Last Updated: September 13, 2022
Welcome, and thank you for your interest in www.runviably.com, along with related websites, hosted applications, mobile or other downloadable applications, the Banking Services and other programs and services provided by the following participating providers, as appropriate (collectively, “we”, “us”, “our” or “Viably Banking®”) (such services, collectively, the “Services”).
(i) Piermont Bank, a New York-chartered bank, Member FDIC (“Piermont”) provides all banking services (“Banking Services”), which includes checking accounts, and business debit cards (“Cards”).
(ii) Viably Capital, Inc. (“VCI”) provides non-banking services and may act as a servicer or administrator for other participating service providers.
(iii) “Third-Party Services” means services and data provided by third parties in relation to or provided through the Services.
This Viably Banking® Services Agreement (“Services Agreement”) governs your use of our online services. This Agreement is a legally binding contract between you and us regarding your use of the Services. As used in this Services Agreement, “you” and “your” refer to, collectively, the Company that is applying for or has opened an Account to use the Services and the Account Owner (as defined below). Separate agreements may govern particular products and services made available through these Services.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
YOU AGREE TO RECEIVE TEXTS FROM OR ON BEHALF OF VIABLY AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS WILL INCLUDE INFORMATION REGRADING THE SERVICES TO YOUR ACCOUNT AND TWO-FACTOR AUTHENTICATION FOR VERIFYING YOUR ACCOUNT. YOU UNDERSTAND AND AGREE THAT THESE TEXTS MAY BE CONSIDERED TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 8, you agree that disputes arising under this Agreement will be resolved by binding, individual arbitration, and BY ACCEPTING THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. Service Overview.
The Viably Banking® platform makes a variety of financial and banking products and services available to small businesses. Such businesses (each, a “Company”) may open an account with us (“Account”) that is used to access basic features of the Services, including checking and savings accounts, and to submit applications for Cards. Only individuals authorized to apply for an Account on behalf of a Company as set forth in Section 3 (“Account Owner”) may submit an application to open an Account (“Application”). A Company may also link additional accounts held with other financial institutions (“Linked Accounts”) to the Account.
2. Banking Services.
2.1 All Banking Services are provided by Piermont Bank, Member FDIC. Your transactions will be processed through an FBO account VCI holds at Piermont Bank for your benefit. We will provide you with a monthly summary statement that describes your transactions. Your deposit balances held at Piermont Bank are insured by the Federal Deposit Insurance Corporation (“FDIC”) up to the legal limit (currently $250,000 for each category of legal ownership).
2.2 Cards are provided by Piermont and the use of any Card is subject to this Services Agreement and the Viably Business Account and Mastercard Terms (the “Card Terms”). You may only use the Cards if you consent to the Card Terms each time you apply for one or more Cards. Please be aware that the Card Terms may state that (1) the Card Terms may be updated at any time with or without notice to you, and (2) your continued use of the Cards constitutes your acceptance of such updated Card Terms.
3. Opening a Viably Banking® Account.
3.1 Authorization. You certify that (i) you are authorized on behalf of the Company whose name you have entered on this site to submit an Application and use the Banking Services, (ii) all information you provide is true, correct and complete and (iii) that you will notify us promptly of any changes to such information.
3.2 Eligibility. Only companies organized and registered in the United States (such as C-corps, S-corps, LLCs, or LLPs) may apply for an Account and use the Services. Individual consumers, sole proprietors, unincorporated partnerships, and companies organized and/or registered outside the United States, are not permitted to use or attempt to open an Account or use any Services. Company’s Account is commercial in nature, and you acknowledge and understand that certain consumer protection laws (including the Electronic Funds Transfer Act or Regulation E) and consumer-specific rules (including NACHA rules specific to consumers) do not apply to transactions on the Account or your use of the Services.
