This method applies a daily periodic rate to the principal and interest that has accrued in the Business Account each day. This means that the interest from your Business Account is calculated every day on a 365-day year (and 366-day for leap year). Interest begins to accrue on the business day that we receive your deposit. If the Business Account is closed before interest is credited, accrued interest will be paid through the last full day before the day the Business Account is closed. The rate at which interest may be paid on the principal balance of the Business Account, and the corresponding APY at which the Business Account would earn interest each year if all interest paid on the Business Account remains in the Business Account, can be found on the Service Provider Platform, which may be modified by from time to time in our sole discretion. We may, at our discretion, at any time, change the interest rate and the APY.
N. Prohibitions. You must not use your Card or Business Account for any illegal purpose or internet gambling. This prohibition includes any transaction that is illegal in the jurisdiction where you live, in the jurisdiction where the transaction is consummated, or in any other jurisdiction affected by the transaction. You are responsible for determining the legality of each of your transactions in all applicable jurisdictions before entering into the transaction. We have no obligation to monitor, review or evaluate the legality of any transaction. Nevertheless, we may deny transactions or authorizations if we believe the transaction is or may be illegal. We reserve the right to refuse or return any item that we believe is related to an illegal transaction, an Internet or online gambling transaction or a high-risk transaction. To the fullest extent permitted by law, you agree to pay for any item or transfer that you authorized, even if the transaction related to that item or transfer is determined to be illegal.
O. Fees. You agree to pay all fees and charges applicable to your Business Accounts, which will be automatically deducted from your Business Accounts and may result in your Business Accounts being overdrawn. The amounts of these fees and charges, the manner in which they are calculated, and the ways to potentially avoid them are listed in our Fee Schedule. Fees and our Fee Schedule are subject to change at any time and without notice to you, unless required by law. Fees set forth in the Fee Schedule are charged by Bank for its services. Service Provider may charge you fees separate and apart from the fees set forth in the Fee Schedule for its Services, pursuant to the Service Provider Terms. Bank is not responsible for any fees charged by Service Provider for its Services.
P. Power of Attorney/Agents. References to you also include any person who you authorize to act on your behalf, whether by following the process we require (for example, by designating an authorized signer on a signature card), or on your own (for example, by creating a power of attorney). If you name such an agent:
Q. Bankruptcy Cost. If your Business Account becomes subject to a receivership, court order or bankruptcy, and we are required to implement changes as to your Business Account that increase our costs to maintain your Business Account (for example, a requirement for us to pledge property to secure your Business Account above the amount of any deposit insurance on your account) you agree to reimburse us for the additional costs and any expenses incurred by us (including legal fees) to implement such required changes as to your Business Account.
R. Monitoring and Closing Your Business Account. Subject to the terms herein, you can close your Business Account at any time and for any reason by contacting us or terminating the Business Account through the Service Provider Platform, if applicable. We reserve the right to refuse your request to close your Business Account if your Business Account is not in good standing or if you have a negative balance on your Business Account. If you intend to close your Business Account, you should notify us. Simply reducing your Business Account balance to $0.00 is insufficient notice. If you close your Business Account you are responsible for transactions you initiated or authorized, including those that we receive after the Business Account is closed. Withdrawals from your Business Account may be restricted prior to Business Account closing.
We reserve the right (but are not obligated) to monitor all Business Account activity for inappropriate use. We can close your Business Account at any time, for any reason, without advance notice. If we close your Business Account, we will notify you by mail, electronically or by telephone that we have closed your Business Account unless your Business Account has had a zero balance for thirty (30) days or more. If we close your Business Account, all collected funds (less any amounts due to us or for debits in process) will be transferred to your Linked Account. Alternatively, we may, at our discretion, mail you a check for the available balance in your Business Account. Written notice that the Business Account has been closed and a check, if any, will be sent to any address shown on our records for you. Once we have closed your Business Account, you agree that we can assess any service charge otherwise applicable against any remaining balance in your Business Account. We are not responsible to you for any damages you may suffer as a result of your Business Account being closed. If you attempt to make a deposit to a Business Account we closed, we may collect the deposit and set-off your indebtedness to us. Any funds in excess of $1.00 will be returned to you.
