Consumer Deposit Account Agreement
Please read this Birdie Deposit Account Agreement (the “Agreement”) carefully and retain it for your future reference. This Agreement contains the general terms, conditions and disclosures related to the demand deposit account (the “Account”) made available to eligible consumers by Birdie, LLC (“Program Partner” or “Program Manager”), the program partner responsible for managing the Account program, in partnership with Blue Ridge Bank, N.A. (the “Bank”), member of the Federal Deposit Insurance Corporation (“FDIC”).
When you see the words “we,” “us,” or “our” in this Agreement, it refers to the Bank, the Program Partner acting as agent for the Bank, and any of the Bank’s affiliates, successors, assignees, agents or service providers. When you see the words “you” or “your,” it refers to you, the owner of the Account, as well as your personal representatives, executors, administrators, and successors.
By opening or continuing to hold an account with us, you agree to be bound by this Agreement as well as any other agreement or document we may provide to you from time to time in connection with the Account.
IMPORTANT NOTE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTIONS AND YOUR RIGHT TO A JURY. THE TERMS OF ARBITRATION AND THE WAIVER APPEAR IN SECTION 7 OF THIS AGREEMENT.
1 Account Overview
1.1 How to Contact Us
You may contact us with any questions or concerns regarding your Account. All communication between you and us will be handled by the Program Manager. The best way to contact us is through email at email@example.com.
1.2 Type of Account and Eligibility
The Account is a non-interest-bearing demand deposit account used to hold your deposits and make certain types of payments and transfers. These deposits will come from transfers made to you by users of the Program Partner website and/or mobile application. The Account is available to United States citizens or lawful permanent residents of the United States, the District of Columbia, American Samoa, Guam, Marshall Islands, Northern Mariana Islands, Palau and US Virgin Islands who are at least 18 years of age, have a U.S. physical address or with military addresses (APO or FPO), and have a valid Social Security Number or Tax Identification Number. The Account is only available to individuals for personal, family or household purposes and may not be opened by a business in any form or used for business purposes.
We may decline to open an Account for any reason at the sole discretion of the Bank or Program Manager. We are not liable for any damages or liabilities resulting from refusal of an Account relationship.
1.3 Online or Mobile Access To Your Account
When you open an Account, you will also be enrolled in an online banking service or mobile application (collectively, “Online Banking Services”) offered by the Program Manager that you can use to access your Account, view information about your Account and conduct certain transactions. You may also be given access to various features through the Online Banking Services separate from your Account.
1.4 Paperless Account
To open an Account, you must agree to go “paperless.” This means that you must (1) provide us with and continue to maintain a valid email address and (2) accept electronic delivery of all communications that we need or decide to send you in connection with your Account by agreeing to our E-Sign Consent.
1.5 Titling and Ownership of Accounts
The Account may only be owned in the name of one person who may make deposits and transfer or withdraw funds. The Account cannot be owned or titled as a joint account, trust account, a Uniform Transfers to Minors (UTMA) account or a Payable-On-Death (POD) account.
1.6 Authorized Users
You may be given the ability to designate additional individuals (“Authorized Users”) who you authorize to access your Account and/or conduct transactions through your Account. By establishing an Authorized User, you understand that any transaction authorization, instruction or any other action concerning your Account that your Authorized User engages in shall be deemed authorized by you and valid and we are under no obligation to investigate the authorization, instruction or activity. You also agree that you will not hold us liable for acting upon any such authorization, instruction or activity. We will continue to treat all actions taken by your Authorized User as authorized by you until you revoke the Authorized User’s access to your Account by notifying us by email at firstname.lastname@example.org. We also reserve the right to terminate your Authorized User’s access to the Account for any reason.
1.7 How To Open an Account
Important information about procedures for opening a new Account: To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify and record information identifying each person who opens an Account, including any Authorized Users who may access an Account. This means that when you open an Account, we will ask for your name, street address, Social Security Number or Tax Identification Number, date of birth and other information that will allow us to identify you. We may also ask to see identifying documents, such as a driver’s license.ch
1.8 Minimum Deposits and Balances
There is no minimum deposit required to open an Account and no minimum balance you need to maintain in your Account.
