This agreement (Agreement) explains the current terms and conditions of the Bill Pay service, which is provided by MVB Bank, Inc. (Bank, we, us, and our), a West Virginia state-chartered bank, FDIC Insured, to the Customer named in the “Bill Pay Enrollment and Certification of Beneficial Ownership” (Customer, you, and your). Please read this Agreement carefully and keep a copy for your records. If you have any questions, please contact us. THE SERVICES ARE INTENDED FOR COMMERCIAL ACCOUNTS ONLY AND NOT FOR PERSONAL, FAMILY, OR HOUSEHOLD USES.
1. ACCEPTANCE OF THIS AGREEMENT
You accept this Agreement and consent to all of the terms and conditions set forth if you expressly accept this Agreement electronically or in writing, use any Services provided under this Agreement, or do not cancel your access to all Services within 30 days of receiving any Service. You may, however, reject the “Arbitration” section as explained below.
2. CHANGES TO THIS AGREEMENT
We may change the terms of this Agreement, including fees and charges for the Services, from time to time, which may include adding, modifying or deleting any term to this Agreement. If required by law, we will give you advance written notice of the change(s) and/or a right to reject the change(s). Oral modifications to this Agreement are not permitted.
3 .THE BILL PAY SERVICES
When using the Services, you will have the ability to approve payments of bills and/or invoices through the Platform. Such approvals
must be made through the Platform on a Business Day, and prior to the established cut- off time for such Business Day (the Cut-Off Time), to count as being made that day. Any approvals that are made on a day other than a Business Day, or after the Cut-Off Time for such Business Day, will be treated as if made the following Business Day. The applicable Cut-Off Time is 5:00 pm Eastern Standard Time for the Platform and next to the Platform’s payment funding button. Each Business Day, all payment approvals deemed as received during the Business Day will be totaled and the total amount of such payments will be transferred from the designated Payment Account(s) to an account owned by Bank. This account will only be used for funding payment transfers pursuant to the Services.
Bank will then transfer each approved payment to the designated Payee, subject to the terms and conditions of this Agreement. Funds generally will be delivered to a Payee within eight (8) Business Days from when payment is withdrawn from the Payment Account. Notwithstanding any other term in this Agreement, we may in our sole discretion choose to impose limits on the amount or frequency of payments, delay or cancel any payment, or suspend your ability to make payments using the Services.
4 .THE PAYMENT ACCOUNT
To use the Services, you must provide us with access to a Payment Account and link that Payment Account to the Services using the Platform. Any Payment Account that you provide for use with the Services must be an account that is used solely for business or commercial purposes and is not used for any personal, family, or household purposes. By providing an account as a Payment Account, you are representing to us that the Payment Account is solely used for business or commercial purposes. You further represent that you may authorize transactions from such Payment Account without the consent or approval of any other person. Your access to and use of the Services is conditioned on compliance with this provision, and you agree that neither Bank nor Service Provider will have any liability for any reason if you are not in compliance with this provision. The Services are only for business or commercial payments from a business account.
5 .PAYMENT AUTHORIZATION
By approving or otherwise initiating a payment through the Services, you authorize Service Provider to provide instructions to Bank to initiate and complete such payment on your behalf. In order to process payments more efficiently and effectively, Bank may edit or
alter payment data or data formats in accordance with Payee directives. When you provide instructions using the Services, you are authorizing Bank to initiate an electronic funds transfer, or other payment method chosen by Bank, from your designated Payment Account in the amount specified in the approval or other payment instructions. You are solely responsible for complying with any terms set by the financial institution holding your Payment Account, including any fee terms, such as non-sufficient fund or overdraft fee terms. If you are entitled to a reversal, refund, or other adjustment associated with a payment made using the Services, you also authorize Service Provider and Bank to credit your Payment Account to complete that transaction. The Services will use its best efforts to make all your payments properly. However, Bank shall incur no liability if the Services are unable to complete any payments initiated by you because of the existence of any one or more of the following circumstances: (a) if, through no fault of the Services, your Payment Account does not contain sufficient funds to complete the transaction or the transaction would exceed the credit limit of your overdraft account; (b) the payment processing service center is not properly working and you know or have been advised by the Services about the malfunction before you execute the transaction; (c) you have not provided the Services with the correct Payment Account information or the correct name, address, phone number, or account information for the Payee; and/or (d) circumstances beyond control of Bank prevent the proper execution of the transaction and the Services have taken reasonable precaution to avoid those circumstances. Provided none of the foregoing exceptions are applicable, if the Services causes an incorrect amount of funds to be removed from your Payment Account or causes funds from your Payment Account to be directed to a Payee which does not comply with your payment instructions, the Services shall be responsible for returning the improperly transferred funds to your Payment Account. No party shall be liable for consequential or indirect damages.
