Legal

Terms and Conditions

Business Account and Mastercard Terms

Business Associate Agreement

triValence Terms and Conditions

These General Terms and Conditions (“Terms”) are entered into as of the Effective Date pursuant to the Order Form between triValence and the Customer set forth on the Order Form.

  1. DEFINITIONS

    “Agreement” means the agreement as defined in the Order Form.

    “Authorized User” means Customer’s employees, contractors, and agents who are authorized by Customer to use the Platform pursuant to this Agreement.

    “Customer Data” means the information submitted to the Platform by or on behalf of Customer or Authorized Users.

    “Documentation” means any user instructions, manuals, online support resources, or other materials that triValence makes available to the Customer through the Platform.

    “Intellectual Property” means all intellectual property and other similar proprietary rights in any jurisdiction, whether registered or unregistered, including all rights and interests pertaining to or deriving from all patents, copyrights (including data compilations), trademarks, and trade secrets.

    “Order Form” means the order form specifying the Platform Services to be provided to the Customer that references these Terms.

    “Platform” or “Platform Services” means triValence’s proprietary software-as-a-service application provided to the Customer under an Order Form.

    “Platform Usage Data” means any data that is derived from the use of the Platform that does not directly or indirectly identify Customer, Authorized Users, or any natural person and includes (a) data such as volumes, frequencies, bounce rates, and Platform performance data and (b) subject to any restrictions under applicable law or regulation, data that is anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify Customer, Authorized Users, or any natural person.

    “Subscription Fees” means the subscription fees set forth on the Order Form.

    “Transaction Fees” means the transaction fees set forth on the Order Form.

  2. USAGE RIGHTS, RESPONSIBILITIES AND RESTRICTIONS

    2.1. Platform Access. Subject to the Agreement, triValence hereby grants Customer a non-exclusive, non-sublicensable, non-transferable right to use the Platform and Documentation solely for Customer’s internal business use.

    2.2. Authorized Users. Customers may permit Authorized Users to use the Platform. Access credentials for the Platform may not be used by more than one individual.

    2.3. Customer Responsibilities. Customer will (a) be responsible for Authorized Users’ compliance with the Agreement and the Documentation, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Platform Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform, and notify triValence promptly of any such unauthorized access or use, and (d) use the Platform only in accordance with the Agreement and the Documentation. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of its Equipment, Customer account, passwords(including but not limited to administrative and user passwords), and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

    2.4. Usage Restrictions. Customer will not, directly or indirectly, and will not authorize any Authorized User or third party to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, structure, algorithms, or associated know-how of, the Platform, or reconstruct, or discover, any hidden or non-public elements of the Platform, or results or reports provided by the Platform (except to the extent expressly permitted by applicable law); (ii) translate, adapt, or modify the triValence IP, any results or reports generated by the Platform, or any portion of any of the foregoing; (iii) write or develop any program based in whole or in part upon the Platform, or otherwise use the triValence IP in any manner for the purpose of developing, distributing or making accessible products or services that compete with any Platform Services; (iv) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Platform or any rights to any of the foregoing; (v) export, sell or distribute any content or portion of the triValence IP or use the triValence IP for the benefit of any third persons other than Authorized Users; (vi) transmit unlawful, infringing or harmful data or code, or any data or code that Customer is not authorized to transmit, either to or from the Platform; (vii) alter or remove any trademarks or proprietary notices contained in or on the Platform; (viii) circumvent or otherwise interfere with any authentication or security measures or otherwise interfere with or disrupt the integrity or performance of any of the foregoing; or (ix) otherwise use the triValence IP except as expressly permitted hereunder. Customer acknowledges that triValence may, but is under no obligation to, monitor Customer’s or any Authorized User’s use of the Platform.

    2.5. Suspension of Platform Services. triValence may suspend or limit the use of the Platform if triValence has a reasonable basis for concluding that Customer or any Authorized User is in breach of the Agreement, that Customer’s or any Authorized User’s continued use may result in material harm to the Platform or other customers, or suspension or limitation is otherwise necessary to comply with laws and regulations applicable to triValence. triValence will use commercially reasonable efforts under the circumstances to provide Customer with notice and limit any suspension or limitation in time and scope.

    2.6. Services Levels. triValence will make the Platform Services available to the Customer at least 99.9% of the time, excluding unavailability due to an Exception, measured on a calendar month basis (“Availability Commitment”). The following are “Exceptions” to the Availability Commitment: (a) any act or omission by Customer or any Authorized User that does not strictly comply with the Agreement and the Documentation; (b) any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under the Agreement; (c) Customer’s or its Authorized User’s Internet connectivity; (d) force majeure event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by triValence pursuant to the Agreement; (f) scheduled downtime; or (g) suspension or limitation of the Platform pursuant to Section 2.5.

    2.7. Modifications. triValence may modify the Platform Services from time to time during the Subscription Term, provided that triValence will not materially degrade the core functionality of the Platform during the Subscription Term. triValence will use commercially reasonable efforts to notify Customer of modifications in advance, including by providing notice of modifications to Customer through the Platform.

  3. CUSTOMER DATA

    3.1. Customer Data. As between Customer and triValence, Customer will retain all right, title, and interest in and to Customer Data. Customer represents and warrants that Customer has obtained and will obtain all necessary rights, consents, authorizations, and other permissions necessary to transfer or submit the Customer Data to the Platform for the purposes described in the Agreement. Customer grants to triValence a royalty-free, fully paid, non-exclusive right and license to copy, aggregate, compile, modify, distribute (directly or indirectly), publish, transmit, and create derivative works from Customer Data as necessary or useful for triValence to provide the Platform Services and for any other purpose not prohibited by law, including to create de-identified copies of Customer Data (such de-identified copies, “De-Identified Data”), and to disclose Customer purchasing information to vendors. However, triValence will not disclose any of Customer’s confidential pricing information to any third party other than to the applicable vendor to which such pricing information applies or as otherwise directed or authorized by Customer.

    3.2. Access to Customer Data. During the Subscription Term, Customer can access its Customer Data at any time. Customers may export and retrieve their Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case triValence and Customer will find a reasonable method to allow Customer access to Customer Data. Upon expiration or termination of the Agreement, triValence will delete the Customer Data remaining on servers hosting the Platform unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the
    Agreement. In the event of third-party legal proceedings relating to the Customer Data, triValence will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to the handling of the Customer Data.

    3.3. Security. triValence will implement and maintain appropriate technical and organizational measures to protect Customer Data processed by triValence as part of the Platform Services. To the extent triValence creates, receives, maintains, or transmits “protected health information” (as defined by the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, each as amended from time to time) for or on behalf of Customer, triValence will comply with the Business Associate Agreement (“BAA”) incorporated into the Order Form.

  4. VENDOR PURCHASING AND PAYMENT SERVICES

    4.1. Vendor Purchasing and Payment Services. The Platform Services include features and functionality that permit the Customer to place orders with certain vendors (“Vendor Purchasing Services”) and make and manage payments with those vendors (“Vendor Payment Services”). The Platform provides a way for customers to connect to and pay Customer’s Vendors. Customers initiate payments to Vendors through the Platform. triValence never initiates payments. Should triValence need to be authorized to process payment in the back end, the Customer hereby authorizes triValence accordingly. Customer acknowledges that the rights granted by Customer to Piermont Bank in the triValence Bank Cardholder Agreement are also granted by Customer to triValence to the extent triValence requires any rights granted to the bank to provide Services. Any funds flowing to Vendors through triValence partners, are at all times Customer funds until Vendor receipt. With regard to bank transfers (“ACH payments”) you acknowledge that (i) triValence will act as a third-party sender on your behalf within the NACHA network and (ii) there is a risk of the reversal or chargeback of a payment (“ACH Returns”) due to insufficient funds in your account or other reasons. You expressly acknowledge and consent to being liable for any ACH Returns that may occur, including any associated fees.

    4.2. Vendor Account Information. To receive Vendor Purchasing Services and Vendor Payment Services, Customer must provide information, data, usernames, passwords, and other login information (“Vendor Account Information”) reasonably necessary for triValence to access and use Customer’s accounts with Customer’s vendors (each a “Customer Vendor Account”). The Platform Services use Vendor Account Information to access Customer Vendor Accounts on the Customer’s behalf to obtain and analyze pricing information, product availability, order history, invoices, e-commerce cart, and other information, and to make payment for orders.

    4.3. Designation as Authorized Representative. Customer expressly designates triValence as Customer’s authorized representative and grants triValence a limited power of attorney during the Subscription Term to use Vendor Account Information, access Customer Vendor Accounts, and perform any other activities reasonably necessary to provide Vendor Purchasing Services and Vendor Payment Services.

    4.4. Pricing and Availability Information. Prices viewable through the Platform are the prices offered to Customer by the applicable vendor and are retrieved in real time or via vendor-provided catalog. Customer acknowledges that pricing and availability information of any given vendor may be unavailable from time to time due to an error or downtime on the applicable vendor’s website or changes to the vendor’s website that affect the integration between the vendor’s website and the Platform. triValence makes no warranties as to the accuracy of pricing or availability information or that pricing and availability will be retrievable at any given time.

    4.5. Purchased Supplies. The customer acknowledges and agrees that any purchase of products or services from a vendor through the Platform Services (“Vendor Order”) is made directly with the applicable vendor and not with triValence. triValence is not responsible for examining or evaluating any vendor product or service and disclaims all liability and warranties for the quality of products or services offered by vendors.

    4.6. Funding and Processing Payments. triValence is not a bank. Vendor Payment Services are currently provided through Piermont Bank, Member FDIC (“Piermont”), but Piermont may be replaced by another bank at triValence’s option (Piermont or any successor bank are referred to in the Agreement as “Bank”). To use the Vendor Purchasing Services, Customer must link its bank account (“Funding Account”) to the Platform and deposit funds from the Funding Account into an account triValence holds at Bank “for the benefit of” its customers (“FBO Account”). Customer represents that the Funding Account is solely used for business or commercial purposes and that Customer has authority to authorize transactions from such Funding Account without the consent or approval of any other person. triValence will establish a virtual account for Customer within the FBO Account (such virtual account, the “Payment Account”) and will provide Customer with a monthly summary statement of Payment Account transactions. Customer’s deposit balances held at Bank are insured by the Federal Deposit Insurance Corporation (FDIC) for up to the legal limit (currently $250,000 for each category of legal ownership). By approving or otherwise initiating a payment for a Vendor Order through the Platform (“Vendor Payment”), Customer authorizes triValence to initiate and complete the Vendor Payment on Customer’s behalf to the designated payee in the amount specified in the payment instructions. Under no circumstances will triValence be required to use its own funds or assets to pay any vendor of Customer. Customer acknowledges and agrees to abide by any applicable Bank policies and procedures and accept any agreements required by the Bank in order to establish and operate accounts with Bank.

    4.7. Payment Methods. triValence may, in its sole discretion, select any payment method to make a Vendor Payment. These payment methods may include, without limitation: use of a virtual card or other transaction through a payment card network; an automated clearing house (ACH), wire or other electronic funds transfer. To the extent that ACH transactions are used, Customer agrees to be bound by the NACHA Operating Rules.

    4.8. Diligence Requirements. Federal and state law requires financial institutions, including Bank, to obtain, verify, and record information that identifies every Customer (“Diligence Requirements”). To use the Platform, Customer is required to provide the name, address, date of birth, social security number, and any other information reasonably requested by triValence, including driver’s license or other business-related documents, for each qualifying beneficial owner or other individual who exercises significant authority to control Customer’s affairs as required by the Diligence Requirements. Customer represents and warrants that all such information is current and accurate and will promptly provide any updates as needed or requested by triValence or Bank from time to time. triValence reserves the right to refuse access to the Platform if triValence or Bank are unable to obtain or verify any individual as required by the Diligence Requirements and to review, place on hold, or cancel after appropriate inquiry any payment requested or initiated through the Platform for any reason. Customer acknowledges that triValence and Bank may make appropriate reports regarding Customer’s activities made through the Platform, including but not limited to financial institutions, regulators, tax agencies, and law enforcement authorities, and that triValence and Bank will cooperate with the appropriate authorities in any resulting investigation or prosecution, all as required or permitted by law.