1.9 Power of Attorney and Attorneys-In-Fact
We may allow you to give another person (known as an “attorney-in-fact”) power of attorney to act on your behalf for your Account. You must obtain written approval from us before we will honor any power of attorney. Email us at email@example.com for approval if you plan to create a power of attorney. Please be aware that it may take up to two weeks for us to review your request. If approved, we will honor orders and instructions from your attorney-in-fact until (1) we receive a written revocation from you; (2) we are notified that you or your attorney-in-fact have died or become incapacitated; or (3) we terminate our acceptance of the power of attorney. We may terminate our acceptance at any time, for any reason and without notice to you, and you agree not to hold us liable for any damages that may result from such action. You also agree to hold us harmless for any actions we take based on the instructions of your attorney-in-fact, including if it is later determined that your power of attorney was invalid or improperly executed.
1.10 Death or Incapacitation
You agree that if we receive notification or if we have reason to believe that you have died or become legally incapacitated, we may place a hold on your Account and refuse all transactions until we know and have verified the identify of your successor. Until we receive notice and any required proof of death or incapacitation, we may continue to accept deposits and process transactions to your Account. Your estate will be responsible for repaying us for any tax liability resulting from payment of your account balance to your estate. You agree to hold us harmless for any actions we take based on our belief that you have died or become incapacitated. If certain payments originating from government entities are deposited into your Account after your death, we may be required to return those payments to the originator upon notice.
1.11 Our Relationship With You
By opening an Account, we are establishing an Account relationship with you and committing to act in good faith and to the exercise of ordinary care in in our dealings with you as defined by the Uniform Commercial Code as adopted by the Commonwealth of Virginia. This Agreement and the Account relationship do not create a fiduciary relationship or any other special relationship between you and us.
1.12 Third-Party Service Providers
Your privacy is very important to us. Under this Agreement, we will generally only disclose information to third parties about your Account or the transactions you make:
▪ To verify your identity and determine if we should open an Account for you using services provided to us by third parties.
▪ Where it is necessary for completing a transaction.
▪ To verify the existence and condition of your Account for a third party such as a credit bureau or merchant.
▪ To comply with government agency or court orders.
▪ If you give us your written permission to share your information.
1.14 Cell Phone Communications
By providing us with your telephone number for a cellular phone or other wireless device, you are expressly consenting to receiving non-marketing communications at that number—including but not limited to prerecorded or artificial voice message calls, text messages, and calls made by an auto-dialer—from us and our affiliates and agents. This consent applies to all telephone numbers you provide to us now or in the future. Your telephone or mobile service provider may charge you for these calls or messages. You also agree that we may record or monitor any communications for quality control and training purposes.
1.15 Our Business Days
Our business days are Monday through Friday, excluding federal holidays.
2 Your Account Responsibilities
We strive to keep your Account secure and provide you with tools and services to help you manage your Account. However, there are certain things you should do to protect your Account and your funds.
2.1 Notify Us If Your Information Changes
You must notify us immediately if there is a change to your name, telephone number, mailing address, email address or any other information you have provided us so that we can continue to provide you with statements and important notices concerning your Account.
2.2 Keep Track of Your Transactions and Available Balance
It is very important that you keep track of your transactions and the funds in your Account that are available for you to use (“Available Balance”) by reviewing your transaction history. It is also important to understand that your Available Balance may not reflect transactions you have authorized that have not yet been presented to us for payment.
You are also responsible for reviewing your Account statements as they are made available to you for errors or unauthorized activity. If you identify an error or unauthorized activity, you must notify us promptly to avoid losing your money. Please refer to Sections 4.5 and 4.6 for information concerning errors and unauthorized activity.
2.3 Protect Your Account Information
It is very important that you protect your Account information to prevent unauthorized transactions and fraud. Keep your Account information, log-in credentials, and statements secure at all times, and be careful about who you share this information with. If the Program Partner provides you with access to Online Banking Services, make sure to also keep your computer or mobile device secure at all times and avoid accessing the Online Banking Services when others can see your screen.
If your Account information, mobile device or Online Banking Services login credentials are lost or stolen, notify us immediately to limit your liability for unauthorized transactions that may occur. Please refer to Section 4.5 for information and applicable deadlines for notifying us of losses or theft.