State laws (called "escheat" or unclaimed property laws) require us to close your Business Account and transfer your money to the state if your Business Account is dormant for a period of time as defined by your state of residence. Your Business Account can become dormant if, for 24 months, there is no transactional activity. If your Business Account becomes dormant, you may no longer receive statements, but you can still view your accounts online.
State abandoned property law establishes guidelines under which unclaimed property must be surrendered to the applicable state. Generally, the funds in your Business Account are considered unclaimed if you have not had any activity or communication with us regarding your Business Account over a period of years, defined by your state of residence. All products offered by us are subject to abandoned property laws. If your funds are surrendered to the state, you may be able to reclaim them, but your claim may need to be presented to the state. You can avoid the transfer of your money to the state simply by signing into your Business Account, transacting periodically, or contacting us, or replying to any abandoned property correspondence.
S. Fraud and Unauthorized Transactions.
THIS ARBITRATION PROVISION WILL HAVE A SUBSTANTIAL IMPACT ON HOW LEGAL DISPUTES BETWEEN YOU AND US ARE RESOLVED. PLEASE READ THIS SECTION IV (ARBITRATION AND WAIVERS) CAREFULLY. For a dispute subject to arbitration, neither you nor we will have the right to: (A) have a court or a jury decide the dispute; (B) engage in information-gathering (discovery) to the same extent as in court; (C) participate in a class action in court or in class arbitration; or (D) join or consolidate a claim with claims of any other persons. Arbitration procedures are simpler and more limited than rules applicable in court. The decision of the arbitrator is final and binding.
A. Definitions. If you have a dispute with us or our Service Provider, and we are not able to resolve the dispute informally, you and we agree that upon demand by either you or us, the dispute will be resolved through the arbitration process as set forth in this section. A “claim” or “dispute,” as used in this Section IV (Arbitration and Waivers), is any unresolved disagreement between you, us and/or our Service Provider, arising from or relating in any way to the Business Account or these Business Account Terms. The terms “claim” and “dispute” are to be given the broadest possible meaning that will be enforced and includes, by way of example and without limitation, any disagreement relating in any way to services offered in connection with a Business Account or any other services offered pursuant to these Business Account Terms; to your use of any of our banking products or services; to any means you may use to access your Business Account(s); to any advertisements, promotions or oral or written statements related to the Business Account; to the benefits and services related to a Business Account; or your approval, establishment or enrollment for a Business Account. Claims also include disagreements about the meaning, application or enforceability of this arbitration agreement. As solely used in this Section IV (Arbitration and Waivers), “we” or “us” shall include the Bank, its affiliates and service providers and their successors, employees, directors, officers and agents, and the terms “you” or “yours” shall mean each Business Account owner and all persons or entities approved to have, approved to use and/or given access to a Business Account. The term “Business Account,” for purposes of arbitration, includes any updated or substitute Business Account for you.
B. Binding Arbitration and Appeals. Arbitration applies whenever there is a claim between you and us. If a third party is also involved in a claim between you and us, then the claim will be decided with respect to the third party in arbitration as well, and it must be named as a party in accordance with the rules of procedure governing the arbitration. No award or relief will be granted by the arbitrator except on behalf of, or against, a named party. Claims are subject to arbitration, regardless of on what theory they are based, whether they seek legal or equitable remedies, or whether they are common law or statutory (Federal or state) claims. Arbitration applies to any and all such claims or disputes, whether they arose in the past, may currently exist, or may arise in the future.