    4.9. Minimum Transaction Requirement. triValence will invest a significant amount of resources and effort to facilitate Customers payments to vendors. In consideration of such investment by triValence, Customer agrees not to use or process vendor invoice payments with any other payment processing service provider during the term of this Agreement. Notwithstanding the foregoing restrictions, Customer may use purchasing cards or P-Cards, credit cards or other means for up-front payments on purchases and for occasional invoice payments using another third party payment processing services.

  5. FEES AND TAXES

    5.1. Subscription Fees. Customer will pay all applicable Subscription Fees set forth on the Order Form. If Customer does not pay Subscription Fees in accordance with the Agreement, in addition to any other available remedies, triValence may suspend Customer’s use of the Platform until payment is made. Any Subscription Fees not paid when due will accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Purchase orders submitted by Customer are for administrative convenience only. triValence may issue an invoice and collect payment without a corresponding purchase order. Customer may not withhold, reduce or set off fees owed. All Order Forms are non-cancelable and all fees are non-refundable.

    5.2. Fee Increases. triValence reserves the right to adjust fees once annually after the Initial Term. triValence will notify Customer in advance, either through the Platform or by email, if triValence adjusts the fees. Any fee adjustments will apply upon the next renewal of the Subscription Term. If Customer does not agree to fee adjustments, Customer must provide notice of non-renewal pursuant to Section 6.1.

    5.3. Taxes. Customer is responsible for all federal, state, local, sales, use, value-added, excise, or other taxes, fees, or duties arising out of the Agreement or the transactions contemplated by this Agreement (other than taxes based on triValence’s net income).

  6. TERM AND TERMINATION

    6.1. Term. The Agreement will start on the Effective Date and will continue for the duration of the initial term stated on the Order Form (the “Initial Term”). Upon expiration of the Initial Term, the Agreement will automatically renew for consecutive 12-month periods (each such period, a “Renewal Term” and all Renewal Terms together with the Initial Term, the “Subscription Term”) unless either party provides notice of non-renewal at least 90 days prior to the end of the then-current Initial Term or Renewal Term.

    6.2. Termination. Either party may terminate the Agreement by written notice if the other party is in material breach of this Agreement and the material breach is not cured within 30 days after written notice reasonably describing the basis for the breach.

    6.3. Effect of Termination. Upon the effective date of the termination or expiration of the Agreement for any reason: (i) Customer’s access to the Platform will automatically terminate; and (ii) Customer will immediately return, or at triValence’s request destroy and certify the destruction of triValence’s Confidential Information. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1, 3 (with respect to the BAA), 5 (with respect to amounts due to either party), 7, 8, 9, 10, 11, and 12, and any other provision that by its nature should survive expiration or termination.

  7. CONFIDENTIALITY

    7.1. Definition of Confidential Information. From time to time during the Subscription Term, either party (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”), information that is designated as confidential, internal and/or proprietary at the time of disclosure or should reasonably be understood to be confidential at the time of disclosure given the nature of the information and the circumstances surrounding its disclosure (“Confidential Information”). Without limiting the generality of the foregoing, triValence IP is triValence Confidential Information. Confidential Information does not include information that the Receiving Party can demonstrate through competent
    evidence is: (a) publicly available when received, or subsequently becomes publicly available through no fault of the Receiving Party; (b) obtained by the Receiving Party from a source other than the Disclosing Party without obligation of confidentiality; (c) developed independently by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) already in the possession of the Receiving Party without obligation of confidentiality. Customer Data is not Confidential Information and triValence’s obligations regarding Customer Data are specifically addressed in Section 3.

    7.2. Protection of Confidential Information. The Receiving Party will not use Confidential Information for any purpose except to perform its obligations or exercise its rights under the Agreement. The Receiving Party will use the same care and discretion to avoid disclosure and unauthorized use of Confidential Information as it uses to protect its own information of a similar nature, but in no event less than reasonable care. Except as otherwise expressly permitted by this Agreement, the Receiving Party may only disclose Confidential Information to its employees, agents, contractors, or other advisors who have a need to know such Confidential Information and who are bound by written confidentiality obligations at least as protective as those that apply to the Receiving Party under the Agreement. Customer will not disclose any information about the Agreement, its terms and conditions, the pricing, or any other related facts to any third party.

    7.3. Compelled Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the limited extent required to comply with the order of a court or other governmental body, provided that, unless prohibited by law, the Receiving Party gives prior written notice to the Disclosing Party sufficient to allow the Disclosing Party a reasonably opportunity to seek a protective order or other confidential treatment for such Confidential Information.

    7.4. Equitable Relief. In the event of a breach of this Section 7, the Disclosing Party may seek appropriate equitable relief in addition to any other remedy.

  8. INTELLECTUAL PROPERTY

    8.1. triValence Intellectual Property. As between Customer and triValence, triValence owns and retains all right, title and interest in and to the Platform, Documentation, De-Identified Data, and Platform Usage Data, including all Intellectual Property, technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship, and other tangible material and information pertaining thereto or included therein (“triValence IP”). Nothing in the Agreement precludes or restricts triValence from future use or exploitation of any concepts, ideas, techniques, or know-how of, or related to, the triValence IP or otherwise arising in connection with triValence performance under the Agreement.

    8.2. Feedback. Customer or Authorized Users may, from time to time and in Customer’s or their discretion, provide suggestions for changes, modifications, or improvements to the Platform (collectively, “Feedback”). Customer hereby grants to triValence, on Customer’s behalf and on behalf of Authorized Users, a perpetual, irrevocable right to use and fully exploit all Feedback for any lawful purpose without payment or other consideration to Customer.

    8.3. Reservation of Rights. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any right, title, or interest in or to the triValence IP or any Intellectual Property therein or pertaining thereto. triValence reserve all rights not expressly granted to Customer in the Agreement.

  9. INDEMNIFICATION

    9.1. triValence Indemnification Obligations. triValence will defend or, at triValence’s option, settle, any claim brought against Customer by a third party to the extent it alleges that Customer’s (or one of Authorized Users) authorized use of the Platform or Documentation during the Subscription Term infringes any U.S. patent, copyright, or trademark, or misappropriates a trade secret of any third party (a “IP Claim”), and pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such IP Claim defended by triValence, provided that Customer provide triValence with (a) prompt written notice of, (b) sole control over the defense and settlement of, and (c) all information and assistance reasonably requested by triValence in connection with the defense or settlement of, any such IP Claim. If any IP Claim is brought or threatened, triValence may, at triValence’s sole option and expense: (w) procure for Customer the right to continue to use the Platform or Documentation; (x) modify the Platform or Documentation to make it non-infringing; (y) replace the affected aspect of the Platform or Documentation with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate the Agreement with notice to Customer and no further liability. Notwithstanding the foregoing, triValence has no obligation to indemnify Customer to the extent any IP Claim arises in connection with: (1) any use of the Platform or Documentation in combination with software, products or services not provided by triValence to the extent that the Platform or Documentation would not be infringing but for such combination or modification; (2) Customer’s failure to use the Platform in accordance with the Documentation or the Agreement; or (3) for any claims related to Customer Data.

    9.2. Sole Remedy. SECTION 9.1 STATES TRIVALENCE’S ENTIRE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY TRIVALENCE OR THE DOCUMENTATION OR SERVICE.

    9.3. Customer’s Indemnification Obligations. Customer will indemnify, defend and hold triValence and triValence’s investors, officers, directors, affiliates, subsidiaries, licensors, partners, licensees, consultants, employees, contractors, and agents (collectively, the “Indemnified Parties”) harmless from and against any and all damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney and expert fees, costs, penalties, interest and disbursements) resulting from any actual or threatened claim (groundless or otherwise, including third party claims), suit, action, or proceeding (at law or in equity) against any Indemnified Parties, whether successful or not, arising out of, resulting from or relating to: (a) Customer’s or any of Authorized Users’ use of the Platform or Documentation; (b) Customer’s or Authorized Users’ negligence, fraud or intentional misconduct; (c) any breach of the Agreement by Customer or Authorized Users(including, but not limited to, any breach of any of Customer’s representations or warranties); (d) any violation of applicable law by Customer or Authorized Users; or (e) Customer Data.

  10. DISCLAIMER; LIMITATION OF LIABILITY

    10.1. Disclaimer. THE PLATFORM, THE DOCUMENTATION, AND ANY OTHER MATERIAL INCLUDED ON OR OTHERWISE MADE AVAILABLE TO CUSTOMER THROUGH THE PLATFORM ARE PROVIDED TO CUSTOMER ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND, UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING. TRIVALENCE DOES NOT WARRANT THAT THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TRIVALENCE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE AVAILABILITY, RELIABILITY OR SECURITY OF THE PLATFORM. UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING, TRIVALENCE DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE PLATFORM WHETHER ALLEGED TO ARISE BY OPERATION OF
    LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING: (A) ANY AND ALL WARRANTIES OF MERCHANTABILITY; (B) ANY AND ALL WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT TRIVALENCE KNEW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE AWARE OF ANY SUCH PURPOSE); (C) ANY AND ALL WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE; (D) ALL WARRANTIES WITH RESPECT TO UPTIME AND DATA ACCURACY; (E) ALL WARRANTIES WITH RESPECT TO ANY AND ALL CONTENT AND RELATED DELIVERIES PROVIDED IN CONNECTION WITH THIS AGREEMENT; AND (F) THAT THE PLATFORM WILL OPERATE WITHOUT INTERRUPTION OR ERROR. CUSTOMER ACKNOWLEDGE AND AGREE THAT
    CUSTOMER HAVE RELIED ON NO WARRANTIES.

    10.2. Exclusions of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRIVALENCE WILL NOT BE LIABLE FOR (A) INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT, CONSEQUENTIAL OR ANY OTHER SPECIAL CATEGORY OF DAMAGES, OR (B) LOST PROFITS (DIRECT OR INDIRECT), LOSS OF USE OR DATA, PLATFORM INTERRUPTION, BUSINESS, VALUE, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE)OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF TRIVALENCE HAVE BEEN ADVISED OF SUCH DAMAGES IN ADVANCE OR IF SUCH DAMAGES WERE FORESEEABLE.

    10.3. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRIVALENCE TOTAL, CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL BE LIMITED TO THE GREATER OF (A) THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY, OR (B) $100.

    10.4. Failure of Essential Purpose. CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS SECTION 10 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PLATFORM, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

  11. DISPUTE RESOLUTION AND ARBITRATION AGREEMENT

    11.1. Informal Resolution. Before filing any claim against the other party, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in Section 12.4. If a dispute is not resolved within thirty days of notice, Customer or triValence may bring a formal proceeding in accordance with Section 11.2.

    11.2. Arbitration. Subject to Section 11.1, the parties agree to resolve all disputes arising under or in connection with the Agreement through binding arbitration. The arbitration will be conducted before a single arbitrator in accordance with the applicable rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English in the State of New York. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and
    binding on the parties. The arbitrator must be independent of the parties. The arbitrator’s decision will be final and binding on both parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally by both parties; however, if the arbitrator finds that either the substance of the claim or the relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. If this Section 11.2 is found to be unenforceable,
    the parties agree that the exclusive jurisdiction and venue described in Section 12.3 will govern any action arising out of or related to the Agreement.

    11.3. Exceptions to Arbitration. Notwithstanding Section 12.2, neither party is prohibited from: (i) bringing an individual action in small claims court; (ii) seeking injunctive or other equitable relief in a court of competent jurisdiction; (iii) pursuing an enforcement action through the applicable federal, state, or local agency if that action is available; or (iv) filing suit in a court of law to address an intellectual property infringement or misappropriation claim.

  12. GENERAL PROVISIONS

    12.1. Assignment. Customer may not assign the Agreement or any of its rights or obligations under the Agreement without triValence’s prior written consent. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

    12.2. Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, pandemic, labor shortage or dispute, governmental act or failure or degradation of the Internet. The delayed party will give the other party notice of such cause and will use commercially reasonable efforts to correct such failure or delay in performance.

    12.3. Governing Law. The Agreement are governed by and construed under the laws of the State of [●] without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Subject first to Section 11, if a lawsuit or court proceeding is permitted under the Agreement, the parties will be subject to the exclusive jurisdiction of the state and federal courts located in [●], and the parties hereby agree and consent to the exclusive jurisdiction and venue of such courts.