3.3.1 Representations of Account Owner and Company. By submitting an Application for an Account, you represent and warrant in your individual capacity and as an authorized representative of Company that:
(a) Company is a business entity that is organized, registered, and located in the United States;
(b) Company has a valid U.S. Employer Identification Number (EIN);
(c) Company is validly existing and in good standing in its jurisdiction of organization;
(d) Company is not engaged in any of the prohibited activities in Section 4.14 and updated from time to time (“Prohibited Activities”);
(e) You (representative) are a natural person authorized to provide information about Company, submit the Application on behalf of Company, enter into binding agreements on behalf of Company, authorized debits from Linked Accounts, and manage Company’s Account;
(f) You are not and are not affiliated with an individual or organization that is subject to sanctions in the United States, identified on any lists maintained by OFAC or the U.S. Department of State, or is subject to any law, regulation, or other list of any government agency that prohibits or limits us from providing an Account or Services to such person or from otherwise conducting business with the person (“Prohibited Person”);
(g) All information that you and Company provide to us is and will be current, accurate, and complete;
(h) Company will establish and use its Account and the Services exclusively for business purposes and not for any personal, family, or household use;
(i) Company has reviewed this Agreement and any terms, agreements, or policies incorporated by reference; and
(j) All Linked Accounts designated by Company are business rather than consumer accounts and are not established or used for personal, family, or household purposes.
3.3.2. Required Information. You must provide certain information and documentation regarding the Company (collectively, “Company Data”) to apply for and maintain an Account and any Services. Company Data may include registered business name, business address, ownership details, contact information including email and phone number, tax identification number, the nature of the business, financial information, details for your Linked Accounts, and other business or personal information that we may require or request from time to time. You must also provide certain personal information about yourself and others who may use or access the Account (collectively, “Personal Data”) including but not limited to the names, contact information, personal addresses, social security numbers, and dates of birth of such individuals. We may also require that you provide certain documentary information used to verify Company Data and Personal Data such as organizational documents and certificates of registration, proof of address, or personal identification.
3.3.5. Consent to Electronic Signature and Communications. You agree that submitting your Application for an Account and indicating your agreement to this Agreement electronically during the Application process constitutes your electronic signature to this Agreement. You also agree that your electronic consent has and will have the same legal effect as a physical signature. By agreeing to the terms of this Agreement, you consent to us providing Notices and account statements to you electronically, and understand that this consent has the same legal effect as a physical signature.
3.3.6. Supplemental Agreements. In certain circumstances, including when we deem Company to present a high risk to us, we may require supplemental agreements between us and Company or parties affiliated with Company. The availability of specific Services to Company may be subject to these supplemental agreements. We may add or change the applicability of these requirements and the supplemental agreements at any time. Company or parties affiliated with Company (including affiliates, Control Persons, or employees, contractors, or agents authorized to use the Services on Company’s behalf) may be required to enter into such supplemental agreements in order to access or continue use of the Services. We may require Company to enter into a security agreement or provide a security interest in Company assets for certain Services. Required supplemental agreements are provided separately from this Agreement.
3.4 Account Use Restrictions. The Company’s Account and the Services may not be (a) used for any purpose that is unlawful or prohibited by this Agreement, (b) used for any personal, family, or household use, (c) used for any transaction involving any Prohibited Activities, (d) provided to or used for any transaction involving an individual, organization, country, or jurisdiction that is blocked or sanctioned by the United States, including those identified on any lists maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) or the U.S. Department of State, (e) used by third parties who are not Company employees, contractors, or agents or who are otherwise unaffiliated with Company, or (f) used for any purpose not related to the business of Company. We will not approve and may terminate Accounts that we know or believe are engaged in any Prohibited Activities or otherwise do not comply with the restrictions in this section, as determined in our sole discretion. We may limit Company’s use of certain Services or require that you provide additional information to open or maintain your Account where Company is engaged in Restricted Activities, as determined in our sole discretion. We may update the lists of Prohibited Activities or Restricted Activities at any time. You agree to review these lists regularly and contact us at https://www.runviably.com/support/ with any questions you have about how these lists may apply to Company’s business. To the maximum extent permitted by law, you agree to pay all fines, penalties, or other charges assessed against us for your violation of the restrictions and requirements of this section or any use of the Services in connection with any Prohibited Activities or Restricted Activities.
4. Managing and Using Your Account.
4.1 Authorized Users.
4.1.1 Administrator Designation. You must specify at least one individual with requisite power and authority to conduct business and manage the Account and act on behalf of Company (each, an “Administrator”) when submitting your Application. If you do not specify an Administrator, you agree that the Account Owner will be the Administrator for Company’s Account. Administrators must have, and Company represents that any individual designated as an Administrator has, the requisite power and authority to conduct business and manage Company’s Account, including by authorizing debits from Linked Accounts. In the event that an individual designated as an Administrator no longer has such requisite power and authority, Company must promptly designate another Administrator for its Account.