3 General Rules Governing Your Account
You understand that any payment instruction or activity performed using any Online Banking Services provided to you by the Program Partner shall be deemed authorized by you and valid and we are under no obligation to investigate the instruction or activity.
3.1 Deposits Into Your Account
Cash gifts you receive from third parties through the Program Manager’s website or mobile application will be deposited to your Account through electronic fund transfers once your Account is established. You may not make deposits to your Account by any other means at this time.
We do not accept deposits by mail, or cash, paper check or foreign currency deposits: We are not liable for deposits of any kind that you mail to us, including if it is lost in transit, lost in the mail, or otherwise not received by us.
▪ Cash: We do not accept deposits made in cash. If you mail us a cash deposit, we will send the cash back to you.
▪ Paper Checks: If you mail a paper check to us, including personal checks, money orders or cashier’s checks, we may apply the check to any negative balance you may have on your Account or send the check back to you.
▪ Foreign Currency: We do not accept any deposits in foreign currency. Any deposits received in foreign currency, whether in the form of cash or check, will be sent back to you.
We will send all items back to the address we have for you on file and we are not liable if you do not receive the items.
3.2 Our Funds Availability Policy
It is our policy to make cash gift deposits made to your Account each business day available for withdrawal on the same business day we receive the deposit. The end of the business day is referred to as the "deposit cutoff time". Our deposit cutoff time is 4:00PM ET. If we receive a deposit before our cutoff time on a business day that we are open, we will consider that day to be the day we receive your deposit. However, if we receive your deposit after our cutoff time or on a day we are not open, we will consider the deposit received on the next business day that we are open.
3.3 Problems that Could Occur With Deposits
If a deposit or transfer to your Account is returned or rejected by the paying financial institution for any reason, or if there is an error or mistake involving a deposit or transfer, we may deduct the amount of the deposit, transfer, or error without prior notice to you. If there are insufficient funds in your Account at the time, your Account may become overdrawn. Please refer to Section 3.8 concerning overdrafts for more information.
3.4 Withdrawals From Your Account
You will be provided with the ability to link another bank account you have with another financial institution (“linked bank account”) to your Account with us in order to make outbound ACH transfers from your Account to your linked bank account through the Online Banking Services. You agree that you will only attempt to link a bank account for which you have the authority to transfer funds. You also agree to indemnify and hold us harmless from any claims by any person related to the linked bank account, including any other owner of the linked bank account. You may only link a bank account that is a deposit account, such as a checking, savings or money market account.
When you authorize a transfer to a linked bank account, we will debit your Account with us and credit your linked bank account on the next business day after you initiate the transfer. The financial institution that holds your linked bank account determines when those funds will be made available to you in your linked bank account.
The cut-off time for outbound transfers is 4:00 ET. Transfer requests that you make on a business day before the cut-off time will be considered initiated on that day. Transfer requests that you make after the cut-off time, or on a day that is not a business day, will be considered initiated the following business day.
There are limits to the number and amount of inbound and outbound transfers you can make, as well as special limitations that apply to withdrawals for New Accounts. An Account is considered a New Account for the first thirty (30) days following the date of the first transaction on your Account.
Withdrawal Method: ACH transfers from your Account to a linked bank account at another institution*
Limitations for New Accounts
$1,000 per day
$1,000 per week
Limitations for Your Account
$1,000 per day
$2,000 per week
* You may transfer funds between your Account and another bank account. The linked bank account must be located in the United States.
You cannot withdraw funds by check, and we do not permit you to create checks drawn on your Account.
Before permitting a withdrawal or other transaction, we may request that you provide us with additional information or documentation that we deem necessary to confirm your identity or to prevent illegal activity. We may refuse the transaction if you do not comply with our request.
3.5 No Illegal Activity, Internet Gambling and Right to Refuse Transactions
You must not use your Account for any illegal purposes or, regardless of whether it is legal or illegal, for internet gambling. We may deny any transaction or refuse to accept any deposit that we believe is related to illegal activity, online gambling or for any other reason at our discretion.
