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Dated: October 16, 2023
These Banking Services Terms and Conditions (“Banking Services Terms”) govern the rights and obligations of Bank Partner, Client, and Unit with respect to the Banking Services. Bank Partner, Client, and Unit have the meanings set forth in the Banking Services Agreement and may each be referred to herein individually as a “Party” and collectively as the “Parties.” These Banking Services Terms form a part of, and are incorporated by reference into, the Banking Services Agreement.
1.1 “Applicable Law” means all federal, state and local laws, codes, statutes, and ordinances; regulations, rules, regulatory bulletins, and guidance; published court opinions, attorney general opinions, Payment Rules, requirements of a Governmental Authority (including, with respect to Bank Partner, supervisory findings, orders, determinations, communications, and recommendations of a Governmental Authority), and orders pursuant to a legal or regulatory proceeding, in each case as applicable to the subject matter of the Banking Services Agreement and Unit, Bank Partner, or Client.
1.2 “Banking Services” means all banking and other financial products and services provided by Bank Partner to Client and End Users pursuant to the Banking Services Agreement.
1.3 "Banking Services Agreement” or “BSA” means the agreement between Client, Bank Partner, and Unit governing the Banking Services, including these Banking Services Terms and the Product Terms.
1.4 “Business Day” means Monday through Friday, excluding U.S. federal banking holidays.
1.5 “Change of Control” means the sale of all or substantially all the assets of Client; any merger, consolidation or acquisition of Client with, by or into another corporation, entity or person; or any change in the ownership of more than fifty percent (50%) of the voting capital stock of Client in one or more related transactions; or the power or authority, through ownership of voting securities, by contract, or otherwise, to direct the management or policies of Client, directly or indirectly.
1.6 “Chargeback” means a transaction related to an Account that is subsequently reversed pursuant to the applicable Payment Rules.
1.7 “Client Platform” means Client’s technology platform including mobile platforms, websites, and applications.
1.8 “Client Services Agreement” or “CSA” means that Client Services Agreement entered into by and between Client and Unit in connection with Client’s receipt of the Unit Services.
1.9 “Complaint” means any communication (whether verbal or written) that expresses dissatisfaction with a service or system (including the marketing, delivery, or support of a Banking Service), alleges an error or disputes a transaction (including under Regulation E or applicable Payment Rules), or alleges a violation of Applicable Law, in each case that a Party receives in respect of the Platform Services.
1.10 “Covered Banking Service(s)” means the specific Banking Services provided by Bank Partner to Client pursuant to the BSA.
1.11 “Critical Vendor” means any third-party service provider to Client that (i) stores, uses, or has access to unencrypted Regulated Information or encrypted Regulated Information and the means to decrypt it; or (ii) is responsible for carrying out operations or functions that, if not performed at an acceptable quality and in a timely manner, would cause Client to be in material breach of the BSA or the CSA or would be reasonably likely to cause material End User harm or material harm to Bank Partner’s safe, sound, and compliant operations.
1.12 “Effective Date” means the effective date set forth in the BSA.
1.13 “End User” means any person or entity (other than Client) who receives Banking Services from Bank Partner via or in connection with the Client Platform. End User may include an authorized user of an Account or payment card that does not have a direct Account relationship with Bank Partner.
1.14 “End User Data” means any data or information relating to any End User that is provided to or obtained in connection with the BSA, including data that is provided or obtained by Client or through the Client Platform in connection with the Banking Services and data generated from End User transactions.
1.15 “End User Documentation” means all applications, agreements, consents, disclosures, or other documents relating to the provision of Banking Services to End Users, including any documents provided by Bank to Client for delivery to End Users.
1.16 “Funding Failure” means the failure of one or more deposit amounts to be effectively credited to one or more Accounts for any reason other than a failure by Bank Partner to perform its obligations under the BSA, including a lack of sufficient funds in the originating account, the failure of any third party network to accurately process or fully fund and settle the deposit(s), any action by the Client or End User to cancel or modify the deposit, or any other cause.
1.17 “GLBA” means Title V of the Gramm-Leach-Bliley Act of 1999, as amended, and the regulations and regulatory guidance issued thereunder.
1.18 “Governmental Authority” means any federal, state, or local regulatory agency or other governmental agency, department, court, commission, board, bureau, instrumentality or political subdivision thereof, or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case having jurisdiction over any Party, End User, or the subject matter of the BSA.
1.19 “Guides” means the guides and resources published by Unit applicable to the subject matter of the BSA, including, without limitation, the Disputes Overview Guide, Disclosures Guide, End User Support Guide, Complaint Guide, Marketing Guide, and Reserve Account Guide, each as referenced in the BSA.
1.20 “Payment Rules” means the rules, regulations, directives and guidance that govern any network or payment platform used to process Client or End User transactions, including without limitation (i) rules, regulations, directives, and guidance promulgated by Mastercard, Visa, or any other applicable card network (“Network Rules”), and (ii) the then-current NACHA Operating Rules and Guidelines and any regulations, policies, procedures, agreements, manuals, bulletins, notices and similar documents issued by NACHA (“NACHA Rules”).
1.21 “Platform Services” means the Unit Services and Banking Services together.
1.22 “Policy Documents” means programs, policies, and implementing procedures.
1.23 “Privacy Laws” means any and all federal, state and local laws and regulations related to privacy, including, without limitation, the implementing regulations and related interagency guidelines promulgated pursuant to the GLBA, including the standards for safeguarding customer information set forth in 12 C.F.R. § 364 and 16 C.F.R. § 314, all as they may be amended, supplemented or interpreted in writing from time to time by any applicable Governmental Authority.
1.24 “Product Terms” means the terms that are specific to a Covered Banking Service as set forth on the Unit website at the location referenced in the BSA.
1.25 “Regulated Information” means information of End Users, a Party, or other persons, in each case obtained in connection with the BSA, that constitutes “nonpublic personal information” or is otherwise subject to Privacy Laws.
1.26 “Unit Services” means Unit’s proprietary hosted software platform, application programming interfaces (“APIs”), software development kits (“SDKs”), and other services made available by Unit to Client and End Users in connection with the Banking Services, as set forth in the Client Services Agreement.
2.1 Banking Services.
(a) Provision of Banking Services. Bank Partner shall provide Banking Services to Client and End Users in accordance with the Banking Services Agreement and Applicable Law. The Parties acknowledge and agree that, as among the Parties, Bank Partner is and shall at all times be the Party providing the Banking Services. Client acknowledges and agrees that the Unit Services, including Unit’s obligations related thereto, are not part of the Banking Services and shall be governed by the Client Services Agreement.
(b) Unit as Service Provider to Bank Partner. Client acknowledges and agrees that: (i) Bank Partner has selected Unit to serve as a service provider to Bank Partner with respect to the provision of the Banking Services and to assist Bank Partner with the oversight of Client and End Users in connection with their marketing and use of the Banking Services; and (ii) in connection with such role, Bank Partner has appointed Unit as its agent to take such actions and exercise such rights as are permitted to Bank Partner under the BSA. Unless otherwise instructed in writing by Bank Partner, Client agrees to comply with all directions, requests, and guidance (including, without limitation, the Guides) of Unit acting in its capacity as service provider to and agent of Bank Partner as if Bank Partner itself had provided such direction or request, in each case subject to the ultimate authority of Bank Partner in its sole discretion. Unless the BSA expressly states otherwise, all references to Unit in the BSA shall be deemed to refer to Unit in its capacity as a service provider to Bank Partner and Bank Partner shall be entitled to directly exercise all rights and directly enforce all remedies of Unit set forth herein.
