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1.1 This Online Service Agreement (this “Agreement”) is effective March 12, 2018 (the “Effective Date”). On the terms and subject to the conditions set forth in this Agreement, JPMorgan Chase Bank, N.A. (the “Bank”) will provide a service branded “Chase Cashflow360” (the “Service”) to “Customer” (hereinafter defined in Section 1.2). The Service will provide the “Accounts Payable,” “Accounts Receivable,” and related services, all as described in Section 4, and the “Bill Payments and ACH Invoice Collections” services described in Section 5 for Customer, and will provide Customer with information, reports and data (collectively, “Data”). The Bill Payments and ACH Invoice Collections service provides for the electronic transmission to Bank of “Payment Orders” and other “Instructions” (respectively defined in Section 3.1.1 for eligible payments to be made via the Service from Customer’s eligible business purpose checking accounts maintained at Bank within the United States (“U.S.”), denominated exclusively in U.S. Dollars, and otherwise determined by Bank to be eligible for the Service (“Deposit Accounts” or “Accounts”) and for eligible collections to be made from Customer’s customers, all as further described in Section 5. Bank reserves the right to modify the applications and products available via the Service (each an “Application”) at any time and without notice.
1.2 Use of the Service by Customer at any time after the Effective Date or acceptance of this Agreement either online or by indicating acceptance in writing, shall be deemed to constitute acceptance of this Agreement and all terms and conditions herein. Customer hereby ratifies all transactions and use of the Service that may have occurred prior to Customer’s acceptance of this Agreement. The Customer initially enrolling in the Service is the “Primary Customer.” The Service may also be provided for certain Accounts of other customers (which may include certain of Primary Customer’s affiliates) that execute a Linking Agreement (collectively, “Linked Customers”). The Primary Customer and Linked Customers are collectively referred to herein as the “Customer” or “Customers,” and together constitute a “Customer Profile.” The Service and the Accounts of Customers are managed together by their “System Administrator” or “SA” (defined in Section 2.1), and subject to any user entitlements established per Section 2.1.3, the “Authorized Users” or “AUs” (defined in Section 2.1.1) shall have access to all Accounts of the Customer Profile. Bank may at any time determine the eligibility for purposes of the Service of any Application, Account, Customer, Customer Profile or person or entity to which a payment is to be made via the Service (a “Payee”) or from which a collection is to be made via the Service (a “Payor”), and may at any time combine or eliminate Customer Profiles of the Primary Customer and Linked Customers. For any Customer that received the Service prior to the Effective Date, the Customer Profile previously in effect shall continue after the Effective Date unless changed by Bank or Customer via the Service. Bank may at any time prospectively amend or restate this Agreement by replacing it with a new agreement (a “New Agreement”) by providing notice to Customer or by posting the New Agreement on the Legal Agreement and Disclosures webpage within the Service (the “Disclosures Webpage”), and Customer shall be deemed to have accepted the New Agreement as of its effective date for the Customer Profile (which shall continue under the New Agreement) upon the earlier of either (i) the SA’s acceptance of the New Agreement either online by indicating acceptance or in writing, which shall be deemed to be on behalf of all Customers in the Customer Profile, or (ii) upon the first use of the Service by any SA or AU in the Customer Profile after the New Agreement’s effective date. If Customer does not want to be bound by the New Agreement, Customer’s sole and exclusive remedy shall be to give notice of cancellation and discontinue use of the Service prior to the New Agreement effective date. This Service is part of Bank’s Chase ConnectSM online banking service, and this Agreement supplements the legal agreement(s) governing the Chase Connect service; provided, however, that, with respect to Customer’s use of this Service, the terms and conditions of this Agreement shall control over the terms and conditions set forth in the other legal agreement(s) governing the Chase Connect service. This Agreement, together with the other legal agreements governing the Chase Connect service, and the disclosures set forth in the webpages within the Service, constitutes the entire agreement relating to this Service, superseding any and all previous agreements relating thereto. Terms appearing in this Agreement with their initial letter(s) capitalized and which are not otherwise defined herein are used as such terms are defined in the legal agreement(s) governing the Chase Connect service. Customer acknowledges that neither Bank nor its “ASPs” (defined in Section 1.4) nor any of their respective officers, directors, agents, or attorneys, have made any promise or representation or warranty whatsoever relating to the Service, and that Customer has not entered into this Agreement in reliance on any such promise, representation, or warranty.
1.3 The terminology and functionality of Applications provided by Chase Connect and the Service may vary from that described in the legal document(s) governing Customer’s Accounts (the “Account Documents”), including, without limitation, cutoff times, deliver by dates, “Limits” (defined in Section 1.5), and other functions of the Service. Reference is made to (i) Section 11 for a description of Fees applicable to the Service as of the Effective Date, (ii) the disclosures which are set forth in the Disclosures Webpage or otherwise within the Service, and (iii) the user guides and reference materials available within the Service or otherwise distributed by Bank to Customer about the Service, for details of the services, applications, terms, conditions, and limitations of the Service. This Agreement supplements (the Account Documents and the legal agreement(s) governing the Chase Connect service. In the event of any conflict in terms with respect to the Service, this Agreement shall prevail over the terms of the webpages within the Service, and over the Account Documents and the agreement(s) governing the Chase Connect service. Customer shall be responsible for following all of Bank’s instructions regarding the Service and the Applications and other functions thereof, including Bank’s online instructions presented within the Service. Customer may also contact Bank to ask questions or obtain additional information by sending Bank a “SMC Message” (defined in Section 8), or by the Chase Connect Service Center at 1-877-226-0071, but Government, Healthcare, Higher Education, and Not-For-Profit banking customers should call 1-855-893-2223 (or such other numbers Bank may provide). All telephone calls may be recorded by Bank.
1.4 Bank grants to Customer, for Customer’s internal business purposes only, a nonexclusive, limited and revocable right to use the Service, and related software and applications (collectively, “Products”) supplied by Bank and its “ASPs” (defined below in this Section). Customer shall not use the Service or Products for any other purpose, and will not copy, modify, or create derivative works of the Products or display, assign, sublicense, distribute, or otherwise transfer any interest in this Agreement or the Products to any third party. Customer may download and use Data, provided it does not remove any copyright or other notices. Except for the rights granted herein, all rights and title to all Products, including any improvements, modifications, and derivative works, shall at all times remain with Bank and its ASPs. Products constitute trade secrets, and Customer shall maintain them as secret, confidential and proprietary. Customer’s use or continued use of any Product may at any time be subject to the terms and conditions of any agreement of any ASP for such Product, and terminology of any products provided by any ASP may differ from the terminology of the Service. Bank shall be afforded a reasonable opportunity to set-up and process Customer’s Service request and new Accounts, and Customer’s use of the Service or any function thereof may require an activation code or additional steps for activation or use. Bank shall have no obligation at any time to accept or continue enrollment of any Customer or Account or to continue to offer any Application.
The term “ASPs” collectively means Bank’s application service providers and subcontractors, and its and their application service providers and subcontractors, vendors, third party contractors, licensors, and other third party service providers, including, without limitation, Bill.com, Inc. a Delaware corporation (together with its successors and assigns, “Bill.com”). Bank and its ASPs may change their ASPs from time to time either with or without notice to Customer as determined by Bank in its sole discretion. The ASPs are ”Third Party Service Providers” for the Bank under the NACHA Rules (defined in Section 10(a)).
1.5 The Service provided may be subject to certain transaction, usage, and other limits or minimums which Bank may prescribe for any Customer Profile at any time (collectively, “Limits”); provided, however, that initially and until further development of the Service, the Service will not apply Chase Connect system or any applicable Customer-Transaction Limits and Bill Payments and ACH Collections through the Service will not count toward the apply Chase Connect system or any applicable Customer-defined Limits. All such Limits are for the exclusive benefit of Bank, Bank shall have no duty to enforce any such Limits at any time, and may waive or elect not to enforce any such Limits. Within any such Limits, Bank may permit the SA to establish Customer-defined Limits; provided, however, that such Customer-defined Limits are subject to being reduced by Bank to not exceed any revised Limits that may be established by Bank. Bank may revise any Limit at any time.
