Legal

Business Bill Payment Agreement

BUSINESS BILL PAYMENT SERVICE TERMS AND CONDITIONS


1.  YOUR AGREEMENT. 
Please read this Bill Payment Service Terms and Conditions document carefully.  This is your agreement with LendingClub Bank (the “Financial Institution,” “we,” “us” or “our”) for the provision of the Financial Institution’s Bill Payment Service (the “Service”).  By signing below and/or using the Service you agree to be bound to the terms and conditions herein.

2.  DEFINITIONS.  In this Agreement, the following definitions shall apply:

(a) “Agreement” shall mean all terms and conditions provided in these Bill Pay Service Terms and Conditions.  The Service is used in conjunction with the Online Banking Service made available by the Financial Institution.  This Agreement is incorporated by reference into the Online Agreement that exists between you and the Financial Institution for the Online Banking Service.  This Agreement shall govern the Service that we and the Service Provider make available for your use.  To the extent that this Agreement is inconsistent with the provisions of the Online Agreement, this Agreement (as amended from time to time) shall control, but only to the extent necessary to resolve such conflict.

(b) “Authorized User” shall mean the employee(s) that you authorize as an individual authorized to have full rights to conduct the activities outlined in Section 18 of this Agreement on your behalf.  By appointing one or more Authorized Users you agree to the terms and conditions of doing so as outlined in Section 18 of this Agreement.

(c)  “Business Day” shall mean every Monday through Friday, excluding bank holidays.

(d)  “Cut-Off Time” shall mean the time of day that Payments to be processed that day shall be processed, and after which time the earliest possible Due Date or Deliver By Date shall be calculated from the next Business Day.  The Cut-Off Time shall be posted on the Service website and may be changed by the Financial Institution and/or Service Provider at any time and without notice.

(e) “Due Date” or “Deliver By Date” or “Delivery Date” shall mean the Business Day on which you schedule the Payment to be delivered to your Payee, unless this date falls on a non-Business Day in which case it shall be the immediately preceding or following Business Day.  It is your responsibility to ensure that your Payments are received by your Payees on time.

(f) “Fee Account” shall mean the checking or similar account that you own at the Financial Institution and from which the Financial Institution may automatically debit or otherwise collect all Service fees.

(g) “Funding Account” shall mean the checking or similar account that you own at the Financial Institution and from which the Financial Institution may debit or otherwise collect the funds necessary to remit the Scheduled Payment to the corresponding Payee, per the Payment Instructions.

(h) “One-Time Payment” shall mean a single Payment delivered to the Payee per your Payment Instructions. 

(i) “Payee” shall mean the individual, business or other entity to which you intend to send a Payment through the Service and to whom you authorize the Financial Institution to remit Payments on your behalf through the Service.

(j) “Payee List” shall mean your personal list of Payees that you maintain within the Service and from which list you may select to schedule Payments.

(k) “Payment” shall mean the specific single instance of a One-Time Payment or a specific instance of a Recurring Payment, as the case may be.  All Payments shall be made in U.S. Dollars.

(l) “Payment Amount” shall mean the monetary figure you specify in a Scheduled Payment, including the regular amount and the final amount of a Recurring Payment series, that the Service shall remit to the Payee.

(m) “Payment Date” or “Withdraw On Date” shall mean the Business Day on which you schedule the Payment to be debited from your Funding Account, unless this date falls on a non-Business Day in which case it shall be the immediately preceding or following Business Day.  In any case, it is the date on which sufficient available funds must exist in the Funding Account.

(n) “Payment Instructions” shall mean the Payee and Payment information that you or your Authorized User provides to instruct the Financial Institution and Service Provider to initiate a Payment to a Payee.  By providing us with this information you authorize us to follow the information entered and to make Payment(s) to the Payee(s) you designate.

(o) “Recurring Payment” shall mean a series of Payments delivered to the Payee at regular intervals per your Payment Instructions.  Recurring Payments shall continue until you cancel them or until the maximum number of Payments and/or final Payment Date specified in the Payment Instructions is reached.

(p) “Service” shall mean the Bill Payment Service offered by the Financial Institution and associated third party Service Providers.