3.6 How We Post Transactions To Your Account and Determine Your Available Balance
3.6.1 Posting Overview
To understand how we post transactions to your Account, it is important to first understand the difference between your Available Balance and your ledger balance. Your Available Balance is the amount of money you have in your Account at any given time that is available for you to use. Your ledger balance is the balance in your Account at the beginning of the day after we have posted all transactions to your Account from the day before. We use your Available Balance to authorize your transactions throughout the day and determine whether you have sufficient funds to pay your transactions. Here are some additional terms that are helpful to understand:
▪ Credit and debit – A credit increases your balance and a debit decreases your balance.
▪ Post or posted – Transactions that are paid from or deposited to your Account. Posted transactions will either increase or decrease both your Available Balance and your ledger balance.
▪ Pending – Transactions that we receive notice of and are scheduled to post to your Account. Pending transactions affect your Available Balance, but not your ledger balance.
3.6.2 Posting Order
We receive transactions throughout the day and post them to your Account as they are received and in the order that they are received.
We may change the order in which we post transactions to your Account at our discretion and without notice to you. It is therefore important for you to keep track of the deposits you make and the transactions you authorize to make sure there are sufficient funds in your Account to cover all transactions and any applicable fees.
3.6.3 Determining Your Available Balance
To determine your Available Balance, we start with your ledger balance at the beginning of the business day, add any pending credits or deposits that we make available to you, and subtract any pending debits. All transactions are debited or credited from your Available Balance in the order received.
You may check your Available Balance at any time through the Online Banking Services. Keep in mind that your Available Balance may not reflect every transaction you have initiated or previously authorized. For example, your Available Balance may not include transactions you have authorized that we have not received.
Statements will periodically be provided to you by email as long as your Account is not inactive. You will receive a statement monthly as long as you have transactions on your Account during the statement period. If there were no transactions on your Account, we will provide you statements at least quarterly. You will not receive paper statements.
3.8 Overdrafts, Nonsufficient Funds and Negative Balances
We do not permit you to overdraw your Account. If the Available Balance in your Account is not sufficient to cover any transaction you have authorized, we may return the transaction or refuse to process the transaction. However, there may be instances where your Account can still go into the negative, such as if a deposit you make is returned. You must make a deposit immediately to cover any negative balance. If your Account has a negative balance for sixty (60) calendar days or more, we may close your Account.
3.9 Closing Your Account and Account Suspensions
You can close your Account at any time and for any reason by emailing us at firstname.lastname@example.org. We reserve the right to refuse your request if you have a negative balance on your Account. We recommend that you transfer or withdraw any funds you may have in the Account prior to submitting a request to close the Account to avoid delays in receiving your funds.
We may close your account after one (1) year of your account having a $0 Available Balance. We may also suspend or close your account at our discretion with or without notice. This includes if we believe you are using your Account for fraudulent or illegal purposes or in violation of law or regulation, this Agreement, any other agreement you may have with us or Unit, or if you otherwise present undue risk to us or Unit. We are not responsible to you for any damages you may suffer as a result of the closure or suspension of your Account.
If there is a balance in your Account when it is closed, we will return any funds you may have in the Account to you by ACH transfer to another bank account or by paper check. The closure of your Account or termination of this Agreement does not impact any right or obligation that arose prior to closure or termination, or any right or obligation that, by its nature, should survive termination (including, but not limited to, any indemnification obligation by you, our limitations of liability, and any terms governing arbitration).
3.10 Dormancy, Inactivity and Unclaimed Property
State law and our policy govern when your Account is considered dormant. Your Account is usually considered dormant if you have not accessed your Account, communicated to us about your Account or otherwise shown an interest in your Account within the period of time specified under applicable law. Each state has varying laws as to when an account becomes dormant, and we may be required to send the balance in your Account if it becomes dormant to the state of your last known address. We will make reasonable efforts to contact you if required by applicable law before transferring the remaining balance of your Account to the applicable state. After we surrender the funds to the state, you must apply to the appropriate state agency to reclaim your funds. You can avoid the surrender of your funds by simply conducting transactions, contacting us about your Account or replying to any abandoned property notices we may provide to you.
