THESE TERMS PROVIDE THAT ALL DISPUTES BETWEEN YOU AND PAYWITHMYBANK WILL BE RESOLVED BY BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY AND YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. Please review Section 17 below for the details regarding your agreement to arbitrate any disputes with PayWithMyBank.
PayWithMyBank Service Overview
1. The Service enables you to provide the necessary information to Merchants, PayWithMyBank, and/or other third party service providers (or to a third party on such Merchants’, PayWithMyBank’s and/or other third party service providers’ behalf) in order for such Merchants to (a) verify such information, (b) obtain payments from your Bank account, or (c) make payments to your Bank account in connection with such Merchants’ provision of goods or services to you. By using the Service, you authorize PayWithMyBank to retrieve information from your Bank account for the foregoing purposes in connection with goods and services provided by that Merchant to you as described in these Terms and such Merchant’s own terms of service. The Service may be offered or made available or accessible to you as part of or by virtue of your existing relationship(s) with a Merchant engaged in the provision of goods and services to you; PayWithMyBank does not have control of, or responsibility or liability for, any goods or services that are provided by such a Merchant or otherwise facilitated, paid for or accessed through use of the Service or the amounts that a Merchant decides to withdraw from or deposit into your Bank account. As used in these Terms, “Bank” means a federal- or state-chartered bank, thrift, or other chartered depository institution.
2. You must be at least eighteen (18) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least eighteen (18) years of age; (ii) that you have not previously been suspended or removed from using the Service; and (iii) that your use of the Service is in compliance with any and all applicable laws and regulations and all agreements that you may have with third parties. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such entity, organization or company to these Terms and you agree to be bound by these Terms on behalf of such entity, organization or company.
Payments to and from Merchants
4.2 Recurring Payments to Merchants. The Service may include the necessary information for Merchants to obtain recurring payments from you for periodic charges.
4.3 Disbursements to You from Merchants. The Service may include information that allows a Merchant or third party to reimburse you for payments you made or to enable the Merchant to deposit funds in your bank account. You acknowledge and agree that not all third parties may make the Service available to you as a means of reimbursing you or depositing funds in your bank account.
4.4 PayWithMyBank Obligations; Liability. PayWithMyBank will use commercially reasonable efforts to provide you with the Service, including, if applicable, to enable the Merchant or applicable third parties to obtain payments from you or make payments to you in a timely manner. However, you are responsible for confirming the accuracy of the information you provide about each payment transaction with a Merchant, including, if applicable, the amount of the transaction.
In addition to other limitations on liability set forth in these Terms, PAYWITHMYBANK SHALL INCUR NO LIABILITY TO YOU IF A MERCHANT IS UNABLE TO OBTAIN OR VERIFY INFORMATION ABOUT YOU, OBTAIN PAYMENT FROM YOU, OR MAKE PAYMENT TO YOU VIA THE SERVICE BECAUSE OF THE EXISTENCE OF ANY ONE OR MORE OF THE FOLLOWING CIRCUMSTANCES:
4.4 Unauthorized Activity. You should regularly review your Bank statements and review your payment history to identify any activity which you may not have authorized.
4.5 Refunds. Only a Merchant may provide a refund to you for any payment you enabled the Merchant to obtain via the information you provided via the Service. You must contact the Merchant to initiate a refund transaction.
Third-Party Sites and Linked Websites
5. By using the Service, you authorize PayWithMyBank to access third party sites designated by you (including the online banking website of your Bank), on your behalf, to retrieve and/or verify information needed in connection with our provision of the Service. You hereby authorize and permit PayWithMyBank to process and use information submitted by you to the Service (such as Bank account login ID, password and other authentication information) to accomplish the foregoing and to configure the Service so that it is compatible with the third party sites for which you submit your information. For all purposes hereof, you hereby grant PayWithMyBank a limited power of attorney, and you hereby appoint PayWithMyBank as your true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for you and in your name, place and stead, in any and all capacities, to access third party sites, retrieve and/or verify information, process and use your information, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities, as fully to all intents and purposes as you might or could do in person.
YOU ACKNOWLEDGE AND AGREE THAT WHEN PAYWITHMYBANK IS ACCESSING, RETRIEVING, AND/OR VERIFYING INFORMATION ON OR FROM THIRD PARTY SITES, PAYWITHMYBANK IS ACTING AS YOUR AGENT AND ON YOUR BEHALF, AND IS NOT THE AGENT OF OR ACTING ON BEHALF OF A MERCHANT OR ANY OTHER THIRD PARTY.
You agree that the relevant merchants and other third parties engaged in the provision of goods and services to you shall be entitled to rely on the foregoing authorization, agency and power of attorney granted by you in favor of PayWithMyBank. You understand that PayWithMyBank has no relationship to, affiliation, or connection with any third party site accessed by PayWithMyBank in connection with its provision of the Service. The Service is not endorsed or sponsored by any such third party sites. You agree that PayWithMyBank assumes no responsibility and shall incur no liability with respect to the acts, omissions, or determinations of any such third party site. You acknowledge and agree that PayWithMyBank may not maintain the same level of security against unauthorized access to your account information as the third party sites on or from which you authorize PayWithMyBank to access, retrieve and/or verify information on your behalf. The websites and any other applications, networks, platforms and/or services on or by which the Service is made available or accessible may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
6.1 Use the Service for any illegal purpose, or in violation of any local, state, national, or international law;
6.2 Perform any fraudulent activity, including performing fraudulent transactions, impersonating any person or entity, claiming false affiliations, accessing the accounts of others without permission, or falsifying your age or date of birth;
6.3 Interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
6.4 Interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Service, (iii) attempting to collect personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers; and/or
6.5 Attempt to do any of the foregoing in this Section 6, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 6.
Termination of Use; Discontinuation and Modification of the Service
8.2 Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to the Service, or any website, application, network, platform or service on or by which the Service is made available or accessible (the “Additional Terms“), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Service, subject to Section 9 below. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
Changes to the Terms
9. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change. We may provide notice through a pop-up or banner within the Service, or any website, application, network, platform or service on or by which the Service is made available or accessible, by sending an email to any address you may have used to register for an account, or through other mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, we may require you to provide consent by accepting the changed Terms. If we require your acceptance of the changed Terms, changes are effective only after your acceptance. If you do not accept the changed Terms, we may terminate your access to and use of the Service. Changes to these terms are effective upon publication of the changed Terms. Disputes arising under these Terms will be resolved in accordance with the Terms in effect at the time the dispute arose.