(c) Bank Oversight and Control. Client hereby acknowledges and agrees that: (i) except as otherwise expressly provided in the BSA and without modifying Client’s liability as set forth in the BSA and the CSA, Bank Partner shall have full control and continued oversight over the Banking Services and the manner in which those Banking Services are provided to End Users, including without limitation all policies, activities and decisions with respect to such Banking Services. Without limiting any provision set forth herein, it is the Parties’ intention that Bank Partner shall exercise principal oversight and control of Banking Services, including for purposes of the prepaid access rules promulgated by FinCEN, at 31 C.F.R. Part 1010. Client recognizes and acknowledges that, except as otherwise expressly provided in the BSA, Bank Partner shall retain decisional authority and control over Banking Services in all material respects, and that Client shall not implement any changes to any aspect of the Banking Services offered to End Users hereunder except as expressly stated herein. Except as otherwise provided in the BSA, Bank Partner shall have the final determination as to any changes that may be required or advisable with respect to the Banking Services.
2.2 Launch. Client may only make available the Banking Services to End Users in a production environment when Bank Partner has notified Client in writing that Client has met Bank Partner’s due diligence, onboarding, and launch requirements. Bank Partner may permit Client’s and End Users’ use of Banking Services for testing purposes on such conditions and with such limits as determined by Bank Partner.
3.1 Client and End User Accounts. Client authorizes Bank Partner to establish one or more accounts (each an “Account” and, collectively, the “Accounts”). Bank Partner will determine the Account structure, manage Account balances, and assign (or cause Unit to assign) Account and routing numbers, as appropriate given the type of Account. If and to the extent Bank Partner decides to hold Client and/or End User funds in an account in the Bank Partner’s name for the benefit of Client and/or End Users (“Master FBO Account”), Client acknowledges and agrees that the Master FBO Account will not be owned by Client, Unit, or any End User, titled in Client, Unit, or any End User’s name, or otherwise controlled by Client, Unit, or any End User. Bank Partner will hold and account for deposit Accounts to be eligible for FDIC insurance in accordance with Applicable Law (including FDIC insurance limits), either directly or on a pass-through basis, subject to, where applicable, Bank Partner’s receipt of the records necessary for the provision of FDIC insurance.
3.2 Operational and Reserve Accounts.
(a) Establishment of Accounts. Without limiting the generality of Section 3.1, Client authorizes Bank Partner to establish: (i) one or more Accounts to provide for reserves or similar purposes as required by the BSA and the applicable Product Terms (each, a “Reserve Account”); (ii) a revenue Account into which revenue due to Client under the BSA and the CSA will be deposited; and (iii) such other Accounts as set forth in the Product Terms.
(b) Minimum Balance. As a condition to Bank Partner providing the Banking Services and to Client making the Banking Services available to End Users, Client agrees (i) to fund each applicable Reserve Account with the initial Minimum Required Reserve Account Balance set forth in the BSA; and (ii) to maintain the required balance in each Reserve Account for the duration of the Term. After launch, the Minimum Required Reserve Account Balance will be equal to (x) the output of the Reserve Account formula applicable to Client plus (y) the sum of any Account Expenses then outstanding in all End User Accounts associated with Client (together, the “Minimum Required Reserve Account Balance”). Bank Partner may adjust the Reserve Account formula in its discretion based on the anticipated Account Expenses volume and other relevant risk factors. The implementation of additional Banking Services may require an increase to the Minimum Required Reserve Account Balance for one or more Reserve Accounts. Prior to any adjustment to the Reserve Account formula, Bank Partner will provide notice to Client with an explanation of the basis for such adjustment. More information on the Reserve Account and formula can be found in the Reserve Account Guide, available at https://guides.unit.co/reserve-account/. If at any time the Reserve Account balance falls below the Minimum Required Reserve Account balance, Client will within one (1) Business Day initiate a transaction to bring the Reserve Account balance to an amount no less than the Minimum Required Reserve Account balance. Client’s failure to maintain the required balance in the Reserve Account or to deposit funds in the Reserve Account as and when required by Bank Partner constitutes a material breach of the BSA.
(c) Security Interest. Client agrees that each Reserve Account is subject to the sole dominion, control and discretion of Bank Partner and acknowledges and agrees neither Client nor any other person claiming or acting on its behalf shall have any right to withdraw or make use of any amounts from a Reserve Account, except as expressly provided in the BSA. Client (i) grants to Bank Partner a security interest in each Reserve Account, over which Bank Partner hereby asserts control pursuant to the Uniform Commercial Code; and (ii) authorizes Bank Partner to deduct from such Reserve Account at any time and without prior notice the amount of any Account Expenses for which Client is liable in accordance with the BSA.
(d) Right of Setoff. In addition, Client acknowledges and agrees that Bank Partner has the right to apply funds in Client’s Account(s) to the payment of any other debt, obligation or liability owed to Bank Partner by Client in connection with the Banking Services or the BSA, now or in the future, regardless of the source of the funds in such Account(s), to the fullest extent permitted by law. If Bank Partner exercises this right of setoff, Bank Partner agrees to notify Client, provided that the failure to give such notice will not affect the validity of such setoff and application.
(e) Designated Account. Upon written request from Bank Partner, Client will associate at least one (1) bank account held at a third-party financial institution (“Designated Account”) with a Reserve Account or other Account, as applicable. Without limitation of any other remedies or relieving Client of its obligations, Client authorizes Bank Partner and Unit each to debit the Designated Account to cover any shortfall in the Reserve Account or remedy any nonpayment of Client’s obligations to Bank Partner and/or Unit under the BSA or CSA, as applicable. Client’s failure to have sufficient available funds in the Designated Account to fund the Reserve Account and meet its other obligations to Bank Partner and Unit as and when required constitutes a material breach of the BSA.
3.3 Negative Balances, End User Fraud, and Fraud Recovery. Client will be responsible for all losses and expenses of any kind incurred on behalf of or arising out of the Accounts including, without limitation, negative balances, unauthorized or erroneous transactions, Chargebacks, force-posted transactions, fraud, anticipated or received returned transactions, transaction reversals, unauthorized withdrawals or funds transfers, identity theft, failures to comply with the terms of applicable account agreement(s), and Funding Failures (collectively, “Account Expenses”), whether or not such Account Expenses are related to an activity initiated by Client, an End User, or a third party, except for any Account Expenses caused solely by the gross negligence or willful misconduct of Bank Partner. Bank Partner may, at its discretion, collect any Account Expense on any End User Account from Client’s Reserve Account or deduct such amount from revenue due to Client. Bank Partner is not required to seek repayment from any End User prior to collecting any negative balance from Client’s Reserve Account. Client agrees to coordinate with Bank Partner upon Bank Partner’s request concerning instances and levels of fraud, fraud or alleged fraud perpetrated by End Users on third parties, fraud mitigation measures, and the impact such measures have on End Users’ access to or use of the Banking Services.
3.4 Transaction, Exposure, and Account Limitations. Bank Partner will have the right to establish and may from time to time modify transaction, exposure, or other Account limitations, including without limitation maximum amounts or caps on credit, debit, ACH, or wire transaction volumes, settlement amounts or otherwise, or take other steps to control exposure to loss, damage or harm, for or arising out of the use by Client or any End User of the Banking Services (“Caps”). Caps may be established (a) as daily limits applicable to one or more Accounts; (b) across one or more time frames (including intraday); (c) based on transaction type or transaction volume in number or value; (d) related to Account Expenses; or (e) otherwise as determined by Bank Partner. Bank Partner will use commercially reasonable efforts to consult with Client regarding the Caps and will notify Client of changes to the Caps; provided that Bank Partner may institute or amend such Caps in its sole discretion if Bank Partner determines that such actions are necessary or advisable for risk management purposes or upon the request of any Governmental Authority. Caps will be in addition to and not in lieu of any limitations established by Applicable Law. If action by Client is required in connection with any Caps, Client agrees to comply with all applicable Caps for which Client has received notice.