We may also place your Account in an inactive status if you have not had any transaction for at least six (6) months. If your Account becomes inactive, you may not receive statements or be able to conduct certain transactions. Inactive Accounts must be reactivated. Contact us by email at email@example.com to reactivate your Account.
3.11 Account Fees and Fee Schedule
4 Electronic Fund Transfers
Your Account allows you to withdraw funds up to the Available Balance or make deposits through Electronic Fund Transfers (“EFTs”). EFTs are transactions that are processed by electronic means and include, among others, ACH transfers, debit or ATM card transactions and direct deposits. This Section provides you with information and important disclosures and terms about the EFTs that are permitted on your Account. You may also receive additional services through Online Banking Services provided by the Program Partner, that allow you to initiate EFTs to and from your Account that are not described in this Agreement. You will be provided separate agreements and disclosures applicable to those services by the Program Partner.
4.1 Types of EFTs Supported by Your Account
Your Account allows the following types of EFTs:
▪ Electronic deposits of cash gifts sent to you by third parties through the Program Manager’s website or mobile application (see Section 3.1)
▪ Transfers from your Account to or from a linked bank account (see Section 3.4)
4.2 Limitations on EFTs
There are limitations on the frequency and amount of transactions you can make to or from your Account. These limits are different for each type of transaction. For limits that apply to transactions that credit or deposit funds into your Account, please refer to Section 3.1 concerning deposits. For limits that apply to transactions that debit or withdraw from your Account, please refer to Section 3.4 concerning withdrawals. These security-related limits may change from time to time.
4.3 Your Right to Receive Information and Documentation of Your Transactions
You will receive information and documentation concerning any EFTs that debit or credit your Account in the following ways:
▪ Statements: We will provide you information about each transaction that debits or credits your Account on your statements. Please refer to Section 3.7 for information about statements. You may also access your transaction history through the Online Banking Services.
4.4 Our Liability for a Failure To Complete A Transaction
If we fail to complete a transaction on time or in the correct amount when properly instructed by you in accordance with this Agreement, we will be liable for damages proximately caused by the failure or error. However, there are some exceptions. We are not liable, for instance:
▪ If the Available Balance in your Account is not sufficient to complete the transaction through no fault of ours.
▪ If the failure is due to an equipment or system breakdown, such as a problem with the Online Banking Services provided by the Program Partner, that you knew about before you began a transaction.
▪ The failure was caused by an Act of God, fire or other catastrophe, or any other cause beyond our control despite reasonable precautions we have taken.
▪ If your funds are not available due to a hold or if your funds are subject to legal process.
▪ If we do not complete a transaction because we or Unit has reason to believe the transaction is unauthorized or illegal.
▪ If your Account is closed or inactive.
▪ There may be additional exceptions stated in our or Unit’s agreements with you or permitted by law.
4.5 Your Liability for Unauthorized EFTs
Contact us immediately if you believe that an unauthorized EFT has occurred or may occur concerning your Account, or if your Account information or Online Banking Services login credentials have been lost, stolen or compromised. Calling us at (323) 454-3137 is the best way of keeping your losses to a minimum.
You could lose all the money in your Account if you take no action to notify us of the unauthorized EFT or the loss or theft of your Online Banking Services login credentials.
For unauthorized EFTs, your liability will be as follows if you notify us of the loss:
▪ If you tell us within two (2) business days after learning of the loss, theft or compromise of your Online Banking Services login credentials, you can lose no more than $50.
▪ If you do NOT tell us within two (2) business days and we can prove that we could have prevented the loss had you contacted us, you could lose as much as $500.00.
▪ If your statement shows EFTs that you did not make and you do NOT contact us within sixty (60) days after the statement was made available to you, you may not get back any money lost after the sixty (60) days if we can prove that your contacting us would have prevent those losses.
We can extend these time periods if extenuating circumstances (such as a long trip or hospital stay) kept you from notifying us.
4.6 In Case of Errors or Questions About Your EFTs
Contact us at (323) 454-3137 or email at firstname.lastname@example.org as soon as you can if you think your statement or receipt is wrong or if you need more information about a transfer listed on a statement or receipt. We must hear from you no later than sixty (60) days after we sent the FIRST statement on which the problem or error appeared. You must provide us with the following information:
▪ Tell us your name, the email address associated with your Account and Account number (if available).
