Money Transfer Agreement
MONEY TRANSFER SERVICE AGREEMENT
IMPORTANT–PLEASE READ CAREFULLY
EFFECTIVE APRIL 1, 2020
This document is an agreement (“Agreement”) containing the terms and conditions that apply to use of the Bambu Mobile App (the “Services”) to make cross border money transfers (the “Transfers”) . By using the Services to make Transfers you agree to be bound by the terms and conditions contained in this Agreement. “You” and “your” mean the person who uses the Services as provided for in this Agreement. “We,” “us,” “our,” and “Bank” mean Evolve Bank & Trust, together with its successors and assigns. “Bambu” means Bambu Systems, LLC, together with its successors, affiliates and assignees. The program manager for the Services is Bambu (the “Program Manager”) and the Bambu customer service (“Customer Service”) telephone number is (833) 882-2628. Please read this Agreement carefully and keep it for future reference. Bambu is also the program manager for your Mobile App prepaid account (“Account”) at Metropolitan Commercial Bank, a New York chartered bank (“MCB”). Available funds in your Account will be used for the Services.
PLEASE NOTE: SECTION 20 OF THESE TERMS CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION AND JURY WAIVER THAT APPLIES TO YOU. BY ACCEPTING THESE TERMS, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION AND CLASS ACTION AND JURY WAIVER. PLEASE READ IT CAREFULLY.
(a) Description of the Services and Definitions
. The Services provide you with the ability to conduct a Mobile App transaction in which you (the “Sender”) Transfer a designated amount of funds from your Account through our money transmitters to foreign banks, money exchange houses, and other third-party payout service providers (each, a “Payout Provider”) to a designated individual or to an individual’s foreign bank account for deposit (the “Recipient”). We do not offer Transfers to all countries. The country where the Payout Provider or bank is located and in which we offer Services is the “Recipient Country”. For each Transfer that you make, in addition to a “Transfer Fee” that will be disclosed to you prior to you authorizing the Transfer, we will charge you a “Foreign Currency Exchange Fee” when a Transfer is not paid out in U.S. Dollars. The Foreign Currency Exchange Fee is the fee we charge you to buy foreign currency in connection with the Transfer. The foreign currency exchange rate will be disclosed to you prior to your authorizing a Transfer. We will provide to you estimates, if known to us, of any taxes or charges that may be levied under the laws of the Recipient Country (the “Local Taxes”)prior to your authorizing a Transfer. The “Transfer Amount” is the amount of the Transfer, excluding the Transfer Fee. The Transfer Amount, the Transfer Fee (and transfer taxes, if any) will be deducted from your Account. The “Payout Amount” is total paid to the Recipient, excluding any Local Taxes in the local currency when a Transfer is not paid out in U.S. Dollars or U.S. Dollars when a Transfer is paid out in U.S. Dollars. All Transfer Fees are made free and clear of, and without any deduction or withholding for and on account of, any Local Taxes, duties or other deductions. Any such deduction or withholding, if required by the laws of any country are your sole responsibility. We provide estimates of the Local Taxes and other fees that may be charged for a Transfer, but the exact amount of the Local Taxes and other fees are determined by the Recipient Country.
(b) Reporting the Transfer
. We will report the Transfer, Transfer Amount, Recipient and other information relating to you, the Transfer and/or the use of the Services, to the appropriate legal or regulatory authorities, governing bodies or entities when necessary or appropriate pursuant to the laws and regulations governing our Services or the Transfer.
3. Use of the Services
By using the Services, and each time you request or initiate a Transfer, you represent, warrant, consent to and acknowledge, as applicable, the following:
(1) You or the Recipient, if you are not the Recipient, has consented to our accessing the Recipient’s account information (if the Transfer is a deposit to a Recipient’s bank account) and permitted us and Bambu to collect and verify information about the Recipient.
(2) If you use the Services or otherwise initiate or receive a Transfer, we may share the information about you to third parties we and/or Bambu use or rely on to provide the Services or Transfers.
(3) You know your Recipient, if the Recipient is not you.
(4) The Services may not be available in whole or in part in different countries and jurisdictions as determined by local laws and regulations or if we reasonably determine that providing the Services in a particular country or jurisdiction presents an unacceptable level of risk to us, our Payout Providers or our systems.