(q) “Service Provider” shall mean the associated third party to whom the Financial Institution has contracted to provide the processing of bill payments and related transactions.

(r) “You” or “Your” or “Company” shall mean the corporation, limited liability company, general partnership, limited partnership, sole proprietor or other form of business entity that executes the bill payment enrollment form or otherwise enrolls in the Service.

2.  THE SERVICE.  You may use the Service to direct the Financial Institution and/or Service Provider to make Payments from your Funding Account to the Payees you choose in accordance with this Agreement.  The terms and conditions of this Agreement are in addition to and subject to any other agreements, disclosures and other documents in effect from time to time governing your Fee Account and/or Funding Account.

3.  SETTING UP AND MAINTAINING PAYEES.  To begin using the Service you or your Authorized User(s) will first need to establish at least one Payee in your Payee List.  Payees may be added, modified or deleted as necessary.  Unless otherwise indicated, it is your responsibility to manage your Payee List and maintain accurate Payee information, such as, but not limited, to the address to which the Payee specifies Payments are to be delivered, your account number with the Payee, the name on your account with the Payee, the Payee’s phone number and the name of account holder at the Payee.  Payees must reside or exist within the United States of America, its territories or commonwealths.  The Service Provider and/or the Financial Institution reserve the right to refuse or remove a Payee for any reason.

4.  SETTING UP PAYMENTS.  To schedule Payments you or your Authorized User(s) must choose a Payee from your Payee List.  You or your Authorized User(s) may schedule One-Time Payments and Recurring Payments to any of your Payees.  It is your responsibility to cancel, skip, reschedule or revise a Payment in accordance with the Payee’s instructions to you, as needed to ensure sufficient available funds in the corresponding Funding Account or under circumstances where the Payee may return the Payment to the Service Provider due to any reason outside the Service Provider’s or the Financial Institution’s control.  The Service Provider and/or the Financial Institution reserve the right to refuse or cancel a Payment or to decline a Payment Instruction for any reason and with no liability to you.

The earliest possible Due Date / Deliver By Date for each Payee will be determined and displayed on the Service website when you schedule a Payment.  The Service will not permit a Due Date / Deliver By Date earlier than the earliest possible dates displayed.  The earliest possible Due Date / Deliver By Date is determined based on the number of Business Days required to deliver a Payment to the Payee, which is primarily affected by whether or not the Payee has agreed to accept remittance of Payments electronically (typically one or two (1 or 2) Business Days) or requires Payments be delivered by check (typically four or five (4 or 5) Business Days).  A Payee’s location or policies for posting and crediting payments may require additional Business Days.  Payments scheduled after the Service’s Cut-Off Time shall be processed no earlier than the following Business Day.

You should carefully consider factors such as the Payee’s due date for payment, grace period, whether the Payee’s due date for payment falls on a non-Business Day and other factors when scheduling a Payment to avoid late payments and late fees.  You must allow the necessary number of Business Days prior to the Payee’s due date for each Payment, including each Payment of a Recurring Payment series.  Some businesses take longer to post Payments than others.  You should consider allowing additional time for the initial Payment to a Payee through the Service in order to gauge the appropriate Payment Date / Withdraw On Date or Due Date / Deliver By Date in each case, and determine whether to allow an additional one (1) or two (2) Business Days to avoid incurring any late fee charged by the Payee.  It is your responsibility to schedule Payments appropriately and in accordance with the Payee’s requirements.  Neither the Service Provider nor the Financial Institution shall be responsible for late payments, nor reimburse you for late fees, for any Payment delivered in accordance with the Payment Instructions, or as a result of a Payee’s payment processing policies, or any other circumstance outside the Financial Institution’s or Service Provider’s control.

Payments to Payees outside the United States of America or its territories or commonwealths, are prohibited.

5.  PAYMENT LIMITS.  The Financial Institution reserves the right to limit the number or dollar amount of any Payment or other transaction initiated using the Service at any time.  We can limit number or dollar amount of transactions on a per-customer, per-transaction, daily, weekly, monthly, or other criteria or timeframe as we see fit. Our current transaction limits are: 1) $9,999.99 per payee per day; and 2) $10,000.00 aggregate to all payees per day.  We may change, amend, establish, or abolish these limits at any time at our discretion.