4.1.2 Administrator Responsibilities. Administrators may take a variety of actions, including: adding, removing, or managing additional Administrators, or other employees, contractors or agents authorized to use the Services on Company’s behalf (“Users”); connecting and authorizing debits from Linked Accounts, Third-Party Services and other accounts, as applicable, to Company’s Account; consenting to any new or updated terms or conditions contained in this Agreement or other agreements or policies incorporated in this Agreement, consenting to supplemental agreements, or consenting to any Additional Terms; adding or removing additional Services to the Account; taking actions specified in the terms and agreements applicable to portions of the Services, including with regard to the Card Terms, and any other terms that govern access to and use of any other financial products or Services offered by us (collectively, “Program Terms”), requesting Cards for new Users and performing other tasks on Company’s behalf. Administrators must not authorize the use of Company’s Account or the Services by any Prohibited Person. Administrators must monitor Company’s Account activity and statements as required by applicable Program Terms. Certain Services include additional permission levels and authorizations. If Company uses these Services, Administrators will be able to authorize and assign Users these permission levels and authorizations.
4.1.3. Competing Authority. In the event of a dispute regarding who is authorized to act on behalf of Company in connection with Company’s Account, you agree that we are not obligated to adjudicate any such dispute and may continue to honor instructions from any designated Administrator or User, or may suspend Company’s Account or limit use of the Services unless and until the dispute is resolved, in our sole discretion.
4.1.4. Other Users. Users other than Administrators may perform a variety of more limited activities on Company’s Account, depending on the role assigned to each User. Information about the types of User roles is available through the Services. We may limit the number of Users you can create, and we may change the names, number, and permissions of roles from time to time by updating our Services or otherwise providing you with notice. All Users, including Administrators, may use Company’s Account, transact, and use the Services only for valid, lawful, bona fide business purposes on Company’s behalf. Users may not use the Services for personal, family, or household purposes. Users must accept and comply with the User Terms.
4.2 Responsibility for Use Company is responsible and liable for any actions or failure to act on the part of the Account Owner, Administrators, Users, and those using usernames, passwords and other identifiers or credentials (“Credentials”, and such Account Owner, Administrators, Users and others using Credentials, collectively, “Representatives”) issued to access Company’s Account. Details on liability for Charges, Fees, or Fines incurred through a specific Service can be found in the applicable Program Terms. Company is responsible for:
(a) ensuring that Representatives are aware of and agree to abide by the terms of this Agreement, the applicable Program Terms and all applicable laws in connection with their use of the Services;
(c) ensuring that Users are aware of, accept, and comply with the User Terms of this Agreement; and
(d) ensuring that Representatives use the Services only for valid, lawful business purposes and not for any personal, family, or household use.
Company is responsible for ensuring that Representatives, and any other persons affiliated with Company communicate respectfully and will refrain from using any form of disrespectful, harassing, abusive, or hateful speech with our team members. If we receive reports of any such behavior by you or your Representatives towards our team, we may contact your Administrator, suspend or limit access to Company’s Account or the Services, or close your Account, in our sole discretion. “Charges” means a payment for goods or services made using a Card to a merchant that accepts payments on the applicable Card Network. “Fees” means charges we impose on you for use of Services or your Account. “Fines means all fines, penalties, or other charges imposed by us, a governmental agency or a regulatory authority, arising from your breach of this Agreement.
4.3. Access. You will keep Company’s Account secure and only provide access to individuals that you have authorized to use the Services on your behalf. Company will take all reasonable steps to safeguard the privacy, confidentiality, and security of Credentials. Company will closely and regularly monitor the activities of Representatives who access the Services, and will use all reasonable means to protect Cards, checks, mobile devices, web browsers, and anything else used to access or utilize the Services. You will ensure that each Representative has their own unique set of Credentials, keeps those Credentials secure, does not share those Credentials with any other person or third party, and does not reuse Credentials for other services. You will not allow any unauthorized person to use the Services. You will immediately disable Representative access to the Services or limit permissions where you know or suspect your Account has been compromised or may be misused or where you know or believe a Representative’s Credentials are compromised or lost; and you will promptly notify us of any unauthorized access or use of your Account or the Services.
4.4. Fees and Disclosures; Credit Reporting We may assess Fees for some Services, including periodic fees, usage fees, late or failed payment fees, service fees, fees for misuse of your Account or Services, fees applicable to certain transactions, or other fees we disclose to you. We will disclose Fees, if any, to you when opening your Account, when you start using a new Service, or through our website. We may update, add, or change Fees upon 30 days’ notice to you (though we may not provide prior notice when we reduce any Fee). We may report Company payment history and performance to one or more credit reporting agencies. If any Representative offers a personal guaranty for any Banking Service, payment history and performance may be reflected on such Representative’s credit report.