(5) We may restrict or limit Transfers to a particular country or jurisdiction or to a particular Recipient if such country, jurisdiction or Recipient presents an unacceptable level of risk to us, Bambu, our third party service providers or any other third party.
(6) In an effort to combat money laundering activities and the funding of terrorism, the law requires a money transmitting institution such as us to obtain, verify, and record information that identifies each Sender. You agree to provide all such information requested and all information provided is true, accurate and complete.
(7) We may, at any time and in our sole discretion, refuse any Transfer or Services for certain Recipients, including without limitation, individuals that are included on the Specially Designated Nationals list, Non-cooperative Countries and Territories list, United Nations Security Council Sanctions List, and such other lists as may be issued from time to time by government agencies.
(8) We may also, at any time and in our sole discretion, limit the amount to be transferred on a per Transfer basis or an aggregated basis without prior notice. Any such limits may be imposed on individual accounts or on related accounts or households. We may reject or limit Transfers based on violations of this Agreement, local laws and regulations or if we reasonably determine processing a Transfer presents an unacceptable level of risk to us, our Payout Providers users, any third party or our systems.
(9) You covenant with us to observe all anti-money laundering and exchange control laws and regulations including economic and trade sanctions promulgated by the Office of Foreign Assets Control of the U.S. Department of Treasury in relation to any Transfer, and you will use all reasonable endeavors to assist us to do likewise. In particular, you covenant that the information given to us by you is accurate. We may disclose any information given to us that we in our sole discretion think necessary or desirable to disclose; except we will only disclose confidential information if required by law, a court, or legal, regulatory, or governmental authority, or as permitted by law in order to combat, prevent, or investigate issues arising under anti-money laundering laws, economic sanctions, or criminal law. You further agree to comply with applicable law and to not use the Services for illegal activities.
(1) General. We reserve the right at any time, and from time to time, to modify or discontinue any Transfer (or any part thereof) with or without notice.
(2) Business Hours and Other Delays. Your Transfer may be delayed due to business hours, systems availability and currency availability.
(3) Commercial Transactions. You agree that you will only use the Transfer for your or your Recipient’s personal reasons. If we reasonably suspect or discover you are using the Transfer to send a transfer to or on behalf of a Recipient which is a business or entity, we may, in our sole discretion, cancel your Transfer. You agree that we and Bambu are not liable for your use of the Transfer for commercial purposes.
(4) Prohibited Transactions. You may not use the Service in violation of, or request a Transfer that would violate, this Agreement or applicable law, rules or regulations.
(c) Cancellation of Transfers
. We may, without notice (except as required by law) and without liability to you, delay, cancel, refuse to honor any instruction for a Transfer, stop or reverse any Transfer, or otherwise suspend or terminate access to, or refuse to provide, any Services or Transfer at any time in its sole discretion, including with limitation:
(i) if we believe, in our sole discretion, you directly or indirectly use, or attempt to use, the Services for any unlawful or improper purpose or you directly or indirectly request or attempt to request a Transfer for any unlawful or improper purpose;
(ii) if we cannot verify a Recipient’s identity or you provide incomplete, incorrect or false information about yourself or about a Recipient;
(iii) if we fail to validate your Transfer instructions or if your Transfer requests possess a risk to us, Bambu or any third party;
(iv) if you refuse or fail to provide us requested information about you, or if we are unable to verify the information you provide and/or verify your identity to our satisfaction;
(v) if you attempt to tamper, hack, modify or otherwise corrupt the security or functionality of the Website or the Services;
(vi) if you attempt to Transfer if your Account does not have sufficient available funds or your Transfer is blocked or reversed for any reason;
(vii) if we have reason to believe any Transfer may not be authorized by you;
(viii) if any Transfer involves funds subject to a hold, dispute or legal process preventing withdrawal from the relevant Account;
(ix) if you have breached this Agreement, or any representation or warranty that you make under this Agreement or in opening your Account is false;
(x) if we determine that your Account is inactive or does not have sufficient available cash;
(xi) if any Transfer would violate this Agreement or any of our policies, procedures or practices, or would violate any law, rule or regulation applicable to the Services, you or the Payout Provider;
(xii) for our protection or yours, or the protection of any Payout Provider, we have reasonable cause not to process the Transfer request;
(xiii) if any Transfer may expose us or any Payout Provider to action from any government or regulatory body;
(xiv) if any Transfer fails our fraud and anti-money laundering compliance review; or
(xv) if any Transfer may be connected to fraudulent or illegal activities.