If you would like to be considered for higher transaction or daily transaction limits than those disclosed on the Service website, please contact our Customer Service Department at 800.242.0272, Monday through Friday, 8:30 AM – 1:00 AM ET and Saturday & Sunday, 8:00 AM – 8:00 PM ET.  Messages received after normal business hours will be returned within one Business Day.

6.  PAYMENT PROCESSING.  The Service will process Payments in accordance with the Payment Instructions you or your Authorized User(s) provide.  The Service will not process Payments on weekends or bank holidays.  The Service will debit your Funding Account or issue a draft against your Funding Account, and deliver those funds to the designated Payee on your behalf such that the funds arrive as close to the scheduled Due Date / Deliver By Date as is reasonably practicable. 

Numerous business and technical requirements determine if a Payee can accept Payments electronically, but in all cases Payments can be remitted by check.  The Service Provider shall have sole discretion to determine the appropriate remittance method.  In order to process Payments efficiently and effectively, or otherwise comply with Payee’s remittance requirements, the Service reserves the right to change or update Payee data, or alter the method of Payment remittance.  Neither the Service Provider nor the Financial Institution shall be responsible for late payments, nor reimburse you for late fees, due to: (a) U.S. postal delivery issues; (b) electronic remittance network issues; (c) your Payee’s payment processing procedures; (d) instances where the financial risk associated with the Payment requires check remittance instead of electronic remittance or additional Business Days to ensure sufficient funds in the Funding Account are available; or (e) other circumstances beyond their control. 

7.  YOUR AUTHORIZATION.  When you or your Authorized User(s) enter Payment Instructions to schedule a Payment, you expressly authorize the Service Provider and/or the Financial Institution to withdraw from your Funding Account the Payment Amount and to remit those funds to the designated Payee on your behalf, and additionally to debit your Fee Account for any applicable Service related fees. 

You further authorize the Financial Institution to credit your Funding Account for any payment returned from, or undeliverable to, the Payee.  In addition, you certify that the Funding Account is an account from which you are authorized to make payments and incur debits.

You agree to have available and collected funds on deposit in the designated Funding Account in amounts sufficient to process each Payment as requested by you or your Authorized User, as well as any other payment obligations you have to the Financial Institution.  The Financial Institution reserves the right, without liability, to reject or reverse a Payment if you or your Authorized User(s) fail to comply with this requirement or any other terms of this Agreement.  If you do not have sufficient funds available in the

Funding Account, and the Financial Institution has not exercised its right to reverse or reject a Payment, you agree to pay for such Payment obligations on demand.  You further agree that the Financial Institution, at its option, may charge any of your accounts at the Financial Institution to cover such Payment obligations.

You authorize the Service Provider and the Financial Institution to contact your Payees to request appropriate adjustments consistent with the Payment Instructions and/or as pertaining to the Service Guarantee, and/or to stop payment on any draft issued against your Funding Account in connection with the Service in the unlikely event that the Service remits funds incorrectly to any of your Payees, and/or to withdraw funds from your Funding Account in such event if you otherwise receive the benefit of the amount of such incorrectly remitted funds.

8.  EDITING OR CANCELING PAYMENTS.  Any Payment can be modified or canceled, provided you or your Authorized User(s) access(es) the Service prior to the Cut-Off Time on the Business Day the Payment is to be processed.  However, once a Payment is in-process (the period after the Cut-Off Time and before the Due Date) it cannot be canceled through the Service.  Instead, you must contact our Customer Service Department at the number and during the times listed in Section 5.

9.  STOP PAYMENTS.  You may request a stop payment after a Payment has been processed by contacting Customer Service as described in Section 5.  The Service’s ability to successfully stop payment depends on how the funds were remitted to the Payee and the elapsed time since the Payment was processed.  The Service Provider and the Financial Institution will make commercially reasonable efforts to stop payment per your request, but shall have no liability if unsuccessful.  Stop payment orders shall be valid for a period of fourteen (14) days unless you confirm your stop payment request in writing, in which case the stop payment order will be valid for a period of six (6) months.  You may renew your stop payment order in writing for an additional six (6) month period.  You may be charged a stop payment fee for each stop payment order that is placed and for each renewal.