6. PAYMENT METHODS
We may, in our sole discretion, select any payment method to transfer funds on your behalf to a payee or between you and Bank. These payment methods may include, without limitation, use of a virtual card or other transaction through a payment card network; an automated clearing house (ACH), wire, or other electronic funds transfer; or a check or draft. To the extent that ACH transactions are used, you agree to be bound by the NACHA Operating Rules.
7. PROHIBITED PAYMENTS
By entering into this Agreement, you certify that you are at least 18 years of age or older. You are prohibited from using the Services to make payments to anyone outside of the United States; to make payments that would facilitate illegal conduct or that involve funds derived from illegal conduct; to make payments for amounts not associated with a bill or invoice from the designated Payee; to breach any agreement to which you are bound; to engage in any internet or gambling transactions whether or not gambling is legal in any applicable jurisdiction; to engage in any activity or business that would result in you being or becoming a “money services business” as defined in the Bank Secrecy Act and its implementing regulations; to make payments from a Home Equity Line of Credit (HELOC) account; to engage in any transaction or activity that is not specifically authorized and permitted by this Agreement; and to make payments for any purpose other than a business or commercial purpose. You agree that you will not use the Services to make payments for any personal, family, or household purpose and will only use the Services for commercial or business purposes. You acknowledge and agree that Bank has no obligation to monitor your use of the Services for transaction and activity that is impermissible or prohibited under the terms of this Agreement; provided, however, that Bank reserves the right to decline to execute any transaction or activity that Bank believes violates the terms of this Agreement.
You represent to Bank and Service Provider that you have performed appropriate due diligence on any Payee or other person to which payments using the Services are requested and that you are not relying on any “know your customer” or other due diligence performed by Bank or Service Provider. You acknowledge that neither Bank nor Service Provider are responsible for any illegality that may arise due to a payment made using the Services and you assume all responsibility for such payments. You will indemnify Bank and Service Provider for any loss that either might incur because a Payee you have chosen is associated with any illegal activity. We may choose, in our sole discretion, to limit, suspend, or refuse to make payments to any Payee or other person to which payments using the Services are requested and you agree that we shall have no liability for choosing or not choosing to do so.
9. FEES, CHARGES, AND COSTS
We currently do not assess any fees for making payments using the Services. Applicable fees and charges for other services provided in connection with the Services: no fees applicable at this time, exceptions may apply. We reserve the right to modify the Fee Table at any time, and it is your obligation to be aware of any and all applicable fees. You will reimburse us immediately upon demand for any costs or losses we incur due to returned payments or misuse of the Services, such as fees or costs imposed by another financial institution.
You agree not to give or make available your password or other means to access the Services or any Payment Account to any unauthorized individuals. You are responsible for all payments you authorize using the Services. You must access the Platform and the Services only after such access has been verified and authenticated pursuant to the Platform’s Security Procedures. You agree that such Security Procedures are commercially reasonable and that we may deem any payment instructions issued pursuant to the Services as valid and authorized if such Security Procedures were followed. You assume all liability for all payments initiated after such Security Procedures have been followed, even if you did not intend for such payment to occur or you did not actually authorize such payment.
11. UNAUTHORIZED USE
If you suspect an unauthorized payment from any of your accounts in connection with the Services, you must contact us immediately. Our contact information is provided on the Platform. An immediate telephone call to us is the best way to reduce any possible losses. You assume all liability for any unauthorized use of the Services and agree that Bank and Service Provider are not liable for any unauthorized payments made using the Services. You further assume full responsibility for the security and confidentiality of your passwords and any other access method for the Services. However, if you provide notice of suspected or actual unauthorized payments, we will use commercially reasonable efforts to prevent further unauthorized payments.
12. ERROR RESOLUTION
In case of errors or questions about any transactions using the Services, you must notify us promptly. Your notice to us must include your name, your Services account number, why you believe it is an error or why you need more information, and the dollar amount of any suspected error. If we do not receive appropriate notice from you regarding an error within sixty (60) days of such error being reflected in any transaction summary or other information provided to you on the Platform or reflected on a statement for your Payment Account, then we will have no obligation to address the error even if we otherwise might be so obligated.