You agree that neither we, Bambu nor any Payout Provider will be held responsible or liable to you or any other person for such action except as required by law.
4. Initiating a Transfer
. To initiate a Transfer, you must enter the name of the Recipient, the country and name of the Payout Provider, the desired Transfer Amount and such other information as may be required. For each Transfer you initiate, you authorize us (or any party authorized by us) to debit your Account for the Transfer Amount, plus any applicable fees, including the Transfer Fee and Foreign Currency Exchange Fee, and applicable taxes.
(a) Available Funds
. The funds for the Transfer must be available in the Account from which the Transfer is made. We have no obligation to effect a Transfer unless sufficient funds are available in your Account and neither we, nor Bambu or any Payout Provider will have any liability if a Transfer is not effected as a result of the unavailability of sufficient funds. You are responsible to us if we complete a Transfer you request and, for any reason, we are unable to collect the funds from your Account.
. Following your initiation of and payment for the Transfer, we will provide you with a post-transaction communication (“Receipt”) which will serve as your record of the Transfer. Records of all Transfers that you initiate will be posted and updated in your Account, which can be accessed through your Mobile App.
(c) Checking the Information
. You agree to regularly check for information related to your Transfers through your Mobile App, and you agree to contact us immediately if you have any questions or issues regarding any Transfer.
5. Receiving a Transfer Amount
. For a Transfer sent to an Issuer for purposes of depositing funds to a bank account, the Payout Amount will be deposited in accordance with the policies of the relevant Issuer. Where a Transfer is sent to a Recipient that is an individual, the Recipient may receive the Payout Amount at a location and in a Participating Designation each designated by you at the time you initiate the Transfer. You will receive in the Mobile App a reference number that corresponds to your Transfer (“Reference Number”). Your designated Recipient must provide their Reference Number and a government issued identification from a list of acceptable forms of identification (“ID”) to receive the Payout Amount. YOU MUST NOT GIVE YOUR DETAILS, THE RECIPIENT’S DETAILS OR THE REFERENCE NUMBER TO ANYONE OTHER THAN YOUR RECIPIENT. YOU WILL BE LIABLE FOR USE OF THE YOUR DETAILS, THE RECIPIENT’S DETAILS OR THE REFERENCE NUMBER BY ANY PERSON.
6. Terms of Transfers
(a) Exchange Rate; Payout Currency
. A currency exchange rate may be applied to Transfers that payout in other than U.S. Dollars. U.S. Dollars will be converted to other currencies at an exchange rate set by us (the “Exchange Rate”). The currencies available for payout in the country that you wish to send your Transfer is a “Payout Currency”. The Payout Currency and the Exchange Rate to be used for your Transfer will be reflected in the pre-payment disclosure and the Receipt. The Exchange Rate will be rounded to a consistent number of decimal places for each currency pursuant to applicable laws and regulations. Any difference in the Exchange Rate disclosed to you and the exchange rate received by us will be kept by us (and our Payout Provider in some cases) in addition to any Transfer Fee and Foreign Currency Exchange Fee.
(b) Payout Provider Terms
. Your ability to make a payment to Recipient, and the permitted amount of any such payment, remains subject to authorization by the Payout Provider and any applicable terms and conditions established by the Payout Provider. Transfers made through the Services will be credited by the Payout Provider in accordance with the terms and conditions established by such Payout Provider, and you acknowledge the Payout Provider may assess its own fees for any transaction. You will contact your Payout Provider for further information. WE HAVE NO CONTROL OVER THE TIME THE PAYOUT PROVIDER CREDITS A PAYMENT TO A RECIPIENT ACCOUNT AND IS NOT RESPONSIBLE FOR ANY DELAY WITH RESPECT TO WHEN FUNDS REMITTED TO A PAYOUT PROVIDER WILL BE MADE AVAILABLE OR CREDITED TO THE RECIPIENT’S ACCOUNT, OR ANY FAILURE OF A PAYOUT PROVIDER TO ACCEPT OR PROPERLY PROCESS ANY FUNDS REMITTED TO IT.