4.5. Changes to the Services and Service-Specific Terms. We may add Services or modify existing Services at any time. Some of these Services will be subject to Additional Terms. You acknowledge and understand that in order to use certain Services, you must agree to additional terms that we will provide separately, but which are incorporated by reference here and form a part of this Agreement. We do not guarantee that each of the Services will always be offered or available to you. Services may change from time to time, and certain Services may be discontinued or others may be added.
4.6. Support. We will offer support for the Services as described on our Support Page.
4.7. Notices, Monitoring and Communication.
4.7.1. Notices. You agree that we and any agents acting on our behalf may send Notices to, receive communications from, or otherwise contact, including via text messages, the Account Owner, Administrators, or Users relating to an Application submitted on behalf of Company, Company’s Account, or any activity in connection with your Account in accordance with the terms outlined in this section. We and our agents may send Notices or otherwise communicate with you using the contact information provided to us or our agents by the Account Owner, Administrators, or Users, including phone numbers associated with mobile phones or devices, and may use autodialing or automated voice messaging technology. We and our agents are not responsible or liable for any charges or costs incurred by you, the Account Owner, Administrators, or Users in connection with such communications. “Notices” means any physical, voice, or electronic communication, or legal notices that are provided or directed to Company, Users, or Administrators through phone call, text messages, email, push notification, Company’s Account, or by any other means.
4.7.2. Monitoring. You agree that we may monitor or record the interactions or activities of the Account Owner, Administrators, Users, or other persons given access to the Services or your Account when using any of our websites or mobile applications or accessing the Services. We and our agents may also monitor or record any communications for quality assurance or other reasonable business purposes.
4.8. Updates to Company Information.
4.8.1. Providing Information. You will keep Company Data and each Representative’s Personal Data current, complete, and accurate in your Account at all times. We may require additional information from you or your Representatives at any time, including Company Data (such as copies of government-issued identification, business licenses, or other information related to your business) and Personal Data (such as copies of government-issued personal identification and proof of address) to verify Beneficial Owners or Control Persons, validate information you provided, verify the identity of Administrators or Users, or assess Company’s financial condition and business risks.
4.8.2. Notification of Corporate and Business Changes. Company must be duly organized and remain in good standing under the laws of its jurisdiction of organization at all times. You or another authorized representative of the Company will promptly notify us in writing if any of the following occur: (a) The nature of the Company’s business changes significantly; (b) There is a change of Beneficial Owners or Control Persons; (c) There is a material change in the control or ownership of the Company (whether direct or indirect) or the Company transfers or sells 25% or more of the Company’s total assets; (d) There is a planned or anticipated liquidation or voluntary bankruptcy or insolvency proceeding; (e) The Company is party to a dispute or are involved in a regulatory proceeding in which claims are asserted that would, if sustained in a legal or regulatory proceeding or alternative dispute resolution forum, result in a material impact to Company’s financial condition; (f) The Company receives a judgment, writ or warrant of attachment or execution, lien, or levy against 25% or more of the Company’s total assets; (g) You or the Company begin engaging in any Prohibited Activities or Restricted Activities.
4.9. Intellectual Property and Licenses.
4.9.1. Ownership and Intellectual Property. The Services and related technology; all data developed, collected or recorded by us through the development or provision of Services, except for Company Data and Personal Data; and copyrights, patents, trade secrets, trade or service marks, brands, logos, and other intellectual property encompassing or incorporated into each of the foregoing (collectively, “Intellectual Property”), are owned by the respective providers. Company and Representatives may use Intellectual Property only as and for the purposes provided in this Agreement. Neither you nor anyone else at the Company may modify, reverse engineer, create derivative works from, or disassemble Intellectual Property or register, attempt to register, or claim ownership in Intellectual Property or portions of Intellectual Property.
4.9.2. Intellectual Property License. We grant you a nonexclusive, revocable, and nontransferable license to use Intellectual Property solely as provided through the Service and solely to the extent expressly permitted by this Agreement. This license terminates upon termination of this Agreement unless terminated earlier by us.