10.  EXCEPTION PAYMENTS.  Tax payments and court-ordered payments (each, an “Exception Payment”) may be scheduled through the Service.  However, such Exception Payments are discouraged and must be scheduled at your own risk.  In no event shall the Financial Institution or Service Provider be liable for any claims or damages resulting from you scheduling Exception Payments.  The Service Provider shall have no obligation to research or resolve any claim resulting from any Exception Payment.  All research and resolution for any misapplied, mis-posted or misdirected payments will be your sole responsibility.

11.  RETURNED PAYMENTS.  In using the Service, you understand that Payments may be returned by or to the Service Provider for various reasons including (but not limited to) the:

(a)   Account or account number at the Payee is not valid,

(b)   Payee address is not valid,

(c)    Payee returns or rejects the remittance item, or

(d)   Account at the Payee has been paid in full or has been turned over to another company or individual. 

The Service shall use commercially reasonable efforts to research and correct the returned payment, or void the payment and credit your Payment Account. You may receive notification through the Service for any Payments that are returned.

12.  EXPEDITED e-PAYMENT SERVICE.  Expedited e-Payments are available for a limited number of Payees.  Availability of Expedited e-Payment options will be limited based on Payee capabilities, time of day, delivery mechanisms and other factors. Expedited overnight checks will be unavailable for delivery to P.O. Box addresses or locations outside of the contiguous 48 states and District of Columbia. You are responsible for ensuring that any address for overnight check payments is correct and is specified as a valid overnight package address by the biller. The Financial Institution is not responsible for late delivery where you or your Authorized User entered an undeliverable address for an overnight check.

Due to the inherent need to expedite this type of Payment, Payment Instructions will be completed immediately upon submission by you or your Authorized User. Neither you nor your Authorized User will be able to edit or cancel the Payment Instruction after he or she has confirmed them.

13.  SERVICE GUARANTEE.  The Service Provider will bear responsibility for any late payment related charges imposed by a Payee up to Fifty Dollars ($50.00) should a Payment post after the Due Date or Deliver By Date, provided that the Payment Instruction was scheduled and the Payee information was maintained in accordance with the guidelines described within this Agreement. Notwithstanding the foregoing, the Service Provider shall not be responsible for any such charges if the Service Provider does not have responsibility or liability for a Payment transaction, late payments or late payment related charges under the other provisions of this Agreement, including, without limitation, Exception Payments.

14.  FEES.  There is no charge for enrollment into the Service.  The Financial Institution reserves the right to impose a fee for the Service in its sole discretion and after providing notice as required by applicable law.

There may be charges for additional services and requests.  Please see your schedule of fees for more information. These charges will only be assessed if you request one or more of the services listed therein.  There will be NO Charge for any item if needed to correct a Service error. 

The Financial Institution and/or the Service Provider reserve the right to charge you for research time involving payments no longer available in your Payment history screen.  You will be informed of any such charges before they are incurred.  The Financial Institution reserves the right, in its sole discretion, to waive any fee that you may be charged.

15.  LIABILITY.  You will be responsible for any and all Payment Instructions that you or your Authorized User(s) make that contain an error or that is a duplicate of another Payment Instruction.  The Financial Institution and/or Service Provider is not responsible for a Payment that is not made if you or your Authorized User(s) did not properly follow the instructions on the Service website for making a Payment or incorrectly entered a Payment Instruction with us.  The Financial Institution and/or Service Provider is not liable for any failure to make a Payment if you fail to promptly notify the Financial Institution after you learn that you have not received credit from a Payee for a Payment.  The Financial Institution and/or Service Provider is not responsible for your acts or omissions or those of any Authorized User or third person, including, without limitation, any Payee or transmission or communications facility; and no such party shall be deemed to be the Financial Institution’s and/or Service Provider’s agent.  In any event, the Financial Institution and/or Service Provider will not be liable for any special, consequential, incidental, or punitive losses, damages, or expenses in connection with this Agreement or the Service, even if the Financial Institution and/or Service Provider has knowledge of the possibility of them.  The Financial Institution and/or Service Provider is not liable for any act, failure to act or delay in acting if it is caused, in whole or in part, by any cause beyond the Financial Institution’s and/or Service Provider’s reasonable control.