    12.4. Notices. Any required notice will be given in writing by customary means with receipt confirmed at the address of each party set forth on the Order Form, or to such other address as either party may substitute by written notice to the other. Notices will be deemed to have been given at the time of actual delivery in person, three days after delivery to an overnight courier service, or five days after deposit in certified mail. Notwithstanding the foregoing, triValence may give notices to triValence customers generally by means of a general notice on the Platform, and notices specific to Customer by electronic mail to Customer’s e-mail address on record with triValence.

    12.5. Electronic Communications. To the extent required by applicable law, Customer consent to receive electronic communications from triValence (e.g., via email or by posting notices to the Platform). These communications may include operational notices about Customer’s Customer Account or User Accounts (e.g., password changes and other transactional information) and are part of Customer’s relationship with triValence. Customer agrees that any notices, agreements, disclosures, or other communications that triValence sends electronically will satisfy any legal communication requirements,
    including, but not limited to, that such communications be in writing. triValence may also send Customer and Authorized Users promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information about triValence products and services. Customer or any Authorized User may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided in those emails.

    12.6. Publicity. triValence may use Customer’s name and logo as a reference for marketing or promotional purposes on the triValence website and in other communication with existing or potential customers, subject to any written trademark policies Customer may provide to triValence in writing with reasonable advance notice.

    12.7. Case Studies. Upon triValence’s request, Customer may agree to participate in case studies for triValence’s internal training purposes or for sales promotion purposes. Such case studies may be made publicly available to third parties to demonstrate Customer’s success with the Platform Services.

    12.8. Reference Calls. Upon triValence’s request, Customer may agree to participate in reference calls with triValence, whereby Customer’s employees or agents may be requested to provide a referral of the Platform to third parties.

    12.9. Government Users. If Customer is a U.S. government entity, or if the Agreement is or becomes subject to the Federal Acquisition Regulations (FAR), then the Platform Services provided under the Agreement are “Commercial Product(s) or Commercial Platform Services(s)” as those terms are defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” and services related thereto, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Federal Government End Users (a) only as Commercial Products and Platform Services; and (b) with only those rights as are granted to all other end users pursuant to the Agreement. Unpublished rights are reserved under the laws of the United States.

    12.10. Miscellaneous. The Agreement are the sole agreement of the parties concerning the subject matter hereof and supersedes all prior agreements and understandings with respect to said subject matter. Customer may not subcontract or delegate any rights or obligations granted to Customer under the Agreement to any third parties, including Customer’s consultants or contractors, without triValence’s prior written consent. Customer agrees that Customer is solely responsible for any liability arising out of Customer’s approved consultants’ and contractors’ authorized access and use of the Platform. triValence is an independent contractor, and each party agrees that no partnership, joint venture, or agency relationship exists between the parties. No terms of any purchase order, acknowledgment, or other form provided by Customer will modify the Agreement, regardless of any failure by triValence to object to such terms. Any ambiguity in the Agreement will be interpreted without regard to which party drafted the Agreement. There are no third-party beneficiaries to the Agreement. The Agreement may only be amended by writing signed by both parties. triValence may use subcontractors or otherwise delegate aspects of triValence’s performance under the Agreement. Waiver of any provision of the Agreement or forbearance to enforce any provision by either party will not constitute a waiver as to any subsequent breach or failure of the same provision or a waiver of any other provision of the Agreement. Any provision of the Agreement found to be unlawful, unenforceable, or void will be severed from the remainder of the Agreement and the remainder of the Agreement will continue in full force and effect without said provision. The parties agree to comply with all applicable export control laws and regulations related to their performance of the Agreement.

triValence Business Account and Mastercard Terms

TERMS AND CONDITIONS FOR YOUR triValence BUSINESS ACCOUNT AND CARD

IMPORTANT ACCOUNT INFORMATION – PLEASE READ

AS SET FORTH BELOW, ANY CLAIM, DISPUTE, OR CONTROVERSY OF WHATEVER NATURE ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE “DISPUTE RESOLUTION” PROVISION CONTAINED IN THIS AGREEMENT. THIS AGREEMENT ALSO INCLUDES A WAIVER OF CLASS ACTION AND YOUR RIGHT TO A JURY TRIAL. PLEASE READ THE “DISPUTE RESOLUTION” SECTION CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS AND MAY BE ENFORCED BY US. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE
CONSEQUENCES OF THIS IMPORTANT DECISION.


Agreement
These Terms and Conditions, along with any other documents referenced herein as applicable to your triValence Mastercard® (the “Card”) or your account with TRIVALENCE LLC (“triValence”) (collectively, the “Agreement”), are a contract between you, triValence and Piermont Bank, Member FDIC (the “Bank”), that establishes rules that control your Account (defined below) and the Card. Banking services associated with the Account and the Card are provided by the Bank. The Bank is an FDIC-insured member institution. “Account” means your triValence account, which is a subaccount within the FBO account relationship that triValence has with the Bank in which you hold or store value from which you access value for use via the Card. You acknowledge and agree that the value available to spend via the Card is limited to the funds that are available in your Account and in the bank account linked to your Account (the “Linked Account”).

Use of your Account remains subject to the triValence Terms of Service as updated from time to time (the “triValence Terms of Service”) and the triValence privacy policy as updated from time to time (the “triValence Privacy Policy”), and any other agreements between you and triValence that apply to your use of products and services provided by triValence, and any other triValence features, technologies, and/or functionalities offered by triValence on its website, in the triValence app, or through any other means. This Agreement is provided to you in electronic format pursuant to the Consent to Receive Electronic Disclosures that you accepted and agreed to when you opened your Account. Please read this Agreement carefully and retain it for future reference. By opening or continuing to hold an Account or a Card, 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 Card or your Account. You will receive a separate schedule of rates, qualifying balances, and fees if they are not included in this Agreement, as applicable. If you have any questions, please contact us at [email protected].

“You” and “your” means the person who receives the Card and is authorized to use it as provided in this Agreement. “We,” “us,” and “our” mean the Bank, triValence, and our respective successors, affiliates, assignees, and third-party service providers. triValence is the entity sponsoring and managing the Card program. Any references to “days” found in this Agreement are calendar days unless indicated otherwise.

The Account is accessed through the mobile application hosted by triValence (“Mobile App”). You are responsible for providing triValence with a correct and operational email address. You must promptly notify triValence of any change to your email or postal mailing address, or if you are unable to access Account information through the Mobile App. Neither the Bank nor triValence will be liable for any adverse effects to the Account as a result of undelivered mail or email or your inability to access Account information through the Mobile App due to a failure to promptly notify the Bank or triValence of a change to your email or postal mailing address. Neither the Bank nor triValence is responsible for any costs you incur to maintain internet access or an email account.

If there is a conflict between this Agreement and any other document or statement made to you concerning the Account or the Card, 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 or the Card, the separate terms and conditions applicable to that
service or product will govern.


Consent to the Terms of this Agreement
When submitting an Account application or by using the banking services provided by the Bank, you agree to the terms and conditions of the Account and the Schedule of Fees associated with it. Certain disclosures were provided when the Account application was completed; additional disclosures are provided that are applicable to additional products and services; periodic statements, user guides; and any other disclosures or terms provided to you are considered part of this Agreement. Continued use of the Account means your ongoing agreement to this Agreement. By continuing to use the Account, you further agree to pay fees due and outstanding associated with the Account, including giving us the right to collect such fees directly from the Account balance. You are responsible for the accuracy and completeness of all information supplied to Bank and triValence in connection with the Account and /or its services. This Agreement and the deposit relationship do not create a fiduciary relationship between you and the Bank.


Amendments and Modifications
This Agreement may be amended or changed at any time by posting the amended documents (including this Agreement) on the Mobile App, and any such amendment will be effective upon such posting to the Mobile App. The current Agreement is available at www.trivalence.com. Reasonable notice in writing or by any method permitted by law will be provided if there is an adverse change to this Agreement. However, if a change is made for security purposes, such change can be implemented without prior notice. When this Agreement is changed, the updated version supersedes all prior versions and will govern the Account. Your continued maintenance or use of the Account after the change will be deemed acceptance of any change and you will be bound by it. If you do not agree with a change, you may close the Account and return or destroy the Card as provided in this Agreement. Your termination of this Agreement does not affect any of our rights or your obligations arising under this Agreement prior to such termination.


Confidentiality and Our Privacy Policy
Your privacy is very important to us. All services offered by triValence, including the Mobile App, are subject to triValence’s Privacy Policy. Please carefully review triValence’s Privacy Policy for more information.


Account Information


Business Account
A business deposit account is a deposit account that is not held or maintained primarily for personal, family, or household purposes. Examples of business deposit accounts include an account owned by an individual acting as a sole proprietor; a partnership; a limited partnership; a limited liability partnership; a limited liability company; a corporation; a joint venture; or a non-profit corporation.

The Account is a non-interest-bearing business deposit account used to hold your deposits and make payments and transfers to other accounts at other banks and to third parties online through triValence’s mobile application (the “Mobile App”) and through the use of the Card. The Card is to be used for business point-of-sale, debit card, and Automated Teller Machine (ATM) transactions only. The Card may not be used for personal purposes. You acknowledge and understand that the Card will not be treated as a consumer card under the provisions of state and federal law. The Card and your Account may be closed if it is determined the Card is being used for anything other than business purposes. We may refuse to process any transaction that is
believed may violate the terms of this Agreement, the triValence Terms of Service, or any other agreements between you and triValence. You will not have the benefit of any consumer law limiting liability with respect to the unauthorized use of your Card. Separate terms and conditions apply to the Mobile App and services offered by triValence, including its reward services. Please refer to the triValence Terms of Service.


Opening the 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 that identifies each person who opens an Account. When you open an Account, the information we request may vary depending on the circumstances, but at a minimum, we may ask for your name, address, date of birth, taxpayer ID number, social security number, and other information that will allow us to identify you. We are also required to verify the information you provide to us. This verification process may require you to provide us with supporting documentation that we deem appropriate.

We may also seek to verify the information by other means. We reserve the right to request additional information and/or signatures from you from time to time. If we are not able to validate your identity or authenticity to our satisfaction, we may not open the Account. We may not issue a Card or provide access to the Account if your identity cannot be validated. If you falsify, misrepresent, or fail to provide requested information, we and/or the Bank may refuse to approve your request for the Card, cancel any of your previously issued Card(s), and/or restrict and/or close your Card or Account.


Compliance with Laws and Regulations
You agree to comply with all laws applicable to this Agreement, including regulations or ordinances, and orders. The payee name on any direct deposit(s) or ACH credit(s) we receive must match your name. You must not use your Account or the Card for any illegal purposes or, regardless of whether it is legal or illegal, for internet gambling. This prohibition includes any transaction that is illegal in the jurisdiction where you live, in the jurisdiction where the transaction is consummated, or in any other jurisdiction affected by the transaction. You are responsible for determining the legality of each of your transactions in all applicable jurisdictions before entering into the transaction.


We have no obligation to monitor, review or evaluate the legality of any transaction, however, transactions in the Account and made using the Card are subject to review and can be delayed or frozen if triValence or the Bank identifies an issue. Such delay or freezing of your Account and/or Card may impact your Account balance. We may deny any transaction or refuse to accept any deposit that we believe is related to illegal activity or online gambling or for any other reason at our discretion. In addition, such funds may potentially be subject to investigation by one or more federal law enforcement agencies.


Authorization
You authorize triValence and the Bank to view and obtain information about the Account. You also authorize the Bank to provide information to triValence and its service providers about Account balances and transactions. triValence is authorized to transact on the Account as necessary for purposes of reconciliation, fee credits or debits, dispute-related adjustments, and any other applicable accounting corrections. If we are required for any reason to reimburse the federal government for all or any portion of a benefit payment that was directly deposited into your Account, you authorize us to deduct the amount of our liability to the federal government from the Account or from any other account you have with us, without prior notice and at any time, except as prohibited by law. We may also use any other legal remedy to recover the amount of our liability.