2. The System Administrator; Authorized Users; and Collaborators.
2.1 The System Administrator (or “Administrator” or “SA”) and Authorized Users.
2.1.1 Notwithstanding anything to the contrary contained in this Agreement, the SA for Customers in the Customer Profile on Chase Connect shall at all times be the SA for those Customers for this Service. The SA may entitle persons who are authorized to use the Service for the Customer Profile (the SA and any such other person being collectively referred to as the “Authorized Users” or “AUs”) on Chase Connect to be AUs for purposes of the Service, including, without limitation, to serve in the role as (a) a “Payor” (as that term is used in the Service, and in initiating or approving a Bill Payment or an ACH Collection), and/ or (b) as a “Collaborator” (defined in Section 2.2), and may also entitle other persons to be Collaborators as described in Section 2.2 below.
2.1.2 The SA has been designated by Customer to administer the Service on its behalf, or is the person who performs any of the administration functions of the Service for Customer (such as accepting this Agreement, designating Collaborators and other Authorized Users, or exercising any “Access and Security Manager” (defined in Section 2.1.3) function, and includes any person designated as the SA on any “System Administrator delegation form” (or “SADF”) or form to link accounts of other customers (a “Linking Agreement”) with respect to the Customer Profile that includes Customer that is using the Service; provided, however, that if at any time there would otherwise be no SA, then any authorized signer for any Account in the Customer Profile may be deemed by Bank to be a SA for that Customer Profile. Customer agrees to immediately notify Bank of any change in its SA, and provide Bank with a SADF or Linking Agreement at Bank’s request. Any change in SA shall be effective after Bank has received such notice and has had a reasonable opportunity to act thereon. Bank may at any time require the approval by the SA or a Collaborator or other AU for any action or Instruction received by Bank via the Service, and change the authorization, verification, or approval requirements for the Service.
2.1.3 The SA for any Customer Profile shall be responsible for: (a) accepting this Agreement and making decisions and elections on behalf of each Customer in such Customer Profile; (b) setting up, establishing, and maintaining current designations of AUs, their e-mail addresses and other contact information and their current user entitlements, by using the online user-entitlement functions of Chase Connect and the Service that may be administered at any time by the SA (such functions, collectively, “Access and Security Manager”), to ensure that all persons using the Service (collectively, “Users”) are AUs, and that AUs are informed of their responsibilities under this Agreement; (c) terminating access rights and “Credentials” (defined in Section 2.1.5) for those users who should no longer be AUs; (d) informing AUs of the functions, the “Security Procedure” and “Administrative Procedures” (defined in Sections 3.1 and 3.3.5, respectively), and other user entitlements for which they are authorized and ensuring that AUs comply with the Security Procedure and Administrative Procedures; (e) receiving, exchanging and distributing materials, notices, documents, and correspondence, and any “Security Devices” (defined in Section 2.1.4) in accordance with Bank’s instructions (as amended from time to time); (f) setting up, establishing, maintaining and informing AUs of any Limits or other restrictions on their use of the Service, and controlling and enforcing any such Limits or restrictions; (g) using Access and Security Manager to immediately remove any AU and confiscating any tangible Security Device upon their ceasing to be an AU, and otherwise preventing the use of the Service or the Security Device by anyone who is not an AU; (h) distributing the Security Procedure and Administrative Procedures and any related documents or information to the AUs, and ensuring their use in accordance with Bank’s directions; (i) immediately notifying Bank of any actual or suspected loss, theft or unauthorized use of the Security Device or “Security Credential” (defined in Section 2.1.5), or of any actual or suspected security breach, data breach, or unauthorized use, involving the Service; unauthorized access, unauthorized use, or other compromise to the confidentiality, security, or integrity of any data involving the Service (collectively, a “Security Breach”); (j) de-activating an AU’s access to the Service in the event of an actual or suspected Security Breach by such AU or utilizing a Security Device issued to such AU; and (k) communicating and coordinating actions of all SAs and AUs, and coordinating actions of all officers, employees, and agents of all Customers in the Customer Profile. The SA and AUs shall also be responsible for regularly reviewing the Accounts and transaction history for unauthorized transaction or access. The SA shall also provide Bank with such additional information as Bank may from time to time request relating to any Customer in the Customer Profile or any AU to address any legal or regulatory requirement or any concern that Bank may have. Each AU shall be deemed to be authorized by Customer to use the Service with respect to any Account in the Customer Profile, subject to their user entitlements as registered in Access and Security Manager.
2.1.4 As used in this Agreement, the term “Security Device” means any Bank issued or approved algorithm or other code, identifying word or number, authentication and/or encryption algorithm, tangible or intangible security token, cookie, digital signature, certification, private or public key, or any other security device, which Bank has designated as the “Security Device” for purposes of the use of the Service (or any function thereof) by Customer or any of its AUs. As of the Effective Date for the SA and other AUs entering the Service through Chase Connect, the “Security Device” for purposes of the Service is the Security Device used by that SA or other AU to access Chase Connect.
2.1.5 Customer and its SA shall ensure that the SA and each AU has their own unique user identification number or name, unique password, and if applicable, unique Security Device (collectively, “Credentials”), and that no Credential is shared by any AU with any other person. Customer shall be responsible for any loss that occurs from any improper sharing or any use by any unauthorized person of any Credential. Bank may terminate or suspend access by an SA or AU at any time.
2.2 Collaborators. A “Collaborator” is an AU entitled by the SA to be a user of the Service as a Collaborator. A Collaborator may either be (a) an AU on Chase Connect who has also been entitled to be a Collaborator on the Service and who may access the service via either Chase Connect or directly via the Bill.com website, or (b) a person who is not an AU on Chase Connect, who is entitled by the SA to be a Collaborator on the Service, and who accesses the Service directly via the Bill.com website. Within the scope of the entitlements granted by the SA to a Collaborator, all of the provisions of this Agreement applicable to an AU apply to a Collaborator. The SA may designate a person to be any one or more of three different types of Collaborators and to establish the rights and permissions they may exercise within the Service:
2.2.1 “Clerk” is a Collaborator who is entitled by the SA to view and create Customer invoices and credits submitted to its customers vendors for payment, to manage Customer invoices and credits submitted to its customers and invoices and vendor credits submitted by Customer’s vendors using accounting software that may be compatible from time to time with the Service, to manage vendor and customer profiles, and to perform other duties delegated by the SA;
2.2.2 “Accountant” is Collaborator (who may be an accountant, financial professional, or other person) who is entitled by the SA to view, create, and approve Customer Bills to be submitted to its customers, to view and approve invoices and vendor credits submitted by Customer’s vendors for payment, to manage Customer invoices and credits submitted to its customers and invoices and vendor credits submitted by Customer’s vendors using accounting software that may be compatible from time to time with the Service, and to perform other duties delegated by the SA; and
2.3 “Approver” is a Collaborator who is entitled by the SA to view and approve Customer invoices to be submitted to its customers, to view and approve invoices and vendor credits submitted by Customer’s vendors for payment, in accordance with the user entitlements granted by the SA, and to perform other duties delegated by the SA.
3. The Security Procedure; Administrative Procedures; and Unilateral Procedures.
3.1 The Security Procedure. The “Security Procedure” is the procedure that is established from time to time by Bank and agreed to by Customer as the procedure to be used for the purpose of accessing the Service and Bank’s verifying that any instruction received by Bank via the Service to pay money (a “Payment Order”) or any other order, request, or other instruction received by Bank via the Service related to any Account or otherwise with respect to the Service (collectively, with any Payment Order, “Instructions”) is made by the SA or any other AU on behalf of Customer. The Security Procedure may be different depending on whether Access to the Service is obtained through Chase Connect or via the Bill.com website, as described in Sections 3.2 and 3.3 below, or whether a personal computer (“PC”) or “Mobile Device” (defined in Section 7.4) is used to access the Service, and Bank reserves the right to establish a different Security Procedure for different AUs. The purpose of the Security Procedure is for verifying the authenticity of, and not detecting errors in, Instructions. Customer agrees: (a) to be bound by any Instruction, which is made by the SA or any other AU; and (b) that any Instruction, the authenticity of which has been verified by Bank with the Security Procedure, shall be effective as that of Customer, whether or not authorized, and notwithstanding that the Instruction may result in an overdraft of an Account. Bank may also change the Security Procedure at any time, and Customer shall follow Bank’s instructions with regard thereto, with Customer’s continued use of the Service being deemed to constitute Customer’s agreement to any such new Security Procedure.