4.9.3. Company Data License. You grant us a worldwide, irrevocable license to use, modify, distribute, copy, and create derivative works from Company Data for the purposes identified in this Agreement. We will not share any Company Data with third parties for marketing unaffiliated products without your consent, but may use Company Data to identify Service, Third-Party Services, and programs that we believe may be of interest to you, including as part of a rewards or benefits program.
4.10. Identification as Customer. We may publicly reference Company as our customer on our website or in other communications during the term of this Agreement. We will not express any false endorsement or partnerships. You grant us a limited license to use Company trademarks or service marks for this purpose. Please notify us if you prefer that we not identify Company as our customer, and we will remove references to Company on our website or in other communications.
4.11. Beta Services and Feedback. VCI sometimes releases beta or pre-release products or services (“Beta Services”) in order to test new products, features, and programs, and VCI may make these Beta Services available to you to get your Feedback. VCI may change or discontinue Beta Services at any time. Beta Services are confidential until VCI publicly announces the products, features, or programs, and if you use Beta Services, you agree to keep information about the Beta Services confidential. Any Beta Services are provided to you AS IS and without warranty. VCI may use any Feedback about the Services or Beta Services freely and without restriction. Except where specifically notified by VCI, VCI will not compensate or credit you for Feedback you provide to VCI. “Feedback” means all feedback, suggestions, ideas, or enhancement requests you submit.
4.12. Content. Information provided on our website and in other communications from us, other than the agreements, offers, policies, and terms referenced or otherwise incorporated by this Agreement or that we otherwise expressly denote as governing your relationship with us, is for information purposes only. We may change or update information from time to time without Notice. Information we provide on our website and in other communications to you may contain third-party content or links to third-party sites and applications. We do not control any such third-party content, sites, or applications, and we are not responsible or liable for the availability, accuracy, completeness, or reliability of third-party content or for damages, losses, failures, or problems caused by, related to, or arising from such third-party content or the products or practices of third parties.
4.13. Assignment. You may not transfer or assign (by operation of law or otherwise) this Agreement, any of your rights or obligations hereunder, or operation of your Account, without our prior express written consent. If you wish to make such a transfer or assignment, or the ownership of Company is changing, you must give us prior written notice. If we consent to such a transfer or assignment, the assignee or successor must assume all of Company’s rights, obligations, and liabilities under this Agreement and your relationship with us, and will be bound by all the terms of this Agreement. We may assign, pledge, or otherwise transfer this Agreement or any of its rights and powers under this Agreement without restriction and without providing Notice to you. Any such assignee or successor will have all rights as though originally named in this Agreement instead of us.
4.14. Prohibited and Restricted Activities. By using the Service, you agree not to engage in any Prohibited Activities or Restricted Activities (as defined below).
4.14.1. “Prohibited Activities” means activities which constitute either Regulated or Illegal Activities, or Violent or Hateful Activities.
4.14.2. “Regulated or Illegal Activities” means activities that are in violation of applicable law, including but not limited to:
(i) Sale of Schedule I controlled substances with or without a pharmaceutical license, or sale of Schedules II-V controlled substances without a pharmaceutical license, where such schedules are defined by the United States Department of Justice, Drug Enforcement Agency (DEA);
(ii) Production, sale, or distribution of marijuana;
(iii) Production, sale, or distribution of guns, accessories, ammunition, and other weapons;
(iv) Production, sale, or distribution of illegal material, including but not limited to child pornography;
(v) Gambling, betting, lotteries, sweepstakes, or games of chance;
(vi) Prostitution or escort services;
(vii) Sale of counterfeit or “gray market” goods or services; and
(viii) Ponzi or pyramid schemes, or other unfair or deceptive activities.
4.14.3. “Violent or Hateful Activities” means activities Intentionally promoting, supporting, or perpetrating (1) violence or physical harm or (2) hate toward any group or individual based on race, religion, disability, gender, sexual orientation, gender identity, national origin, immigration status, or any other legally protected characteristic under federal or state law.
4.14.4. “Restricted Activities” means activities or businesses that may require the Company to provide additional information or documentation, or render the Company ineligible for certain Services, including but not limited to the following: (a) Businesses dealing in cryptocurrency or digital assets; (b) Financial services providers, including banks or bank affiliates, securities brokers, money transmitters, investment companies, or investment funds; (c) Pornography, adult chat, or other sexually explicit services; or (d) Sale of Schedules II-V controlled substances with a pharmaceutical license, where such schedules are defined by the DEA.