3.5 Overdraft. Bank Partner may refuse to process any transaction request if the related Account does not have sufficient balance to cover the request. In the event that an Account has a negative balance for more than sixty (60) calendar days, or such other time period requested by any Governmental Authority or determined by Bank Partner, Bank Partner may freeze or close the Account. Bank Partner may elect to set off any negative balance in one End User Account with the positive balance of another Account of the same End User as permitted by Applicable Law and the applicable End User agreement(s) with Bank Partner.
3.6 Payment Cards. This Section 3.6 will apply if the Covered Banking Services include payment card services, including Debit Card Services or Charge Card Services. In the event of any conflict between this Section 3.6 and the Product Terms applicable to a specific payment card service, the applicable Product Terms shall control.
(a) Issuance of Payment Cards. Client will request the issuance of payment cards by Bank Partner via the Unit platform. Payment cards may be issued physically or virtually. Payment cards will be inactive until they are activated by the Client or End User, as applicable. Client agrees that payment cards may only be requested and issued in response to an oral or written request (including an electronic request submitted in compliance with Applicable Law) for the payment card by an End User, or as a renewal or substitution of a payment card previously issued to an End User, including replacements of payment cards reported as lost, stolen, or damaged. Client will not request a payment card to be issued on an unsolicited basis.
(b) Payment Card Orders. Following Client’s submission of a payment card request via the Unit platform and subject to Client’s compliance with the BSA, Bank Partner will, as applicable, issue the virtual card or coordinate with one or more third-party service providers to manufacture the applicable physical payment card, including printing and shipping to the address instructed by Client.
(c) Payment Card Disclosures and Designs. Client will be responsible for defining the art, design, and specifications of the payment cards to be delivered to End Users, subject to Bank Partner approval. All payment card designs, including logos, artwork, and written disclosures, must be submitted for prior review and approval by Bank Partner. Bank Partner reserves the right not to approve such materials if Bank Partner determines in its sole discretion that such designs or disclosures raise material financial, operational, regulatory or other risks for Bank Partner or Unit or do not comply with Applicable Law (including, for the avoidance of doubt, card network design standards) or the BSA or at the request of any Governmental Authority. Bank Partner will collaborate in good faith with Client in order for Client to make necessary modifications to such materials.
(d) Payment Card Fees. Client will be responsible for all costs associated with payment card issuance, including, without limitation, payment card design, manufacture, and mailing, including, without limitation, reorders for lost, stolen or fraudulent cards. Client agrees to fund such costs, including without limitation fees for additional cards, press proof fees (if Client desires press proofs) and inventory fees, in advance upon request by Bank Partner or Unit. Client will have the right to define whether any issuance fees and other applicable fees, such as mailing fees, will be paid by End Users, so long as such fees are charged in compliance with Applicable Law and are approved in advance by Bank Partner.
(e)Termination of Payment Cards. Client acknowledges that payment cards issued by Bank Partner (i) remain the property of Bank Partner and must be returned upon Bank Partner’s request and (ii) will be subject to cancellation at any time by Bank Partner, in accordance with applicable payment card user and account agreements, as required by Applicable Law or, on a case-by-case basis in Bank Partner’s discretion, including, without limitation, if Bank Partner determines, in its sole discretion, that an End User is or may be using the payment card for fraudulent, illegal, or suspicious purposes.
4.1 Implementation of the Banking Services.
(a) Design and Approval. Client is responsible for ensuring that each of the following is appropriate and sufficient for its implementation of the Banking Services on the Client Platform and complies with Applicable Law, Bank Partner requirements, and Client Policy Documents (as defined below). Client will provide each item to Bank Partner for Bank Partner’s prior approval.
(b) Implementation. Client is responsible for ensuring that its implementation of the Banking Services on the Client Platform is and remains consistent with the BSA (including the items set forth in Section 4.1(a)), the Client Policy Documents, and Applicable Law. Without limiting the generality of the foregoing, Client shall deliver End User Documentation to each End User, provide ongoing access to End User Documentation as required by Applicable Law, and otherwise comply with the Disclosures Guide, available at https://guides.unit.co/disclosures, and any instructions from Bank Partner regarding End User Documentation.
(c) Electronic Delivery of Documents. As part of the End User Documentation, Client shall provide required disclosures and obtain End Users’ consent to receive all End User Documentation electronically in accordance with the Electronic Signatures in Global and National Commerce Act and other Applicable Law.
(d) No Additional Terms or Fees. Client will not make any disclosures, statements, representations, or commitments to End Users about the Banking Services other than as part of the items approved by Bank Partner pursuant to Section 4.1(a). Client will not charge any fees to End Users in connection with the Banking Services, other than as set forth in Bank Partner-approved End User Documentation.
(e) Accuracy of Information. Client will ensure that all information it submits to Bank Partner is accurate and complete; provided that, for End User Data, Client’s obligation is limited to submitting information as provided by the End User. As between the Parties, Client is responsible for any error resulting from Client’s or End Users’ failure to provide accurate and complete information.
(f) Proposed Changes.
4.2 Complaints and End User Support.
(a) General. Client agrees that End User and third-party Complaints and other inquiries and support requests (collectively, “Support Requests”) and will be handled as set forth herein and in accordance with (i) the End User Support Guide, available at https://guides.unit.co/end-customer-support/; (ii) the Complaint Guide, available at https://guides.unit.co/complaints; (iii) the Disputes Overview Guide, available at https://guides.unit.co/disputes-overview/; and (iv) Bank Partner’s written instructions. The Parties agree to cooperate and coordinate in good faith to timely address all End User and third-party inquiries and Complaints in compliance with Applicable Law and the BSA.
(b) Responsibility for End User Communications and Support. Except as otherwise instructed by Bank Partner, Client is responsible for (i) maintaining customer support channel(s) described in Section 4.2(c); (ii) authenticating the identity of End Users; (iii) promptly logging all End User Complaints and Support Requests received by Client; (iv) investigating and resolving, or escalating, Complaints and Support Requests in accordance with Section 4.2(d) and the applicable Guides; and (v) promptly communicating to End Users the resolution of Complaints and Support Requests within the time period required by Applicable Law, provided that in the case of Complaints and Support Requests handled by Bank Partner or Unit, Client has received the information necessary to communicate with End Users prior to the expiration of such time period.
(c) End User Support. Prior to launch, Client shall implement one or more channels, satisfactory to Bank Partner, through which to receive Complaints and Support Requests. Client shall provide reasonable advance notice to Bank Partner of any material changes to the approved customer support channels.
(d) End User Complaints and Support Requests. As further set forth in the applicable Guides, Client’s role and responsibilities for investigating and resolving End User Complaints and Support Requests will vary based upon the nature of the issue, as follows:
(e) Third-Party Communications. Client shall provide Bank Partner and Unit with notice and a copy of any communication received by Client from any Governmental Authority, payment network, attorney or news media, or any other third party related specifically to the Platform Services (and, for the avoidance of doubt, not concerning the Client or Client Platform more generally) within one (1) Business Day of Client’s receipt. Client shall not respond to any such communication without first receiving Bank Partner’s prior written approval.