3.2 The “Security Procedure” for Customer’s SA’s and AU’s accessing the Service through Chase Connect.
3.2.1 For Customer’s SA’s and AU’s accessing the Service through Chase Connect the “Security Procedure” means the Security Procedure then in effect and applicable to that SA’s or AU’s access to Chase Connect in accordance with the terms and conditions of the Chase Connect Agreement.
3.2.2 All terms and conditions of the Chase Connect Agreement pertaining to the Security Procedure, the Administrative Procedures, the Unilateral Procedures, and all related provisions related, shall apply to the use of the Service by Customer’s SA’s and AU’s accessing the Service through Chase Connect; provided, however, that initially and until further development of the Service, the following Administrative Procedures are not available through or applied by the Service: Chase Dual Control, IP Security, and Customer Transaction Limits.
3.3 The “Security Procedure” for Collaborators entering the Service directly via the Bill.com website. The following provisions are applicable to Collaborators entering the Service directly via the Bill.com website:
3.3.1 For an AU that is Collaborator and is entering the Service directly via the Bill.com website, the “Security Procedure” means Bank’s receipt at login or at any time thereafter of a user identification number and password of any Collaborator, and the use (as applicable) by Bank of the Out-of-Band Authentication Procedure. The “Out-of-Band Authentication Procedure” means the authentication by Bank of that User as a Collaborator by (i) an activation code being delivered by Bank to the User one or more times via a telephone call, telephonic text message, or email message, to the registered phone number or email address of a Collaborator, which activation code is required for the User to use the Service; or (ii) the User making a telephone call to Bank in accordance with the directions provided on the Service, and being authenticated through such telephone call as a Collaborator.
3.3.2 The applicable Security Procedure also includes, for certain transactions, transactional analysis by Bank to assess the transaction based on various risk characteristics. The transactional analysis will be conducted in accordance with commercially reasonable protocols selected from time to time by Bank. Additional authentication from Customer, such as call-back verification, may be required to complete certain transactions identified through transactional analysis.
3.3.3 Customer agrees that the Security Procedure established by Bank as of the Effective Date for each of Customer’s Collaborators is, in consideration of any Administrative Procedures available for Customer’s use, and any Unilateral Procedures and other layers of security that Bank may elect to use with the Service from time to time without obligation and in Bank’s sole discretion, a commercially reasonable method of providing security against unauthorized payment orders and other Instructions, and also in general and for Customer’s particular use of the Service. Customer shall make its own continuous independent assessment of the adequacy of the internet and the Security Procedure both generally and for Customer’s particular use of the Service.
3.3.4 Bank may at any time make available to Customer or any of its Collaborators an additional, new or replacement Security Procedure (collectively, a “New Security Procedure”), which shall be deemed to be an offer by Bank. Customer may accept that offer by implementing such procedure in accordance with Banks’ instructions. Such acceptance shall constitute Customer’s agreement that the Security Procedure (which may include, without limitation, such New Security Procedure) established by Bank as of the date of such acceptance for Customer and each of its Collaborators is, in consideration of any Administrative Procedures available for Customer’s use, and any Unilateral Procedures and other layers of security that Bank may elect to use with the Service from time to time without obligation and in Bank’s sole discretion, a commercially reasonable method of providing security against unauthorized Payment Orders and other Instructions, and also in general and for Customer’s particular use of the Service. Customer expressly agrees that Customer shall be deemed to have refused the New Security Procedure and chosen the existing Security Procedure upon the earlier of (a) Customer expressly declining the New Security Procedure, or (b) Customer failing to fully implement the New Security Procedure within the time specified in, and in accordance with, Banks’ instructions (the earlier of (a) or (b) being the “NSP Declination Date”). Customer, by its acceptance of this Agreement in any manner as described in Section 1.2, hereby expressly agrees to be bound by any Payment Order or other Instruction made via the Service, whether or not authorized, which is issued in its name and accepted by Bank after the NSP Declination Date in compliance with the existing Security Procedure, which existing Security Procedure Customer agrees shall be deemed, in consideration of any Administrative Procedures available for Customer’s use, and any Unilateral Procedures and other layers of security that Bank may elect to include for the Service from time to time without obligation and in Bank’s sole discretion, to be a commercially reasonable Security Procedure in general and for Customer’s particular use of the Service.
3.3.5 “Administrative Procedure” means a procedure or action, in addition to the Security Procedure, which Bank recommends from time to time for Customer’s use of the Service, and which may, without limitation, relate to the integrity, authenticity, accuracy, or security of the Service, Customer’s access thereof, or any Payment Order or other Instruction, and which does not constitute the Security Procedure. Customer agrees that if Customer fails at any time to implement all of Administrative Procedures then recommended by Bank for use with the Service, Customer shall be solely responsible for any loss unless Customer proves by clear and convincing evidence, that Customer’s failure to implement all of such Administrative Procedures did not contribute to such loss. Bank may require that the Administrative Procedures be followed for any payment order or other Instruction, but shall have no duty at any time to establish or maintain any Administrative Procedure or to require the use thereof by Customer or any of its AUs (including, without limitation, any Collaborators). Bank may at any time recommend an additional, new or replacement Administrative Procedure (collectively, a “New Administrative Procedure”). If Customer expressly declines such New Administrative Procedure, or does not fully implement it in accordance with Banks’ instructions within thirty (30) days after it first being made available for Customer’s use, Customer shall be solely responsible for any loss unless Customer proves by clear and convincing evidence, that Customer’s failure to follow such New Administrative Procedure did not contribute to such loss.
3.3.6 “Unilateral Procedure” means a procedure or action, in addition to the Security Procedure and any Administrative Procedures, which Bank may from time to time employ without obligation and in its sole discretion as a further layer of security for the Service.
3.3.7 Processing. The application of the Security Procedure, the Administrative Procedures, and any Unilateral Procedures implemented by Bank, may cause delays in processing Instructions or result in Bank declining to execute Instructions.
4. General Description of the Service. The Service has the following components that may be used by Customer:
4.1 “Accounts Payable” includes the following services:
4.1.1 “Bill Indexing and Document Management” allows for the uploading of invoices, bills, and other statements of account from Customers vendors (“Bills”) to Customer’s “Inbox” on the Service that are received online or via email assigned to Customer. Bank is not responsible for Bills that are misdirected or not received within the Service and posted to Customer’s Inbox. Customer should review its Inbox regularly. Customer must designate each Inbox item as a new or existing Bill or other document, and input details as the Service may require (“Bill Details”). Such entry and Bill Details may be provided for Customer if Customer elects the Auto Bill Entry service (described in Section 4.1.4).
4.1.2 “Workflow” allows the SA to invite Collaborators to use the Service and the role(s) for such persons in managing vendors, Bills and documents, and recording and approving Bills.
4.1.3 “Sync” or “Synchronization of data with accounting software” allows Customer to install software from Bank’s ASP, Bill.com, that enables Customer to update eligible accounting software program files with transactions processed through the Service, and to synchronize the list of accounts, classes, and vendors.
4.1.4 “Bill Payment” (or “Payables”) is a bill payment service further described in Section 5.
4.2 “Accounts Receivable” includes the following services:
4.2.1 “Invoice Creation and Import” allows Customer to create invoices by entering customer names and other information (“Invoice Details”), or import invoices from Customer’s eligible accounting software package.
4.2.3 “Invoice Management” allows Customer to send invoices by email, track them through the Service, and issue reminders.
4.2.2 “Bill Payment and ACH Invoice Collection” allows Customer to pay bills to its vendors, and collect and receive payments from its customers, and is further described in Section 5.
5. Bill Payment and ACH Invoice Collection. The “Bill Payment and ACH Invoice Collection” service includes the following services:
5.1 Bill Payment.
5.1.1 The “Bill Payment” service allows for the electronic transmission to Bank of Payment Orders and other Instructions for eligible payments in U.S. Dollars to be made by Bank and its ASPs via the Service from Customer’s Accounts to eligible Payees located within the U.S. Eligibility of Payees may be determined by Bank in its sole discretion. The Service is not intended for the payment of alimony, child support, taxes or court-directed or government payments, payments to settle securities transactions, or payments prohibited under other provisions of this Agreement or by applicable law. Bank may also refuse to issue a payment to any Payee in its sole discretion and for any reason, but will endeavor to promptly inform Customer of any such discretionary refusal.