(c) Completed Transfers
. A Transfer is deemed disbursed by us and delivered, and we have no further liability to you, except as set forth below, when, as applicable (i) we have transferred the Payout Amount to the Payout Provider; or (ii) for person-to-person Transfers, the Payout Amount is actually disbursed by us or our Payout Provider to the Recipient, subject to the Recipient identification provisions above. We will not contact the Recipient to advise them when the Transfer is available for collection. This is something you will need to do. Collection may only be made during the relevant Payout Provider’s operating hours and subject to local regulations and compliance requirements. Certain Recipient Countries may impose taxes, fees, and or tariffs upon the Recipient’s receipt of, or access to, the Transfer.
(d) Expired Transfers. If you ask us to process a Transfer to an individual Recipient to be collected in cash at a Payout Provider location and the Payout Amount has not been collected within thirty (30) days, we will treat the Transfer as no longer capable of execution (an “Expired Transfer”). We will have no obligation, after that thirty (30) day period, to execute an Expired Transfer. If you become aware that a Payout Amount has not been collected please contact us to ask for a refund.
(e) Other Financial Obligations
. To the extent permitted by law, we have the right to collect from you the Transfer Amount, Transfer Fees, Transfer Taxes, if any, Foreign Currency Exchange Fee, and other fees and taxes, plus any fees assessed and collection expenses, court costs and reasonable attorneys’ fees.
. You authorize and give your consent to us and Bambu to contact your Recipient and the Payout Provider and for the Payout Provider, Bambu and us to store all such data, as necessary to provide the Transfer. You will verify Recipient account information and bank details are correct prior to submitting your Transfer. We are not responsible for discovering inaccuracies in such information. You acknowledge that if account information and bank details are incorrect, money may be sent to the wrong bank account and may not be recovered, and you are solely responsible for such inaccuracies and Transfers based on the information provided by you to us or Bambu.
(g) Deposits to Bank Accounts
. If you choose to send money to a Recipient’s bank account, you represent that the Recipient’s bank account is denominated in the same currency as the Transfer. If the bank account is not denominated in the same currency as the Transfer, the Transfer may be cancelled.
. You may cancel a Transfer within 30 minutes of authorizing your Transfer, unless the funds have already been paid out to the Recipient. Your Account will be credited for the amount debited (including any fees, and taxes if not prohibited by law) in connection with the cancelation of a Transfer.
What to do if you think there has been an error or problem with your Transfer:
If you think there has been an error or problem with your Transfer:
- email Bambu at email@example.com;
- call Bambu at (833) 882-2628; or
- write Bambu at P.O. Box 2141, Cranberry Township, PA 16066
You must contact us within 180 days of the date we promised to you that funds would be made available to the Recipient. When you do, please tell us:
(1) Your telephone number;
(2) The error or problem with the transfer, and why you believe it is an error or problem;
(3) The name of the person receiving the funds, and if you know it, his or her telephone number or address;
(4) The dollar amount of the Transfer; and
(5) The confirmation code or number of the transaction.
We will determine whether an error occurred within 90 days after you contact us and we will correct any error within one business day. We will tell you the results within three Business Days after completing our investigation. If we decide that there was no error, we will email you a written explanation. You may ask for copies of any documents we used in our investigation.
What to do if you want to cancel a Transfer:
We will refund your debited amount, including any fees in U.S. Dollars (and taxes unless prohibited by law) within three Business Days of your request to cancel a Transfer (within 30 minutes of authorizing your Transfer) as long as the funds have not already been picked up or deposited into a Recipient’s bank account or the international bill has not been paid.
After 30 minutes, we generally do not provide refunds unless we did not process your Transfer according to your instructions. To request a refund, please contact us by email or call Customer Service. Refunds will be credited to your Account and will be made in U.S. Dollars. Refund amounts will not be adjusted to account for changes in the value of the U.S. Dollar or foreign currency from the time your Transfer was submitted.
|Transaction Type||Frequency and/or Dollar Limits|
|International bank transfer||Maximum of $500 per transaction; 15 per month|
|International cash pickup||Maximum of $500 per transaction; 15 per month|
Transactions may be subject to additional limits on the amount and frequency of transfers to and from your Account. These additional limits are designed to be flexible in order to protect the security and integrity of the Services and Accounts, including protecting you and all other users of the Services. These limitations and additional limitations we may impose 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 Services and may be modified at our sole discretion without advance notice.