16.  YOU ARE RESPONSIBLE FOR UNAUTHORIZED ACTIVITY.  Tell us AT ONCE if you believe your user identification, password or other means of accessing the Service have been stolen or used without your permission.  You could lose all the money in your Funding Account, plus any credit available in any available overdraft protection plan.  Also, if the periodic statement for your Funding Account shows Payments or other Service transactions that you did not make tell us at once.  YOU ARE RESPONSIBLE FOR ALL PAYMENTS INITIATED USING YOUR USER IDENTIFICATION, PASSWORD AND OTHER MEANS OF ACCESSING THE SERVICE, REGARDLESS OF WHETHER YOU AUTHORIZED THEM OR IF THEY EXCEED THE LIMITS THAT YOU IMPOSED ON YOUR AUTHORIZED USER.

17.  ACCOUNT SECURITY.  You are solely responsible for controlling the safekeeping of and access to your user identification, password or other means to access the Service.  You agree not to give out or make available your user identification, password, access code, authenticating image or other means to access your account(s) or the Service to any unauthorized individuals.  You are responsible for all Payment Instructions and Payments authorized by you and/or entered by your Authorized User(s) or anyone to whom you provide access to the Service, even if that person exceeds his or her authority.

18.  AUTHORIZED USERS.  You are solely responsible for the actions or inactions of your Authorized User(s).  You represent and warrant that you have taken all internal actions necessary to ensure that the Authorized Users are duly authorized under the terms of the corporate bylaws, partnership agreement or other internal documents that might govern the appointment of the Authorized Users to do the following on your behalf:

(a)   Access your account(s) and any information related to your accounts with the Financial Institution,

(b)   Establish and change your Fee Account and/or Funding Account,

(c)    Access the Service and any information related to the Service,

(d)   Engage in any transactions permissible through the Service,

(e)   Provide us with any Payment Instructions,

(f)     Initiate any Payments or other transactions under the terms of this Agreement,

(g)   Establish and change your Payees (including adding new Payees, deleting existing Payees and/or editing the information regarding existing Payees).

We may request, and you agree to provide, certified copies of any resolutions passed by your board of directors or governing body or any other certificate or evidence of authority satisfactory to us that evidences your authorization of the Authorized User to act on your behalf.  You also represent and warrant that you have appropriate controls in place to review and monitor the activities of your Authorized User(s) to ensure that they are using the Service for business or commercial purposes and for your benefit.  You understand that by appointing an Authorized User(s) you accept full responsibility for all Payments and other transactions that are completed by the Authorized User through the Service and you agree that you shall hold the Financial Institution and Service Provider harmless from all disputed Payments or disputed transactions initiated by the Authorized User through the Service, regardless of whether such Payments or transactions were initiated on your behalf or otherwise.  You agree that you are solely responsible for monitoring all such activity done by your Authorized User(s), that we have no obligation or duty to monitor the Payments made through the Service by your Authorized User(s) to determine if they are to pay bills other than yours and that we may rely on the Payment Instructions, notices and activities of your Authorized User(s) as being duly authorized by you until you advise us not to and we have had a reasonable period of time to comply with your notice.

19.  ELECTRONIC MAIL (E-MAIL).  Sending e-mail is a very good way to communicate with the Financial Institution and/or Service Provider regarding the Service.  However, any e-mail which is sent via your own software is not a secure method of communication.  Because of this, you should not include confidential information, such as account numbers and balances in any e-mail communication.  You cannot use e-mail to initiate Payment Instructions, Payments or any other transactions through the Service.  All such transactions must be initiated using the appropriate functions within the Service.  Neither the Service Provider nor the Financial Institution shall be liable for any errors, omissions, claims, or problems of any kind involving your e-mail.  For questions or issues which require resolution and might require the transmission of confidential, sensitive or personal information, please use the secure messaging function available with the Online Banking Service of the Financial Institution, or call the Customer Service Department as indicated in Section 5, above.