5.1.2 Bank may make, or cause any of its ASPs as a Third Party Services Provider or otherwise on behalf of the Bank to make, the payment at Bank’s sole discretion either by an Automated Clearing House (“ACH”) payment (an “ACH Payment”) or mailing a check issued by Bank for Customer to the Payee; however, Bank will endeavor to make the payment by ACH Payment Customer is responsible to provide correct and current Payee information for each third party vendor (each, a “Vendor”) in the Bill.com network as follows: (a) for check payments, the Vendor name and remittance address; (b) For ACH payments, Customer must (i) locate and select the Vendor in the online database within the Service, (ii) input the Vendor’s Bill.com network identification number, (iii) invite the Vendor to setup an account on the Bill.com network by sending the Vendor an email invitation through the Service, or (iv) input Vendor’s bank routing number and bank account number in the Service for that Vendor. Please note that if Customer invites a Vendor to setup a Bill.com network account it may take several days to complete the verification process required to activate the account for electronic payments. Bank may in its sole discretion update the Vendor address to the Vendor address as determined by Bank, and may alter payment data or data formats or change or reformat the Vendor bank routing number or Vendor account number, including, without limitation, changing the Vendor account number to match the account number or format required by the Vendor’s bank for ACH processing. Bank will endeavor to inform Customer of any returned payments and to provide Customer with a choice to void the payment and credit Customer’s Payment Account or to attempt to reissue the payment to the Vendor; provided, however, that absent Customer’s specific direction, Bank will void the payment and credit Customer’s Payment Account. Bank shall not have any liability for any returned or reissued payment.
5.1.3 To pay a bill or invoice, Customer should select the date (the “Process Date”) on which Customer’s Account at Bank designated by Customer (the “Payment Account”) will be debited by Bank or its ASPs, including, without limitation, Bill.com, via ACH or otherwise. Receipt by Bank of Customer’s Payment Order authorizes Bank and its ASPs, including, without limitation, Bill.com, to debit the Payment Account on the date of such Payment Order unless it is not a business day, and if not, then on the next business day, and begin the process of remitting funds on Customer’s behalf via the Service. Customer also authorizes Bank and its ASPs, including, without limitation, Bill.com, to credit the Payment Account for any return payment received and for any payment remitted to Customer by another customer of the Bill.com network.
5.1.4 Payments made through the Service require sufficient time for the Payee to receive the payment. The Service will indicate the earliest possible Process Date for each payment. Bank will endeavor to issue the payment within one to two business days following the Process Date, depending on the size of the payment and any delay arising, or action taken by Bank, under Section 7.3. Customer is solely responsible for scheduling payments and selecting a Process Date for each payment that allows sufficient time for the payment to be delivered prior to or on the bill’s due date. Typically it takes two to three full business days after the Process Date to deliver an ACH Payment and five or more days to deliver a check payment within the U.S. by first class mail; provided, however, that there may be delays in handling and posting payments by slow responding companies or financial institutions and mail delays, that may result in some transactions taking longer to be credited to the Payee deposit account, and Bank and its ASPs shall not be responsible for any of such delays. Customer shall be solely responsible for all penalties, interest charges, and other late payment fees associated with payments delivered after the due date. Customer may express a preference to make any payment made through the Service by ACH or check; provided, however, Bank at all times reserves the right to select the payment method. ACH Payments may be made only to an eligible U.S. domestic bank account. All other payments must be made by check. Payments made by check are only made to an eligible U.S. address.
5.1.5 Funds received by Bank from the Customer to pay its Instructions or for payment by a third person to the Customer (together, “Received Funds”) may be credited to Client Money Account (CMA) maintained at the Bank by Bill.com. Customer acknowledges and agrees that the Received Funds will be held by Bill.com for the benefit of Customer for the purposes of remitting and receiving funds as provided in the applicable money transmitter laws and for a term not to exceed the later of the date on which this Service is terminated and the date on which the CMA holds no Customer funds. The Customer irrevocably appoints the Bank as its agent to make and resolve any claims and enforce any rights on Customer’s behalf arising from or relating to Received Funds credited to the CMA. As such agent, and at the Bank’s sole discretion, the Bank may assert any such claim and enforce any such rights against Bill.com or any of its successors including receivers or trustees in any bankruptcy or insolvency proceeding. As an agent of Customer, Bank has no duty to and is not obliged to assert any claim or enforce any rights on Customer’s behalf and is not liable for any act or omission or any other person, or any error of judgment or mistake of fact or law, but only for its own gross negligence or willful misconduct. Customer further acknowledges and agrees that: (a) Received Funds on deposit in the CMA may be commingled by Bill.com with funds received from or for credit to other persons, (b) Received Funds may become the subject of third-party efforts seeking garnishment, levy, subpoena and legal process served on the Bank or Bill.com, and to applicable escheatment laws, (c) if Bank or its ASP, including, without limitation, Bill.com, determines that it is unable or unwilling to execute an the Instruction, any related Received Funds on deposit in the CMA less any applicable Fees will be credited to the Customer Account or returned to the originating depository institution, within a reasonable amount of time, and (d) if Bank makes any payment on behalf of a Customer, Bank shall additionally be subrogated to any and all rights of such Customer in respect of any amounts owed to such Customer from the CMA and may, in its sole discretion, act to enforce such rights to recoup any such payment for Bank and not on behalf of the applicable Customers. Customer shall have no right to interest on funds held for Customer in the CMA.
5.1.6 Customer authorizes Bank and its APSs, including, without limitation, Bill.com, to debit the Payment Account in increments or as a lump sum and to remit funds in accordance with Customer’s Payment Orders, and to resubmit any ACH debit that is returned for insufficient or uncollected funds or any other reason. Payments may be completed by Bill.com, which is a state-licensed money transmitter. Bill.com’s state license information can be viewed at http://app.bill.com/licenses. ACH Payments will be governed by the rules in effect from time to time and established by the National Clearing House Association (“NACHA”), under which Customer is an “Originator,” Bill.com and / or other ASPs are is “Third Party Service Providers, and Bank is the “Originating Depository Financial Institution” or “ODFI”. If a debit to Customer’s Payment Account is returned, Bank may decline to process any additional payments, and Bank reserves the right to stop payment on any payments in process until that debit is successfully re-presented and paid. Without limiting any other remedies, if any ACH debit from the Payment Account is returned because of insufficient funds or any other reason, Customer must reimburse Bank and its ASPs, including, without limitation, Bill.com, immediately on demand, and Customer will also be responsible for fees and charges as provided in the legal agreements governing the Payment Account. Bank and its ASPs, including, without limitation, Bill.com, may also exercise their setoff rights under any agreement or applicable law. Bank and its ASPs, including, without limitation, Bill.com, may make appropriate reports to credit reporting agencies, other financial institutions, tax agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution. Bank and its ASPs, including, without limitation, Bill.com, also reserve the right to debit a Payee’s account for money paid to the Payee on Customer’s behalf if the ACH debit from the Payment Account is returned because of insufficient funds or any other reason. Customer will be solely responsible for all penalties, interest, charges, late payment fees and service fees incurred by Customer resulting from such a debit to a Payee. Note that in some cases a transaction may be reversed for up to 60 days after it is settled or may be invalidated for fraud or some other reason, in which case funds may be removed from the Payment Account long after the initial deposit. Customer agrees to at all times maintain sufficient funds in the Payment Account to satisfy all obligations including returns, reversals, and associated fees, and to add funds immediately if Bank notifies Customer that funds in the Payment Account are insufficient. Bank may, in its sole discretion, contact Payees regarding any payments made or to be made at any time and for any reason.
5.1.7 Customer may request for scheduled payments to be cancelled, rescheduled or modified by following the directions within the Service. . Once processing has begun it cannot be cancelled, rescheduled, or modified, but Customer may submit a stop payment request. The ability of Bank to process a stop payment request depends on the payment method and whether or not the payment has been processed or the check has cleared. Stop payment requests should be made through the Service.. While Bank will endeavor to accommodate stop payment requests which are received, Bank will have any liability for failing to do so. Stop payment requests will incur charges when the request is made and as described in Section 11.