(f) Recordkeeping and Oversight. Client will maintain files regarding Complaints, Support Requests, and third-party communications containing, as applicable: (i) a copy or summary of the Complaint, Support Request, or other communication, including the date received; (ii) all correspondence to and from the End User or other third party; and (iii) a copy of the response(s) provided including, without limitation, all records required by Applicable Law. Subject to compliance with Applicable Law and reasonable prior notice to Client, Bank Partner may require Client to record calls with End Users and may review and oversee Client’s communications with End Users and other third parties; provided that, for the avoidance of doubt, these requirements shall not apply to Client’s interactions with End Users or communications that do not relate to the Platform Services. Client agrees to provide Bank Partner with information and records regarding Complaints, Support Requests, and third-party communications promptly upon request.
4.3 Marketing and Marketing Materials.
(a) Prior Review and Approval. Except as expressly set forth in Section 4.3(c), Client shall submit to Bank Partner in advance each proposed advertisement (including without limitation print, online, social media, television, radio, or podcast) and any other marketing materials (including without limitation brochures, telemarketing scripts, electronic web pages, electronic web links, websites, in-app messages, banner messages, and any other type of marketing material or interactive media) to be disseminated by Client or by any third party (including without limitation sponsored and promotional content) to market the Banking Services (collectively, “Marketing Materials”). Except as otherwise agreed in writing by the Parties, Client, at its sole expense, will be responsible for developing and proposing Marketing Materials for use in promoting and marketing the Banking Services. Client shall obtain Bank Partner’s prior written approval for all marketing channels and marketing partners to be used to market the Banking Services. Bank Partner shall use commercially reasonable efforts to review and approve or provide notice of disapproval and feedback on such Marketing Materials or marketing channel or partner within ten (10) Business Days of the date on which such request for review is submitted (or resubmitted) by Client. For the avoidance of doubt, Marketing Materials do not include Client advertisements or other marketing materials that do not concern the Banking Services and do not refer in any way to Bank Partner or Unit.
(b) Marketing Guidelines. Client is responsible for ensuring that Marketing Materials comply with Applicable Law, the Marketing Guide, available at https://guides.unit.co/marketing/, and any other marketing guidelines, policies, or other marketing-related instructions provided to Client by Bank Partner. Without limiting the foregoing, Client will ensure that all Marketing Materials clearly indicate that Banking Services are provided by Bank Partner, do not suggest that Client or Unit is providing the Banking Services, clearly indicate that Client is not a bank, and include any disclosures required by Bank Partner. Bank Partner will use commercially reasonable efforts to provide Client at least thirty (30) days’ prior notice of any changes to Bank Partner marketing requirements that add material new limitations to Client marketing, unless a shorter time is necessary in Bank Partner’s discretion or Bank Partner determines in good faith is necessary or appropriate to comply with Applicable Law or any Governmental Authority.
(c) Approved Marketing Materials. Upon approval by Bank Partner, Marketing Materials shall be deemed “Approved Marketing Materials.” Client may use Approved Marketing Materials and need not seek further approval for use of such forms unless there is: (i) a substantive change in the Marketing Materials, including, without limitation, a new offering to be included in the Marketing Materials; or (ii) a material change in the channel being used to distribute the Approved Marketing Materials; in which case Client shall submit such forms of Marketing Materials to Bank Partner for re-review and approval in accordance with these Banking Services Terms. Notwithstanding the above, Bank Partner reserves the right to withdraw approval for any Marketing Materials to the extent Bank Partner determines in good faith is necessary or appropriate to avoid a material risk of non-compliance with Applicable Law, to meet the instructions or expectations of a Governmental Authority, or if Bank Partner determines that such Marketing Materials could otherwise give rise to risk to Bank Partner.
(d) Responsibility for Marketing. As among the Parties, Client is the Party responsible for (i) marketing the Banking Services to End Users and all costs related thereto, including without limitation all costs associated with developing and disseminating Marketing Materials; (ii) ensuring that Marketing Materials, the methods used to disseminate Marketing Materials, and the collection and use of data for marketing purposes are accurate and comply with Applicable Law and the BSA; and (iii) ensuring that Client obtains necessary consents from and complies with any opt-outs by End Users. Regardless of any review or approval by Bank Partner, Client will be liable for all claims arising out of its marketing activities, including but not limited to claims relating to the use by Client or any Client subcontractor or vendor of any Marketing Materials or the conduct of any marketing campaign.
4.4 Activity Restrictions. Client shall not at any time, directly or indirectly, use, and shall not knowingly or recklessly permit any End User to use, the Banking Services for: (a) any illegal purpose or activity, including any activity that violates Applicable Law; or (b) any transactions or activities that are prohibited by the acceptable use policy of Bank Partner, as amended from time to time. Bank Partner shall use commercially reasonable efforts to provide reasonable prior written notice to Client with respect to any material changes to such policy. Client acknowledges and agrees that Bank Partner may decline to execute any transaction or permit any activity that Bank Partner in good faith determines may violate the terms of the BSA or Applicable Law, or otherwise if Bank Partner determines that such transaction could give rise to risk to Bank Partner.
4.5 Critical Vendors. Client shall obtain Bank Partner’s prior written approval of any Critical Vendor and any substantive change in the services to be performed by a Critical Vendor. Bank Partner shall have the right to conduct due diligence on any proposed Critical Vendors in its good faith discretion prior to granting written approval. Client shall notify Bank Partner in writing of any changes in Critical Vendors. Bank may require Client to stop utilizing any Critical Vendor Bank in good faith believes presents a risk of harm to Bank, Unit, or any End User.
4.6 Material Adverse Changes. Client shall promptly give written notice to Bank Partner of any material adverse change in the business, properties, assets, operations or condition, financial or otherwise, of Client or, to the knowledge of Client, any Critical Vendor, or any significant staffing changes that would affect Client’s ability to fulfill its obligations under the BSA. Client shall promptly notify Bank Partner of any action, suit, litigation, proceeding, facts and circumstances, and of all tax deficiencies and other proceedings before governmental bodies or officials affecting Client, and the threat of reasonable prospect of same, which (a) relate to the Platform Services, the BSA, or the CSA, (b) might give rise to any indemnification obligation hereunder, or (c) might materially and adversely affect Client’s ability to perform its obligations under the BSA or CSA.
4.7 Client Policy Documents. During the Term (including any transition or wind-down period as set forth in Section 8.6), Client will implement Policy Documents required by the BSA or the applicable Product Terms or as otherwise may be required by Bank Partner or (the “Client Policy Documents”). All Client Policy Documents (and any amendments thereto) must be approved in advance by Bank Partner. Client shall provide training to employees and third parties on requirements in the BSA, Client Policy Documents, and Applicable Law, including any trainings required by Bank Partner in writing. Client shall provide Bank Partner with a current copy of its Client Policy Documents upon request.
4.8 Records. Client shall maintain records of its activities pursuant to this Section 4 (including with limitation records demonstrating the delivery of End User Documentation and receipt of required End User consents and agreements; Complaint and End User support data as described in Section 4.2(f); records of Marketing Materials and marketing campaigns; Client Policy Documents, including monitoring, testing, and remediation of issues; fraud rules and fraud performance; and other records required in writing by Bank Partner), for at least five (5) years following the date such record was created or for such longer period as is required by Applicable Law. Client agrees to provide all applicable records to Bank Partner promptly upon Bank Partner’s request and in no event later than ten (10) Business Days following Bank Partner’s written request (or such shorter period when required by Bank Partner, a Governmental Authority, or Applicable Law). Client will promptly provide all records related to Banking Services upon request by Bank Partner upon the termination of the BSA.
5.1 Governmental Authorities. The Parties acknowledge and agree that: (a) any Governmental Authority having authority over Bank Partner or Unit may have the statutory authority to examine Client with respect to the activities performed by Client under the BSA; (b) such Governmental Authority may require the Parties to submit reports or provide information to such Governmental Authority regarding the Platform Services; (c) such Governmental Authority may require the Parties to modify the terms of the BSA or any other related agreement at any time; and (d) such Governmental Authority may impose any other requirements, conditions, requests, or recommendations that the Governmental Authority deems appropriate in connection with the BSA, in which case the Parties agree promptly to comply with such requirements, conditions, requests or recommendations including as further set forth in Section 5.3.