For purposes of these disclosures, our Business Days are Monday through Friday 8 a.m. – 8 p.m., excluding federal and legal banking holidays in the State of New York.
We shall be responsible only for performing the Transfers in accordance with the terms expressly provided for in this Agreement; provided however, we shall be liable only for our own gross negligence or willful misconduct in performing such Transfer. We shall not be liable to any third party or for any act or omission of yours or any third party. IN NO EVENT SHALL YOU BE ENTITLED TO RECOVER FROM US OR BAMBU ANY PUNITIVE, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES (WHETHER IN CONTRACT, TORT OR OTHERWISE), EVEN IF YOU HAVE ADVISED US OF THE POSSIBILITY OF SUCH DAMAGES. THIS PROVISION SHALL NOT BE EFFECTIVE TO THE EXTENT OTHERWISE REQUIRED BY LAW.
We and Bambu will not be liable, for instance:
(1) If, through no fault of ours or Bambu, you do not have enough funds available in your Account to complete the Transfer, or money is unavailable for withdrawal (for example, because they have not been finally collected or are subject to legal process).
(2) If our system was not working properly and you knew about the breakdown when you started the Transfer.
(3) If your mobile phone or Account has been reported as lost or stolen or has been suspended by us or if we have reason to believe the Transfer is not authorized by you.
(4) If access to your Account has been blocked after you reported any access code related to your Account lost or stolen.
(5) If there is a hold or your funds are subject to legal process or other encumbrance restricting their use.
(6) If we or Bambu have reason to believe the requested Transfer is unauthorized.
(7) If circumstances beyond our or Bambu’s control (such as fire, flood or computer or communication failure) prevent the transfer, despite reasonable precautions that we or Bambu have taken.
(8) For any other exception stated in this Agreement with you.
Except as otherwise provided by law, you shall be liable for any loss or damage to which your negligence contributed or which resulted in unauthorized, fraudulent, or dishonest acts by your current and/or former authorized representatives. Such liability includes instances when a current or former authorized representative effects one or more Transfers or improper use of telephone security procedures to effect a Transfer to your detriment.
To the greatest extent permitted by applicable law, in consideration of us agreeing to accept and process Transfer requests in the manner set forth herein, you shall forever indemnify and hold us and Bambu, and their respective officers, directors, shareholders, employees, successors, predecessors, representatives, principals, agents, assigns, parents, subsidiaries and/or insurers harmless from and against all liability, claims, damages, costs, claims, or 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 the matters set forth herein, or to the Transfer or Service, which shall be provided pursuant to the terms of this Agreement. Your agreement to indemnify us and hold us harmless shall survive the expiration and/or termination of this Agreement and all provisions contained herein.
13. In Case of Errors or Questions about your Transfer.
IN CASE OF ERRORS OR QUESTIONS ABOUT YOUR TRANSFER, TELEPHONE CUSTOMER SERVICE AT (833) 882-2628, WRITE TO BAMBU AT P.O. BOX 2141, CRANBERRY TOWNSHIP, PA 16066 OR EMAIL BAMBU AT CUSTOMERCARE@MYBAMBU.COM AS SOON AS YOU CAN, IF YOU THINK YOUR STATEMENT, TRANSACTION HISTORY OR RECEIPT IS WRONG OR IF YOU NEED MORE INFORMATION ABOUT A TRANSFER LISTED ON THE TRANSACTION HISTORY OR RECEIPT.
We will allow you to report an error until 60 days after the earlier of the date you electronically access your Account, if the error could be viewed in your electronic history, or the date we sent the FIRST electronic history on which the error appeared. You may request an electronic history of your transactions at any time by calling the Customer Service telephone number which is (833) 882-2628, writing Bambu at P.O. Box 2141, Cranberry Township, PA 16066 or by writing Bambu at firstname.lastname@example.org. You will need to tell us: (1) your name and Transfer Reference Number; (2) why you believe there is an error, and the dollar amount involved, and (3) approximately when the error took place. If you tell us orally, we will require that you send your complaint or question in writing within 10 business days. We will determine whether an error occurred within 10 business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will provisionally credit your Account within 10 business days for the amount you think is in error, so that you will have the use of the money during the time it takes to complete the investigation. If we ask you to put your complaint or question in writing and you do not provide it within 10 business days, we may not credit your Account. For new accounts, we may take up to 20 business days to credit your account for the amount you think is in error. We will tell you the results within three business days after completing the investigation. If we decide that there was no error, we will send you a written explanation and debit your Account for the amount of the provisional credit. You may ask for copies of the documents that we used in our investigation. If you need more information about our error-resolution procedures, call the Customer Service telephone number which is (833) 882-2628, write Bambu at P.O. Box 2141, Cranberry Township, PA 16066 or email us at email@example.com.