4.14.5. Modifications to These Lists. The Prohibited Activities and Restricted Activities specified in this Section 4.14 are not exhaustive and we reserve the right to modify or update these lists at any time by posting a revised version to our website. The revised version will be immediately effective upon posting. If we determine in our sole discretion that you or any Representative are engaging or have engaged in activities that are illegal, may harm others or our reputation or operations, or violate our or others rights, including by engaging in any Prohibited Activities or Restricted Activities, or authorizing or helping others to do so, we may deny, terminate, or suspend your use of the Services. Please contact us if you are unsure whether your business or activities are permitted by us.
4.15. Account Holds, Suspensions, Terminations, and Other.
4.15.1. Actions We May Take. If we believe, in our sole discretion, that you or anyone else at the Company violated the terms of this Agreement, engaged in any Prohibited Activities or Restricted Activities, violated applicable law or rules, engaged in fraudulent or unfair activities, or have otherwise engaged in activities that violate our or others’ rights, or created an undue risk of harm for us or others, we may take a number of actions to protect us, our customers, and others at any time, in our sole discretion and with or without Notice. The actions we may take include:
(a) Terminate this Agreement, limit your or any Representative’s access to your Account and/or the Services, and/or close or suspend your Account, immediately and without penalty to us;
(b) Refuse to provide the Services to any Representative or any other individual in the future;
(c) Limit any Representative’s, or any other individual’s access to our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf, your Account or any of the Services, including limiting your ability to pay or send money or make withdrawals;
(d) Hold or otherwise restrict the balance in your Account or hold payments to/from your Account, for a period of time or indefinitely, if reasonably needed to protect against the risk of liability or loss or if you have engaged in any Prohibited Activities or Restricted Activities, to be determined in our sole discretion;
(e) Debit your Account or any Linked Account for any amounts owed, even if payment is not yet due for such amounts;
(f) Return or reverse transactions associated with your Account or otherwise remit funds in accordance with applicable rules governing payments (e.g. NACHA rules) and/or in an effort to remediate fraudulent or criminal conduct, as determined in our sole discretion;
(g) Contact others who have transacted with you, other financial institutions, other impacted third parties, or law enforcement or other regulators about your actions and/or Account;
(h) Update inaccurate information any Representative or User, or any other individual acting under or associated with your Account provided to us; or
(i) (i) Take legal action against the Company or any Representative, or any other individual acting under or associated with Company’s Account.
4.15.2. Judgment; Sole Discretion. Our decision about actions we may take in relation to your Account may be based on confidential criteria that are essential to our management of risk and the protection of us, our customers, service providers, or others. We may use proprietary fraud and risk modeling when assessing the risk associated with your Account. In addition, we may be restricted by law, regulation, or a governmental authority from disclosing certain information to you about such decisions or actions. You agree that we have no obligation to disclose the details of our risk management or security procedures to you. Nothing in this section is intended to limit our rights to refuse to provide Services to anyone, at any time, and for any reason consistent with applicable law, in our sole discretion.
4.14.3. Responsibility for Damages. If you’ve violated this Agreement or have engaged in any Prohibited Activities or Restricted Activities, then you’re also responsible for damages to us caused by your violation and/or such activities.
4.15.4. Post-Termination Due to Violation. If we close your Account or terminate your use of the Services for any reason, we’ll notify you of such actions. If any funds in your Account are subject to a hold or restriction and that hold or restriction is later removed, we will either send any unrestricted funds to an external account you specify or make such funds available for withdrawal. To the extent permitted by law, we will deduct from your Account or any Linked Account any reasonable expenses we incur while attempting to contact you or other costs we may incur in the process of closing your Account. You will continue to be liable to us for any transactions or obligations, or any losses or expenses we sustain, that are associated with your Account, whether incurred before, during, or after the account closing process. You are responsible for all reversals, chargebacks, claims, fees, fines, penalties, negative balance, and any liability incurred by us, any other customer, or a third party, caused by or arising out of your breach of this Agreement and/or your use of the Services.
4.16. Term, Termination and Survival.
4.16.1. Term. This Agreement is effective when you accept its terms when applying for an Account and continues until terminated by either you or us, in accordance with the Program Terms or as set forth in this Agreement. For clarity, if you reapply or reopen your Account or use or attempt to use any of the Services, you are consenting to the Agreement in effect at that time.