Judgment upon the arbitrator’s award may be entered by any court having jurisdiction. The arbitrator’s decision is final and binding, except for any right of appeal provided by the FAA. However, if the amount of the claim exceeds $25,000 or involves a request for injunctive or declaratory relief that could foreseeably involve a cost or benefit to either party exceeding $25,000, any party can, within thirty (30) days after the entry of the award by the arbitrator, appeal the award to a three-arbitrator panel administered by the forum. The panel shall reconsider anew all factual and legal issues, following the same rules of procedure and decide by majority vote. Reference in this Section IV (Arbitration and Waivers) to “the arbitrator” shall mean the panel if an appeal of the arbitrator’s decision has been taken.
C. Initiation of Arbitration. Any claim must be resolved, upon the election by you or us, by arbitration pursuant to this Section IV (Arbitration and Waivers) and the code of procedures of the national arbitration organization to which the claim is referred in effect at the time the claim is filed. Claims shall be referred to either Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”), as selected by the party electing to use arbitration. If a selection by us of one of these organizations is unacceptable to you, you have the right within ten (10) days after you receive notice of our election to select the other organization listed to serve as arbitrator administrator. For a copy of the procedures, to file a claim or for other information about these organizations, contact them as follows: (i) JAMS at 1920 Main Street, Suite 300, Los Angeles, CA 92614; website at www.jamsadr.com; and (ii) AAA at 335 Madison Avenue, New York, NY 10017; website at www.adr.org.
In the event that JAMS or the AAA is unable to handle the dispute for any reason, then the matter shall be arbitrated instead by a neutral arbitrator selected by agreement of the parties pursuant to the AAA rules of procedure; or, if the parties cannot agree, selected by a court in accordance with the Federal Arbitration Act (Title 9 of the United States Code) (“FAA”). To the extent that there is any variance between the selected forum’s rules and this Section IV (Arbitration and Waivers), this Section IV (Arbitration and Waivers) shall control. If you initiate the arbitration, you must notify us in writing at: [INSERT ADDRESS]. If we initiate the arbitration, we will notify you in writing at your last known address in our file.
D. Class Action and Jury Waiver. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES BY OR AGAINST OTHERS IN ANY COURT ACTION OR ARBITRATION, OR TO INCLUDE IN ANY COURT ACTION OR ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR MEMBER OF A CLASS, OR TO ACT IN ANY ARBITRATION IN THE INTEREST OF THE GENERAL PUBLIC OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, UNLESS THOSE PERSONS ARE BENEFICIARIES ON YOUR BUSINESS ACCOUNT. THIS IS SO WHETHER OR NOT THE CLAIM HAS BEEN ASSIGNED. FURTHER, NEITHER YOU NOR WE SHALL HAVE THE RIGHT TO LITIGATE A CLAIM IN COURT OR HAVE A JURY TRIAL ON A CLAIM, OR TO ENGAGE IN DISCOVERY, EXCEPT AS PROVIDED FOR IN THE CODE OF PROCEDURES OF JAMS OR AAA.
E. Location of Arbitration and Cost. The arbitration shall take place in the Federal judicial district located in Memphis, Tennessee, unless the parties agree to a different location in writing. The party initiating the arbitration (or appeal of the first arbitration award) shall pay the initial filing fee. All fees and costs will be allocated in accordance with the rules of the arbitration forum. Each party shall bear the expense of their respective attorneys, experts, and witnesses and other expenses, regardless of who prevails, but the arbitrator will have the authority to award attorneys and expert witness fees and costs to the extent permitted by these Business Account Terms, the forum’s rules, or applicable law.
F. Governing Law. You and we agree that in our relationship arising from these Business Account Terms: (1) the parties are participating in transactions involving interstate commerce; (2) the arbitrator shall decide any dispute regarding the enforceability of this arbitration agreement; and (3) this arbitration agreement and any resulting arbitration are governed by the provisions of the FAA, and, to the extent any provision of that act is inapplicable, the laws of the State of Tennessee. The arbitrator must apply applicable substantive law consistent with the FAA and applicable statutes of limitations and claims of privilege recognized at law. At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award.