If you believe an electronic transfer has been made using the information from your Account without your permission, you should email Bambu at firstname.lastname@example.org, call Bambu at (833) 882-2628 or write to Bambu at P.O. Box 2141, Cranberry Township, PA 16066.
You agree to exercise reasonable control over the information related to your Account and access codes. Tell us AT ONCE if you believe your access codes have been lost or stolen. Also, if your transaction history shows Transfers that you did not make tell us at once. The best way to keep your losses down is by emailing Bambu at email@example.com, calling Bambu at (833) 882-2628 or writing to Bambu at P.O. Box 2141, Cranberry Township, PA 16066. You could lose all of the money in your Account. If you tell us within two business days after you learn of the loss or theft of your Account, you can lose no more than $50.00 if someone used your Account without your permission. If you do NOT tell us within two business days after you learn of the loss or theft of your Account, and we can prove that we could have stopped someone from using your Account without your permission if you had told us, you could lose as much as $500.00. If you do not tell us within 60 days after the earlier of the date you electronically access your Account or the date we sent the FIRST written history on which the error appeared, you may not get back any money you lost after the 60 days if we can prove that we could have stopped someone from taking the money if you had told us in time. If a good, documented, reason (such as a long trip or a hospital stay) kept you from telling us, we will extend the time periods.
If you are a California resident you will not be liable for the $500 amount described above for unauthorized use of your mobile phone, Account or access codes in any event. If you are a New York resident, your liability for unauthorized use of your account or access codes will not exceed $50. In Massachusetts, the 2 day and 60-day time limits for reporting unauthorized transactions do not apply and the $500 limit does not apply.
Cooperation in the Case of a Claim of Loss for Debited Items. If you claim a credit or refund because of an unauthorized transfer, 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 transaction, and the circumstances surrounding the loss. You will notify law enforcement authorities of any criminal act related to the claim of unauthorized withdrawals. You also agree to cooperate reasonably with us in our attempts to recover funds from, and to assist in the prosecution of, any unauthorized users of your Account or access codes. 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.
Your obligations under this Agreement may not be assigned. We may transfer our rights under this Agreement. Use of your Account is subject to all applicable rules and customs of any clearinghouse or other association involved in transactions. We do not waive our 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 whether local, state or federal, the validity or enforceability of any other provision of this Agreement shall not be affected. THIS AGREEMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF TENNESSEE (WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES OR THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS) EXCEPT TO THE EXTENT PREEMPTED OR GOVERNED BY FEDERAL LAW.
We may amend or change the terms and conditions of this Agreement at any time. You will be notified of any change in the manner provided by applicable law before the effective date of the change. However, if the change is made for security purposes, we can implement such change without prior notice. We may terminate this Agreement at any time without notice.
From time to time we may monitor and/or record telephone calls between you and us to assure the quality of our Customer Service or as required by applicable law.
We are not responsible for the quality, safety, legality or any other aspect of any Transfers. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS AGREEMENT OR REQUIRED BY LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND TO YOU, WHETHER EXPRESS OR IMPLIED, REGARDING A TRANSFER OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THIS ARBITRATION PROVISION SETS FORTH THE CIRCUMSTANCES AND PROCEDURES UNDER WHICH CLAIMS (AS DEFINED BELOW) SHALL BE ARBITRATED INSTEAD OF LITIGATED IN COURT UPON THE ELECTION OF EITHER PARTY.