13. RETURNED AND DELAYED PAYMENTS
In using the Services, you understand that payments may be returned, for example, due to invalid information being provided, the inability to locate a Payee account, or a Payee account being paid in full. Neither Bank nor Service Provider are responsible for any returned payments for any reason. In some instances, you will receive a return notice from the Services. Additionally, due to circumstances not directly within our control, such as delays in handling and posting payments by other financial institutions or Payees, Payees’ inability to accept a form of payment, or other delays in the payment clearing process, some transactions may take longer to be credited to a Payee account to which you have made a payment. You agree that we are not responsible for any delays in payment for any reason.
14. CANCELLING OR STOPPING PAYMENTS
If you provide advance approval for a payment, you may cancel any such payment within the Platform so long as (i) such cancellation occurs before the Cut-Off Time, as defined in Section 3, on the day that such approval is scheduled to be effective, and (ii) processing of the payment has not yet begun. After the Cut-Off Time, as defined in Section 3, on the approval’s effective date or once processing has begun, then a payment cannot be cancelled or edited. If the processing for a payment has begun, then you may request that we attempt to stop the payment. We will use reasonable efforts to stop such payments, but you agree that neither Bank nor Service Provider will have any liability in connection with any stop payment request and that we may be unable to stop a payment. Any request to stop a payment must include the Payee name, the Payee account number, and the amount and date of the payment request. If you request that we stop a payment by phone, then we may require you to confirm such request in writing. If we incur any fees, charges, or costs from a third party because you have cancelled or stopped a payment, then you will promptly reimburse us.
15. EXCEPTION PAYMENTS.
Tax payments and court-ordered payments may be scheduled through the Service, however, such payments are discouraged and will be scheduled at your own risk. In no event shall the Services or Bank be liable for any claims or damages resulting from your scheduling of these types of payments.
17. INTERNET DISCLAIMER
Bank does not, and cannot, control the flow of any documents, files, data, or other information via the internet, whether to or from Bank’s network, or other portions of the internet or otherwise. Such flow depends in large part on the performance of internet services provided or controlled by third parties. Actions or inactions of third parties can impair or disrupt your connections to the internet (or portions thereof). Bank cannot guarantee that such events will not occur. Accordingly, Bank disclaims any and all liability arising out of, resulting from or related to, such events, and in no event shall Bank be liable for any damages of any kind (whether in contract, in tort, or otherwise) that are attributable or in any way related to the internet infrastructure or your or Bank’s ability or inability to connect to the internet. You understand that, while Bank and its service providers have established certain security procedures, such as firewalls, codes, and/or data encryption designed to
prevent unauthorized access to your accounts or transactions, there can be no assurance that inquiries or transaction activity will be completely secure. You agree that Bank is not responsible for any such unauthorized access, delays, or malfunctions, and Bank is not responsible for the acts of third parties.
18. CONSENT TO ELECTRONIC DELIVERY OF NOTICES
You agree that any notice or other type of communication provided to you pursuant to the terms of this Agreement, and any future disclosures required by law, including electronic fund transfer disclosures, may be made electronically by posting the notice on the Platform or e-mailing you, to the extent allowed by law. Any notice we send you will be deemed to have been received by you within three days of being sent. If any of your accounts has more than one co-owner, notice to any one co-owner will be considered effective notice to all. You may request a paper copy of the information up to sixty days after receiving our electronic message. You agree to notify us immediately of any change in your email address.
19. TERMINATION OF THE SERVICES
20. GOVERNING LAW
This Agreement is governed by applicable federal law and by West Virginia law. However, in the event you default, and we file a lawsuit to recover funds loaned to you, the statute of limitations of the state where the lawsuit is filed will apply, without regard to that state’s conflicts of laws principles or its “borrowing statute.”
All notices relating to legal actions, including bankruptcy notices, must be sent to us at MVB Bank, Inc. c/o DivvyPay, LLC, ATTN: Legal, 13707 S. 200 W., Suite 100, Draper, UT 84020. Legal notices sent to any other address will not satisfy any legal requirement that you provide notice to us.
RIGHT TO REJECT ARBITRATION. IF YOU DO NOT WISH THIS AGREEMENT AND THE SERVICES TO BE SUBJECT TO THE FOLLOWING ARBITRATION PROVISION, YOU MUST ADVISE US IN WRITING AT MVB BANK, INC. C/O DIVVYPAY, LLC, ATTN: LEGAL, 13707 S. 200 W., Suite 100, DRAPER, UT 84020. YOU MUST CLEARLY PRINT OR TYPE YOUR NAME AND ACCOUNT NUMBER AND STATE THAT YOU REJECT ARBITRATION. YOU MUST GIVE WRITTEN NOTICE; IT IS NOT SUFFICIENT TO TELEPHONE US. WE MUST RECEIVE YOUR LETTER OR E-MAIL WITHIN SIXTY (60) DAYS AFTER YOU GAIN ACCESS TO THE SERVICES OR YOUR REJECTION OF ARBITRATION WILL NOT BE EFFECTIVE.