5.2 Reporting. Client will promptly respond to all requests received from Bank Partner or Unit for current and historical information and documentation concerning the Platform Services, including but not limited to information and documentation concerning the Client Platform, Client activities pursuant to the BSA, Client’s performance of its obligations hereunder, information required pursuant to Bank Partner’s third party risk management program, and other information Bank Partner determines is necessary or appropriate. In addition, Client will promptly (and in any event within ten (10) business days) notify Bank Partner in writing of any material adverse change in its financial condition; any actual or threatened investigation or action by any Governmental Authority or litigation that, if resolved adverse to Client, would cause Client to be in breach of the BSA or the representations and warranties set forth in Section 7; any issue (whether identified by Client or alleged by a third party) that would result in a violation of Applicable Law or the BSA; and any other material event that could adversely affect Client’s ability to perform its obligations under the BSA.
5.3 Examination of Client. Bank Partner (directly or through a third-party designee) shall have the right to audit or require a third-party audit or test of the books, records, operations, premises, security, and physical assets of Client related to the Platform Services and Client's performance of its obligations under the BSA (collectively, an “Audit”). Bank Partner will have the right to approve in good faith any third-party Audit provider proposed by Client. Client agrees to fully cooperate with any Audit and any activity by a Governmental Authority under Section 5.1 and to provide any information that may be requested in connection with such Audit or activity. Bank Partner agrees to conduct Audits during normal business hours and conduct or require each Audit no more than once per calendar year unless otherwise required by Applicable Law or any Governmental Authority or Bank Partner determines additional audits are necessary to prevent or mitigate imminent or actual harm to Bank Partner, Unit, or the Platform Services. Bank Partner will make commercially reasonable efforts to avoid undue disruption of Client’s business and will use commercially reasonable efforts to provide at least thirty (30) days’ advance written notice of any Audit. All Audits shall be performed at Client’s sole cost. Bank Partner shall invoice Client for Audit fees at actual cost, and shall not include any corporate allocations, administrative fees or mark-ups. Client will promptly remediate audit or testing findings or risks in a manner acceptable to Bank Partner in its reasonable discretion. Status updates regarding remediation progress will be periodically provided as requested by Bank Partner. Client shall prepare a written response to Bank Partner (an “Audit Response”) to all criticisms, recommendations, deficiencies, and violations of Applicable Law identified in reviews conducted by Bank Partner or any Governmental Authority (“Audit Findings”). The Audit Response shall be delivered to Bank Partner within thirty (30) days of Client’s receipt of such Audit Findings, unless directed otherwise by a Governmental Authority. The Audit Response shall include, at a minimum, a corrective action plan to address the Audit Findings that is reasonably acceptable to Bank Partner.
6.1 Purpose. The purpose of this Section 6 is to (a) ensure the Parties collect, maintain, safely store, and appropriately use End User Data to make available the Banking Services to End Users; (b) ensure that the Parties comply with applicable Privacy Laws and the Network Rules; and (c) otherwise set forth the Parties’ agreement with respect to the collection, use, storage, disclosure, and destruction of End User Data, including Regulated Information.
6.2 Privacy Notices and Consents. Client shall ensure that it provides necessary notices and obtains necessary consents required under Applicable Law for Bank Partner and Unit to collect End User Data and to use and share it pursuant to the terms set forth in the BSA. Privacy notices and consents shall be considered End User Documentation and shall be subject to the approval and other requirements of Section 4. All End User Data, including Regulated Information, collected or obtained in connection with the Banking Services shall be subject to Bank Partner’s privacy policy/privacy notice.
6.3 End User Relationship. The Parties acknowledge and agree that Client and Bank Partner each have a customer relationship with End Users with respect to the Banking Services. Bank Partner and Client acknowledge that the other Party may provide products or services to individuals and entities that are End Users independently of the Banking Services and may collect information from or about such individuals or entities in connection with such other products and services. Each Party agrees that information provided to or obtained by it, other than in connection with the provision of Banking Services, does not constitute End User Data or Regulated Information, even if the content of such information overlaps with or is identical to End User Data or Regulated Information. Nothing in the BSA shall govern any independent relationship a Party has with an individual or entity who is also an End User, and neither Party shall have any liability arising from the other Party’s independent relationships or activities with an individual or entity that is also an End User.
6.4 Restrictions on Use of End User Data. Each Party may receive, use, and disclose End User Data (a) as necessary to exercise its rights and carry out its obligations under the BSA; and (b) for analytics and conducting quality assurance, fraud detection and compliance-related activities, risk assessment and monitoring, product and service enhancements, and other uses permitted under Applicable Law and such Party’s applicable privacy policy. Notwithstanding the foregoing, (x) the Parties agree not to sell Regulated Information; (y) Bank Partner agrees not to use End User Data provided by Client for marketing to End Users; and (z) Client agrees not to enter into any agreement with any third party that purports to give rights to such third party that are inconsistent with Bank Partner’s rights hereunder and not to disclose Regulated Information to any third party unless such party has entered into a written contract that commits it to restrict its use of and protect the Regulated Information in a manner similar to the BSA. Nothing in the BSA shall restrict Bank Partner from marketing to End Users provided that Bank Partner does not use End User Data provided by Client for such purpose.
6.5 Appropriate Safeguards. Client agrees to establish and maintain appropriate administrative, technical and physical safeguards designed to (i) protect the security, confidentiality and integrity of the Regulated Information; (ii) ensure against any anticipated threats or hazards to its security and integrity; (iii) protect against unauthorized access to or use of such information or associated records which could result in substantial harm or inconvenience to any End User or applicant; and (iv) ensure the proper disposal of Regulated Information (collectively, the “Information Security Program”). At all times during the Term, (x) Client shall use at least the same degree of care in protecting the Regulated Information against unauthorized disclosure as it accords to its other confidential customer information, but in no event less than a reasonable standard of care; and (y) the Information Security Program shall be in compliance with all information and data security requirements under Applicable Law, as the same may be revised from time to time.
6.6 Data Encryption and Storage. Client will maintain commercially reasonable, industry standard data encryption policies and controls governing the storage and transmission of data, tapes, images, recordings, and records maintained, produced, or received by Client in connection with the Platform Services. Client will store Regulated Information only at geographically distributed, secure data centers located in the United States provided by Amazon Web Services, Google Cloud, Microsoft Azure, or another major U.S. cloud services provider or at other data center(s) approved by Bank.
6.7 Client Security Assessment Obligations. Within ten (10) calendar days of Bank Partner’s or Unit’s written request, Client will provide a copy of any existing information security policies, certifications, assessments, findings, and reports as well as the results of any internal or third-party security audits and penetration tests. On an annual basis, Client will engage at Client’s sole cost a reputable third party acceptable to Bank Partner to perform an independent security assessment of Client’s information technology environment related to the Platform Services, including penetration testing. The results of the assessment, or a summary thereof with such detail as Bank Partner or Unit may request, will be delivered to Bank Partner and Unit promptly upon receipt of a final report or summary from the third party, along with action plans created to address any cited deficiencies. Client will promptly remediate security findings or risks in a manner acceptable to Bank Partner and Unit in their reasonable discretion. Status updates regarding remediation progress will be periodically provided as requested by Bank Partner or Unit. If the risk is not addressed in a mutually agreed upon time period as determined by Bank Partner and Unit, or if Bank Partner or Unit determines in good faith that such risk poses an immediate threat of material harm to Bank Partner, Unit, Client, or the Platform Services, Bank Partner and Unit may suspend the Client’s access to some or all of the Platform Services until such risk is remediated to Bank Partner’s and Unit’s satisfaction, at which time Unit will promptly reinstate Client’s access.