20.  ACCOUNT AND CONTACT INFORMATION.  It is your sole responsibility to maintain accurate and complete contact information and Funding Account information in your user profile.  This includes, but is not limited to, name, address, phone numbers and e-mail addresses, and verifying account numbers.  Changes can be made within the Service or by contacting Customer Service as indicated in Section 5, above.  Neither the Service Provider nor the Financial Institution shall be responsible for any payment processing errors or fees incurred if you do not provide accurate Funding Account or contact information.

21.  LINKS TO OTHER SITES.  Information that the Service Provider or the Financial Institution publishes on the Internet may contain links to other sites and third parties may establish links to the Service’s website.  Neither the Service Provider nor the Financial Institution makes any representations or warranties about any other website that you may access to, from or through the Service’s site.  Unless expressly stated in writing, neither the Service Provider nor the Financial Institution endorse the products or services offered by any company or person linked to this site, nor is the Service Provider or the Financial Institution responsible for any software or the content of any information published on the site of any third party.  You should take precautions when downloading files from sites to protect your computer software and data from viruses and other destructive programs. You should also review the privacy policy of any third party site, as it may have different privacy and information safeguarding standards than the Financial Institution or Service Provider.

22.  VIRUS PROTECTION.  Neither the Service Provider nor the Financial Institution is responsible for any electronic virus that you may encounter using the Service.  You are encouraged to routinely scan your computer and files using reliable virus protection products to detect and remove viruses.  If undetected and unrepaired, a virus can corrupt and destroy your programs, files and hardware.

23.  DAMAGES AND WARRANTIES.  In addition to the terms previously disclosed, the Financial Institution and/or Service Provider are not responsible for any losses, errors, injuries, expenses, claims, attorney’s fees, interest or other damages, whether direct, indirect, special, punitive, incidental or consequential, (collectively, “Losses”) caused by the use of the Service or in any way arising out of the installation, use or maintenance of your personal or business computer hardware or software, including any software provided by the Financial Institution or one of its suppliers.  In addition, the Financial Institution and/or Service Provider disclaim any responsibility for any electronic virus(es) you may encounter after installation of such software or use of the Services.  Without limiting the foregoing, neither the Financial Institution and/or Service Provider nor its suppliers shall be liable for any: (a) failure to perform or any Losses arising out of an event or condition beyond their reasonable control, including but not limited to communications breakdown or interruption, acts of God or labor disputes; or (b) the loss, confidentiality or security of any data while in transit via the Internet, communication lines, postal system or electronic funds transfer networks.  The Financial Institution and/or Service Provider and its suppliers provide the Service from their own sites and they make no representation or warranty that any information, material or functions included in the Service are appropriate for use by you in your jurisdiction.  If you choose to use the Service, you do so on your own initiative.  Neither the Financial Institution nor the Service Provider nor any of their suppliers warrant the adequacy, accuracy or completeness of any information provided as a part of the Service, or contained in any third party sites linked to or from the Financial Institution and/or Service provider’s websites.  FINANCIAL INSTITUTION AND SERVICE PROVIDER MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, FUNCTIONALITY OR PERFORMANCE OF THE SERVICE, OR ANY SOFTWARE THAT MAY BE USED IN CONNECTION WITH SAME.  FINANCIAL INSTITUTION AND SERVICE PROVIDER DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ERROR-FREE OPERATION.  

24.  INDEMNIFICATION.  You shall indemnify, defend and hold harmless the Financial Institution and Service Provider and their affiliates, officers, employees, directors, suppliers and agents, in their individual capacities or otherwise, from and against any Losses arising out of: (a) your negligence; (b) your failure to comply with applicable law; or (c) your failure to comply with the terms of this Agreement.

25.  ADDITIONAL REMEDIES.  Due to the likelihood of irreparable injury, the Financial Institution and Service Provider shall be entitled to an injunction prohibiting any breach of this Agreement by you.