5.1.8 Bank will endeavor to make all payments in accordance with Customer’s Payment Orders. If Bank causes an incorrect amount of funds to be removed from the Payment Account, or causes funds from the Payment Account to be paid to a Payee in noncompliance with Customer’s Payment Order, or if Bank fails to issue a payment (each, an “Error”), Bank will endeavor to return the improperly transferred funds to the Payment Account, to direct any previously misdirected payments to the proper Payee Notwithstanding the foregoing, Bank and its ASPs, including, without limitation, Bill.com, shall not incur any liability from any Error resulting from any of the following circumstances: (a) there are insufficient funds in the Payment Account; (b) the ACH network or other payment processing center or system is not working properly or there is any other force majeure event of any of the kinds described in Section 16.1; (c) the Payment Account information or the Payment Orders are inaccurate, incomplete, or out of date; as (d) as a result of any delay arising, or action taken by Bank, under Section 7.3.
5.2 ACH Invoice Collection and Authorization for ACH Invoice Collections:
5.2.1 The “ACH Invoice Collection” service allows Customer to collect receivables in U.S. Dollars from its eligible customer Payors located in the U.S. via ACH debits for deposit into Customer’s Accounts. Customer and other customers of the Bill.com network authorize ACH collections through the Bill.com network from their deposit accounts, which for Customer includes, without limitation, the Payment Account. Eligibility of Payors from whom Customer desires to obtain ACH Invoice Collections from may be determined by Bank in its sole discretion, and may, without limitation or obligation by Bank, include an evaluation of the financial condition and creditworthiness of such Payors. Customer’s initiation of an ACH Invoice Collection through the Service authorizes the Bank to make, or cause any of its ASPs as a Third Party Services Provider or otherwise on behalf of the Bank to make, an ACH collection on Customer’s behalf from eligible customer Payors. Bank may also refuse an Instruction to make an ACH Invoice Collection in its sole discretion and for any reason, but will endeavor to promptly inform Customer of any such discretionary refusal.
5.2.2 When an ACH Invoice Collection is submitted by Customer, Customer represents and warrants that: (a) Customer has obtained Payor’s authorization for the ACH Invoice Collection from Payor with respect to that Payor’s deposit account from which the collection is to be obtained and (b) that the amount of the ACH Invoice Collection is the true and correct amount, is due and owing to Customer from Payor, and is not subject any credit, deduction, claim, setoff, or defense of any kind. Customer’s authorization for ACH collections via the Service from Customer’s Accounts will remain in effect until notice of cancellation is received by Bank and it has a reasonable opportunity to act thereon. Customer agrees not to dispute any ACH collections made from its Accounts by another customer of Bill.com network provided that the transactions correspond to the terms of the contract(s) between Customer and such other customer.
5.2.3 If an ACH Invoice Collection being charged to Customer’s Account is rejected for insufficient funds, Customer agrees the charge may be processed again at any time within 30 days. Customer certifies that its Accounts are enabled for ACH Invoice Collections (such as the Account being subject to an ACH debit block service or the ACH Invoice Collection not being a permitted debit thereunder), and agrees to reimburse Bank and its ASPs, including, without limitation, Bill.com, for all penalties and fees incurred by Customer as a result of Bank rejecting ACH debits or credits or the Account not being properly configured for ACH Invoice Collections (such as the Account being subject to an ACH debit block service or the ACH Invoice Collection not being a permitted debit thereunder).
5.2.4 Bank and its ASPs, including, without limitation, Bill.com, reserve the right to debit Customer’s or Payor’s account if the ACH debit from Payor is returned because of insufficient funds or any other reason. If the debit to Customer’s account is rejected for insufficient funds, Customer must reimburse Bank If the debit to Customer’s account is rejected for insufficient funds, Customer must reimburse Bank and Bill.com immediately upon demand; Customer further agrees that Bank and Bill.com may debit the amount again from the Customer’s account or deduct the amount from collections to be credited to Customer’s account whether or not received from the same Payor..Customer or Payor shall also be responsible for all penalties, interest charges, late payment fees and service fees which they may respectively incur and result from such returned debits. Bank may, in its sole discretion, contact Customer or any Payor regarding payments or ACH Invoice Collections made, or to be made, by Customer or Payor through the Bill.com network for any reason.
6. Open Network Access; Equipment.
6.1 Customer, at its sole expense, agrees to: (i) procure, maintain, and utilize (a) all hardware, browsers, operating systems, software and telecommunications equipment determined at any time by Bank to be compatible with the Service; (b) a web browser with encryption technology that meets or exceeds Bank’s recommendations; (c) an operating system supported by Customer’s equipment vendor, and to update and upgrade the same regularly in accordance with such manufacturer’s recommendations, and not to install any modifications or additions thereto which have not been approved by such operating system vendor; and (d) antivirus, anti-spyware, and other internet security software, and to update and upgrade it regularly per the vendor’s recommendations; and (ii) provide Bank with all information reasonably requested by Bank to setup, establish or maintain the Service for Customer. Customer shall be responsible for any loss in which Customer’s failure to update its web browser and/ or operating system caused or contributed to such loss. Bank reserves the right to discontinue the Service for Customers that do not maintain an up to date web browser and/ or operating system.
6.2 There are security, corruption, transmission error and access availability risks associated with the internet and other open networks, and Customer hereby expressly assumes all such risks. Customer’s selection and use of third party computer, internet, operating systems, security, and communications software and internet, telecommunications, and other service providers is Customer’s sole responsibility. Customer shall be responsible at all times for the proper functioning, maintenance and security of the systems, services, software and other equipment of Customer, its SA, and its AUs, and for their proper and secure disposal. The presence of any malware, including, without limitation, any keystroke logger, on any of PC or Mobile Device of Customer, its SA, or any of its AUs, shall, unless proven by Customer otherwise by clear and convincing evidence, be deemed to constitute the failure by Customer to fulfill its duty to maintain the proper functioning, maintenance and security of the systems, services, software and other equipment of Customer, its SA, and its AUs, shall be deemed to be the proximate cause of all damages, losses, expenses and liabilities suffered or incurred by Customer, and shall preclude and estop Customer from making any argument that the Security Procedure was not commercially reasonable or that Bank has any responsibility for any loss incurred by Customer. In the event of any actual or suspected fraud or loss, Customer shall cooperate with Bank’s reasonable requests, including, without limitation, the review, inspection, and testing by Bank, any independent contractor or Bank agent, or any governmental authority, of the systems, services, software and other equipment of Customer, its SAs, and its AUs, and follow any remediation steps as may be recommended by Bank, any independent contractor or Bank agent, or any governmental authority. THE HARDWARE, BROWSERS, OPERATING SYSTEMS AND OTHER SOFTWARE, TELECOMMUNICATIONS EQUIPMENT, ENCRYPTION, ANTIVIRUS, ANTI-SPYWARE, OTHER INTERNET SECURITY SOFTWARE OF CUSTOMER, ITS SA, AND ITS AUS, AND THE INTERNET PRIOR TO REACHING BANK’S EQUIPMENT, ARE NOT WITHIN BANK’S CONTROL, AND BANK SHALL HAVE NO LIABILITY FOR ANY DAMAGE, LOSS, EXPENSE OR LIABILITY SUFFERED OR INCURRED BY CUSTOMER FROM ANY CAUSE THAT IS NOT WITHIN BANK’S DIRECT, EXCLUSIVE, AND REASONABLE CONTROL. CUSTOMER SHALL HAVE THE BURDEN OF PROOF TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT ANY DAMAGE, LOSS, EXPENSE OR LIABILITY SUFFERED OR INCURRED BY IT WAS THE DIRECT RESULT OF ANY BREACH OF A DUTY BY BANK AND FROM A CAUSE THAT WAS WITHIN BANK’S DIRECT, EXCLUSIVE, AND REASONABLE CONTROL. BANK SHALL NOT IN ANY EVENT BE LIABLE FOR ANY DAMAGES FOR DELAYED DELIVERY OF ANY FUNDS REQUESTED IN ANY PAYMENT ORDER.
6.3 In the event of a computer, telecommunication, internet or system failure, service outage, or interruption, Payment Orders, other Instructions, and Data may be lost or destroyed, or their delivery or processing may be delayed. Customer assumes all risks and losses therefrom, and should verify that Payment Orders and other Instructions have been received and properly executed. Bank may disclose Customer information as Bank may reasonably determine is necessary or desirable to prevent or reduce any actual or prospective fraud or loss.