6.8 Security Incidents.
(a) Action and Notification. In the event a Party suffers, or has knowledge that a Critical Vendor or subcontractor to such Party has suffered, an unauthorized access (the “Accessed Party”) to Regulated Information (a “Security Incident”), the Accessed Party will notify the other Parties (the “Non-Accessed Parties”) in writing as soon as reasonably practicable, but in no event later than forty-eight (48) hours (or such shorter timeframe if required under Applicable Law), after a Security Incident is discovered by the Accessed Party unless prohibited by law, regulation, or express government order or directive. Such notification will include, to the extent known at the time of such notice and unless otherwise prohibited by law, regulation or express governmental order or directive, (i) a description of the facts and circumstances surrounding the Security Incident and the known effects thereof on the Non-Accessed Parties; (ii) Regulated Information that was subject to the Security Incident; and (iii) the corrective actions taken or to be taken by the Accessed Party in response to the Security Incident. In the event of any Security Incident, the Accessed Party will promptly use its best efforts to prevent a recurrence of any such Security Incident.
(b) Cooperation. The Accessed Party agrees to cooperate in good faith with the Non-Accessed Parties in handling the matter, including, without limitation, assisting with any investigation and (unless prohibited by Applicable Law) making available records, logs, files, data reporting and other materials reasonably requested by another Party or required to comply with Applicable Law.
(c) Disclosure. Unless otherwise prohibited by law, regulation or governmental order or directive, as required by an applicable industry security organization (e.g., the Payment Card Industry Security Council) or the applicable Governmental Authority having jurisdiction over the Accessed Party, the Accessed Party may disclose information regarding any such incident to such organization and such authority. Bank Partner shall have final approval over any notice to End Users regarding a Security Incident, such approval not to be unreasonably withheld, conditioned, or delayed.
7.1 Proprietary Rights. As between the Parties, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Platform (“Client IP”) and Bank Partner owns all right, title, and interest, including all intellectual property rights, in and to, or has a license or right to use all intellectual property incorporated into, the Banking Services (“Bank Partner IP”). Solely to the extent required to fulfill their obligations under the BSA, during the Term of the BSA, Client and Bank Partner each grant to the other a limited, non-exclusive royalty-free, non-transferable license to use such intellectual property made available by the other Party solely in the performance of and strictly in accordance with the requirements and restrictions stated in the BSA and as directed by the provider of such intellectual property. Nothing in the BSA shall grant or be deemed to grant to any Party any right, title or interest in (a) any intellectual property licensed to that Party by the other Party; or (b) Unit’s intellectual property rights in and to the Unit Services (“Unit IP”).
7.2 Confidentiality.
(a) Confidential Information. During the Term, each Party may disclose or make available to one or more of the Parties (each, a “Receiving Party”) information about its business affairs, products, intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (i) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (ii) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (1) in the public domain; (2) known to the Receiving Party; (3) rightfully obtained by the Receiving Party on a non-confidential basis from a third party; or (4) independently developed by the Receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information. The Receiving Party will take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials) and will not disclose the disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees, contractors, vendors, and agents who have a need to know the Confidential Information in order for the Receiving Party to exercise its rights or perform its obligations under the BSA and who are under a duty of confidentiality that is equivalent to or stronger than the requirements set forth in this Section 6.2 (“Representatives”). The Receiving Party will be responsible for all the acts and omissions of its Representatives with respect to another Party’s Confidential Information.
(b) Exceptions. Notwithstanding the foregoing, each Party may disclose Confidential Information of another Party (the “Disclosing Party”) to the limited extent required: (i) in order to comply with the order of a Governmental Authority, or as otherwise necessary to comply with Applicable Law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the Disclosing Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under the BSA and these Banking Services Terms, including to make required court filings. Further, notwithstanding the foregoing, each Party may disclose the terms and existence of the BSA to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms. On the expiration or termination of the BSA, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of the BSA; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under Applicable Law), such obligations of non-disclosure and safeguarding will survive the termination or expiration of the BSA for as long as such Confidential Information remains subject to trade secret protection under Applicable Law.
8.1 Mutual Representations. Each Party represents and warrants (a) it has been duly formed and is in good standing in the state of its organization and is qualified to do business in the states where such qualification is required; (b) the BSA constitutes its legal, valid, binding, and enforceable agreement; and (c) execution and performance of the BSA by it: (i) does not breach any agreement of such Party with any third party, or any duty arising in law or equity; (ii) does not violate any law, rule, or regulation applicable to it; (iii) is within its organizational powers; and (iv) has been authorized by all necessary action of such Party.
8.2 Client Representations. Client further represents and warrants (a) it has all necessary rights and consents to provide End User Data to Bank Partner and Unit in accordance with the BSA; (b) neither it nor any of its officers or directors are under any federal or state restriction preventing it from using, maintaining, accessing, making available, or participating in the Platform Services; (c) neither it nor any of its officers or directors is under any federal, state, or foreign governmental investigation for fraud, misconduct, dishonesty, breach of trust, money laundering, or other violations of Applicable Law; (d) neither it nor its officers or directors have been convicted of any crime of fraud, misconduct, dishonesty, breach of trust, or money laundering; (e) in the performance of its obligations under the BSA it will comply with Applicable Law; (f) all instructions issued by such Client in connection with the Platform Services are duly authorized and may be relied upon by the receiving Party in performing its obligations or exercising its rights hereunder without verification; (g) it has obtained and now holds, and at all times during the Term, will continue to hold, all licenses, permits, certifications, approvals, permissions, authorizations and the like which are required under Applicable Law in the performance of its obligations under the BSA, and each remains and will remain valid and in full force and effect; (h) to the best of its knowledge and belief, all records and materials provided by Client to Bank Partner as part of Bank Partner’s initial or ongoing due diligence and oversight or in connection with Bank Partner’s provision of the Banking Services are true and correct in all material respects; and (i) unless otherwise disclosed by Client to Bank Partner in writing, Client is not a “money services business” as such term is defined in 31 C.F.R. § 1010.100(ff).
8.3 Warranty Disclaimer. EXCEPT AS OTHERWISE SET FORTH IN THE BSA, THE BANKING SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATION OF WARRANTY, WHETHER EXPRESSED, IMPLIED OR STATUTORY. THIS DISCLAIMER OF WARRANTY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
9.1 Initial and Renewal Terms. The initial term of the BSA begins on the Effective Date and, unless terminated earlier pursuant to the express provisions of the BSA, will continue in effect for the period identified in the BSA (the “Initial Term”). The BSA will automatically renew for additional terms as set forth in the BSA unless earlier terminated pursuant to express provisions of the BSA or any Party gives the other Parties written notice of non-renewal as set forth in the BSA (each a “Renewal Term”). The Term of the BSA (the “Term”) shall include the Initial Term, any Renewal Term(s), and such time as the Parties require to complete all transition or wind-down activities as set forth in this Section 9.