▪ Describe the error or the EFT you are unsure about and explain as clearly as you can why you believe it is an error or why you need more information.
▪ Tell us the dollar amount of the suspected error.
▪ If you tell us orally, we may require that you send us your complaint or question in writing by email within ten (10) business days.
We will determine whether an error occurred within ten (10) business days after we hear from you and will tell you the results and correct any error promptly. If we need more time, we may take up to forty-five (45) days—or ninety (90) days for Accounts open less than thirty (30) days or foreign-initiated transactions — to investigate your complaint or question. If we decide to do this, we will credit your Account within ten (10) business days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within ten (10) business days, we may not credit your account. For Accounts open less than thirty (30) days, we may take up to twenty (20) business days to credit your Account for the amount you think is in error.
We will tell you the results within three (3) business days after completing our investigation. If we decide that there was no error, we will send you a written explanation by email. You may ask for copies of the documents that we used in our investigation.
5 Other Legal Terms and Conditions
5.1 No Assignments
Your Account and your obligations under this Agreement are not transferable and not assignable as collateral for a loan or for any other purpose. We may transfer our rights under this Agreement.
For regulatory reporting and accounting purposes, your Account may consist of two sub-accounts: a transaction sub-account to which all financial transactions are posted; and a savings sub-account into which available balances above a pre-set level are transferred daily. Funds will be transferred to your transaction sub-account to meet your transactional needs.
Both sub-accounts are non-interest bearing.
Transfers can occur on any Business Day. Transfers to the savings sub-account will be made whenever available balances in the transaction sub-account exceed a preset level. Transfers from the savings sub-account to the transaction sub-account will be made whenever the transaction sub-account balances fall below a predetermined level. Because banking regulations limit the number of transfers between these types of sub-accounts, all balances in the savings sub-account will be transferred to the transaction sub-account with the sixth transfer in any statement period.
Both sub-accounts are treated as a single Account for purposes of your deposits and withdrawals, access and information, tax reporting, fees, etc. and do not affect your use of the Account.
5.3 Legal Processes and Claims Affecting Your Account
If we receive a levy, attachment, or other legal process against you (collectively, “Legal Process”), we may refuse to permit withdrawals or transfers from your Account until the Legal Process is dismissed or satisfied. Any Legal Process will be subject to our right of set-off and security interest. You are responsible for any losses, costs or expenses we incur as a result of any dispute or legal proceeding involving your Account. If we receive a claim against the funds in your Account, or if we know of or believe that there is a dispute as to the ownership or control of funds in your Account, we may, in our discretion: (1) place a hold on your Account and refuse to pay out any funds until we are satisfied that the dispute is settled; (2) close your Account and send the balance to the named account holder; (3) require a court order to act; or (4) take any other action we feel is necessary to protect us. We will not be liable to you for taking any such action.
5.4 Limitation of Liability and Disclaimer of Warranty
EXCEPT AS REQUIRED BY LAW, WE ARE NOT LIABLE FOR ANY CLAIMS, COSTS, LOSSES, OR DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM OUR FAILURE TO ACT, OR ANY DELAY BEYOND TIME LIMITS PRESCRIBED BY LAW OR PERMITTED BY THIS AGREEMENT IF SUCH FAILURE OR DELAY IS CAUSED BY MAINTENANCE OR INTERRUPTION OR MALFUNCTION OF EQUIPMENT OR COMMUNICATION FACILITIES, UNUSUAL TRANSACTION VOLUME, SUSPENSION OF PAYMENTS BY ANOTHER FINANCIAL INSTITUTION, FIRE, NATURAL DISASTERS, ELEMENTS OF NATURE, GOVERNMENT ACTION, ACTS OF WAR, TERRORISM OR CIVIL STRIFE, EMERGENCY CONDITIONS, OR OTHER CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF EVOLVE. EXCEPT AS REQUIRED BY LAW, OUR LIABILITY TO YOU FOR A CLAIM IS LIMITED TO THE FACE VALUE OF THE ITEM OR TRANSACTION, OR THE ACTUAL VALUE OF ANY FUNDS NOT PROPERLY CREDITED OR DEBITED. IN NO EVENT WILL WE OR UNIT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES EVEN IF YOU ADVISE US OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT AS REQUIRED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, WE SHALL ONLY BE RESPONSIBLE AND LIABLE FOR OUR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN PERFORMING OUR OBLIGATIONS UNDER THIS AGREEMENT. WE SHALL NOT BE LIABLE TO ANY THIRD PARTY OR FOR ANY ACT OR OMISSION OF YOURS OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, THIRD PARTIES USED BY US IN EXECUTING ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR PERFORMING A RELATED ACT AND NO SUCH THIRD PARTY SHALL BE DEEMED TO BE OUR AGENT.
