FINALLY CARD PROGRAM TERMS AND CONDITIONS
These Finally Card Program Terms and Conditions (these “Terms”) represent an agreement between each Business Account Owner and Bank that governs the Finally Card Program (each term as defined below). Business Account Owner shall be responsible for notifying the Business Administrator and Authorized Users of their authority and obligations under these Terms and for ensuring that the Business Administrator and each Authorized User complies with these Terms. Each Authorized User must accept these Terms in order to receive and use the Card. IMPORTANT: These Terms include resolution of disputes by arbitration instead of in court and class action waiver. PLEASE READ CAREFULLY.
“Access Information” means collectively a PIN, online user name, password, challenge questions, and any other security information used to access a Business Account or Card Account. “Authorized User” means any designated person authorized by the Business Administrator to use the Card on Business Account Owner’s behalf. “Bank” means The Bancorp Bank, N.A. “Business Account” means the account created on Finally’s payments platform that maintains a record to account for the value of the funds available for Card use, issued by the Bank at Business Account Owner’s or any Business Administrator’s request. “Business Account Owner” or “You” or “Your” means the entity that has qualified for and established a Business Account and one or more Card Account(s) (see Section 5.2 - Qualifying For and Establishing Business Account and Card Accounts) “Business Administrator” means any designated person authorized by the Business Account Owner to administer the Business Account and associated Card Account(s) and/or act on Business Account Owner’s behalf in connection with these Terms, including without limitation designating Authorized Users, and setting Card Account limitations (See Section 5.6 – Limitations). “Card” means The Finally Visa® Corporate Card issued by Bank through which any Authorized Users can obtain Funds in the Card Account. Card is a physical or a virtual card embossed with a 16-digit number. Each reference to “Card” also shall include all “Cards” provided to Authorized Users. “Card Account” means a sub-account of the Business Account and the records maintained for each Card associated with the Business Account that is requested by the Business Account Owner or any Business Administrator. “Finally” refers to Finally, Inc., a U.S. corporation that services the Program and hosts the Website, as part of its business of assisting Business Account Owner in managing corporate expenses, and its successors, affiliates or assignees. “Finally Card Program” or “Program” means the program through which the Bank issues one or more Cards to Finally for use by Business Account Owner’s Authorized Users to assist the Business Account Owner in managing corporate expenses. “Finally Agreement” means the separate agreement between the Business Account Owner and Finally pursuant to which the Business Owner receives Finally expense management services. “Principal Owner” means (1) each individual, if any, who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, owns 25 percent or more of the equity interests of the legal entity and (2) one individual with significant responsibility for managing the legal entity listed above, such as an executive officer or senior manager (e.g., Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Managing Member, General Partner, President, Vice President, Treasurer); or any other individual who regularly performs similar functions. “We,” “us,” and “our” mean Bank and its successors, affiliates, and assignees. “You” or “your” means the Business Account Owner, Business Administrator, and/or the Authorized User.
2. ACTIVATING THE CARD
3. IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A CARD
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. WHAT THIS MEANS FOR THE BUSINESS OWNER AND BUSINESS ADMINISTRATORS: WHEN THE BUSINESS ACCOUNT OWNER OPENS A BUSINESS ACCOUNT, WE WILL ASK FOR THE NAME, ADDRESS, EMPLOYER IDENTIFICATION NUMBER AND ORGANIZATIONAL DOCUMENTS OF THE BUSINESS ACCOUNT OWNER AND THE NAMES, ADDRESSES, DATES OF BIRTH, AND OTHER INFORMATION CONCERNING EACH BUSINESS ADMINISTRATOR AND PRINCIPAL OWNER THAT WILL ALLOW US TO IDENTIFY THE BUSINESS ACCOUNT OWNER AND ITS BUSINESS ADMINISTRATOR AND PRINCIPAL OWNERS. WE MAY ALSO ASK TO SEE A COPY OF EACH BUSINESS ADMINISTRATOR’S AND PRINCIPAL OWNER’S DRIVER’S LICENSES OR OTHER IDENTIFICATION DOCUMENTS.
4. BUSINESS DAYS
Our business days are Monday through Friday, excluding federal holidays, even if we are open. Any references to “days” found in these Terms are calendar days unless indicated otherwise.