26.  Miscellaneous. 

(a) Amendment and Termination.  The Financial Institution and Service Provider reserve the right to terminate this Agreement or to change the charges, fees or other terms described in this Agreement at any time.  When changes are made, you will be notified by: (i) electronic mail; (ii) physical mail at the address shown in our records; (iii) update of our website; or (iv) as otherwise permitted by applicable law.  Your continued use of the Service after being notified of changes to this Agreement shall constitute your agreement to such changes.

You may terminate this Agreement by written notice to the Financial Institution.  Neither the Financial Institution nor Service Provider is responsible for terminating any scheduled One-Time Payment nor Recurring Payment processed prior to a reasonable opportunity to act on your termination notice.  Once your Service is terminated, all of your scheduled One-Time Payments and Recurring Payments shall be terminated as well.  You remain obligated for all Payments made by the Service on your behalf under this Agreement.

(b) Applicable Law and Jurisdiction.  You submit to the jurisdiction of, and this Agreement shall be governed by the laws of, the Commonwealth of Massachusetts, as well as federal law.  Venue for any action arising out of this Agreement shall be in a state court of competent jurisdiction covering Suffolk County, Massachusetts. The prevailing party in any such action shall be entitled to the recovery of its reasonable attorney’s fees, costs, and expenses.

(c) Assignment.  The Financial Institution and Service Provider may assign its rights and/or delegate all or a portion of its duties under this Agreement to a third party.  You may not assign this Agreement to any other party.

(d) Integration.  This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement, and all prior agreements, understandings and representations concerning such subject matter are canceled in their entirety. Notwithstanding the foregoing, this Agreement is in addition to any other agreements between you and the Financial Institution regarding the Financial Institution’s Online Banking Service and the agreements, disclosures and other materials regarding your deposit accounts with the Financial Institution as described herein.

(e) Disputes.  In the event of a dispute regarding the Service you, the Financial Institution and Service Provider agree to resolve the dispute by looking to this Agreement.  You agree that this Agreement is the complete and exclusive statement of the terms and conditions governing the use of the Service which supersedes any proposal or prior agreement, oral or written, and any other communications between you and the Service relating to the subject matter of this Agreement.  If there is a conflict between what is said by a Service Provider and/or the Financial Institution employee or Customer Service Department and the terms of this Agreement, the terms of this Agreement shall prevail.

(f) Waiver.  The Financial Institution and Service provider shall not, by the mere lapse of time, without giving notice or taking other action, be deemed to have waived any of its rights under this Agreement.  No waiver by the Financial Institution and/or Service provider of a breach of this Agreement shall constitute a waiver by such party of any prior or subsequent breach of this Agreement.

(g) Force Majeure.  Neither party to this Agreement shall be liable for any loss or damage due to causes beyond its control, including fire, explosion, lightning, pest damage, power surges or failures, strikes or labor disputes, water, acts of God, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, inability to secure raw materials, transportation facilities, fuel or energy shortages, acts or omissions of communications carriers, or other causes beyond that party’s control.  Either party may terminate this Agreement immediately on written notice if the other party is prevented from performing its obligations under this Agreement for a period of more than thirty (30) days due to the reasons set forth in this subsection.

(h) Construction.  This Agreement shall be construed equally against the parties regardless of who is more responsible for its preparation.  If there is a conflict between a part of this Agreement and any present or future law, the part of this Agreement that is affected shall be curtailed only to the extent necessary to bring it within the requirements of that law.

(i) Headings and Captions.  The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.

(j) Severability.  If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable as written, that provision shall be interpreted so as to achieve, to the extent permitted by applicable law, the purposes intended by the original provision and the remaining provisions in the Agreement shall continue intact.  In the event that any statute, regulation or government policy to which the Financial Institution is subject and that governs the Payments and other transactions initiated through the Service would invalidate or modify any portion of this Agreement, then this Agreement or any part thereof shall be deemed amended to the extent necessary to comply with such statute, regulation or policy and the Financial Institution shall incur no liability to you as a result of the Financial Institution’s compliance with such statute, regulation or policy.

(k) Successors.  This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.