G. Continuation and Severability. This Section IV (Arbitration and Waivers) shall survive termination of your Business Account, these Business Account Terms and any bankruptcy by you or us. If any portion of this Section IV (Arbitration and Waivers) is deemed invalid or unenforceable under any principle or provision of law or equity, consistent with the FAA, it shall not invalidate the remaining portions of this Section IV (Arbitration and Waivers), these Business Account Terms or any prior agreement you may have had with us, each of which shall be enforceable regardless of such invalidity.
A. Ordinary Card; No Fiduciary Obligation. You agree that any act or omission made by us in reliance upon or in accordance with any provision of the Uniform Commercial Code as adopted in the State of Tennessee, or any rule or regulation of the State of Tennessee or a federal agency having jurisdiction over the Bank, shall constitute ordinary care. We do not assume any fiduciary obligation on your behalf. This means that we do not act as your trustee or financial advisor, and we don't assume any responsibility for your account beyond reasonable care.
B. Business Account Disputes. If a dispute arises concerning your Business Account (including, for example, a dispute over who is an authorized signer or owner), or if we believe we have a claim against you or we have or receive a claim by a third party (including our affiliates) to all or a portion of the property (including money, certificates of deposit, securities and other investment property, financial assets, etc.) in your Business Account, or if we have concerns regarding your Business Account or the use of your Business Account, we have the right to hold any portion of the property in your Business Account until the dispute, claim, or concern is resolved to our satisfaction. We will not be liable to you if the hold we place on your Business Account leaves insufficient funds to cover outstanding transactions. If the dispute, claim or concern remains unresolved, you agree that we may at our option deposit the property in your Business Account with a court and ask the court to determine to whom the property belongs. If we deposit your property with a court, you agree that we may charge your Business Account for our costs, including attorney’s fees and expenses.
C. Governing Law, Forum and Time Limits
D. Reporting Information. We may report information about your Business Account to consumer reporting agencies, governmental agencies, and/or third-party data services. Defaults on your Business Account may be reflected in your business credit report.
E. Compliance with Law. You agree to comply with applicable law and to not use your Business Account for illegal transactions or activities.
F. Changes in Terms. We may change these Business Account Terms, or any fees and features of your Business Account, at any time. We will give you advance notice of any change required by law in accordance with such law. We may provide this notice to you on or with your statement, by mailing the notice to you directly or by posting the notice on the Service Provider Platform. We may change or terminate these Business Account Terms without notice to comply with any appropriate Federal or state law or regulation.
G. Security Interest. You grant us a security interest in your Business Account to secure payment of any money that you owe to us arising under these Business Account Terms or any other agreements with us. You acknowledge and grant us the right to use any of the funds in your Business Account to cover any money you owe to us (a “right of set-off”). You agree that the security interests you have granted to us are consensual and in addition to any rights of set-off. We may exercise our security interest or right of set-off without prior recourse to other sources of repayment or collateral, if any, and even if such action causes you to lose interest, incur any penalty or suffer any other consequence. If we exercise our security interest or right to set-off, we will notify you to the extent required by applicable law. If the law imposes conditions or limits on our ability to take or set off funds in your Business Account, to the extent that you may do so by contract, you waive those conditions and limits, and you authorize us to apply funds as we deem applicable. We will consider these Business Account Terms as your consent for us asserting our security interest or exercising our right of set-off should any laws governing your Business Account require your consent.
H. No Waiver of Rights. If we fail to exercise or waive a right with respect to your Business Account on one or more occasions, it does not mean we have waived, or are obligated to waive, the same right on any other occasion. We may release any other person obligated under these Business Account Terms without affecting your responsibilities under these Business Account Terms. In any event, no such waiver or delay by us is effective unless it is in writing and approved by us.
I. Assignment. Your Business Account is not transferable and is not assignable as collateral for a loan or for any other purpose.
J. Other Services and Conflicts. If we make available to you any of our other banking services offered in connection with your Business Account (e.g., check services), we may provide certain terms and conditions of the additional service to you in a separate agreement or disclosure. If a service we offer has a separate agreement, and there is a conflict between the terms of these Business Account Terms and the separate agreement, the separate agreement shall control.