(a) Definitions: As used in this Arbitration Provision, the term “Claim” means any claim, dispute or controversy between you and us, or between you and us and/or Bambu Systems, LLC as the “Program Manager” or any of our or its agents, service providers or retailers, arising from or relating to the Account, a Transfer 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, without limitation, the validity, enforceability or scope of this Arbitration Provision or this Agreement. “Claim” also 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) a Transfer; (ii) advertisements, promotions or oral or written statements related to Transfers or Services purchased with the Account and (iii) the benefits and services related to a Transfer or the Services. We shall not elect to use arbitration under the Arbitration 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 shall be pursued only in arbitration. As used in this Arbitration Provision, the terms “we” and “us” shall for all purposes mean the Bank, Bambu, 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” shall include any third party using or providing any Service in connection with the Account 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 Arbitration Provision, the terms “you” or ”yours” shall mean all persons or entities approved by us to use a Service, including but not limited to all persons or entities contractually obligated under this Agreement or any other applicable agreement.
(b) Initiation of Arbitration Proceeding/Selection of Administrator: Any Claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration 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 shall 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 shall have the right within thirty (30) days after you receive notice of our selection to select the other organization listed above 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.
(c) Significance of Arbitration: IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE CODE OF PROCEDURES OF JAMS OR AAA, AS APPLICABLE (THE “CODE”). FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION; THE ARBITRATOR SHALL NOT CONDUCT A CLASS ARBITRATION OR A JOINT ARBITRATION. EXCEPT AS SET FORTH BELOW, THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
(d) Restrictions on Arbitration: If either party elects to resolve a Claim by arbitration, that Claim shall be arbitrated on an individual basis. There shall be 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 Senders 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. This section of this Arbitration Provision is the “Class Action Waiver.”
(e) Location of Arbitration/Payment of Fees: Any arbitration hearing that you attend shall 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.
(f) Arbitration Procedures: This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16, as it may be amended (the “FAA”). The arbitration shall be governed by the applicable Code, except that (to the extent enforceable under the FAA) this Arbitration Provision shall control if it is inconsistent with the applicable Code. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law and, at the timely request of either party, shall provide a brief written explanation of the basis for the decision. In conducting the arbitration proceeding, the arbitrator shall 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 in the sole discretion of the arbitrator who shall notify the parties of his/her decision within 20 days of the objecting party’s submission. The arbitrator shall 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 shall consider anew any aspect of the initial award objected to by the appealing party. The appealing party shall 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 shall 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 one hundred 120 days of the date of the appellant’s written notice. The decision of the panel shall be by majority vote and shall be final and binding.
(g) Public Injunctive Relief: If a Claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver and/or elsewhere in this Arbitration Provision prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such Claim (and that determination becomes final after all appeals have been exhausted), the Claim for public injunctive relief will be determined in court and any individual Claims seeking monetary relief will be arbitrated. In such a case the parties will request that the court stay the Claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a Claim for public injunctive relief be arbitrated.
(h) No Preclusive Effect: No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have preclusive effect in an arbitration between the parties to this Arbitration Provision.
(i) Continuation: This Arbitration Provision shall survive termination of your Account or Card as well as voluntary payment of the debt in full by you, any legal proceeding by us to collect a debt owed by you, and any bankruptcy by you or us. If any portion of this Arbitration Provision is deemed invalid or unenforceable under any principle or provision of law or equity, consistent with the FAA, it shall not invalidate the remaining portions of this Arbitration Provision, this Agreement or any prior agreement you may have had with us, each of which shall be enforceable regardless of such invalidity.
(j) CLASS ACTION AND JURY WAIVER. WITHOUT LIMITING THE ABOVE YOU AND WE HEREBY KNOWINGLY AND VOLUNTARILY (1) WAIVE THE RIGHT TO PROCEED AS PART OF ANY CLASS ACTION AND (2) WAIVE THE RIGHT TO A TRIAL BY JURY OF ANY AND ALL CLAIMS.
The following E-Communication Disclosure (“Disclosure”) applies to any and all communications or disclosures that we are legally required to provide to you in writing in connection with your Transfers and any related products and services (“Communications”), to the extent you have consented to receiving such Communications electronically and failure to consent will result in a declined application for the Services.