Closing the Account
You agree to immediately notify triValence if you want to close your Account and terminate your rights as a Cardholder. You may close the Account by sending an email to [email protected]. After the Account is closed, we have no obligation to accept deposits or pay outstanding items but may do so at our discretion. You agree to hold us harmless for honoring or refusing to honor any check, paper draft, or other item on a closed Account. If a balance remains in the Account at the time of its closure, a check made payable to the account owner as listed in our records will be sent to the address on file within 14 business days of the final transaction and/or of receiving the request to close the Account. Bank reserves the right to refuse to return any remaining balance less than $15.00. Bank reserves the right to close the Account at any time. The Card remains the property of the Bank and must be surrendered to the Bank upon demand.


Business Days
Our business days are Monday through Friday, excluding federal holidays, even if we are open.


Eligibility
The Account is available to United States citizens or lawful permanent residents of the fifty (50) United States (“U.S.”) or the District of Columbia 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. You must also agree to go paperless. This means that you must (1) provide us with a valid email address and (2) agree to accept electronic delivery of all communications that we need or decide to send you in connection with your Account. We may decline to open an Account or issue a Card to you for any reason, or for no reason; this includes if you have had or currently have any other relationships or accounts with either us or triValence that you did not maintain in a satisfactory manner. We are not liable for any damages or liabilities resulting from the refusal of an Account relationship.


Information, Address, or Name 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. Unless we agree otherwise, a change of address or name must be made via email sent to [email protected], and must submit any proof of address and identification requested by us. We will attempt to communicate with you only by use of the most recent email address you have provided to us. 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 or if a company in the business of providing correct addresses informs us that the
address in our records no longer matches your address.


Titling and Ownership of the Account
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, Uniform Transfers to Minors (UTMA) account, or Payable on Death (POD) account. You cannot give a security interest or pledge your Account to someone other than us without first getting our express written consent, which we may withhold for any or no reason.

Account Transfer and Assignment
This Account and your obligations under this Agreement may not be transferred or assigned without our prior written consent. Your obligations under this Agreement are not transferable and not assignable. We or triValence may transfer our rights under this Agreement.


Account Termination
We may close this Account at any time upon reasonable notice to you and tender the Account balance by mail or transfer to the Linked Account. Items presented for payment after the Account is closed may be dishonored. When you close your Account, you are responsible for leaving enough money in the Account to cover any outstanding items to be paid from the Account. Reasonable notice depends on the circumstances, and in some cases, such as when we cannot verify your identity or we suspect fraud, it might be reasonable for us to give you notice after the Account closure becomes effective. For instance, if we suspect fraudulent activity with respect to your Account, we might immediately freeze or close your Account and then give you notice. If we
have notified you of a change in any term of your Account and you continue to have your Account after the effective date of the change, you have agreed to the new term(s).


Unlawful Internet Gambling Notice
Restricted transactions as defined in Federal Reserve Regulation GG are prohibited from being processed through this Account and the Card. Restricted transactions generally include, but are not limited to, those in which credit, electronic fund transfers, checks, or drafts are knowingly accepted by gambling businesses in connection with the participation of others in unlawful Internet gambling.


Unclaimed Property
State escheat and unclaimed property laws require us to close your Account and transfer your money to the state if your Account is dormant for a period of time as defined by your state of residence. Your Account can become dormant if there is no transactional activity for a period of time specified by applicable state law or if you do not communicate with us regarding your Account during such period. If your Account becomes dormant, you may no longer receive statements, but you can still view your Account through the Mobile App. If your funds are remitted or escheated to the state, you may be able to reclaim them by petitioning the state.


Funds Availability
Funds deposited to your account by electronic funds transfer (absent exceptional circumstances or certain larger deposits) are usually available on the same business day the deposit is received by the Bank. For determining the availability of your deposits, every day is a business day except Saturdays, Sundays, and federal holidays. Electronic transfers initiated through the triValence App may take up to 5 business days from the date of the initial request but will post on the payment date of the deposit once the money has reached the Bank and/or triValence.


Liability
You are liable for any negative Account balance and Account shortage resulting from charges or overdrafts, whether caused by you or another person with access to this Account or the Card. This liability is due immediately and can be deducted directly from the Account balance whenever sufficient funds are available. You have no right to defer payment of this liability, and you are liable regardless of whether you signed the item or benefited from the charge or overdraft.


You will be liable for our costs as well as for our reasonable attorneys’ fees, to the extent permitted by law, whether incurred as a result of collection or in any other dispute involving your Account. This includes but is not limited to, you or a third party claiming an interest in your Account. This also includes any action that you or a third party takes regarding the Account that causes us, in good faith, to seek the advice of an attorney, whether or not we become involved in the dispute. All costs and attorneys’ fees can be deducted from your Account when they are incurred, without notice to you.


Deposits
You may make deposits into your Account using only the methods described herein. We do not charge you any fees for making deposits. You may only deposit with us funds that are immediately available, which under applicable law are irreversible and are not subject to any lien, claim, or encumbrance.


Deposit Methods:
● Direct Deposit (via ACH)
● ACH transfer to your Account from an external account using the Mobile App
● ACH transfer from a linked bank account to your Account using the Mobile App


You may link another bank account you have to your Account in order to transfer funds between the linked bank account and your Account using the Mobile App. You may only link a bank account titled in your name (either individually or jointly) and from which you have the right to authorize charges and debits. You represent and warrant: (1) that you have the right to authorize any and all charges and debits to the Linked Account; (2) the Linked Account is held at a depository institution located in the U.S.; and (3) you are individually or jointly the owner of the Linked Account. By linking a bank account, you 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.


Ineligible Deposits

We do not accept:
● ATM deposits or
● Personal checks, cashier’s checks, money orders, foreign currency or cash

We are not liable for any deposits lost in the mail, lost in transit or not received by us. All deposits sent by mail to the Bank will be returned unless the full amount may be applied towards a negative balance, in which case the check or money order must be payable in U.S. dollars and may or may not be deposited to the Account at the discretion of the Bank.


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.

Deposit Corrections
If funds are incorrectly deposited or transferred to the Account, we may correct the error by deducting the amount of the incorrect deposit from the Account without prior notice to you. If there are not enough funds in the Account at that time, the Account could become overdrawn. See the section below titled “No Overdrafts” for more information about what occurs if the Account has a negative balance.


Withdrawals
You may withdraw or transfer all or any part of the Account balance at any time, subject to the terms of this Agreement. You may withdraw funds up to the amount of your available balance in your Account by using any of the withdrawal methods described herein. 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. Fees may apply to in-network and out-of-network ATM transactions. Please refer to the Fee section below for more information and all fees applicable to your Account.

Withdrawal methods:
● ACH transfer from your Account to a linked bank account using the Mobile App,
● ACH transfer to a third party,
● ATM withdrawals using your Card,
● Purchases or other transactions using your Card at merchants that have agreed to accept the Card, or
● Cash-back point-of-sale transactions.


We do not permit you to overdraw your Account and we do not charge you insufficient funds fees or overdraft fees. If the available balance in your Account is not sufficient to cover any transaction you have authorized, we can refuse to process the transaction, even if you make a deposit later in the business day after we refuse your withdrawal request. There may be instances where your Account can still become overdrawn. For example, if a deposit is returned or if a merchant settles a Card transaction for an amount greater than the card authorization, you must make a deposit immediately to cover any negative balance. If your Account has a negative balance for 60 days or more, we may close your Account.


You cannot withdraw funds by check, and we do not permit you to create checks drawn on your Account.


Order of Payment
The Bank’s policy is to post and pay Card transactions in the order they are received. The Bank reserves the right to pay Card transactions before other items.


Keep in mind that your available Account balance may not reflect every transaction you have initiated or previously authorized. For example, your available Account balance may not include (1) transactions you have authorized that we have not received, (2) Card transactions where the card authorization has been removed before the transaction is settled due to a merchant’s delay in settlement, or (3) the full amount of a Card transaction where the settlement amount is greater than the card authorization amount. Your available Account balance is viewable at any time through the Mobile App and may be accessed at any ATM in the United States that displays the Mastercard, Interlink, Maestro, or Cirrus acceptance marks, but it is important to understand that it may not reflect transactions you have authorized that have not yet been presented to us for payment. Please see below in the section entitled ATM and POS Balance Inquiries and Withdrawals for fees that may apply to your use of ATMs as well as additional information on balance inquiries.


If a transaction is presented without sufficient funds in your Account to pay it, we may, at our discretion, return the transaction for insufficient funds (NSF).


Notwithstanding anything to the contrary, when we process multiple transactions for your Account on the same day, you agree that we may in our discretion determine our posting orders for the transactions and that we may credit, authorize, accept, pay, decline, or return credits, debits, and holds in any order at our option. We do not always receive debits on the same day that you conduct them. We may change the way we group transactions together or 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.


ACH Transfers
If you originate a fund transfer to or from your account and you identify by name and number a beneficiary financial institution, an intermediary financial institution, or a beneficiary, we and every receiving or beneficiary financial institution may rely on the identifying number to make payment. We may rely on the number even if it identifies a financial institution, person, or account other than the one named. You agree to be bound by automated clearing house association rules. If we do not receive such payment, we are entitled to a refund from you in the amount credited to your Account and the party originating such payment will not be considered to have paid the amount so credited. Credit entries may be made by ACH. If we receive a payment order to credit an Account you have with us ACH, we are not required to give you any notice of the payment order or credit.


Setoff
We may (without prior notice and when permitted by law) set off the funds in this Account against any due and payable debt any of you owe us or triValence now or in the future. If your debt arises from a promissory note, then the amount of the due and payable debt will be the full amount we have demanded, as entitled under the terms of the note, and this amount may include any portion of the balance for which we have properly accelerated the due date. This right of setoff does not apply to this Account if prohibited by law, including the Military Lending Act or its implementing regulations. You agree to hold us harmless from any claim arising as a result of our exercise of our right of setoff.


Levies, Garnishments, and Other Legal Processes
If we are served with a subpoena, restraining order, writ of attachment or execution, tax levy, garnishment, search warrant, or other order relating to your Account (termed “legal action” in this section), we will comply with that legal action, and, in our discretion, we may freeze the assets in the Account and not allow any payments out of the Account until a final court determination regarding the legal action. In these cases, we will not have any liability to you if there are insufficient funds to pay any transaction using your Account because we have withdrawn funds from your Account or in any way restricted access to your funds in accordance with the legal action. Any fees or expenses we incur in responding to any legal action (including, without limitation, attorneys’ fees and our internal expenses) may be charged against your Account.

Resolving Account Disputes
We may place an administrative hold on the funds in your Account (refuse payment or withdrawal of the funds) if it becomes subject to a claim adverse to (1) your own interest; (2) others claiming an interest as survivors or beneficiaries of your Account; or (3) a claim arising by operation of law. The hold may be placed for such a period of time as we believe reasonably necessary to allow a legal proceeding to determine the merits of the claim or until we receive evidence satisfactory to us that the dispute has been resolved. We will not be liable for any transactions that are dishonored or returned as a consequence of placing a hold on funds in your Account for these reasons.


Consent to Receive Communications
To provide you with the best possible service in our ongoing business relationship for your Account, we may need to contact you about your Account or the Card from time to time by text messaging, push notifications and/or email. However, we must first obtain your consent to contact you about your Account or the Card because we must comply with the consumer protection provisions in the federal Telephone Consumer Protection Act of 1991 (TCPA), CAN-SPAM Act, and their related federal regulations and orders issued by the Federal Communications Commission (FCC).


Your consent is limited to this Account and the Card, and as authorized by applicable law and regulations. Your consent does not authorize us to contact you for telemarketing purposes (unless you otherwise agreed elsewhere). You certify, warrant, and represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number.


With the above understandings, you authorize us to contact you regarding your Account and/or the Card throughout its existence using any telephone numbers or email addresses that you have previously provided to us or that you may subsequently provide to us. You understand that you are not required to provide consent to marketing SMS messages as a condition to accessing our Services or products. You may withdraw your consent to SMS communications by replying STOP to the SMS message, or by contacting us at [email protected].