4.16.2. Termination. You may ask us to terminate this Agreement by ceasing to use the Services, paying all amounts owed, and providing notice to us. We may decline to terminate this Agreement or close Company’s Account if you have a negative balance in respect of any Services, if any funds that we are holding on your behalf are subject to a hold, lien or other restriction, if there are pending transactions, or if we believe that the Account is being closed to evade any legal or regulatory requirement or investigation. We may decline to send you any funds remaining in your account less any Fees, Charges, Fines, setoffs, or other amounts until we have completed the process of terminating Company’s Account and/or any restrictions or holds on such funds have been removed. We may terminate this Agreement at any time and for any reason with or without prior Notice. In the event that this Agreement is terminated, except as expressly provided herein, the applicable Program Terms will immediately terminate (other than sections that survive termination). “Card Network” means the payment card networks, including Visa or Mastercard.
4.16.3. Post-Termination Obligations. Company is responsible for all Charges, Fees, Fines, losses, and other amounts owed to us caused by your action or inaction, including any that are assessed or may arise after the termination of Company’s Account, and for any costs we may incur in the process of closing Company’s Account.
4.16.4. Survival. Sections 3.3.3 (Sharing of Data), 3.5 (Data and Privacy), 4.2 (Responsibility for Use), 4.3 (Access), 4.7 (Notices, Monitoring, and Communication), 4.9.1 (Ownership and Intellectual Property), 4.11 (Beta Services and Feedback), 4.12 (Content), 4.15 (Account Holds, Suspensions, Terminations, and Other), 5 (Limitations of Liability), 6 (Disclaimer of Warranties by Us), 7 (Indemnification), 8 (Dispute Resolution and Arbitration), and 9 (Miscellaneous) together with the provisions of the Program Terms that identify continuing obligations, and all other provisions of this Agreement or the agreements, terms, and policies incorporated herein giving rise to continuing obligations of the parties, will survive termination of this Agreement.
5. Limitations of Liability. Our liability is limited with respect to Company’s Account and your use of the Services. We are not liable to you for consequential, indirect, special, exemplary, or punitive damages or lost profits or revenue, reputational harm, physical injury, or property damage arising from or related to Company’s Account, our systems and the Services, your use of or inability to use the Services or Cards, or this Agreement, whether or not we were advised of their possibility by you or third parties, unless prohibited by applicable law or rules.Our maximum liability to you under this Agreement and any terms, agreements, or policies incorporated by reference, is limited to the greater of the total amount of Fees actually paid by you to us in the twelve months preceding the event that is the basis of your claim or US$100. These limitations apply regardless of the legal theory on which your claim is based, unless prohibited by applicable law or rules.To the extent applicable law or rules prohibit or restrict any of the limitations of liability set forth in this Agreement, or any portion of them, or a court or arbitrator holds that such limitations, or any portion of them, are unenforceable for any reason, this Agreement shall be interpreted and construed in a manner that limits our liability to the greatest extent possible under applicable laws and rules.
6. Disclaimer of Warranties by Us. THE SERVICES, OUR PROPERTY, AND ANY BETA SERVICES ARE PROVIDED TO YOU AS IS AND AS AVAILABLE. WE DISCLAIM ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES OF NON-INFRINGEMENT OF THE SERVICES, OUR PROPERTY, AND BETA SERVICES. NOTHING IN THIS AGREEMENT WILL BE INTERPRETED TO CREATE OR IMPLY ANY SUCH WARRANTY TO YOU.THIRD-PARTY SERVICES ARE NOT PROVIDED OR CONTROLLED BY US. WE DO NOT PROVIDE SUPPORT FOR AND DISCLAIMS ALL LIABILITY ARISING FROM FAILURES OR LOSSES CAUSED BY THIRD-PARTY SERVICES.WE DISCLAIM ALL WARRANTIES AND DOES NOT GUARANTEE THAT (A) SERVICES AND DATA PROVIDED UNDER THIS AGREEMENT ARE ACCURATE OR ERROR-FREE; (B) THE SERVICES WILL MEET YOUR SPECIFIC NEEDS OR REQUIREMENTS; (C) THE SERVICES WILL BE USABLE BY COMPANY, ADMINISTRATORS, OR USERS AT ANY PARTICULAR TIME OR LOCATION; (D) SPECIFIC MERCHANTS WILL PERMIT PURCHASES USING CARDS ISSUED BY AN ISSUER; (E) SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE FROM HACKING, VIRUSES, OR MALICIOUS CODE; AND (F) ANY DEFECTS IN THE SERVICES WILL BE CORRECTED, EVEN WHEN WE ARE ADVISED OF SUCH DEFECTS.WE ARE NOT LIABLE FOR AND DISCLAIM LIABILITY FOR ANY DAMAGES, HARM OR LOSSES TO YOU ARISING FROM UNAUTHORIZED ACCESS OR USE OF COMPANY’S ACCOUNT OR THE SERVICES.