(a) Scope of Communications to Be Provided in Electronic Form. When you use a product or service to which this Disclosure applies, you agree that we may provide you with any Communications in electronic format, and that we may discontinue sending paper Communications to you, unless and until you withdraw your consent as described below. Your consent to receive electronic Communications includes, but is not limited to:
- All legal and regulatory disclosures and communications associated with your Transfers
- Your Agreement and any notices about a change in terms to it
- All disclosures, notices and other communications regarding Transfers you make through your Mobile App
- Disclosures, agreements, notices and other information related to Transfers including, but not limited to, your Agreement, fee schedules or other disclosures or notices that may be required by the Electronic Fund Transfer Act, the Gramm Leach Bliley Act or other applicable federal or state laws and regulations
- Any notice of the addition of new terms and conditions or the deletion or amendment of existing terms and conditions applicable to Account, products or services you obtain from us
- Privacy policies and notices
- Error resolution policies and notices
- Responses to claims filed in connection with your Account
- Notices regarding insufficient funds or negative balances
(b) Method of Providing Communications to You in Electronic Form. All Communications that we provide to you in electronic form will be provided either (1) via an email notice we send to you at the time the information is available, or (2) by posting such Communications in the Mobile App, or (3) via optional text messages (SMS). Once you provide your mobile phone number and download the Mobile App to your mobile phone, we will send you important notices to the mobile number you have provided to the Mobile App. In addition, if you provide your mobile phone number and download the Mobile App, you expressly consent to receive text messages relating to your Account at that number and device. Third-party data and message fees may apply.
(c) How to Withdraw Consent. You may withdraw your consent to receive Communications in electronic form at any time by emailing Bambu at firstname.lastname@example.org or calling Customer Service at (833) 882-2628. If you do withdraw your consent, we may not provide Services to you. We will not impose any fee to process the withdrawal of your consent to receive electronic Communications. Any withdrawal of your consent to receive electronic Communications will be effective only after we have a reasonable period of time to process your request for withdrawal. In the meantime, you will continue to receive Communications in electronic form. If you withdraw your consent, the legal validity and enforceability of prior Communications delivered in electronic form will not be affected.
(d) How to Update Your Records. If you change your mobile phone number or text message address, you must promptly provide and verify your new mobile device number or text message address. It is your responsibility to provide us with a true, accurate and complete email address (if you have elected to receive email messages from us), your contact information and other information related to this Disclosure and your Account, and to maintain and update promptly any changes in this information. You can update information (such as your email address) through the Mobile App or by calling Customer Service at (833)882-2628.
(e) Hardware and Software Requirements. In order to access, view and retain Communications that we make available to you electronically, you must have:
- A smartphone that runs on Apple iOS version 5Se or later or Google Android version 6 or higher;
- Internet access to your smartphone using a cellular data package or WiFi;
- A personal email account available on your mobile phone; and
- Sufficient electronic storage in the smartphone to install the mobile application
Requesting Paper Copies. We will not send you a paper copy of any Communication unless we otherwise deem it appropriate to do so. You can obtain a paper copy of an electronic Communication by printing it yourself. We reserve the right, but assume no obligation, to provide a paper (instead of electronic) copy of any Communication that you have authorized us to provide electronically. To request a paper copy, write Bambu at P.O. Box 2141, Cranberry Township, PA 16066 or by calling the Customer Service telephone number which is (833) 882-2628.
(f) Termination/Changes. We reserve the right, in our sole discretion, to discontinue the provision of your electronic Communications or to terminate or change the terms and conditions on which we provide electronic Communications. We will provide you with notice of any such termination or change as required by law.
If we are served with a subpoena, restraining order, writ of attachment or execution, levy, garnishment, search warrant, or similar order relating to your Account (termed “legal action” in this Section) regardless of the jurisdiction of the issuing authority, we may rely on the representations made therein and comply with that legal action. In these cases, we will not have any liability to you if there are insufficient funds to pay your items because we have withdrawn funds from your Account or in any way restricted access to your funds in accordance with the legal action.
Your use of the mobile phone may be subject to separate agreements you may enter into with your mobile device operating system provider (e.g., Apple, Google or Microsoft®), your mobile device manufacturer (e.g., Apple, Samsung®), your mobile service carrier (e.g., AT&T® or Verizon®). You agree to comply with all applicable third-party terms of agreement when using the Mobile App. We are not a party to those agreements and have no responsibility for the products and services provided by third parties.
Termination of this Agreement shall not impact any right or obligation arising prior to termination, and in any event, the parties agree that any right or obligation which, by its nature, should survive termination of this Agreement will survive any such termination.
The headings in this Agreement are only for convenience and do not in any way limit or define your or our rights or obligations under this Agreement.