You are responsible for any and all charges, including fees associated with text messaging, imposed by your communications service provider. You also agree to receive alerts about your account activity, balances, payments, suspicious activities, and other matters involving your use of the Site or the Services through push notifications to your smartphone or other device. Receipt of push notifications may be delayed or prevented by factors beyond our control, including those affecting your internet/phone provider. We are not liable for losses or damages arising from non-delivery, delayed delivery, or the erroneous delivery of any push notification; inaccurate push notification content; or your use or reliance on the content of any push notification for any purposes. Each push notification may not be encrypted and may include your name and information pertaining to your account or use of the Site. We may terminate your use of push notifications at any time without notice. You may choose to discontinue receiving push notifications by updating your preferences on your smartphone or device.


This consent is regardless of whether the number we use to contact you is assigned to a landline, a paging service, a cellular wireless service, a specialized mobile radio service, other radio common carrier service or any other service for which you may be charged for the call. You further authorize us to contact you through the use of voice, voicemail and text messaging, including the use of pre-recorded or artificial voice messages and an automated dialing device. If necessary, you may change or remove any of the telephone numbers or email addresses at any time using any reasonable means to notify us. To revoke the consent provided pursuant to this subsection, you must send 10 days’ prior written notice of such revocation to [email protected].


Monitoring and Recording Telephone Calls
We may monitor or record phone calls for security reasons, to maintain a record, and to ensure that you receive courteous and efficient service. You consent in advance to any such recording. We need not remind you of our recording before each phone conversation. We are not required to act upon instructions you give us by voice mail or on a telephone answering machine.

Security
It is your responsibility to protect the Account number and the Card information we provide you for your Account. You agree to follow all of the security procedures in this Agreement. Do not discuss, compare, or share information about your Account information or the Card information with anyone unless you are willing to give them full use of your money. Keep your Account number, statements, virtual card number, and the Card secure at all times. Make sure to also keep your mobile device secure at all times and avoid accessing the Mobile App when others can see your screen. Your Account or Card information can be used by thieves to issue an electronic debit or to encode your number on a false demand draft that looks like and functions like an authorized check. If you furnish your Account, Card information or Mobile App and grant actual authority to make transfers to another person (a family member or coworker, for example) who then exceeds that authority, you are liable for the transfers unless we have been notified that transfers by that person are no longer authorized.


Your Account and Card information can also be used to electronically remove money from your Account, and payment can be made from your Account even though you did not contact us directly and order the payment.


If your Account number, Card, mobile device, or Mobile App login credentials are lost or stolen, notify us immediately at [email protected] to limit your liability for unauthorized transactions that may occur.


Unauthorized Transactions and Errors
It is your responsibility to notify triValence immediately at [email protected] upon belief that any security information (such as user IDs, passwords, or other credentials) has been lost, stolen or otherwise made available to an unauthorized person, or that someone has viewed, downloaded, or deleted electronic records from the Account or the Card without your permission, or if you suspect any fraudulent or unauthorized activity (including errors) on the Account. You agree to comply with all notification requirements described in this Agreement. Your liability for any unauthorized transactions (including errors) will be determined based on the terms described in this Agreement. You agree to promptly repay any amount erroneously credited to the Account. We may suspend or cancel your Card and/or corresponding Account in the event of excessive reports of Card loss or theft.

Claim of Loss
If you claim a credit or refund because of a forgery, alteration, or any other unauthorized withdrawal, you agree to cooperate with us in the investigation of the loss, including giving us an affidavit containing whatever reasonable information we require concerning your Account, the Card, the transaction, and the circumstances surrounding the loss. You will notify law enforcement authorities of any criminal act related to the claim of lost, missing, or stolen Card or access credentials or unauthorized withdrawals. We will have a reasonable period of time to investigate the facts and circumstances surrounding any claim of loss. Unless we have acted in bad faith, we will not be liable for special or consequential damages, including loss of profits or opportunity, or for attorneys’ fees incurred by you. You are liable for Card transactions not authorized by you if the Bank can prove that the transaction was processed in good faith and in compliance with a commercially reasonable security procedure, unless otherwise required by law. You agree that you will not waive any rights you have to recover your loss against anyone who is obligated to repay, insure, or otherwise reimburse you for your loss. You will pursue your rights or, at our option, assign them to us so that we may pursue them. Our liability will be reduced by the amount you recover or are entitled to recover from these other sources.


Responsibilities and Limitations of Liability


Acknowledgment
You acknowledge the inherent risks and responsibilities associated with conducting business via the internet and that there can be no assurance that inquiries or transaction activity will be completely secure, despite security procedures established by the Bank and/or triValence such as firewalls, passwords, and data encryption. You also understand that access to the Mobile App will not be free from delays, malfunctions, or other inconveniences generally associated with this electronic medium, and further agrees the Bank and/or triValence are not responsible for any such delays, malfunctions, or inconveniences. You acknowledge that you are responsible for maintaining all equipment required for your access to and use of the Account. You authorize the Bank, triValence, or any third party acting on behalf of the Bank or triValence, to serve as an agent in processing transaction instructions received from you via the internet, and to post such transactions to the Account. You will be solely responsible for the timeliness, accuracy, and adequacy of the data entered as well as the completeness of any instruction entered.


Your Additional Responsibilities
You are responsible for actions that may be taken by anyone accessing the Account through the use of the Mobile App after signing in with your security information (i.e., user ID and password), except as otherwise set forth herein or as part of this Agreement. The Bank and triValence are entitled to rely and act upon instructions received using your security information. You are further responsible for keeping your security information confidential and for ensuring that you sign off of the Mobile App when a session is complete to prevent unauthorized persons from accessing the Account.


Disclaimer of Warranties
To the fullest extent permitted by law, the Bank and triValence do not make any warranties of any kind related to the Mobile App, either express or implied, including but not limited to, implied warranties of merchantability or fitness for a particular purpose. Furthermore, the Bank and triValence do not warrant that the Mobile App will be uninterrupted or error-free, that defects will be corrected, or that the Mobile App is free of viruses or other harmful components. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE MOBILE APP AND THE ACCOUNT IS AT YOUR SOLE RISK, AND THAT THE MOBILE APP IS PROVIDED ON AN “AS IS” BASIS.


Information Processing and Reporting
The Bank will not be responsible for determining the accuracy, timeliness or completeness of any information or instructions that you provide to the Bank or triValence for any service related to the Account. If Bank and/or triValence are unable to provide a processing service for any reason, reasonable steps to resume processing will be taken within a reasonable timeframe.


Data and Information Supplied by You
You have the sole responsibility of ensuring the accuracy and correctness of the data you supply. You acknowledge and agree that we will not examine the data for correctness and that we will not have any responsibility for detecting errors in the data transmitted by you. The data you transmit must be correct and complete. We will not be liable to you for failure to process incorrect or incomplete data. You agree that you are solely liable for, and we will not have any liability whatsoever for, any data or other information that is not received by us or for any data or other information that is intercepted or altered by an unauthorized third party. You agree that we have no obligation to accept any data or other information and, therefore, may reject any data or other information that you transmit or deliver in connection with this Agreement.


Limitations of the Bank’s Liability and Obligations to You
In the performance of the services required by this Agreement, the Bank is entitled to rely solely on the information, representations, and warranties you provide pursuant to this Agreement. Except as otherwise specifically provided by law, the Bank is only responsible for performing the services expressly provided for in this Agreement and is liable only in the event of loss due to its gross negligence or willful misconduct in performing those services. In no event will the Bank have any liability for any consequential, special, incidental, punitive, or indirect loss or damage which you may incur or suffer in connection with this Agreement, whether or not the likelihood of such damages was known or contemplated by the Bank and regardless of the legal or equitable theory of liability you may assert. The Bank is not liable for any damages you may incur due to a delay in triValence providing the Bank with any notices or information triValence receives from you. Without limiting the foregoing, the Bank will not be liable for (i) insufficient funds in your Account to make a transfer, (ii) insufficient cash in an ATM, (iii) a terminal or system which is not working properly, (iv) any merchant who refuses to accept the Card, (v) rejection by an ATM of the Card, and the Bank will have no liability and will be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of transmission or communications facilities, equipment failure, war, act of terror, emergency conditions, or other conditions (such as fire or flood) beyond Bank’s control. To the extent allowed by law, the Bank will not be liable for and will be excused from failing to process or any delay in processing a transfer of funds (i) if, in the Bank’s sole discretion, processing a transfer would violate or contribute to the violation of any law, regulation or regulatory requirement; or (ii) if processing a transfer, in the Bank’s sole discretion, would cause it to engage in an unsafe and unsound practice. Without limiting the generality of the foregoing, in no event will the Bank’s liability for any loss, cost, or liability arising from the Bank’s gross negligence or willful misconduct exceed the average monthly charge for the Account-related services in question for the month preceding the date or loss, except as otherwise required by UCC Article 4A. Any claim, action, or proceeding by you to enforce the terms of this Agreement or to recover for any Account-related loss must be commenced within one year from the date that the event giving rise to the claim, action, or proceeding first occurs. You agree to cooperate with the Bank in any loss recovery efforts the Bank undertakes to reduce any loss or liability that arises in connection with the Account. You acknowledge any fees have been established in contemplation of: (a) these limitations on the Bank’s liability; (b) your agreement to review statements, confirmations, and notices promptly and to notify the Bank immediately of any discrepancies or problems; and (c) your agreement to assist the Bank in any loss recovery efforts.


Indemnity and Release
You agree to release, indemnify and hold the Bank, triValence, and our respective 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 and applicable law; (3) any action or omission by you in violation of this Agreement or applicable law; or (4) our action or inaction in reliance upon oral, written or electronic instructions or information from you. These indemnifications will apply, without limitation, to any losses arising from the dishonor of any check or other debit item. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.


Death or Incompetence
You agree to notify us promptly through your representative if you die or are adjudicated (determined by the appropriate official) incompetent (together, “Incapacitation”). We may continue to honor instructions until: (a) we know of your Incapacitation, and (b) we have had a reasonable opportunity to act on that knowledge. You agree that we may continue to accept deposits and process transactions to your Account until we receive notice and any required proof of Incapacitation and may pay transactions initiated on or before the date of Incapacitation for up to 10 days after your Incapacitation unless ordered to stop payment by someone claiming an interest in the account. If we receive a notification or if we have reason to believe that you have become

Incapacitated, we may place a hold on your Account and refuse all transactions until we know and have verified the identity of your successor. Your estate will be responsible for repaying us for any tax liability resulting from the 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 become Incapacitated, or any notices of death or incapacitation that we receive. 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. If you owe us a debt at the time of your Incapacitation, we are authorized to exercise our right of setoff or security interest rights against the funds credited to your Account after your Incapacitation.


Notices
Any written notice you give us is effective when we actually receive it, and it must be given to us according to the specific delivery instructions provided, if any. If no delivery instruction is provided, notice must be given by emailing us at [email protected]. We must receive it in time to have a reasonable opportunity to act on it. Written notice we give you is effective when it is deposited in the United States Mail with proper postage and addressed to the mailing address we have on file or emailed to you at the email address we have on file for you.


To the extent permitted by law, you waive any notice of non-payment, dishonor or protest regarding any items credited to or charged against your account. For example, if you deposit a check and it is returned unpaid or we receive a notice of nonpayment, we do not have to notify you unless required by Federal Regulation CC or other law.


Statements
Statements will periodically be provided to you by email as long as your Account is not inactive. You will receive monthly statements. You will not receive paper statements. You agree to notify us promptly if you do not receive your statement by the date you normally would expect to receive it. You agree that the statements have been delivered or made available to you in a reasonable manner.


You agree to examine your receipts and periodic statements using reasonable care and to report any errors or problems to us within a reasonable time. You are also responsible for reviewing your Account statements as they are made available to you for errors or unauthorized activity.


You agree that if you fail to report any unauthorized signatures, alterations, or forgeries in your account within 60 days of when we first send or make the statement available, you cannot assert a claim against us on any items in that statement, and as between you and us the loss will be entirely yours. This 60-day limitation is without regard to whether we used ordinary care. In addition to your duty to review your statements for unauthorized signatures, alterations, and forgeries, you agree to examine your statement with reasonable promptness for any other error such as an encoding error. In addition, if you receive or we make available either your items or images of your items, you must examine them for any unauthorized or missing endorsements or any other problems. You agree that the time you have to examine your statement and items and report to us will depend on the circumstances. However, this time period will not exceed 60 days. Failure to examine your statement and items and report any errors to us within 60 days of when we first send or make the statement available precludes you from asserting a claim against us for any errors on items identified in that statement and as between you and us the loss will be entirely yours.