7. Instructions; Data; Internal Controls; Mobile Devices; Disclosure; Website Links.
7.1 Customer will transmit Instructions and Data via the Service using a format, telecommunications system, internet, or network specified by Bank for the Service. Data may not have been reviewed by Bank, may be updated, adjusted, and corrected at any time by Bank, and should not be relied upon by Customer. Account information or Data provided via the Service is not the official record of Customer’s Accounts, and Bank shall not be liable for any loss or damage arising out of the inaccuracy of Data on the Service. Customer is responsible for regularly reviewing its Account activity (including, without limitation, Account statements), for maintaining appropriate internal controls, including segregation of duties of Customer’s SA, AUs, officers, representatives, agents, and employees, for identifying any inappropriate or unauthorized use of the Service or error, and for immediately notifying Bank of any such improper or unauthorized use or error. Customer shall be responsible for, and bear all losses due to Bank following any Payment Order or Instruction made by the SA or any AU or that Bank verifies by the Security Procedure, and for any inappropriate or unauthorized use of the Service or error by any of Customer’s SA, AUs, officers, representatives, agents, and employees, and any duplicate or incorrect Payment Order or other Instruction. CUSTOMER’S FAILURE TO REPORT TO BANK ANY UNAUTHORIZED TRANSFER, PAYMENT, ADVANCE, OR ERROR WITHIN SIXTY (60) DAYS OF BANK PROVIDING OR MAKING AVAILABLE, IN PAPER, ELECTRONIC OR OTHER FORM, TO CUSTOMER AN ACCOUNT STATEMENT SHOWING SUCH UNAUTHORIZED TRANSFER, PAYMENT, ADVANCE, OR ERROR SHALL RELIEVE BANK OF ANY LIABILITY FOR ANY LOSSES SUSTAINED AFTER SUCH SIXTY (60) DAY PERIOD, AND CUSTOMER SHALL THEREAFTER BE PRECLUDED FROM ASSERTING ANY SUCH CLAIM OR ERROR. Customer shall be responsible for keeping its own books and records of its Accounts and all transactions and Instructions effected through the Service, and may not rely on Bank to be Customer’s record keeper.
7.2 Customer shall be responsible for all Payment Orders and other Instructions provided to Bank via the Service by Customer’s SA or AU or that Bank verifies by the Security Procedure, and for ensuring that all information provided to Bank is accurate and correct. Customer shall provide Bank with such information as Bank may request for any requested transaction, including without limitation, Payee or Payor and Payee’s or Payor’s bank account information and name and address. Bank, any intermediary bank, and any Payee or Payor bank may rely solely on Payee’s or Payor’s account number or any routing or identification number (such as a Fedwire routing number) for Payee or Payor bank that Customer provides in its Instructions, whether or not the name of Payee or Payor, or Payee’s or Payor’s bank matches the account number and/or routing or identification number. Customer is responsible for any loss resulting from any error in Payee’s or Payor’s account number or any routing or identification number for the Payee or Payor bank.
7.3 Bank at any time may, without obligation, view, review, and monitor the use of the Service by Customer, its SA, and its AUs, and Customer represents and warrants that it has obtained and will at all time obtain and maintain the consent of Customer’s SA and all of its AUs for Bank’s viewing, reviewing, and monitoring of the use of the Service by Customer’s SA and AUs. Also, Bank may for any Appropriate Purpose at any time and without notice, (i) suspend, delay, cancel, or refuse to execute any Payment Order or other Instruction, (ii) charge-back or reverse the amount of any credit provided by Bank to any Account, (iii) claim a refund from Customer for any credit provided by Bank, or (iv) otherwise reverse or place a hold on any transaction or correct any error. "Appropriate Purpose" means (a) any reasonable or appropriate purpose as determined by Bank in its sole discretion, including, without limitation, any Payment Order or other Instruction about which Bank has any question regarding its being illegal, inappropriate, improper, unauthorized, fraudulent, duplicative, or incorrect, or in error, or (b) any transaction selected by Bank in its sole discretion, for investigation or scrutiny.
8. Notices, Communications, and Service Inquiries. Chase Connect contains an electronic messaging center (the “SMC”) for the transmission of electronic messages (“SMC Messages”) between Customer and Bank relating to the Service, and Bill.com website contains an Inbox (the “Inbox”) for the transmission of electronic messages (“Inbox Messages”) between Customer and Bank relating to the Service. The SMC and Inbox shall be solely for business purposes relating to the Service, but not for the transmission of Payment Orders or other Instructions. Customer’s SAs and AUs shall regularly check and promptly read all SMC Messages and Inbox Messages, which may contain notices or important information. All notices to Customer with respect to the Service may be sent to Customer’s SA by SMC Message, Inbox Message, ordinary mail, courier, facsimile transmission, or electronic mail (or “e-mail”), at the address or contact information of Customer and its SA, on the books and records of Bank. Customer agrees to promptly notify Bank of any change in contact information for Customer or its SA and AUs, by updating such information within the Service or by sending notice to Bank. If e-mail or other notifications to Customer or its SA are undeliverable due to an incorrect e-mail or other address, Bank has no further obligation to contact Customer to correct the issue unless Bank receives a corrected e-mail or other address. All notices to Bank with respect to the Service shall be sent to Bank by (i) writing to Bank at JPMorgan Chase Research Team, One East Ohio Street, IN1-0130, Indianapolis, IN 46204, or (ii) sending Bank a SMC Message with the subject line reading “Legal Notice to JPMorgan Chase Bank, N.A.,” and shall be effective after Bank has had a commercially reasonable time to act after its receipt thereof. E-mail or other addresses may be changed by any party by giving notice thereof to the other party in accordance with this Section or by the SA within Access and Security Manager. Customer service inquiries may be directed to Bank at its address set forth in this Section or sending Bank a SMC Message, or by calling the CCO Service Center at 1-877-226-0071, but Government, Healthcare, Higher Education, and Not-For-Profit banking customers should call 1-855-893-2223 (or such other numbers Bank may provide). Telephone calls may be recorded by Bank and its ASPs.
9. Termination; Suspension; Cancellation; Liquidated Damages, etc. Bank reserves the right at any time to determine the eligibility of any Customer, Customer Profile, Account, SA, or AU, or to refuse any Payment Order or other Instruction for any reason (including, without limitation, any security, legal, regulatory, or other reason or concern) or no reason without prior notice. Notwithstanding any grace or cure period provision in any Account Document, Bank may at any time for any or no reason, without prior notice, terminate, suspend, freeze, limit or change the Service or any Application or function thereof with respect to any Customer, Customer Profile, Account, SA or AU or may terminate, suspend, freeze, limit, or change access privileges of any SA or AU to the Service or any Application or function thereof. Customer may cancel the Service at any time by cancelling all pending transactions and giving notice to Bank; provided, however, that cancellation shall not be effective until thirty (30) days after Bank’s receipt. All liabilities of Customer’s liabilities and all of Bank’s rights shall survive termination or cancellation of the Service. Customer acknowledges that the Service provides an alternative channel to accessing its Accounts and other services from Bank. Customer acknowledges that this Service is simply one of the available online services available to Customer, and that the online services offered by Bank provide online alternatives to services that are also available by Bank through alternative delivery channels.
10. Customer Representations, Warranties, and Covenants. Customer represents and warrants to, and covenants and agrees with, Bank that:
(a) it will be bound by all electronic funds transfer laws and regulations and industry rules then in effect, including but not limited to the NACHA and Electronic Payments Association rules and guidelines (the “NACHA Rules”);
(b) it may not initiate Payment Orders or Instructions via the Service in violation of the laws and regulations of the United States;
(c) it and its SAs and AUs will at all times use the Service, and issue Payment Orders and other Instructions, only for lawful purposes and in accordance with:
(i) the terms and conditions of the Account Documents, and not in violation of any agreement between Customer and Bank; and
(ii) Bank’s Instructions, rules, policies, and procedures then in effect
(d) Customer will, in addition to all of its other obligations to Bank set forth in this Agreement, be deemed to make the same representations and warranties, and to provide the same indemnities to Bank that Bank and its ASPs make under the NACHA Rules for any transaction originated under this Agreement or via the Service.