Ownership; Proprietary Rights
10. The Service is owned and operated by PayWithMyBank. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by PayWithMyBank are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of PayWithMyBank or our third-party licensors. Except as expressly authorized by PayWithMyBank, you may not make use of the Materials. PayWithMyBank reserves all rights to the Materials not granted expressly in these Terms.
11. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless PayWithMyBank and its officers, directors, employees, consultants, affiliates, subsidiaries and agents, the merchants, merchant service providers and other third parties offering or making available or accessible to you the Service, and your Bank (collectively, the “PayWithMyBank Entities“) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
Disclaimers; No Warranties
12. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. PAYWITHMYBANK ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, OR ANY WEBSITE, APPLICATION, NETWORK, PLATFORM, OR SERVICE ON OR BY WHICH THE SERVICE IS MADE AVAILABLE OR ACCESSIBLE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PAYWITHMYBANK ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, OR ANY WEBSITE, APPLICATION, NETWORK, PLATFORM, OR SERVICE ON OR BY WHICH THE SERVICE IS MADE AVAILABLE OR ACCESSIBLE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE, OR ANY WEBSITE, APPLICATION, NETWORK, PLATFORM, OR SERVICE ON OR BY WHICH THE SERVICE IS MADE AVAILABLE OR ACCESSIBLE, WILL CREATE ANY WARRANTY REGARDING ANY OF THE PAYWITHMYBANK ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE OR ANY WEBSITE, APPLICATION, NETWORK, PLATFORM, OR SERVICE ON OR BY WHICH THE SERVICE IS MADE AVAILABLE OR ACCESSIBLE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE, OR ANY WEBSITE, APPLICATION, NETWORK, PLATFORM, OR SERVICE ON OR BY WHICH THE SERVICE IS MADE AVAILABLE OR ACCESSIBLE, AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
WE MAKE NO REPRESENTATION OR WARRANTIES WITH RESPECT TO THE ACCURACY, APPLICABILITY, FITNESS, OR COMPLETENESS OF THE CONTENTS OF ANY WEBSITE ACCESSED THROUGH THE SERVICE NOR DO WE WARRANT THE PERFORMANCE, EFFECTIVENESS, OR APPLICABILITY OF ANY SITES LISTED OR LINKED TO AND FROM OUR WEBSITE, OR OTHERWISE ACCESSED IN CONNECTION WITH USE OF THE SERVICE.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
13. IN NO EVENT WILL PAYWITHMYBANK ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE PAYWITHMYBANK ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE PAYWITHMYBANK ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF, ACCESS TO OR ANY INABILITY TO USE OR ACCESS THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE, OR ANY WEBSITE, APPLICATION, NETWORK, PLATFORM, OR SERVICE ON OR BY WHICH THE SERVICE IS MADE AVAILABLE OR ACCESSIBLE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS (IF ANY) YOU HAVE PAID TO PAYWITHMYBANK FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM, OR (ii) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Third Party Disputes
14. ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION YOUR BANK, ANY MERCHANT, OR OTHER THIRD PARTY INVOLVED IN OR RELATED TO ANY PAYMENT OR TRANSACTION MADE OR ATTEMPTED TO BE MADE THROUGH THE SERVICE, OR OTHERWISE IN CONNECTION WITH THE SERVICE, IS DIRECTLY AND SOLELY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE PAYWITHMYBANK (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
15. These Terms shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and PayWithMyBank agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such disputes.
Dispute Resolution and Arbitration.
17.2 Exceptions. Notwithstanding subsection 17.1, you and PayWithMyBank both agree that nothing herein will be deemed to waive, preclude, or otherwise limit our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek any interim or preliminary relief from a court of law to protect the rights or property of either party pending completion of arbitration, or (iv) file suit in a court of law to address intellectual property infringement claims.
17.3 Arbitrator. Any arbitration between you and PayWithMyBank will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules“) of the American Arbitration Association (“AAA“), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting PayWithMyBank.
17.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice“). PayWithMyBank’s address for Notice is: PayWithMyBank, 2000 Broadway Street, Suite 250, Redwood City, California, 94063. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand“). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or PayWithMyBank may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or PayWithMyBank shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, PayWithMyBank shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by PayWithMyBank in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
17.5 Fees. In the event that you commence arbitration in accordance with these Terms, PayWithMyBank will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California; provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse PayWithMyBank for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17.6 No Class Actions. YOU AND PAYWITHMYBANK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and PayWithMyBank agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
17.7 Modifications. In the event that PayWithMyBank makes any future change to this arbitration provision (other than a change to PayWithMyBank’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to PayWithMyBank’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.
17.8 Enforceability. If Subsection 17.6 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 15 shall govern any action arising out of or related to these Terms.
Consent to Electronic Communications.
19. The services hereunder are offered by PayWithMyBank, Inc.,
Located at: 2000 Broadway Street, Suite 250, Redwood City, California 94063.
You may contact us by sending correspondence to the foregoing address or by emailing us at: email@example.com.
If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.