You further agree that if you fail to report to us within 14 days from when the statement was first mailed or made available to you, we will not be required to pay interest on any refund to which you may be entitled. We will only credit your account for errors or problems as required by law. Email us immediately with errors or questions about electronic transfers at [email protected] If you tell us orally, we may require your complaint or question in writing within 14 business days. If you provide us with timely notice of an error or problem in your periodic statement, we will investigate the matter and notify you of the results within a reasonable amount of time. The exact time will depend on the specific circumstances of the error or problem. You may ask for copies of the documents that we used in our investigation.


Other Miscellaneous Terms
Use of the Card is subject to all applicable rules and customs of any clearinghouse or other association involved in transactions. The Bank does not waive its rights by delaying or failing to exercise them at any time. If any provision of this Agreement is determined to be invalid or unenforceable under any rule, law, or regulation of any governmental agency, local, state, or federal, the validity or enforceability of any other provision of this Agreement will not be affected. This Agreement will be governed by the law of the State of New York except to the extent governed by federal law.


Dispute Resolution
This Dispute Resolution provision (this “Dispute Resolution Provision”) sets forth the circumstances and procedures under which Claims (as defined below) will be arbitrated instead of litigated in court upon the election of either party. Neither you nor we will have the right to: (1) have a court or a jury decide the dispute; (2) engage in information-gathering (discovery) to the same extent as in court; (3) participate in a class action in court or in class arbitration; or (4) join or consolidate a claim with claims of any other persons. Arbitration procedures are simpler and more limited than rules applicable in court. The decision of the arbitrator is final and binding.


As used in this Dispute Resolution Provision, the term “Claim” means any claim, dispute, or controversy between you and Bank, [email protected], or any of their agents or retailers, arising from or relating to the Card, Account, or this Agreement as well as any related or prior agreement that you may have had with us or the relationships resulting from this Agreement, including the validity, enforceability or scope of this Dispute Resolution Provision or the Agreement. “Claim” includes claims of every kind and nature, including but not limited to initial claims, counterclaims, cross-claims and third-party claims and claims based upon contract, tort, fraud and other intentional torts, statutes, regulations, common law and equity. The term “Claim” is to be given the broadest possible meaning that will be enforced and includes, by way of example and without limitation, any claim, dispute or controversy that arises from or relates to (i) your Card or Account; (ii) the amount of available funds in the Account; (iii) advertisements, promotions or oral or written statements related to the Account, goods or services purchased with the Card; (iv) the benefits and services related to the Account; and/or (v) your enrollment for any Card. We will not elect to use arbitration under the Dispute Resolution Provision for any Claim that you properly file and pursue in a small claims court of your state or municipality so long as the Claim is individual and pending only in that court; any appeals from that court will be pursued only in arbitration. As used in this Dispute Resolution Provision, the terms “we” and “us” will for all purposes mean the Bank, [email protected] their respective wholly or majority-owned subsidiaries, affiliates, licensees, predecessors, successors, and assigns, and all of their agents, employees, directors and representatives. In addition, “we” or “us” will include any third party using or providing any product, service or benefit in connection with any Account (including, but not limited to merchants who accept the Card, third parties who use or provide services, debt collectors and all of their agents, employees, directors and representatives) if, and only if, such third party is named as a co-party with us (or files a Claim with or against us) in connection with a Claim asserted by you. As solely used in this Dispute Resolution Provision, the terms “you” or “yours” will mean all persons or entities approved by us to have and/or use a Card, including but not limited to all persons or entities contractually obligated under any of the Agreements. “Claim” will not include any services provided by triValence pursuant to its Terms of Service, and any dispute related to the triValence Terms of Service or services provided thereunder are to be governed by the triValence Terms of Service.


NEITHER YOU NOR WE ARE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES BY OR AGAINST OTHERS IN ANY COURT ACTION OR ARBITRATION, OR TO INCLUDE IN ANY COURT ACTION OR ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR MEMBER OF A CLASS, OR TO ACT IN ANY ARBITRATION IN THE INTEREST OF THE GENERAL PUBLIC OR IN A PRIVATE ATTORNEY GENERAL CAPACITY UNLESS THOSE PERSONS ARE BENEFICIARIES ON YOUR ACCOUNT. THIS IS SO WHETHER OR NOT THE CLAIM HAS BEEN ASSIGNED. FURTHER, NEITHER YOU NOR WE HAVE THE RIGHT TO LITIGATE A CLAIM IN COURT, SUBJECT TO THE SECTION TITLED EXCLUDED CLAIMS, OR HAVE A JURY TRIAL ON A CLAIM, OR TO ENGAGE IN DISCOVERY, EXCEPT AS PROVIDED FOR IN THE CODE OF PROCEDURES OF JAMS OR AAA.


Any Claim will be resolved, upon the election by you or us, by arbitration pursuant to this Dispute Resolution Provision and the code of procedures of the national arbitration organization to which the Claim is referred in effect at the time the Claim is filed. Claims will be referred to either Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”), as selected by the party electing to use arbitration. If a selection by us of one of these organizations is unacceptable to you, you will have the right within 30 days after you receive notice of our election to select the other organization listed to serve as arbitrator administrator. For a copy of the procedures, to file a Claim or for other information about these organizations, contact them as follows: (i) JAMS at 1920 Main Street, Suite 300, Los Angeles, CA 92614; website at www.jamsadr.com; and (ii) AAA at 335 Madison Avenue, New York, NY 10017; website at www.adr.org.

If either party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. There is no right or authority for any Claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other account holders or other persons similarly situated. The arbitrator’s authority to resolve Claims is limited to Claims between you and us alone, and the arbitrator’s authority to make awards is limited to you and us alone. Furthermore, Claims brought by you against us or by us against you may not be joined or consolidated in arbitration with Claims brought by or against someone other than you, unless otherwise agreed to in writing by all parties.


Any arbitration hearing that you attend will take place in the federal judicial district of your residence. At your written request, we will consider in good faith making a temporary advance of all or part of the filing administrative and/or hearing fees for any Claim you initiate as to which you or we seek arbitration. At the conclusion of the arbitration (or any appeal thereof), the arbitrator (or panel) will decide who will ultimately be responsible for paying the filing, administrative and/or hearing fees in connection with the arbitration (or appeal). If and to the extent you incur filing, administrative and/or hearing fees in arbitration, including for any appeal, exceeding the amount they would have been if the Claim had been brought in the state or federal court which is closest to your billing address and would have had jurisdiction over the Claim, we will reimburse you to that extent unless the arbitrator (or panel) determines that the fees were incurred without any substantial justification.


This Dispute Resolution Provision is made pursuant to a transaction involving interstate commerce and will be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16, as it may be amended (the “FAA”). The arbitration will be governed by the applicable Code, except that (to the extent enforceable under the FAA) this Dispute Resolution Provision will control if it is inconsistent with the applicable Code. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law and, at the timely request of either party, will provide a brief written explanation of the basis for the decision. In conducting the arbitration proceeding, the arbitrator will not apply the Federal or any state rules of civil procedure or rules of evidence. Either party may submit a request to the arbitrator to expand the scope of discovery allowable under the applicable Code. The party submitting such a request must provide a copy to the other party, who may submit objections to the arbitrator with a copy of the objections provided to the requesting party, within 15
days of receiving the requesting party’s notice. The granting or denial of such request will be at the sole discretion of the arbitrator who will notify the parties of his/her decision within 20 days of the objecting party’s submission. The arbitrator will take reasonable steps to preserve the privacy of individuals and of business matters. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA. However, any party can appeal that award to a three-arbitrator panel administered by the same arbitration organization, which will consider a new any aspect of the initial award objected to by the appealing party. The appealing party will have 30 days from the date of entry of the written arbitration award to notify the arbitration organization that it is exercising the right of appeal. The appeal will be filed with the arbitration organization in the form of a dated writing. The arbitration organization will then notify the other party that the award has been appealed. The arbitration organization will appoint a three-arbitrator panel which will conduct arbitration pursuant to its Code and issue its decision within 120 days of the date of the appellant’s written notice. The decision of the panel will be by majority vote and will be final and binding.


This Dispute Resolution Provision will survive the termination of your Account, this Agreement, and any bankruptcy by you or us. If any portion of this Dispute Resolution Provision is deemed invalid or unenforceable under any principle or provision of law or equity, consistent with the FAA, it will not invalidate the remaining portions of this Dispute Resolution Provision, this Agreement, or any prior agreement you may have had with us, each of which will be enforceable regardless of such invalidity.


Contacting Us
You may contact us with any questions or concerns regarding your Account or Card by email at [email protected].


Additional Terms For The Card
The triValence Business Mastercard is issued by Piermont Bank, a New York State Bank; Member FDIC, pursuant to license by Mastercard International Incorporated. Mastercard is a registered trademark, and the circles design is a trademark of Mastercard International Incorporated. The Card may be used everywhere Mastercard is accepted.

Issuance of Card
The Bank will issue or cause to be issued, the Card, a MasterCard debit card, in your name. The expiration date of the Card is identified on the back of the Card. The expiration date of the Virtual Card is described below. The funds in the Account will not expire, regardless of the expiration date on the back of the Card. The Card is a debit card that is funded by your Account and the Linked Account and gives you access to the funds in your Account and the Linked Account. The Card allows you to directly access your subaccount within the FBO account relationship that triValence has with the Bank. You acknowledge that the Bank is providing such service to you as an accommodation only and, except as otherwise provided by law, the Bank is not responsible in any way for the manner in which the Card is utilized. The Account and Card services will be available to you only as long as you continue to use triValence’s services and triValence maintains its banking relationship with the Bank.


Virtual Card
When you open an Account, you will also receive a virtual card (“Virtual Card”) represented by a 16-digit card number, a three-digit card verification value (“CVV”) number and an expiration date. The Virtual Card can be managed through the Mobile App. We will issue you a replacement Virtual Card when it expires. The Virtual Card accesses the available funds in your Account to make card-not-present transactions anywhere Mastercard debit cards are accepted in the same way as your physical Card. Functionality to add the Virtual Card to a digital wallet (see the subsection titled “Digital Wallet” below) in the same way as your physical Card may become available in the Mobile App. Your use of the Virtual Card is subject to the terms of this Agreement, including transaction limitations, to the same extent as your physical Card, and is referred to as Card.


Funds
Transactions made with the Card are funded solely by your Account balance and any Linked Account. To ensure your Account balance is sufficient to cover purchase transactions you make with the Card, triValence may transfer funds from your designated Linked Account whenever your available Account balance is less than the purchase amount. By using the Card, you hereby authorize triValence to automatically debit your Linked Account as necessary to complete any purchase made with the Card. You further agree that once such an automatic debit has been initiated, you will be unable to cancel the transfer and triValence may resubmit any such automatic debit that is returned for insufficient or uncollected funds or that is returned for any other reason, except as otherwise provided by the Automated Clearing House (“ACH”) rules or applicable law. You may be subject to third-party fees, such as insufficient fund fees, reversal fees, or ACH insufficient fund fees that your financial institution may charge if your automatic debit transaction is rejected. IF YOU ARE AWARE YOU DO NOT HAVE ENOUGH FUNDS IN YOUR ACCOUNT BALANCE TO COMPLETE A CARD PURCHASE, YOU SHOULD CONFIRM THAT YOUR LINKED ACCOUNT CONTAINS FUNDS SUFFICIENT TO COVER THE TRANSACTION, BEFORE USING THE CARD. THIS WILL HELP YOU AVOID THIRD-PARTY OVERDRAFT FEES OR OTHER FEES YOUR BANK MAY CHARGE.


If you delete your linked bank account from triValence, triValence will be unable to automatically debit your Linked Account and any Card purchase that exceeds your available Account balance will be declined.


Activating the Card
The Card must be activated before it can be used. Cards may be activated by visiting the App. For your security, you will need to provide personal information in order for your identity to be verified and for completion of the activation process.