(e) If Customer is a Third Party Sender under the NACHA Rules, Customer represents and warrants to, and covenants and agrees with, Bank that:
(i) the originator has agreed to comply with the NACHA Rules,
(ii) Customer will comply with the Bank’s request s for information regarding the originator,
(iii) Customer will evaluate the legitimacy of the originator, its transactions and instructions
(iv) Customer will notify Bank if it knows or suspects any transaction originated by its originator is illegal, illegitimate, involves the proceeds of illegal activity or is being done to disguise funds,
(v) none of the agreements between Customer and Bank violate or are inconsistent with the agreements between Customer and its originator,
(vi) Customer will indemnify and hold Bank harmless from and against any claim of any type or description arising from the originator not complying with the NACHA Rules.
(f) Customer, its SA, and its AUs will not at any time:
(i) disclose or permit use of the Service by any third party without Bank’s prior written consent,
(ii) engage in any fraudulent, illegal or unauthorized use of the Service or any transaction via the Service that is fraudulent, illegal or unauthorized,
(iii) introduce or transmit through the Service, or otherwise, any virus, worm, spyware, or other destructive element, or any material or information that it is offensive, objectionable, inappropriate harmful to any person or entity, or libelous,
(iv) use or attempt to use the Service to make any ACH transaction that should be formatted under the NACHA rules and guidelines as an “International ACH Transaction” (or “IAT”),
(v) use the Service other than primarily for business purposes (which excludes personal, family and household purposes and personal investments);
(vi) use the Service in connection with Accounts that are not U.S. Accounts; or
(vii) fail to maintain compliance with all U.S. and other laws and regulations applicable to any one or more of Bank, Customer, or the use of the Service, including, without limitation, laws and regulations pertaining to:
(A) exports or imports of software and related property;
(B) use or remote use of software and related property;
(C) any required registration of this Agreement;
(D) the U.S. Office of Foreign Assets Control (“OFAC”), prohibited transactions, sanctions, or other matters; and
(E) the use of any Account or the Service that directly or indirectly involves or are related to “unlawful internet gambling” (as defined in 12 C.F.R. Part 233, Section 233.2(bb)), including, without limitation, the acceptance or receipt of any funds or deposits in connection therewith;
(g) Customer is authorized to enter into this Agreement, each SA and AU is authorized to exercise and perform all of his or her rights and duties under this Agreement, and this Agreement, the legal agreements governing the Chase Connect service, and the Account Documents are each a legal, valid, and binding agreements of Customer, enforceable in accordance with its stated terms;
(h) in providing Bank with any Social Security Number (SSN), Taxpayer Identification Number (TIN), or other personally identifiable information of Customer’s SA or any of its AUs, that it has obtained the consent of such person or entity to provide such information to Bank;
(i) the SA hereby consents, and represents and warrants that it has and will obtain the consent from all AUs to receive email, SMC, and other electronic notices from Bank with respect to the Service, and that it will promptly notify Bank of any withdrawal of any such consent;
(j) the Services is not directed at or intended for use by children and Bank does not knowingly collect personal information from children without parental consent, that the SA and each AU is over the age of majority under the law of the state of their primary residence, and Customer is fully responsible for all acts and omissions by its SA and each of its AUs via the Service; and
(k) Bank and its ASPs are not, and will not at any time be, a “business associate” of Customer for purposes of The Health Insurance Portability and Accountability Act of 1996, as amended (“HIPPA”), and Customer will not send or transmit any “Protected Health Information” (as defined in HIPPA) to Bank or any of its ASPs or otherwise in any manner through the Service.
11. Service Fees; Taxes Bank may impose, charge, pass-though and modify fees and/ or charges for the Service including, but not limited to, transaction, maintenance, monthly exceptions processing, setup and other special services, and other fees and other charges, including those levied by any governmental authority and taxes (collectively “Fees”). Bank’s standard fees as of the Effective Date for the Service are set forth in Schedule I attached hereto. Fees due for the Service are in addition to all Account fees that may be due under the Account Documents and to all fees that may be due under the legal agreement(s) governing the Chase Connect service. Customer will pay all Fees when due, and may be charged by Bank to any Account when due. Bank reserves the right to change the Fees at any time, and may post the revised Fees on the Disclosures Webpage within the Service or notify Customer of the effective date of any change (the “Fee Increase Date”). If the change in Fees is not acceptable to Customer, Customer’s sole and exclusive remedy shall be to stop using the Service and to cancel the Service by notifying Bank of the cancellation in the manner set forth in Section 8 prior to the Fee Increase Date. By continuing the Service after the Fee Increase Date, Customer accepts all changes in Fees. Fees charged are not refundable except to the extent as is otherwise expressly provided in this Agreement Customer is responsible to determine what, if any, taxes apply to all payments made and collections received through the Service, to make all required tax reporting required for such payments and collections, and to collect, report, and remit the correct tax to the appropriate tax authorities. Bank is not responsible for determining whether taxes apply to these payments, or for collecting, reporting or remitting taxes arising from any these payments and collections. Customer shall also be responsible for paying all applicable sales taxes, use taxes, and other taxes for the Service, plus all phone, utility, and internet fees and taxes for Customer’s use of the Service.
12. Governing Law; Jurisdiction; Waiver; Severability. Except as may have otherwise been expressly agreed in writing between Customer and Bank, any and all matters in dispute, arising from or related to this Agreement and its enforcement or the Service, and regardless of the legal theory upon which such matter is asserted, shall be governed by the internal laws of the State of New York and of the United States of America, without giving effect to its conflicts of law rules, and Customer hereby irrevocably and unconditionally submits to the nonexclusive jurisdiction of the any State or U.S. Federal Court located in the State of New York, U.S.A., and waives all objections and defenses, including, without limitation the defense of an inconvenient forum, to such venue. Nothing herein shall affect any right that Bank may otherwise have to bring any action or proceeding in the courts of any jurisdiction. In addition to service of process in any other manner as permitted by applicable law, each Customer agrees to service of process on it to the address stated on the statements of any of its Accounts, and each non–U.S. Customer hereby irrevocably appoints each U.S. Customer in the Customer Profile as its agent for service of process. All rights and remedies of Bank under this Agreement and applicable law are cumulative, and no waiver shall be effective unless it is in writing and signed by Bank. No delay or omission on Bank’s part in exercising any right or remedy shall operate as a waiver thereof, and any waiver or indulgence on any one occasion shall obligate Bank to do so on any other occasion. If any provision of this Agreement is held invalid or unenforceable, that provision will to the greatest extent permitted by applicable law be deemed to be restated to reflect as nearly as possible the original intentions of the parties as reflected herein, and this Agreement with such restated provision shall then be valid and enforceable to the full extent permitted by law, and if a court does not restate any such provision then that provision shall be severed from this Agreement.
13.1 Customer shall indemnify, defend and hold harmless Bank, its affiliates, its ASP’s including, without limitation, Bill.com, and all of its and their shareholders, directors, officers, employees and agents (all, collectively, the "Indemnified Parties") from and against any and all claims, costs, demands, expenses, damages, liabilities and losses, including, without limitation, reasonable legal fees and expenses (all, collectively, the “Indemnified Obligations”), arising directly or indirectly from any one or more of:
(a) (i) any use of the Service, or any Payment Order or other Instruction by Customer, its SA, or any of its AUs AU;
(ii) any use of a Security Device, any activation code, or Credential of Customer’s SA or any of its AUs;
(iii) any act or omission by Customer’s SA, or any of its AUs, officers, directors, employees, agents or representatives ((i), (ii), (iii) and (iv) all, collectively, “Customer Parties”);
(b) any inappropriate or unauthorized use of the Service, or any error, by any Customer Party;
(c) any processed or requested ACH transaction which should have been formatted as an IAT, including but not be limited to any and all fines, penalties and damages assessed by NACHA or under any applicable law;
(d) any breach of any representation or warranty provided to Bank or any agreement in favor of Bank; or
(e) any claim of a third party relating to any action taken or not taken by any Indemnified Party in connection with the Service or this Agreement;
provided, however, that this indemnity shall not apply to the extent that the Indemnified Obligation has arisen due to the gross negligence or willful misconduct by such Indemnified Party. All of Customer’s obligations under this Section, shall survive termination of the Service and the closing of Customer’s Accounts.