IN ADDITION, EXCEPT AS REQUIRED BY LAW, BLUE RIDGE BANK IS NOT LIABLE OR RESPONSIBLE FOR ANY SERVICES OR FEATURES OF ANY ONLINE BANKING SERVICES PROVIDED TO YOU BY BIRDIE. WE ARE ALSO NOT LIABLE FOR ANY UNAUTHORIZED ACCESS OF YOUR INFORMATION OR DATA BY A THIRD PARTY DUE TO YOUR USE OF THIRD-PARTY COMMUNICATION CHANNELS NOT OFFERED BY US.
ALL BANK SERVICES AND ACCOUNT FEATURES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THE BANK’S SERVICES OR ACCOUNT FEATURES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, SECURE, TIMELY, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.
You agree to indemnify and hold us and our officers, directors, shareholders, employees, successors, predecessors, representatives, principals, agents, assigns, parents, subsidiaries and/or insurers harmless for any losses, damages, suits and expenses, including reasonable attorneys’ fees, that we may incur, without regard to the merit or lack thereof, arising out of, or related in any way to (1) the matters set forth herein; (2) our taking any action or not taking any action that we are entitled to take pursuant to this Agreement; (3) any action or omission by you; or (4) our action or inaction in reliance upon oral, written or electronic instructions or information from you.
Equally, you agree to indemnify and hold Unit and its officers, directors, shareholders, employees, successors, predecessors, representatives, principals, agents, assigns, parents, subsidiaries and/or insurers harmless for any losses, damages, suits and expenses, including reasonable attorneys’ fees, that we may incur, without regard to the merit or lack thereof, arising out of, or related in any way to (1) the matters set forth herein; (2) our taking any action or not taking any action that we are entitled to take pursuant to this Agreement; (3) any action or omission by you; or (4) our action or inaction in reliance upon oral, written or electronic instructions or information from you.
5.6 Our Right of Set-Off and Security Interest
We have the right to set-off any liability, direct or contingent, past, present or future that you owe against any account you have with us. This means that we can take any funds in your Account or any other account you have with us to pay any debt or liability you owe us. You also agree to grant us a security interest in your Account to secure payment of any money that you owe to us or will owe us arising under this Agreement or any other agreements with us. You acknowledge that this security interest is consensual and in addition to any right of set-off. We may exercise our security interest or right of set-off without regard to the source of the funds in your Account or prior recourse to other sources of repayment or collateral, even if it causes you to incur penalties or suffer any other consequence. You waive any conditions or limits to our right of set-off to the maximum extent permitted by law. We will notify you if we exercise our right to set-off if required by law.
If we take any action to collect debt incurred by you or other amounts you owe us under this Agreement or defend ourselves in a lawsuit brought by you where we are the prevailing party, you agree to reimburse us for our losses, including, without limitation, reasonable attorneys’ fees, to the extent permitted by applicable law. We may charge your Account for our losses without prior notice to you.
5.7 Changes in Terms and Additional Services
We may change this Agreement, or any fees and features of your Account, at any time by posting an amended Agreement on Birdie’s website, sendbirdie.com, or on the Application, and any such amendment shall be effective upon posting. We will give you advance notice of any change where required by law. We may provide such notice to you with your statement, electronically, or by mail. Any notice we provide to you will be binding and sent to the last (postal or electronic) address in our records. We may change your address if we receive an address change notice from the U.S. Postal Service. We may change or terminate this Agreement without notice at our discretion or to comply with any appropriate federal or state law or regulation.