L. Severability. In the event that any court or tribunal of competent jurisdiction determines that any provision of these Business Account Terms is illegal, invalid, or unenforceable, the remainder of these Business Account Terms shall not be affected thereby. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders unenforceable any provision hereof, and to the extent that such waiver is not permitted by applicable law, the parties intend that such provision be interpreted as modified to the minimum extent necessary to render such provision enforceable.
M. Limitation of Liability, Disclaimer of Warranty, Indemnification and Reimbursements.
N. Liability for Service Interruptions. From time to time, due to maintenance, malfunctions or failures of software, equipment, or telecommunications devices, as well as unusual transaction volume or similar reasons, access to your Business Account may not be available to you. We minimize the periods of time during which your Business Account is unavailable. Access to your Business Account may also be interrupted as a result of things beyond our reasonable control, computer failures, loss of power, failure or interruption of communication or transportation facilities, riots, strikes, or civil unrest. You agree that we shall not be responsible for any loss, damages, costs or expenses that you may suffer or incur, directly or indirectly, as a result of the unavailability of access to your Business Account, regardless of whether it could be shown that we could have prevented or reduced the duration of such unavailability by taking any action within our reasonable control. We shall also not be responsible for any loss, damages, costs or expenses which you may suffer or incur, directly or indirectly, as a result of your inability to access your Business Account caused directly or indirectly, in whole or in part, by your computer or mobile device, your inability to establish a connection to or to access the Internet, or other limitations or constraints of the Internet. The provisions set forth in this section shall apply in addition to any other provisions in these Business Account Terms but as applied to service interruptions for access to your Business Account, this section shall control.
O. Section Headings and Successors. The headings in these Business Account Terms are only for convenience and do not in any way limit or define your or our rights or obligations under these Business Account Terms. These Business Account Terms will be binding on your personal representatives, executors, administrators, and successors.
P. Change of Address or any Application Information. You must notify us through the Service Provider Platform of any change of your address, email address or phone number or any material change to information that you have provided us in your application to open a Business Account. Any notice we provide to you will be binding and sent to the last (postal or electronic) address in our records. We may change your address if we receive an address change notice from the U.S. Postal Service or if a company in the business of providing correct addresses informs us that the address in our records no longer matches your address.
Q. Communications. You acknowledge that data, including emails, may be accessed by unauthorized third parties when communicated between you and the Bank, using the Internet, telephone, or other electronic devices. We are not responsible for any misdirected data or disclosures that occur as a result of your use of third-party electronic communication channels.
R. Calls and Messages. You agree that we or our agents or service providers may contact you regarding any matter for any non- telemarketing reason using any kind of telecommunications technology at any email and telephone number you provide to us, including the phone number for your mobile device. You agree to receive these calls and messages, including pre-recorded or auto-dialed calls. You also agree that we may send text messages to any phone number for your mobile device you provide to us. You understand and accept that your service provider may charge you for these calls and messages consistent with applicable law. For quality control purposes and for other reasons, you permit us to record and monitor your telephone conversations and electronic communications with us (including email). Unless the law requires otherwise, you consent in advance to such recording and monitoring and we do not need to remind you of these activities at the time of the call or communication. To revoke the consent provided pursuant to this subsection, you must send ten (10) days’ prior written notice of such revocation to [INSERT ADDRESS].
S. Survival. Termination of these Business Account Terms shall not impact any right or obligation arising prior to termination, and in any event, the parties agree that any right or obligation which, by its nature, should survive termination of these Business Account Terms will survive any such termination (including, but not limited to Sections IV (Arbitration and Waivers) and V (Miscellaneous Terms) of these Business Account Terms).
Unless you are exempt as described below, federal law requires that the Bank withhold a statutory amount of interest or dividend payments (referred to as backup withholding) if you (if your Business Account is an interest bearing account):
If a correct TIN is not furnished at the time your Business Account is opened, backup withholding will commence immediately. If you do not have a TIN assigned to you, IRS regulations allow a sixty (60) day grace period to obtain your TIN if you have completed the proper request for such grace period. Refer to the “Taxpayer Identification Number” section below for instructions on how to obtain a TIN.