Personal Identification Number
The Personal Identification Number (PIN) is a security code, which is designed to protect the Card against unauthorized use and is required by the Bank for you to use your physical Card. For a physical Card, you choose the PIN when you activate the Card, Virtual Cards do not have PINs. The PIN provides enhanced security for the Card and may be used when making transactions with the Card. It is your electronic signature. Since the PIN is for security purposes, you should memorize it and it should not be disclosed to anyone. You should not write or keep the PIN with the Card. When entering the PIN, be sure it cannot be observed by others, and do not enter the PIN into any terminal that appears to be modified or suspicious. You can change the PIN at any time through the settings on the triValence app. A temporary hold can be placed on the Card if the PIN has been compromised or if the Card is lost or stolen. Maintaining the security of the PIN and Card is your responsibility. If you believe anyone has gained unauthorized access to the PIN, change your PIN using the triValence app and contact us immediately at [email protected].


Authorized Users
The Card is solely for your use. If you give anyone else access to your Card, we will treat any transaction they initiate as authorized by you and you will be responsible for all transactions and fees that occur. You may not request an additional Card for another person.


Payment Responsibility and Transferability
You are liable for the payment of Card transactions authorized by you or your agents. The Card may not be transferred or assigned to another person once it has been issued, and it may be canceled, repossessed, or revoked at any time without prior notice subject to applicable law. If you want us to stop a payment that you have made, you can contact us to see if we can do so. Only stop-payment requests from the person who authorized the transaction will be honored. However, because Card transactions are often processed immediately, stopping or amending payment is difficult and the Bank cannot ensure that any request you make will be effective. In order to be effective, we must receive the request in time to give us a reasonable opportunity to act. Your request must precisely identify the transaction by date, time, location, and dollar amount. Only you may release a stop-payment request. If any term of this section cannot be legally enforced, it will be considered changed to the extent necessary to comply with applicable laws. If any part of this section becomes unenforceable, it will not make any other part unenforceable.


Card Purchases
You may use the Card for business purposes, to purchase goods (in person, online, or by phone), pay for services (in person, online, or by phone), get cash from a merchant, if the merchant permits, or from a participating financial institution, and do anything that a participating merchant will accept. You may use your Card to make purchases using your PIN at any merchant with a point-of-sale (“POS”) device anywhere that displays the Mastercard, Interlink, Maestro, or Cirrus acceptance marks. You may also use your Card to make purchases without your PIN anywhere that Mastercard debit cards are accepted.


Split Tender and Card-Not-Present Transactions
You can instruct a merchant to charge your Card for part of a purchase and pay any remaining amount with cash or another card. This is called a “split transaction.” Some merchants do not permit split transactions. If you wish to conduct a split transaction, you must tell the merchant the exact amount you would like charged to your Card. If you fail to inform the merchant you would like to complete a split transaction and you do not have sufficient available funds in your Account to cover the entire purchase amount, your Card may be declined or may pull funds from your Linked Account. You may make retail card purchases without presenting your Card by providing information from your Card, such as in transactions done by Internet or telephone. Conducting transactions in this way has the same legal effect as if you used the plastic Card itself. For security reasons, the amount or number of such transactions you may make may be limited.

You agree not to use your Card for illegal purposes. Display of a payment card logo by an online merchant does not necessarily mean that transactions are lawful in all jurisdictions in which the cardholder may be located.


Authorization Holds
When you use your Card to purchase goods or services or to make a cash-back withdrawal transaction, the merchant may attempt to obtain preauthorization for the transaction. If the merchant makes such a request, a “hold” is placed on your Account balance for the amount of the preauthorization request (which may vary in some cases from the amount of the actual purchase, depending on the merchant or purchase type), until the merchant sends the final payment amount of your purchase, even if you fail to make the purchase. When this happens, our processing system cannot determine that the amount of the hold exceeds the actual amount of your purchase. This temporary hold, and the amount charged to your Account, will eventually be adjusted to the actual amount of your purchase, but it may be up to 7 days or more transactions before the adjustment is made. During the hold period, you may not have access to the preauthorized amount in your Account. If the preauthorization request varies from the amount of the actual transaction, the actual transaction amount will be debited from your Account, even if this results in your Account balance becoming negative. You remain responsible for any negative balances in your Account.

If you use the Card at an automated fuel dispenser (“pay at the pump”), the transaction may be preauthorized for an amount up to $100.00. If the Card is declined, but you have sufficient funds available in your Account, you should use the Card to pay for the purchase inside with the cashier.


If you use the Card at a restaurant, a hotel, for a car rental purchase, or for similar purchases, the transaction may be preauthorized for the purchase amount plus up to 20% to ensure there are sufficient funds available to cover tips or incidental expenses incurred. For transactions at hotels, it may take up to 30 days for the hold to be removed. For transactions at rental car companies, it may take up to 60 days for the hold to be removed.


Some merchants may request authorization for the amount that they estimate you will spend and place a temporary hold for that amount. This estimated amount is likely to be different (either more or less) than the actual transaction amount. Typically, temporary holds are placed for up to 3 business days, but exact times may vary. If a temporary hold is placed, please note that it may impact your available balance by an amount either more or less than you expected until the transaction posts. We are not responsible for damages or losses of any type, including wrongful dishonor, for any transaction that is not authorized or that is returned unpaid because of a hold.


ATM and POS Balance Inquiries and Withdrawals
With your PIN, you can use your Card to obtain your available Account balance and cash from your Account up to your available Account balance, subject to any applicable transaction limitations, at any ATM or any point-of-sale (“POS”) in the United States that displays the Mastercard, Interlink, Maestro or Cirrus acceptance marks. ATMs at which the card may be utilized are not available in all areas and the card will not be functional at all ATMs. Not all merchants will permit you to get cash back through their POS devices. We may charge you a fee to use ATMs. In addition, ATM owner-operators may impose their own fees and lower limits on cash withdrawals and may assess a fee even if you do not complete the transaction. This ATM fee imposed by a third party is assessed by the individual ATM operator and is not assessed or controlled by us. ATM fees will be charged to your Account. If given the option, select “Checking Account” when using an ATM. All ATM transactions are treated as cash withdrawal transactions and are subject to your daily cash withdrawal limit.


Transaction Limitations
Using your Card, you may withdraw no more than $500.00 in cash per day from an ATM. This daily withdrawal limit is subject to change from time to time as agreed between triValence and the Bank. In addition, using your Card and/or PIN (if applicable), you may not exceed $75,000.00 in debit card transactions per day.

triValence may, at its discretion, place additional limits on the number or total dollar value of purchases, and/or cash withdrawals that you may make with the Card. You will be notified of any change in the manner provided by applicable law prior to the effective date. Card limits are subject to periodic review and may be changed based on your Account history, activity, and other factors, including but not limited to your Card activity. triValence retains sole discretion to apply and change limits.


Foreign Transactions
The Card may be used to conduct transactions within the United States or to conduct international transactions, including, without limitation, transactions conducted on international merchant websites or mobile applications accessible within the United States.


Currency Conversion and Cross-Border Transaction Fees
If you effect a transaction with your Card in a currency other than US Dollars, Mastercard will convert the charge into a US Dollar amount. The Mastercard currency conversion procedure includes use of either a government-mandated exchange rate or a wholesale exchange rate selected by Mastercard. The exchange rate Mastercard uses will be a rate in effect on the day the transaction is processed. This rate may differ from the rate in effect on the date of purchase or the date the transaction was posted to your Account.


Please see the fee schedule for applicable transaction fees. The Cross-Border Transaction fee is charged on all cross-border transactions regardless of whether there is a currency conversion. A cross-border transaction is a transaction processed through the Global Clearing Management System or the MasterCard Debit Switch in which the country of the merchant is different from the country of the cardholder.

Returns and Refunds
Please be aware of the merchant’s return policies before using your Card to make a purchase. Neither we nor triValence is responsible for the delivery, quality, safety, legality or any other aspect of the goods or services you purchase using your Card. If you have a problem with a purchase that you made with your Card or if you have a dispute with the merchant, you must handle it directly with the merchant. If you are entitled to a refund for any reason for goods or services obtained using your Card, you agree to accept credits to your Card for the refund and agree to the refund policy of the merchant. The amounts credited to your Card for refunds may not be available for up to 5 days from the date the refund transaction occurs.


Replacing Your Card
If you need to replace your Card for any reason, please contact us by email at [email protected] or request a new card via the Mobile App. You will be required to provide personal information which may include the 16-digit Card number, your full name, and knowledge of the Card transaction history so that we may verify your identity before we will issue you a replacement Card. If you believe your Card has been lost or stolen, you may immediately disable your Card via the Mobile App. We may cancel any Card that has been disabled for 60 days or longer.


Mastercard Benefits
Your Card may be eligible for certain benefits provided by Mastercard. Please visit Mastercard’s website for additional information and check inside the benefits section of the triValence app.


Suspension and Cancellation
We may refuse to issue, deactivate, revoke, suspend or cancel your Card at any time with or without notice to you, other than as required by law. This includes deactivating or canceling your Card if it has been lost or stolen to prevent unauthorized transactions. You agree not to use your Card once it has been deactivated, revoked, suspended, or canceled. We may also limit your use of the Card, including limiting or prohibiting specific types of transactions. If you would like to cancel your Card, you may do so at any time by emailing us at [email protected]. The cancellation of your Card privileges will not otherwise affect your rights and obligations under this Agreement. You can also disable your Card inside the triValence App in card settings.


Using Your Card with a Digital Wallet
A digital wallet (“Wallet”) provides another way for you to make purchases with your Card. A digital wallet is a service provided by another company (such as Apple Pay, Google Pay, Samsung Pay, etc.) that allows you to use your Card to enter into transactions where the Wallet is accepted. A Wallet may not be accepted at all places where your Card is otherwise accepted, and your Card may not be eligible for all the features and functionalities of the Wallet. Any use of your Card in or through the Wallet continues to be subject to all terms and conditions of this Agreement. We may terminate your access to or use of your Card with a Wallet at any time and for any reason, including if you violate any of the terms or conditions of this Agreement.

You can add your Card to or remove your Card from a Wallet by following the instructions provided by the Wallet provider. By doing this, you agree to allow us to share your Card information with the Wallet provider. You may be required to take additional steps to authenticate yourself before your Card is added to the Wallet. We do not charge you any additional fees for adding your Card to a Wallet or for using your Card in the Wallet. However, any fees and charges that would apply when you use your Card outside the Wallet will also apply when you use a Wallet to make purchases with your Card or otherwise access your Card. The Wallet provider and other third parties, such as wireless companies or data service providers may charge you fees. The digital version of your Card in a Wallet may, in our sole discretion, be automatically updated or upgraded without notice to you.


We are not the provider of the Wallet, and we are not responsible for providing the Wallet service to you or for ensuring that your Card is compatible with any Wallet service. We are only responsible for supplying information to the Wallet provider to allow usage of your Card in the Wallet as you have requested. We are not responsible for any failure of the Wallet, any mobile device you use with the Wallet, or the inability to use the Wallet for any transaction. We are not responsible for how the Wallet provider performs its services or any other third parties regarding any agreement you enter into with the Wallet provider or other third party. We do not control the privacy and security of any of your information that may be held by the Wallet provider. Any information held by the Wallet provider is governed by the privacy policy given to you by the Wallet provider. If you have location services enabled on your mobile device, the location of your mobile device may be collected and shared by the Wallet provider in accordance with their respective data and privacy policies, including with us. If you request to add your Card to a Wallet, you authorize us to collect, transmit, store, use, and share information about you, your mobile device, and your use of the Card in accordance with our privacy policy, as amended from time to time.


If you use a Wallet, you should protect your Wallet and your mobile device as you would your Card. If your Wallet or mobile device is compromised, lost, or stolen, you should also consider your Card lost or stolen and notify us immediately. If you have any questions, disputes, or complaints about a Wallet, contact the Wallet provider using the information given to you by the provider.


TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY ARE WE LIABLE FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF A WALLET, YOUR USE OF THE CARD OR VIRTUAL CARD IN CONNECTION WITH A WALLET, OR A MOBILE DEVICE.