9.2 Suspension. Notwithstanding anything to the contrary in the BSA, Bank Partner may temporarily suspend Client’s and/or any End User’s access to or use of any portion or all of the Banking Services, cease opening new End User Accounts, close End User Accounts, and/or freeze Client Accounts or End User Accounts or funds, in each case as applicable, if: (a) Bank Partner reasonably determines that (i) there is a threat or attack on any of the Bank IP or Unit IP; (ii) Client’s or any End User’s use of the Platform Services disrupts or poses a security risk or other risk of imminent harm to Unit, Bank Partner, their respective affiliates or any other client or vendor of Unit or Bank Partner; (iii) Client suffers a Security Incident which has not yet been remediated to Bank Partner’s satisfaction; (iv) Client, or any End User, is using the Platform Services for activities that Bank Partner concludes in good faith are likely fraudulent, illegal or otherwise prohibited by the BSA; (v) subject to Applicable Law, Client has ceased business operations in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (vi) Bank Partner concludes in good faith that suspension is necessary or appropriate to maintain safe and sound banking practices, prevent a material risk of violating Applicable Law, or protect Bank Partner from material risk of reputational harm, material compliance risk, material litigation risk, or material risk of adverse supervisory findings or regulatory action; or (vii) any data submitted, posted, or otherwise transmitted by or on behalf of Client or an End User may infringe or otherwise violate any third party’s intellectual property or other rights; or (b) Client is in material breach of the BSA (any such suspension described above, a “Service Suspension”). Bank Partner shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Banking Services following any Service Suspension. Bank Partner shall use commercially reasonable efforts to resume providing access to the applicable Banking Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured, as determined by Bank Partner in its reasonable discretion. Bank Partner and Unit will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client, any End User, or other third party may incur as a result of a Service Suspension.
9.3 Mutual Termination Rights. Any Party may terminate the BSA if (a) required or directed by any Governmental Authority; (b) another Party fails to cure a material breach of its obligations under the BSA within thirty (30) days following written notice thereof; (c) upon the termination of the CSA; or (d) upon the commencement by another Party or by any person or entity against the other Party of any proceeding or filing of any petition seeking relief under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, liquidation or similar law, application for or consenting to the appointment of a receiver, trustee, custodian, sequestrator or similar official for such Party or for a substantial part of its property or assets, a general assignment for the benefit of creditors, or taking corporate action for the purpose of effecting any of the foregoing.
9.4 Termination by Bank Partner. Bank Partner may terminate the BSA if (a) Client experiences a Change of Control or materially changes its business and, as a result, Bank Partner determines in good faith that Client no longer meets Bank Partner’s underwriting or due diligence requirements; (b) Bank Partner’s board of directors determines in good faith that the continued performance by Bank Partner of its obligations under the BSA (individually or in combination with other programs) is not consistent with safe and sound banking practices, presents a material risk of violating Applicable Law, or exposes Bank Partner to material risk of reputational harm, material compliance risk, material litigation risk, or material risk of adverse supervisory findings or regulatory action; (c) due to a change in Applicable Law that materially and adversely affects the Platform Services or Bank Partner’s ability to perform its obligations or exercise its rights hereunder; or (d) Bank Partner becomes liable for any loss not covered by available funds in Client’s Reserve Account, Client’s indemnification obligations, or any insurance policies required under the BSA, in each case following notice from Bank Partner to Client and Client’s failure to cure in a manner and within a reasonable period determined by Bank Partner. In determining the reasonable cure period, Bank Partner may consider the nature of the issue, Client’s ability to cure, the severity and immediacy of the risk to Bank Partner, and any requirements arising under or imposed by Applicable Law, a Governmental Authority, or as part of the supervisory process.
9.5 Transition; Transition Assistance.
(a) Upon any termination or expiration of the BSA, the Parties will cooperate in good faith to close all End User Accounts and wind down the Banking Services. The Parties acknowledge that a wind down of the Banking Services may (but will not necessarily) also include a wind down of the Unit Services.
(b) Provided that Client is not in material breach of the BSA, and where not prohibited by a Governmental Authority, the Parties will cooperate in good faith to agree on a transition and wind down plan (“Transition Plan”) including, at Client’s request, a plan to transition the Banking Services to an alternative bank or platform ( “Successor Platform”). The Transition Plan shall be subject to Bank Partner’s approval, which approval shall not be unreasonably withheld, conditioned, or delayed. Unless otherwise agreed by Bank Partner, all End User Accounts will be closed no later than ninety (90) days following the end of the Initial Term, the Renewal Term, or the effective date of a termination notice, as applicable. The transition period will continue for an additional period sufficient to resolve any End User Complaints and Support Requests in accordance with Applicable Law, to be set forth in the Transition Plan.
(c) During the transition period and until all wind down activities have been fully completed, each Party shall continue to perform its obligations under the BSA and will perform additional activities set forth in the Transition Plan.
(d) Client is responsible for its fees and costs and all reasonable fees and costs incurred by Bank Partner and Unit to transition to a Successor Platform, close End User Accounts, and wind down the Platform Services; provided that Bank Partner and Unit agree to use good faith and commercially reasonable efforts to control such costs and expenses. Bank Partner and Unit agree to invoice costs and expenses at actual cost, without any corporate allocations, administrative fees or mark-ups. The Parties acknowledge and agree that any amounts remaining in Client’s Accounts, including the Reserve Account, at the conclusion of all wind down activities and after settlement of all amounts owed by Client to Bank Partner may be used in Unit’s discretion to offset any amounts then owed by Client to Unit.
10.1 Indemnity. Client will indemnify, defend and hold harmless Bank Partner, including its directors, officers, shareholders, employees, affiliates, and agents, from and against any and all third-party proceedings, claims, demands, causes of action, damages, fines (including those imposed by any network, payment platform, or Governmental Authority), reasonable expenses (including reasonable attorneys’ fees and other legal expenses), liabilities, harm or other losses of any third party (“Indemnified Losses”) that result from or arise out of: (a) any breach by Client of its obligations under the BSA; (b) Client’s operation of its business or products or services offered by Client, including the Client Platform; (c) any agreement between Client and any End User, including any breach thereof by Client or End User; (d) noncompliance with, or violation of, any Applicable Law by Client, Client Critical Vendor or subcontractor, or End User; and (e) any Account Expenses that exceed or are not covered by the current Reserve Account balance. The foregoing will not apply to the extent an Indemnified Loss is caused by (1) the gross negligence or willful misconduct of Bank Partner or (2) Bank Partner’s material breach of its representations, warranties, or other obligations hereunder.
10.2 Limitation of Liability. UNLESS OTHERWISE AGREED IN WRITING BY BANK PARTNER OR PROHIBITED BY APPLICABLE LAW, WITHOUT LIMITATION THE CUMULATIVE AND AGGREGATE LIABILITY OF BANK PARTNER TO CLIENT FOR ALL LOSS, DAMAGE OR OTHER HARM ARISING OUT OF OR IN CONNECTION WITH THE BSA WILL NOT EXCEED THE REVENUE EARNED BY BANK PARTNER IN CONNECTION WITH THE BANKING SERVICES DURING THE TWELVE (12) CALENDAR MONTHS IMMEDIATELY PRECEDING THE CALENDAR MONTH IN WHICH SUCH LOSS, DAMAGE, OR OTHER HARM WAS INCURRED. NOTWITHSTANDING THE ABOVE, IN THE EVENT SUCH LOSS, DAMAGE, OR OTHER HARM ARISES FROM BANK PARTNER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THEN THE CUMULATIVE AND AGGREGATE LIABILITY OF BANK PARTNER WILL BE UNCAPPED. In no event shall any Party be liable under the BSA under any theory of tort, contract, strict liability or other legal or equitable theory for any lost profits, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the Parties regardless of whether the Party has been advised of the possibility of such damages.
10.3 Insurance. Client shall maintain during the Term comprehensive general liability insurance policies and other insurance policies of the type and in the amounts as set forth in the BSA; provided that Bank Partner may require Client to obtain increased coverage if Bank Partner (a) determines in its reasonable discretion that existing insurance requirements are inadequate based on Client’s size, risk profile, number of End Users, or applicable industry standards; (b) is required to do so by Applicable Law or any Governmental Authority or (c) determines increased coverage is necessary to prevent or mitigate imminent or actual harm to Bank Partner.