This paragraph describes how all Claims (as defined below) will be arbitrated, at the election of you or us, on an individual (non- class, non-representative) basis instead of litigated in court.
Definitions. The term Claim means any claim, dispute, or controversy between you and us or the Service Provider arising from or relating to this Agreement, the Services or the Platform, or any payment or transaction relating to or arising from the Services, the Platform, or any Payment Account, as well as any related or prior agreement that you may have had with us or the Service Provider, or the relationships resulting from this Agreement, including the validity, enforceability or scope of this arbitration provision or the Agreement. Claims arising in the past, present, or future, including Claims arising before the execution of this Agreement, are subject to arbitration. Claim includes, without limitation, claims that arise from or relate to any application for the Services or any advertisements, promotions, or statements related to the Services or the Platform. For purposes of this Arbitration provision, you and us also includes any corporate affiliates, any licensees, predecessors, successors, assigns, any purchaser of any accounts, all agents, employees, directors and representatives of any of the foregoing, and other persons referred to below in the definition of Claim. Claim includes claims of every kind and nature, including but not limited to initial claims, counterclaims, cross-claims, third-party claims, and claims based upon contract, tort, fraud, and other intentional torts, statutes, regulations, common law, and equity. Claims and remedies sought as part of a class action, private attorney general action, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. Claim also includes claims by or against any third party relating to or arising from your Card, your Account, or this Agreement. The term Claim is to be given the broadest possible meaning that will be enforced. Administrator means the American Arbitration Association, 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, (800) 778-7879; or JAMS, 18881 Von Karman Ave., Suite 350, Irvine, CA 92612, www.jamsadr.com, (949) 224-1810.
Right to Elect Arbitration. We OR you have the right to require that each Claim be resolved by arbitration on an individual (non-class, non- representative) basis. A Claim will be arbitrated if (1) both we and you or (2) only one or the other of we or you, exercise the right to require that the Claim be arbitrated. If, for example, we exercise our right to require that the Claim be resolved by arbitration, but you do not also exercise your right to require that the Claim be arbitrated, the Claim will be resolved by arbitration. If neither we nor you request arbitration, the Claim will not be resolved by arbitration and instead will be litigated in court. We will not elect arbitration for any Claim you file in small claims court, so long as the Claim is individual and pending only in that court. The arbitrator’s authority to resolve Claims is limited to Claims between you and us alone, and the arbitrator’s authority to make awards or decisions is limited to you and us alone. Furthermore, Claims between you and us may not be joined or consolidated in arbitration with Claims brought by or against someone other than you, unless otherwise agreed to in writing by all parties. However, multiple persons using the Services, or corporate affiliates, are considered one person for the purposes of this paragraph. No arbitration award will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration. This arbitration provision is made pursuant to a transaction involving interstate commerce and will be governed by the Federal Arbitration Act (“FAA”) (9 U.S.C. § 1, et seq.).
No Jury Trial or Class Claims. If we or you request arbitration of a Claim, we and you will not have the right to litigate the Claim in court. This means (1) there will be no jury trial on the Claim, (2) there will be no pre-arbitration discovery except as the Administrator’s rules permit, and (3) no Claim may be arbitrated on a class-action, private attorney general, or other representative basis, and neither we nor you will have the right to participate as a representative or member of any class or group of claimants pertaining to any Claim subject to arbitration. We or you may elect to arbitrate any Claim at any time unless it has been filed in court and trial has begun or final judgment has been entered.
Initiation of Arbitration. The party initiating an arbitration shall select an Administrator from the organizations listed above. If none of the Administrators listed above will accept the arbitration, the arbitration will be administered by an administrator, or adjudicated by an arbitrator, upon which you and we agree in writing. The arbitration shall be governed by the procedures and rules of the Administrator and this Agreement, which need not apply federal, state or local rules of procedure and evidence. The Administrator’s procedures and rules may limit the discovery available to you or us. You can obtain a copy of an Administrator’s procedures and rules by contacting the Administrator. A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten years’ experience or a retired or former judge, selected in accordance with the rules of the Administrator. In the event of any conflict or inconsistency between this arbitration provision and the Administrator’s rules or other provisions of this Agreement, this arbitration provision will govern. The arbitrator will take reasonable steps to protect customer account information and other confidential information if requested to do so by you or us. Arbitration hearings for Claims by or against you will take place in the federal judicial district in which you reside. At the end of the arbitration, the arbitrator will decide if you have to repay the advance (and if you do have to repay, you agree to do so). Unless applicable law requires otherwise, we will pay our, and you will pay your, lawyers’, experts’, and witnesses’ fees. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations, will honor claims of privilege recognized at law, and will have the power to award to a party any damages or other relief provided for under applicable law. The arbitrator will make any award in writing and, if requested by you or us, will provide a brief statement of the reasons for the award.