Fees
You agree to pay all fees and charges applicable to your Account and the Card. All fee amounts will be withdrawn from your Account and will be assessed as long as your Account is open, except where prohibited by law. Any time your remaining balance is less than the fee amount being assessed, the balance of your Account will be applied to the fee amount resulting in a zero balance on your Account. The current fee schedule is located at www.trivalence.com. Fees are subject to change at any time. We will provide you advance notice of any changes where required by law. triValence may charge you fees separate and apart from the fees set forth herein. Please refer to any agreement you may have with triValence for additional information on such fees. The Bank is not responsible for any fees charged by triValence for its services. We, or the ATM operator and/or another third party may charge you a fee to use an ATM. You may also be charged fees for transactions, including balance inquiries, by the ATM operator even if you do not complete a withdrawal. Such fees will be charged to your Account by the ATM operator, and we do not control these third-party fees.


Electronic Fund Transfers


Your Rights and Responsibilities
Your Account and Card allow 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 card transactions, and ATM withdrawals. This section provides you with information and important disclosures and terms about the EFTs that are permitted on your Account or in connection with your Card. You may also receive additional services from triValence, such as the ability to request EFTs to and from your Account through the Mobile App. triValence is solely liable and responsible for the Mobile App and related services. Please refer to triValence’s Terms of Service for additional terms and disclosures applicable to those services.


Types of EFTs Supported
Indicated below are the types of Electronic Fund Transfers we are capable of handling in connection with your Account. Please read this disclosure carefully because it tells you your rights and obligations for the transactions listed. You should keep this notice for future reference.


Electronic Fund Transfers Initiated By Third Parties.
You may authorize a third party to initiate electronic fund transfers between your Account and the third party’s account. These transfers to make or receive payment may be one-time occurrences or may recur as directed by you. These transfers may use the Automated Clearing House (“ACH”) or other payment network. Your authorization to the third party to make these transfers can occur in a number of ways. A third party may initiate electronic fund transfers with your Account number and bank information. Thus, you should only provide your bank and Account information (whether over the phone, the Internet, or via some other method) to trusted third parties whom you have authorized to initiate these electronic fund transfers.


Preauthorized Payments
You may make arrangements to pay certain recurring bills from your Account.

Card
You may make purchases or other transactions using your Card at merchants that have agreed
to accept the Card.


ATM Withdrawals
You may make ATM withdrawals using your Card.


Transfers to or from Linked Account
You may transfer to or from your Account to a linked bank account through the Mobile App.


Limitations on ETFs
There are limitations on the frequency, number 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 the section titled “Deposits” above. For limits that apply to transactions that debit or withdraw from your Account, please refer to the section titled “Withdrawals” above. These limits are designed to be flexible in order to protect the security and integrity of the service and accounts, including protecting you and all other users of the service. These limitations may be based on confidential fraud and risk criteria that are essential to our management of risk and the protection of you and the integrity of the service and may be modified at our sole discretion without advance notice.

In addition to those limitations on transfers elsewhere described, if any, the following limitations apply:
● For security reasons, there are other limits on the number of transfers you can make by ATM.
● For security reasons, there are other limits on the number of transfers you can make by Card.
● For security reasons, there are other limits on the number of transfers you can make by the Mobile App.


Fees
Please refer to the section titled “Fees” above for information on electronic fund transfers or direct deposits to or from the Account.

Documentation
Terminal transfers. You can get a receipt at the time you make a transfer to or from your Account using an automated teller machine or point-of-sale terminal. However, you may not get a receipt if the amount of the transfer is $15 or less.

Statements
We will provide you with information about each transaction that debits or credits your Account on your statements. Please refer to the section titled “Statements” for information about statements. You may also view your transaction history at any time through the Mobile App.


Preauthorized Payments
Preauthorized payments are not permitted.


Liability for Unauthorized Transfers
It is your responsibility to notify triValence immediately at [email protected] upon your belief that any security information (such as user IDs, passwords, or other credentials) has been lost, stolen, or otherwise made available to an unauthorized person, or that someone has viewed, downloaded, or deleted electronic records from the Account without your permission, or if you suspect any fraudulent or unauthorized activity (including errors) on the Account. You further agree to comply with all notification requirements described in this Agreement. Your liability for any unauthorized transactions (including errors) will be determined based on the terms described in this Agreement. You agree to promptly repay any amount erroneously credited to the Account.

Business Associate Agreement

This Business Associate Agreement (“BAA”) applies to the extent Customer is a Covered Entity or a Business Associate and triValence is a Business Associate or Subcontractor of Customer because triValence creates, receives, maintains, or transmits PHI for or on behalf of Customer under the Agreement. To the extent of any conflict or inconsistency between this BAA and any other provision of the Agreement, this BAA will govern with respect to PHI.

  1. DEFINITIONS

    “Agreement” means the agreement as defined in the Order Form.

    “Business Associate” has the definition given to it under HIPAA.

    “Breach” has the definition given to it under HIPAA.

    “Covered Entity” has the definition given to it under HIPAA.

    “Designated Record Set” has the definition give to it under HIPAA.

    “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of the American Recovery and Reinvestment Act of 2009, and their implementing regulations, as amended from time to time.

    “Protected Health Information” or “PHI” has the definition given to it under HIPAA, but is limited to PHI within Customer Data to which triValence has access through the Platform in connection with the Customer’s permitted use of the Platform. References to PHI in this BAA include electronic PHI.

    “Required by Law” has the definition given to it under HIPAA.

    “Security Incident” has the definition given to it under HIPAA.

    “Subcontractor” has the definition given to it under HIPAA. Other capitalized terms used in this BAA without definition will have the respective meanings given to such terms under HIPAA.


  2. PERMITTED USES AND DISCLOSURES

    2.1. Use and Disclosure. Except as otherwise stated in this BAA, triValence may use and disclose PHI only (a) as permitted or required by the Agreement or this BAA, or (b) as Required by Law, and triValence will not otherwise use or disclose PHI. Except as set forth in Sections 2.2, 2.3, and 2.5 of this BAA, triValence will not use or disclose PHI in any manner that would constitute a violation of HIPAA if so used or disclosed by Customer.

    2.2. Uses for Proper Management and Administration. triValence may use PHI for triValence’s proper management and administration and to carry out triValence’s legal responsibilities.

    2.3. Disclosures for Proper Management and Administration. triValence may disclose PHI to a third party for triValence’s proper management and administration, provided that the disclosure is Required by Law or triValence obtain reasonable assurances from the third party to whom PHI will be disclosed that (a) it will be held confidentially, (b) used or further disclosed only for the purpose for which it was disclosed to the third party, and (c) the third party will notify triValence of any instances of which it is aware in which the confidentiality of the PHI has been breached.

    2.4. Reporting Violations of Law. triValence may use PHI to report violations of law to appropriate federal and state authorities, consistent with 45 C.F.R. 164.502(j)(1).

    2.5. Data Aggregation. triValence may use PHI to provide Data Aggregation services if required or permitted under the Agreement.

    2.6. De-Identification. triValence may use PHI to create de-identified health information in accordance with the HIPAA de-identification standards. triValence may disclose de-identified health information for any purpose permitted by law.
  1. TRIVALENCE’S OBLIGATIONS

    3.1. No Other Use or Disclosure. triValence will not use or further disclose PHI other than as permitted or required by the Agreement or as Required by Law.

    3.2. Privacy Standards. To the extent triValence is to carry out any of Customer’s obligations under the HIPAA privacy standards, triValence will comply with the requirements of the HIPAA privacy standards that apply to Customer in the performance of such obligation.

    3.3. Safeguards. triValence will use appropriate safeguards and comply, where applicable, with the HIPAA security standards with respect to electronic PHI, to prevent use or disclosure of the PHI other than as provided for by the Agreement and this BAA.

    3.4. Unauthorized Uses and Disclosures; Breaches. triValence will report to Customer any use or disclosure of PHI not permitted by this BAA of which triValence becomes aware, including Breaches of Unsecured PHI as required by 45 CFR § 164.410.

    3.5. Security Incidents. triValence will report to the Customer any successful Security Incident of which triValence becomes aware. Notwithstanding the foregoing, notice is hereby deemed provided, and no further notice will be given, regarding the existence of unsuccessful Security Incidents, such as pings and other broadcast attacks on a firewall, denial of service attacks, port scans, unsuccessful login attempts, malware such as worms or viruses, or interception of encrypted information where the key is not compromised, or any combination of the above.

    3.6. Subcontractors. triValence will enter into a written agreement meeting the requirements of 45 CFR §§ 164.504(e) and 164.314(a)(2) with each Subcontractor that creates, receives, maintains, or transmits PHI on triValence’s behalf that obligates the Subcontractor to comply with restrictions and conditions that are at least as restrictive as those that apply to triValence under this BAA.

    3.7. Access to PHI. To the extent triValence maintains PHI in a Designated Record Set, within 15 business days of receipt of a written request from Customer, triValence will make PHI contained in such Designated Record Set available to Customer so that Customer may comply with 45 CFR § 164.524. Between Customer and triValence, Customer is solely responsible for making decisions regarding whether to approve a request for access to PHI.

    3.8. Amendments to PHI. To the extent triValence maintains PHI in a Designated Record Set, within 15 business days of receipt of a written request from Customer, triValence will make PHI contained in such Designated Record Set available to Customer for amendment and incorporate any such amendments to such PHI in accordance with 45 CFR § 164.526. Between Customer and triValence, Customer is solely responsible for making decisions regarding whether to approve a request for amendment to PHI.

    3.9. Accounting of Disclosures. Within 30 business days of receipt of written notice from Customer, triValence will make available to Customer the information required for Customer to provide an accounting of disclosures in accordance with 45 CFR § 164.528 of which triValence are aware. Because triValence cannot readily identify which Individuals are identified or what types of PHI are included in Customer Data, the Customer will be solely responsible for identifying which Individuals, if any, may have been included in Customer Data that triValence has disclosed and for providing a brief description of the PHI disclosed.

    3.10. Books and Records. triValence will make triValence’s internal practices, books, and records relating to the use and disclosure of PHI available to the Secretary for purposes of determining Customer’s compliance with HIPAA.

    3.11. Minimum Necessary. To the extent required by the “minimum necessary” requirements of HIPAA, triValence will only request, use, and disclose the minimum amount of PHI necessary to accomplish the purpose of the request, use, or disclosure.
  2. CUSTOMER’S OBLIGATIONS

    4.1. Permissible Requests. Customer will not request that triValence use or disclose PHI in any manner that would not be permissible under HIPAA if done directly by Customer (except as set forth in Sections 2.2, 2.3, and 2.5 of this BAA).

    4.2. Minimum Necessary. When Customer disclose PHI to triValence, Customer will provide only the minimum amount of PHI necessary for the accomplishment of Customer’s purpose.

    4.3. Restrictions; Revocation of Authorization. Customer must promptly notify triValence in writing of any changes in, or revocation of, the permission by an Individual to use or disclose his or her PHI, to the extent that such changes may affect triValence’s use or disclosure of PHI and take affirmative steps to remove such PHI from the Platform.

    4.4. Notice of Privacy Practices. Customer must notify triValence in writing of any limitation in any applicable notice of privacy practices in accordance with 45 CFR § 164.520, to the extent that such limitation may affect triValence’s use or disclosure of PHI.

  3. TERMINATION

    5.1. Termination for Cause. Any other provision of the Agreement notwithstanding, either party (the “Non-Breaching Party”) may terminate this BAA and the Agreement upon 30 days advance written notice to the other party (the “Breaching Party”) if the Breaching Party materially breaches this BAA and such breach is not cured to the reasonable satisfaction of the Non-Breaching Party within such 30-day period.

    5.2. Return or Destruction of PHI. Upon expiration or earlier termination of this BAA, triValence will either return or destroy all PHI received from Customer or created or received by triValence on Customer’s behalf and which triValence still maintains in any form. Notwithstanding the foregoing, to the extent that triValence reasonably determines that it is not feasible to return or destroy such PHI, the terms and provisions of this BAA will survive termination of this BAA, and triValence will use or disclose such PHI solely for such purpose or purposes which prevented the return or destruction of such PHI.

  4. GENERAL PROVISIONS

    6.1. HIPAA Amendments. Any future amendments to HIPAA affecting business associate agreements are hereby incorporated by reference into this BAA as if set forth in this BAA in their entirety, effective the later of the effective date of this BAA or such subsequent date as may be specified by HIPAA.

    6.2. Regulatory References. A reference in this BAA to a section in HIPAA means the section as it may be amended from time to time.