6. GENERAL TERMS6.1. Assignment. To the extent permitted by applicable law, we may assign these Terms without obtaining Business Account Owner’s, Business Administrator’s, or Authorized Users’ consent. None of Business Account Owner, Business Administrator, nor any Authorized User may assign or transfer a Card, Card Account, or these Terms without our prior written consent. 6.2. Severability and Waiver. If any provision of these Terms is held to be invalid or unenforceable, such provision will be deemed to be modified to the minimum extent necessary to make it valid and enforceable and the rest of these Terms will not be affected. We do not waive our rights by delaying or failing to exercise them at any time. 6.3. Amendment. We may add to, delete, or amend these Terms at any time in our sole discretion without providing notice to Business Account Owner, a Business Administrator or Authorized User subject to applicable law. We reserve the right, subject to applicable law, to deliver to Business Account Owner any notice of changes to existing terms or the addition of new terms by posting an updated version of these Terms on the Website or delivering notice of changes to Business Account Owner electronically. 6.4. Entire Terms. These Terms constitutes the entire and sole agreement between Business Account Owner, Authorized Users and us with respect to the Program and supersedes all prior understandings, arrangements, or agreements, whether written or oral, regarding the Program. 6.5. Cancellation and Suspension. To the extent permitted by applicable law, we may cancel or suspend a Business Account, Card, or these Terms immediately, for any reason, and, except when required by applicable law, without notice to Business Account Owner, a Business Administrator or Authorized User. Business Account Owner may cancel a Card or these Terms at any time by notifying Customer Service as provided below. Cancellation or suspension of these Terms will not affect any of our rights or Business Account Owner’s, or any Business Administrator’s or Authorized User’s obligations arising under these Terms prior to such cancellation or suspension. In the event that a Card is cancelled, closed, or terminated for any reason, a Business Administrator may request the unused balance in the Business Account to be returned to the Business Account or to Business Account Owner via a check to the mailing address we have in our records. 6.6. English Language Controls. Any translation of these Terms is provided for your convenience. The meanings of terms, conditions and representations herein are subject to definitions and interpretations in the English language. Any translation provided may not accurately represent the information in the original English. 6.7. Telephone Monitoring/Recording. You agree that from time to time, without further notice to you, we may monitor and/or record telephone calls and electronic communications between you and us to assure the quality of our customer service or as required by applicable law. 6.8. Website Availability. Although considerable effort is expended to make our website and other operational and communications channels available around the clock, we do not warrant these channels to be available and error free every minute of the day. You agree that we will not be responsible for temporary interruptions in service due to maintenance, website changes, or failures, nor shall we be liable for extended interruptions due to failures beyond our control, including but not limited to the failure of interconnecting and operating systems, computer viruses, forces of nature, labor disputes and armed conflicts. The site is provided as-is and as available. You agree to act responsibly with regard to our website and its use. You will not violate any laws, interfere or disrupt computer networks, impersonate another person or entity, violate the rights of any third party, stalk, threaten or harass anyone, gain any unauthorized entry, or interfere with the website’s systems and integrity. We shall not bear any liability, whatsoever, for any damage or interruptions caused by any “computer viruses” that may affect your computer or other equipment. We advise the regular use of a reputable and readily available virus screening and prevention software. 6.9. Governing Law. These Terms will be governed by and construed in accordance with the laws of the State of Ohio, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. 6.10. Indemnification. Business Account Owner agrees to defend, indemnify, and hold harmless us and our parents, subsidiaries, and other affiliated companies, and our and their employees, contractors, officers, agents, and directors against any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, and expenses (including, without limitation, reasonable attorneys’ fees) that arise from Business Account Owner’s or its Business Administrator’s or Authorized Users’ violation of these Terms, applicable law, or any third-party rights or Business Account Owner’s or its Business Administrator’s Authorized Users’ fraud or willful misconduct. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by Business Account Owner, in which event Business Account Owner will cooperate in asserting any available defenses. 