11.1 Governing Law. The BSA shall be governed by Delaware law (without regard to conflicts of law provisions). Each Party hereby submits to the jurisdiction of the United States District Court for the District of Delaware and any Delaware state Court sitting in New Castle County, Delaware for purposes of all legal proceedings arising out of or relating to the BSA or the transactions contemplated hereby. Each Party irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such proceedings brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. Each Party hereby consents to process being served in any suit, action or proceeding with respect to the BSA by the mailing of a copy thereof by registered or certified mail, postage prepaid, return receipt requested, to its respective address specified at the time for notices under the BSA or to any other address of which it shall have given written notice to the other party.
11.2 Arbitration. Any dispute which cannot otherwise be resolved informally will be resolved by arbitration (to be held in English) conducted in accordance with the Comprehensive Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”), and judgment upon the award rendered by the arbitration tribunal may be entered in any court having jurisdiction thereof, provided however, that each Party will have a right to seek injunctive or other equitable relief in a court of law in accordance with the provisions of this Section 11. The prevailing Party will be entitled to receive from the non-prevailing Party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing Party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. The Parties hereby consent to the arbitration in New Castle County, Delaware.
11.3 Equitable Relief. Each Party retains the right to seek judicial assistance: (a) to compel arbitration; (b) to seek temporary injunctive relief in any court with jurisdiction over the Party against which the relief is sought (with such relief to extend only until the propriety of permanent relief can be decided by the arbitrator); (c) to obtain other interim measures of protection prior to or pending arbitration; and (d) to enforce any decision of the arbitrator, including the final award. Judicial assistance pursuant to this subsection may be sought in and of the courts located in the courts of the State of Delaware and the United States District Court located in the District of Delaware (and for purposes of provisions (b) and (c) exclusively in such courts), and the Parties submit to the jurisdiction thereof. Equitable relief will be granted without the requirement of posting a bond.
11.4 Jury Waiver. BY AGREEING TO THE ARBITRATION PROVISIONS IN SECTION 11.2, EACH PARTY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THE BSA AND AGREES THAT ANY SUCH DISPUTE SHALL NOT BE TRIED BEFORE A JURY.
11.5 Assignment. The BSA is binding upon, and inures to the benefit of, the Parties hereto and their respective successors and assigns; provided, that Client may not assign, transfer, convey, appoint an agent, license, sub-license, or resell its rights or obligations under the BSA, or any interest, payment, or rights hereunder, without the prior written consent of Bank Partner, which consent, in the event of an assignment by Client to a successor in connection with a change of control, shall not be unreasonably withheld, conditioned, or delayed. Any assignment made by Client without the prior written consent of Bank Partner is void and of no effect.
11.6 Press Releases; Public Announcements. Bank Partner and Client agree to obtain prior written approval for any media releases, public announcements, or public disclosures by such Party or its affiliates (or their respective representatives, employees, or agents) that refers to the other Party or refer or relate to the BSA or the Banking Services. Except as explicitly provided in the BSA, Bank Partner and Client must obtain prior written approval from the other Party to list the other Party as a customer or service provider or display the other Party’s logo. Notwithstanding the above, no such prior approval shall be required for any disclosure mandated by legal, accounting, or regulatory requirements.
11.7 Further Assurances. Each Party hereto agrees to execute and deliver such instruments and agreements, and take such actions, as the other Party hereto may, from time to time, reasonably request to effectuate the purposes and carry out the terms of the BSA.
11.8 Exercise of Discretion. The Parties acknowledge that Banking Services are highly regulated and that Bank Partner is obligated to act in a manner that complies with Applicable Law, meets regulatory expectations, and protects the Bank Partner’s safe and sound operations. Client agrees that actions taken by Bank Partner in good faith to achieve these obligations shall be considered reasonable. It is expressly understood that Bank Partner's exercise of review and approval discretion under the BSA shall be for Bank Partner’s own independent purposes, and the same shall not constitute a certification to Client of any kind. Bank Partner’s approval shall not relieve Client of its independent or exclusive obligations hereunder to comply with Applicable Law.
11.9 Force Majeure. If a Party is rendered wholly or partly unable to perform its duties under the BSA by a force outside its control (“Force Majeure Event”), that Party shall give prompt written notice of that fact to the other Parties. The affected obligations of the notifying Party shall be suspended without causing a breach or default so long as that Party remains unable to perform for that reason. The notifying Party shall exercise best efforts to timely resume performance. If the Force Majeure Event continues for a period of ten (10) Business Days or longer, a Party whose performance is not prevented may terminate the BSA without opportunity to cure, upon notice to the other Parties, and the terminating Party will incur no financial penalty to the nonperforming Party due to such termination.
11.10 Severability and Waiver. If any portion of the Banking Services Agreement is stricken as invalid, the remaining portions shall remain in full force and effect. Failure of any Party to exercise any of its rights in a particular instance shall not be construed as a waiver of those rights or any other rights for any purpose.
11.11 Interpretation and Headings. References to Applicable Law refer to Applicable Law as in effect from time to time and include any successor statute or regulation or rule. The section headings in the BSA and these Banking Services Terms are solely for convenience and may not be used for purposes of interpretation. The BSA is a service agreement, and, unless otherwise specifically indicated, the provisions of the Uniform Commercial Code do not apply to it.
11.12 Amendment. The BSA may be amended (and new Covered Banking Services may be added) only by a writing signed by all Parties. Notwithstanding anything contrary herein, the Product Terms may be amended at any time by Bank Partner and Unit. If the Product Terms are amended, Bank Partner or Unit will provide notice to Client by posting the modified Product Terms to the Unit website, or through other communications. If Client continues to use the applicable Covered Banking Service after receipt of such notice, Client agrees to be bound by the modified Product Terms.
11.13 Relationship of Parties. Except as expressly set forth herein, nothing in the BSA shall constitute or create a partnership, joint venture, agency, or other relationship between the Parties. To the extent any Party undertakes or performs any duty for itself or for the other Parties as required by the BSA, the Party shall be construed to be acting as an independent contractor. The BSA is not intended to confer any right or benefit on any third party. No action may be commenced or prosecuted against a Party by any third party claiming as a third-party beneficiary of the BSA, the Platform Services, or any associated transactions.
11.14 Notices. Any notice under the Banking Services Agreement shall be in writing and delivered personally, by nationally-recognized overnight delivery service, by prepaid registered or certified mail, addressed to the address first set forth below or at such other address as a Party may from time to time designate, or by e-mail or other electronic communication. Notice is deemed delivered on: (i) the date of actual service; (ii) the Business Day after delivery of overnight delivery; or (iii) the date of delivery via registered or certified U.S. mail, e-mail or electronic communications with receipt confirmed. A Party may at its option use electronic communications to provide the other Party with any other information, statement, disclosure or other data. Notice shall be delivered to the respective Parties at the addresses set forth in the BSA or such other address as the Party provides in writing to the other Parties from time to time.
11.15 Counterparts. The BSA may be executed and delivered (including by electronic technology such as portable data file (PDF) signature or DocuSign transmission) in one or more counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
11.16 Survival. Notwithstanding anything contained in the Banking Services Agreement to the contrary, all of Client’s and Bank Partner’s respective obligations, representations and warranties under the Banking Services Agreement which are not, by their express terms, fully to be performed while the Banking Services Agreement are in effect, shall survive the termination of the Banking Services Agreement for any reason. In addition, and without limitation, provisions shall survive where necessary to give effect to their meaning shall survive termination of the Banking Services Agreement.