Arbitration Award and Appeals. Judgment upon the arbitrator’s award may be entered in any court with jurisdiction. The arbitrator’s decision regarding any claims will be final and binding, except for any appeal right under FAA. The appealing party will pay the appeal costs. This agreement to arbitrate shall survive any suspension, termination, revocation or closure of the Agreement or your Account, and any bankruptcy to the extent consistent with applicable bankruptcy law.
Enforcement of this Provision. If any part of this arbitration provision cannot be enforced, the rest of the arbitration provision will continue to apply. However, an arbitrator cannot enlarge his or her authority over the adjudication of Claims beyond that provided by this arbitration provision by enforcing only part of this arbitration provision. If an arbitrator determines that applicable law requires this arbitration provision to be enforced in a way that would result in greater authority over Claims than otherwise allowed, such as the adjudication of claims on a class or representative basis, then the arbitrator must decline to hear the dispute and shall refer the parties to a court or other body with sufficient authority. In the event of any conflict or inconsistency between this arbitration provision and the Administrator’s rules or other provisions of this Agreement, this arbitration provision will govern.
23. OTHER TERMS
If any part of this Agreement is found to be invalid, the rest of it will still remain in effect (except as noted in “Arbitration” section above). We may delay or not enforce any of our rights under this Agreement without losing or waiving any of them. We may sell, assign or transfer your Account and/or our rights and obligations under this Agreement (or any portion thereof) without notice to you. You may not sell, assign or transfer your Account or your rights and obligations under this Agreement without obtaining our prior written consent. Nothing contained in this Agreement shall be construed as constituting or creating a partnership, joint venture, agency, or other association or relationship between you and us. To the extent that either party undertakes or performs any duty for itself or for the other party as required by this Agreement, the party shall be construed to be acting as an independent contractor and not as a partner, joint venturer, or agent for the other party. In no event shall we be liable to you for any failure or delay in performance wholly or in part due to causes or circumstances beyond our reasonable control including, but not limited to the following: acts of God; acts of the public enemy; civil disturbance; war; acts of the United States of America or any state, territory or political division of the United States of America; fires; floods; natural disasters; pandemic or epidemic events, regional, statewide, or nationwide strikes, or any other general labor dispute not specific to us; and/or communication line failures (collectively “force majeure”). Our inability to perform under this Agreement due to force majeure events will not be considered a breach or default.
THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS, OR FREEDOM FROM INFRINGEMENT OR MALICIOUS SOFTWARE OR CODE, COMPUTER VIRUS OR WORM, OR OTHER DISABLING ROUTINE. WITHOUT LIMITING THE FOREGOING, THE SERVICES ARE PROVIDED WITHOUT ANY REPRESENTATION OR WARRANTY THAT IT WILL OPERATE ON AN UNINTERRUPTED OR ERROR-FREE BASIS.
EXCEPT AS OTHERWISE REQUIRED UNDER LAW, OUR LIABILITY AND SERVICE PROVIDER’S LIABILITY IN CONNECTION WITH THE SERVICES SHALL BE LIMITED TO ACTUAL DAMAGES INCURRED BY YOU AND SHALL NOT INCLUDE ANY OTHER DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES.
Business Day means any day other than a Saturday, Sunday, federal holiday, or other day on which a bank in West Virginia or New York is authorized or required to be closed. Payment Account means any depository account, brokerage account, or other asset account which is linked to or otherwise associated with the Services or from which payments are made using the Platform or the Services. In our sole discretion, we also may permit you to link a BILL-branded credit product to the Services for payments, in which case the Payment Account shall also include any credit account associated with such product.
Payee means any person to which payments are requested or instructed to be made, or actually made, using the Services. Security Procedure means any process that Bank or Service Provider establishes in connection with the Platform or the Services to authenticate, confirm, or validate your identity and/or payment instructions.
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New Jersey Residents: Because certain provisions of this Agreement are subject to governing law, they may be void, unenforceable or inapplicable in some jurisdictions. None of these provisions are void, unenforceable or inapplicable in New Jersey. The section headings of this Agreement are not contract terms.