7. Indemnification. You agree to indemnify, defend, and hold harmless Viably Banking® (including our respective affiliates, directors, employees, agents, and representatives), from and against all losses, liabilities, claims, demands, or expenses, including reasonable attorney’s fees, arising out of or related to: (1) your breach or alleged breach of this Agreement or any other agreements with us; (2) acts or omissions of the Account Owner, Administrators, Users, or other Company employees or agents; (3) Company’s actual or alleged infringement of a third party’s intellectual property rights; Company’s use of Third-Party Services; or (4) disputes over Charges between Company and merchants.
8. Dispute Resolution and Arbitration.
8.1. Generally. Except as described in Section 8.2 and 8.3, you and we agree that every dispute arising in connection with this Agreement, the Services, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
8.2. Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
8.3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 8 within 30 days after the date that you agree to this Agreement by sending a letter to Viably Banking®, Attention: Arbitration Opt-Out, 1 Glenwood Ave, Suite 500, Raleigh, NC, 27603, that specifies: your full legal name, the email address associated with Company’s Account on the Services, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once we receive your Opt-Out Notice, this Section 8 will be void and any action arising out of this Agreement will be resolved as set forth in Section 9.2. The remaining provisions of this Agreement will not be affected by your Opt-Out Notice.
8.4. Arbitrator. This arbitration agreement, and any arbitration between us, is subject to the Federal Arbitration Act and will be administered by the JAMS under the rules applicable to consumer disputes (collectively, “JAMS Rules”) as modified by these Terms. The JAMS Rules and filing forms are available online at www.jamsadr.org, by calling the JAMS at +1-800-352-5267 or by contacting us.
8.5. Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Our address for Notice is: Viably Banking®, Attention: Arbitration Proceedings, 1 Glenwood Ave, Suite 500, Raleigh, NC, 27603. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or we may commence an arbitration proceeding. If you commence arbitration in accordance with this Agreement, we will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the JAMS Rules. If the arbitrator finds that either the substance of the 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 JAMS Rules and the other party may seek reimbursement for any fees paid to JAMS.
8.6. Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your billing address. During the arbitration, the amount of any settlement offer made by you or we must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
8.7. Arbitration Relief. Except as provided in Section 8.8, the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by us before an arbitrator was selected, we will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties , except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
8.8. No Class Actions. YOU AND WE 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 we 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.
8.9. Modifications to this Arbitration Provision. If we make any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to our address for Notice of Arbitration, in which case Company’s Account with us will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
8.10. Enforceability. If Section 8.8 or the entirety of this Section 8 is found to be unenforceable, or if we receive an Opt-Out Notice from you, then the entirety of this Section 8 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 9.2 will govern any action arising out of or related to this Agreement.
9.2. Governing Law and Venue. This Agreement will be construed, applied, and governed by the laws of the State of New York exclusive of its conflict or choice of law rules except to the extent that U.S. federal law controls or unless otherwise specified in this Agreement. Subject to Section 8 (Dispute Resolution and Arbitration), all litigation shall be brought in the state or federal courts located in New York, New York.
9.4. Additional Terms. Your use of any Services are subject to all additional terms, policies, rules, or guidelines applicable to each Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), including, without limitation, the Mobile Deposits Terms and Conditions, available https://www.runviably.com/viably-mobile-deposits-terms-conditions/. All such Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
9.6. Contact Information. You may contact us by sending correspondence to Viably Banking®, 1 Glenwood Ave, Suite 500, Raleigh, NC 27603 or by emailing us at [email protected]
9.7. Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
9.8. International Use. The Services are intended for use within the United States. We make no representation that the Services are appropriate or available for use outside of the United States. Access to the Services from countries or territories or by individuals where such access is illegal is prohibited.
9.9. Notice Regarding Apple. This Section 9.9 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that this Agreement is between you and us only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fail to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (1) product liability claims; (2) any claim that the Services fail to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Services. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary of this Agreement. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.