13.2 Indemnification procedures:
(a) If a notice of commencement or threatened commencement of a claim or cause of action against any Indemnified Party is received by Bank, Bank shall give notice thereof (an “Indemnification Notice”) to Customer within thirty (30) calendar days of Bank’s receipt of the notice of commencement or threatened commencement of the claim or cause of action. Bank’s Indemnification Notice as provided herein shall not affect Customer’s indemnification obligations hereunder except to the extent Customer was materially prejudiced as a result of such failure; (b) if Customer fails to take control of the defense and investigation of such claim or cause of action then Bank shall have the right to defend the claim or cause of action in such manner as it may deem appropriate, and if a court of competent jurisdiction later determines that the claim or cause of action was eligible for defense and indemnification by Customer, then Customer shall promptly reimburse Bank for all such costs and expenses, including payment of any judgment or award and the costs of settlement or compromise of the claim or the cause of action;
(c) Bank shall cooperate in all reasonable respects with Customer and Customer’s counsel in the investigation, trial and defense of such claim or cause of action and any appeal arising therefrom (at Customer’s cost and expense) provided, however, that Bank may, at its own cost and expense, participate, through Bank’s own counsel or otherwise, in the investigation, trial and defense of such claim or cause of action; and any appeal arising therefrom; and
(d) neither party shall settle any claim, proceeding or cause of action for which indemnity may be sought hereunder, whether or not Bank or Customer, as applicable, is an actual or potential party thereto without such party’s prior written consent.
14. Charge Back and Setoff Rights. Customer further acknowledges and agrees that: (a) funds held for Customer in the CMA may be moved by the Bank or Bill.com at any time to Customer’s Accounts, and Customer agrees that funds in Customer’s Accounts are subject to charge and application by the Bank or Bill.com for any liabilities of the Customer under this Agreement, and (b) in addition to the rights granted to the Bank in subpart (a) of this Section, the Bank also is entitled to setoff rights in the Customer’s Accounts on the terms and subject to the conditions provided in the Account Documents, and as permitted by applicable law.
15. Joint and Several Liability. Each Customer in Customer Profile is jointly and severally liable for all obligations under this Agreement and in connection with the use of the Service by any Customer within such Customer Profile.
16. Final Agreement; Successors and Assigns; Benefit. Subject to the terms and conditions set forth in Section 1.2, this Agreement is the final agreement of the parties related to the Service on the stated terms and conditions set forth herein. This Agreement is binding on each Customer and their respective successors, but is not assignable by them without the written consent of Bank in its sole discretion. This Agreement is for the benefit of, Bank and its ASPs including, without limitation, Bill.com. All provisions of this Agreement in favor of Bank including, without limitation, all representations, warranties and authorization of each Customer, and all disclaimers and limitations of liability, shall also apply and inure to the benefit of each of its ASPs, including, without limitation, Bill.com. Bill.com is an intended third party beneficiary of this Agreement and may enforce the provisions of this Agreement against each Customer as if it were a party hereto. Bank shall be entitled, in its sole discretion, to deliver all or any part of the Service determined by Bank in its sole discretion by its ASPs, and to perform any of its obligations through its ASPs.
17. Liability Limitations; Force Majeure; Limitation of Liability; No Fiduciary Relationship; Release; No Warranties.
17.1 NO INDEMNIFIED PARTY SHALL HAVE ANY LIABILITY FOR ANY DAMAGE, LOSS, EXPENSE OR LIABILITY OF ANY NATURE WHICH CUSTOMER MAY SUFFER OR INCUR, EXCEPT TO THE EXTENT THEY ARE THE DIRECT RESULT OF SUCH INDEMNIFIED PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. NO INDEMNIFIED PARTY SHALL, IN ANY EVENT, BE LIABLE FOR: (A) ANY EVENT OR CIRCUMSTANCE BEYOND ITS REASONABLE AND DIRECT CONTROL; (B) ACTING IN ACCORDANCE WITH ANY PAYMENT ORDER OR OTHER INSTRUCTION PROVIDED BY CUSTOMER. ITS SA OR ANY OF ITS AUS, OR VERIFIED BY BANK WITH THE SECURITY PROCEDURE; (C) ANY ERROR OR OMISSION IN ANY PAYMENT OIRDER OR OTHER INSTRUCTION TO BANK PROVIDED BY CUSTOMER, ITS SA, OR ANY OF ITS AUS; (D) AN ACT OF GOD, ACT OF GOVERNMENTAL AUTHORITY, DE JURE OR DE FACTO LEGAL CONSTRAINT, WAR, TERRORISM, DISASTER, CATASTROPHE, NATIONAL EMERGENCY, FIRE, FLOOD OR ELECTRICAL, COMPUTER, MECHANICAL, TELECOMMUNICATIONS, INTERNET, COMPUTER, OR SYSTEM FAILURE, SERVICE OR POWER OUTAGE OR INTERUPTION, OR UNAVAILABILITY OF ANY PAYMENT SYSTEM, OR ANY OTHER FORCE MAJEURE EVENT); (E) ANY INDIRECT LOSS OR DAMAGE; (F) ANY LOST PROFITS; OR (G) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, WHETHER OR NOT FORESEEABLE.
17.2 EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, CUSTOMER HEREBY EXPRESSLY AGREES THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BANK AND ANY OF ITS ASPS IN CONNECTION WITH THIS AGREEMENT OR FOR PROVIDING THE SERVICE EXCEED THE SUM OF (A) ANY BILL PAYMENTS FOR WHICH CUSTOMER’S PAYMENT ACCOUNT HAS BEEN CHARGED AND WHICH HAVE NOT BEEN PAID TO THE VENDOR DISIGNATED BY CUSTOMER OR RETURNED TO CUSTOMER, PLUS (B) COLLECTIONS RECEIVED FROM PAYEES THAT HAVE NOT BEEN REMITTED TO CUSTOMER, PLUS (C) THE TOTAL FEES FOR THE SERVICE THAT HAVE BEEN PAID TO BANK IN THE PERIOD OF TWELVE CONSECUTIVE MONTHS WHICH PROCEEDED THE FIRST EVENT WHICH GAVE RISE TO SUCH LIABILITY, REGARDLESS OF THE NATURE OR KIND OF SUCH LIABILITY OR WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY.
17.3 NOTWITHSTANDING ANYTING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT OR IN THE RELATIONSHIP BETWEEN (A) CUSTOMER AND (B) BANK AND ANY OF ITS ASPS, INCLUDING, WITHOUT LIMITATION BILL.COM: (I) SHALL BE CONSTRUED TO CREATE A PARTNERSHIP, JOINT VENTURE, AGENCY, TRUST OR OTHER FIDUCIARY RELATIONSHIP BETWEEN THE PARTIES; OR (II) MAKE BANK OR ANY OF ITS ASPS A TRUSTEE OR FIDUCIARY OF ANY TYPE FOR ANY OF CUSTOMER’S FUNDS, WHETHER IN THE CMA OR OTHERWISE.
17.4 CUSTOMER RELEASES AND HOLDS INDEMNIFIED PARTIES HARMLESS FROM ANY DAMAGE, LOSS, EXPENSE OR LIABILITY SUFFERED OR INCURRED AS A RESULT OF GRANTING ACCESS TO ANY PC OR MOBILE DEVICE OF CUSTOMER, ITS SA, OR ANY OF ITS AUS, FOR TECHNOLOGY SUPPORT, SERVICE, OR ANY OTHER PURPOSE. CUSTOMER AGREES TO OBTAIN ANY NEEDED CONSENT FROM IT SA OR ANY OF ITS AUS.
17.5 USE OF THE SERVICE BY CUSTOMER, ITS SA, and ITS AUS, IS AT CUSTOMER’S SOLE RISK. THE SERVICE, AND ALL DATA, INFORMATION, PRODUCTS, SERVICES AND OTHER CONTENT ACCESSIBLE VIA THE SERVICE, IS PROVIDED ON AN "AS IS" "WHERE-IS" AND "WHERE AVAILABLE" BASIS, AND IS SUBJECT TO CHANGE AT ANY TIME BY BANK WITHOUT NOTICE, AND BANK AND ALL ASPS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF EVERY KIND (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). IF CUSTOMER DETERMINES THAT THE SERVICE IS NOT PERFORMING SATISFACTORILY OR MEETING CUSTOMER’S NEEDS, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO STOP USING THE SERVICE AND CANCEL THE SERVICE.
18. WAIVER OF JURY TRIAL. BANK AND EACH CUSTOMER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SERVICE, THIS AGREEMENT, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY).
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