6.11. NO WARRANTY OF AVAILABILITY OR UNINTERRUPTED USE. From time to time, services related to the Program may be inoperative. When this happens, Business Administrators may be unable to access the Website and Authorized Users may be unable to use the Card or obtain information about the Card. Please notify us if a Business Administrator or Authorized User has any problems using the Card or the Website. Business Account Owner, Business Administrator and Authorized Users agree that we will not be responsible for temporary interruptions in service due to maintenance, website changes, or failures, nor shall we be liable for extended interruptions due to failures beyond our control, including but not limited to the failure of interconnecting and operating systems, computer viruses, forces of nature, labor disputes and armed conflicts. Access to, and use of, the site is at your own discretion and you will be solely responsible for any damage to your device or computer system or loss of data resulting therefrom. Disclaimers. THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 6.12. LIMITATION OF LIABILITY. We shall have no liability to you if we are unable to complete a transaction for any reason beyond our control. Except as otherwise expressly provided in these Terms or as otherwise required by applicable law, we, our affiliates, and the parties with whom we contract in order to offer the Cards, the Card Accounts, and related services are neither responsible nor liable for any indirect, incidental, consequential, special, exemplary, or punitive damages arising out of or relating in any way to the Cards, the Card Accounts, any products or services purchased using Card, or these Terms (as well as any related or prior agreement that Business Account Owner or Authorized Users may have had with us). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. 6.13. NOTIFICATION OF CHANGES. If Business Account Owner’s U.S. mail or postal address, or email address or telephone number changes, Business Account Owner must notify us immediately. In addition, Business Account Owner agrees to notify us immediately if the Business Administrator’s or any Authorized User’s status with Business Account Owner has changed. Failure to do so may result in information regarding the Card, Business Account or Card Account being delivered to the wrong person or your transactions being declined. In such event, we shall not be responsible for any resulting misuse of the Business Account or Card. Business Account Owner must notify us immediately in the event of the insolvency, receivership, conservatorship, bankruptcy or reorganization of Business Account Owner or change in principal owners. Business Account Owner’s Card(s), Business Account and Card Account may be terminated by us in the event a change of control, reorganization, restructuring, conversion, consolidation, division or merger of Business Account Owner. 6.14. DISPUTE RESOLUTION BY BINDING ARBITRATION. For any and all controversies, disputes, demands, claims, or causes of action between Business Account Owner (which includes for purposes of this provision any Business Administrator or Authorized User) and us (including the interpretation and scope of this Section 7.14 and the arbitrability of the controversy, dispute, demand, claim, or cause of action) relating to the Cards, the Business Account, Card Accounts, or these Terms (as well as any related or prior agreement that Business Account Owner may have had with us), Business Account Owner and we agree to resolve any such controversy, dispute, demand, claim, or cause of action exclusively through binding and confidential arbitration and the terms of this Section. The arbitration will take place in the federal judicial district located in the borough of Manhattan, New York, New York, or in the alternative, may be conducted telephonically at your request. As used in this Section, “we” and “us” mean Bank and its subsidiaries, affiliates, predecessors, successors, and assigns and all of its and their respective employees, officers, directors, agents, and representatives. In addition, “we” and “us” include Finally, and any third party providing any product, service, or benefit in connection with the Cards, the Card Accounts, or these Terms (as well as any related or prior agreement that Business Account Owner may have had with us) if such third party is named as a co-party with us in any controversy, dispute, demand, claim, or cause of action subject to this Section. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving commercial contract disputes. As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). Notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of Business Account Owner’s principal place of business residence in order to maintain the status quo pending arbitration, and each party hereby agrees to submit to the exclusive personal jurisdiction of the courts located within the federal judicial district of Business Account Owner’s principal place of business for such purpose. A request for interim measures will not be deemed a waiver of the obligation to arbitrate. Business Account Owner agrees to the following in connection with any arbitration: (a) no class or similar group arbitration will be permitted; (b) the arbitration will be confidential, and neither Business Account Owner nor we may disclose the existence, content, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (c) subject to Section 6.41 (Limitation of Liability), the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (d) each party will pay its own attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law. Business Account Owner understands and agrees that, by agreeing to these Terms: ● YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; ● YOU ARE GIVING UP YOUR RIGHT TO HAVE A COURT RESOLVE ANY DISPUTE BETWEEN YOU AND US; and ● YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY ARBITRATION OR LAWSUIT INVOLVING ANY DISPUTE BETWEEN US. This Section will survive termination of the Card Account or these Terms as well as any voluntary payment of any debt in full by Business Account Owner or bankruptcy by Business Account Owner, or any bankruptcy by us. With the exception of subparts (a) and (b) of this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein.
7. IMPORTANT CONTACT INFORMATION
Contact Information for Customer Service. A Business Administrator and Authorized Users may contact us by calling (800) 954-6510 or by writing to us at firstname.lastname@example.org
These Terms are effective 9/2023. This card is issued by The Bancorp Bank, N.A., pursuant to license from Visa U.S.A., Inc.