While you are waiting to be assigned a TIN, backup withholding will occur. After sixty days (60), if a certified TIN is not furnished, your Business Account may be closed. If you furnish a correct TIN within sixty (60) of account opening, and prior to year-end, you may request a refund of the amount withheld for backup withholding.
Certain additional IRS penalties may also apply if you fail to provide your TIN.
For sole proprietorships or individuals acting in an independent contractor or self-employed capacity, the Taxpayer Identification Number may be either a Social Security number or an Employer Identification Number. If such an applicant is a resident or nonresident alien, and is ineligible for a Social Security number, the Taxpayer Identification Number may be either an IRS “Individual Taxpayer Identification Number” (ITIN) or an Employer Identification Number (EIN). For corporations, estates, organizations, clubs, and trusts the Taxpayer Identification Number is their Employer Identification Number. If you do not have a Taxpayer Identification Number, obtain Form SS-4, Application for Employer Identification Number (for businesses and all other entities), from the local IRS office, or Form W-7, Application for IRA Individual Taxpayer Identification Number (for sole proprietors who are resident or nonresident aliens). In addition, applicants who are resident or nonresident aliens must also furnish a passport, or some other government document to verify identity.
If you are exempt from backup withholding and information reporting, you must complete a certification to that effect provided by the Bank. It must also provide the Bank with its Taxpayer Identification Number to be considered exempt. The following lists payees that are exempt from backup withholding and information reporting. For interest and dividends, all listed payees are exempt except item 7 below. Payments subject to reporting under sections 6041 and 6041A are generally exempt from backup withholding only if made to payees described in items 1 through 5 below, except that a corporation that provides medical and health care services or bills and collects payments from such services is not exempt from backup withholding or information reporting. Only payees described in items 2 through 5 below are exempt from backup withholding for barter exchange transactions, patronage dividends, and payments by certain fishing boat operators.
Section 6109 of the Internal Revenue Code requires most recipients of dividends, interest, or other payments to give Taxpayer Identification Numbers to payors who must report payments to the Internal Revenue Service. The Internal Revenue Service uses the numbers for identification purposes and to verify the accuracy of your tax return. Payors must be given numbers whether or not recipients are required to file tax returns.
If you fail to furnish a correct Taxpayer Identification Number (TIN), you may be subject to a penalty of $50 for each such failure unless such failure is due to reasonable cause and not to willful neglect. If you fail to furnish a TIN, the Bank may refuse to open your Business Account. The Bank may close a Business Account which was opened without a TIN and you fail to subsequently provide a TIN.
If you make a false statement with no reasonable basis that results in no imposition of backup withholding, you may be subject to a penalty of $500. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. If you disclose or use a TIN in violation of federal law, you may be subject to civil and criminal penalties.
We may offer a variety of electronic banking services for your use with your Business Account. The purpose of this Section VII (Fund Transfer) is to inform you of some of the electronic banking services and also provide you with disclosures applicable to the services. We may also provide separate agreements to you that govern the terms of some services, including a separate agreement for Cards.
Unless we have entered into a specific written agreement with you that provides otherwise, payment orders you give to us for the transfer of funds out of the Business Account by wire transfer or otherwise, and payment orders we receive for the transfer of funds into the Business Account, will be governed by this paragraph. In addition, your rights and obligations with respect to a payment order, and our rights and obligations, will be governed by (a) any separate written agreement with us; then (b) this section; and then, to the extent not specified
in a separate written agreement or this Agreement; (c) by Article 4A of the Uniform Commercial Code (“UCC 4A”) as enacted in Tennessee.