If we make any of our other banking services available to you in connection with your Account, we may provide certain terms and conditions for those additional services to you in a separate agreement or disclosure.
5.8 No Waiver of Rights
We may waive or decline to enforce any of our rights under this Agreement without obligating ourselves to waive such rights in the future or on any other occasion. We may release any other person obligated under this Agreement without affecting your responsibilities under this Agreement.
6 Conflicts and Section Headings
If there is a conflict between this Agreement and any other document or statement made to you concerning the Account, this Agreement will govern. If there is a conflict between this Agreement and any other document or statement made to you concerning any services or products other than the Account, the separate terms and conditions applicable to that service or product will govern. Section headings that appear in this Agreement are for convenience purposes only and are intended to help you find information. They should not be construed as affecting the meaning of the Agreement.
In the event that any court or tribunal of competent jurisdiction determines that any provision of this Agreement is illegal, invalid or unenforceable, the remainder of this Agreement shall not be affected. To the extent permitted by law, the parties waive any provision of law which prohibits or renders unenforceable any provisions of this Agreement, and to the extent that such waiver is not permitted by law, you and us agree that such provision will be interpreted as modified to the minimum extent necessary to render the provisions enforceable.
6.2 Governing Law, Forum and Time Limits
All actions relating to your Account and this Agreement will be governed by the laws and regulations of the United States and the Commonwealth of Virginia where your Account will be opened, irrespective of conflict of law principles. You agree that any dispute arising under this Agreement or relating in any way to your relationship with us that is not arbitrated will be resolved in a federal or state court located in Virginia and that you will be subject to such court’s jurisdiction.
Except where prohibited by law, you agree that you must file any lawsuit or arbitration against us within two (2) years after the claim arises unless federal or Virginia law, or another agreement you have with us, provides for a shorter time. If federal or Virginia law requires a longer time period than the time periods in this Agreement, you agree to the shortest time period permitted under the law.
7 Arbitration and Waivers
BE SURE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US.
7.1 Election to Arbitrate.
You, Birdie and the Bank agree that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 7 (the “Arbitration Provision”). As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us on the other hand, relating to or arising out of this Agreement, and/or the activities or relationships that involve, lead to, or result from this Agreement, including the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. Please note that you may continue to assert Claims in small claims court, if your Claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
7.2 Applicability of the Federal Arbitration Act; Arbitrator’s Powers.
This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the Federal Arbitration Act (the “FAA”). The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.
7.3 Informal Dispute Resolution.
If a Claim arises, our goal is to address your concerns and, if we are unable to do so, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you will first submit your Claim to us by email at email@example.com and provide us with the opportunity to resolve your concern prior to initiating arbitration.
7.4 Arbitration Procedures.
The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”) or Judicial Alternatives and Mediation Services (“JAMS”). The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1(800) 778-7879 or visit the AAA's web site at: www.adr.org. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply. The arbitration will be held in the United States county where you live or work, or any other location we agree to.
7.5 Arbitration Fees.
If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules. We shall pay the administrator's hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator's rules or applicable law require otherwise, or you request that we pay them and we agree to do so. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
Within 30 days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator's rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (“FAA”), and may be entered as a judgment in any court of competent jurisdiction.
7.7 No Class Actions.
NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this Section 7.7, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this Section 7.7 shall be determined exclusively by a court and not by the administrator or any arbitrator.
7.8 Survival and Severability of Arbitration Provision.
This Arbitration Provision shall survive the termination of this Agreement. If any portion of this Arbitration Provision other than Section 7.7 is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If there is a final judicial determination that applicable law precludes enforcement of this Arbitration Provision’s limitations as to a particular claim for relief or particular term, then that claim (and only that claim) or that term (and only that term) must be severed from the Arbitration Provision and may be brought in court. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in Section 7.7 are finally adjudicated pursuant to the last sentence of Section 7.7 to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.
7.9 Judicial Forum for Claims.
Except as otherwise required by applicable law, in the event that this Arbitration Provision is found not to apply to you or your Claim, you and the Bank agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Commonwealth of Virginia. Both you and the Bank consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
7.10 WAIVER OF RIGHT TO LITIGATE.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.