We reserve the right to refuse to accept any payment order. Payment orders are accepted when they are executed by us. We may process any payment order request (as well as any amendment or cancellation request concerning a payment order) that we believe is transmitted or authorized by you if we act in compliance with a security procedure agreed upon by you and us. Such payment orders will be deemed effective as if made by you, and you will be obligated to pay us in the amount of such orders, even though they are not transmitted or authorized by you. Unless we agree on another security procedure, you agree that we may confirm the authenticity and content of a payment order (among other ways) by placing a telephone call to you. If we cannot reach you, or if the payment order is not confirmed or approved in the manner we require, we may refuse to execute the payment order.
You agree that if a payment order or cancellation thereof identifies the beneficiary by both name and an identity number, and the name and number identify different persons or account holders, execution and payment to the beneficiary or cancellation may be made solely on the basis of the identifying number. You also agree that if a payment order identifies an intermediary bank or the beneficiary’s bank by both name and an identifying number, and the name and number identify different persons, execution of the payment order by any bank may be made solely on the basis of the identifying number. If we receive a funds transfer into any Business Account you have with us, we are not required to give you any notice of the receipt of the funds transfer. The funds transfer will appear on your next periodic statement. To confirm the completion of funds transfers, please contact us at [INSERT NUMBER] or access your Business Account using the Service Provider Platform. Prior to the acceptance of an outgoing payment order, the outgoing payment order may be cancelled, but may not be amended or modified, if the beneficiary’s bank is located within the United States of America and the outgoing payment order is to be paid in U.S. dollars. Other outgoing payment orders may not be cancelled, amended or modified. We must receive your cancellation in a reasonable time prior to the time we execute the outgoing payment order. Payment orders sent by Fedwire will be subject to the Federal Reserve’s Regulation J, and payment orders sent via other payment systems will be subject to the rules of those systems. You agree that we may record all telephone conversations and data transmissions received from, made for or made on behalf of you pursuant to or in connection with a payment order.
You agree that if a payment order, or any cancellation or authorization relating thereto, but for the applicability of the Electronic Fund Transfer Act of 1978, constitutes a portion of a funds transfer as defined in UCC 4A, all actions and disputes concerning such payment order, cancellation or authorization shall be determined pursuant to UCC 4A and these Business Account Terms to the full extent permitted by law. If an outgoing payment order in a foreign currency cannot be completed, the exchange rate that will apply to any refund due you will be the exchange rate in effect at the time on the day the refund is made. Additional fees may be deducted from a payment order amount by other banks involved in the funds transfer process.
We may route payment at our own discretion for each outgoing wire transfer. A wire transfer is irrevocable once payment has been transmitted to the beneficiary’s bank. At your request, we may request that the beneficiary’s bank return funds previously transferred. However, you acknowledge that the beneficiary’s bank is under no obligation to comply with this request.
Other electronic transactions against your Business Account, whether or not initiated or authorized by you will be governed by the specific Agreement between us related to such transactions and/or all applicable rules and regulations governing such transactions, including without limitation, the rules of the National Automated Clearing House Association (“NACHA”) as may be amended from time to time.
Under NACHA rules we cannot return an unauthorized electronic transaction (ACH debit) unless you notify us no later than 5:00 p.m. Central Time on the business day following the settlement date of the transaction. Otherwise, your sole recourse is to the originator of the transaction.
Your Business Account is also subject to transfer limitations. The transfer limit depends on the EFT type. If a Card is made available to you, it is subject to a purchase and withdrawal limit of $[X] per day. The Card may be further limited based on fraud risk and security of the Business Account. All EFTs are subject to limits. Such EFT limits include limits on ATM withdrawals, cash advances and PIN or signature-based purchases. ACH Transfers to external accounts are also subject to limits on the dollar amount of electronic transfers between your Business Account and external accounts at other financial institutions, including Linked Accounts. All limits described here are designed to be flexible in order to protect the security and integrity of the service and accounts, including the Business Account, as well as you and all other users of the service. These limitations may be based on confidential fraud and risk criteria that are essential to our management of risk and the protection of you and the integrity of the service and all Business Accounts and may be modified at our sole discretion without advance notice.
When a deposit is made to your Business Account, the funds may not be available immediately. This Section VIII (Deposit Availability Disclosure) describes when funds will be made available to you.