Terms & Policies
Evolve Bank & Trust Airwallex Account Terms of Service
Last updated: March 22, 2021
These terms of service (the “Agreement”) are provided by Evolve Bank & Trust, member FDIC (the “Bank”). This Agreement and all other terms and agreements referenced herein (collectively, the “Terms”) govern your access and use of the products and services described herein (the “Services”). As used in this Agreement, “we”, “us” and “our” means Bank. “Airwallex” means Airwallex US, LLC, a service provider of the Bank. References to “you” and “your” means any person or entity that holds, owns or has authority to use, whether individually or on behalf of another person or entity, the Services. This Agreement may be supplemented or amended as set forth in Section 36(a).
PLEASE READ ALL OF OUR TERMS, INCLUDING ANY SUPPLEMENTARY TERMS, CAREFULLY BEFORE DECIDING WHETHER TO USE THE SERVICES. THIS AGREEMENT INCLUDES AN ARBITRATION AGREEMENT (SEE SECTION 29) WHICH WILL REQUIRE YOU TO RESOLVE ALL DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND HAVE CONSIDERED THE CONSEQUENCES, INCLUDING YOUR WAIVER OF RIGHTS TO BRING AN ACTION ON A REPRESENTATIVE BASIS OR IN FRONT OF A JURY.
By accessing or using the Services you agree to be bound by these Terms, and all supplementary agreements, disclosures, and other documents including without limitation the Evolve Bank & Trust Electronic Communication Consent Agreement, as well as by all applicable federal or state laws, statutes and regulations. Please keep a copy of this Agreement.
We may decline to open an account for you to use the Services for any reason, or no reason. We are not liable for any damages or liabilities resulting from our refusal to open an account for you.
Important Information About Obtaining Services
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 requests or accesses the Services.
What this means for you: When you open an account, we will ask for your name, address, tax identification number, and other information that will allow us to identify you and your beneficial owners. We may also ask to see identifying documents for you and your beneficial owners.
1) About the Service
The Services give you the ability to collect funds both domestically in US Dollars (“USD”) and from abroad in multiple currency denominations, subject to the terms of Section 2. Funds collected by Bank through the Services are held at the Bank in USD (as described in section 9 below) and may be withdrawn or used by you to make permitted payments to recipients. Funds may be reflected in your Wallet. For purposes of these Terms and the liability of the Bank therefor, all services, including services related to the Wallet, provided by Airwallex and/or any Airwallex Affiliate under or pursuant to the Airwallex Service Agreement and/or Airwallex Affiliate Terms are not considered services provided by the Bank.
2) Our Service Providers
We have engaged Airwallex as our service provider to manage and administer the Services on our behalf. Airwallex is a technology and software service company that performs certain functions including, but not limited to, identity verification, compliance monitoring, risk mitigation and management, managing your transfer instructions and other related services. Airwallex may act on our behalf, perform our obligations or enforce our rights under this Agreement. Airwallex also offers supplemental services to allow you to provide us with payment instructions and to view certain account information. You acknowledge and agree Airwallex is an agent of the Bank for some purposes and will be responsible for carrying out some of the responsibilities under this Agreement. You acknowledge and agree that notifications, disclosures, or other communications related to your use of the Services may be issued by Airwallex, not the Bank. Airwallex may offer you additional services through the Airwallex Platform (as defined below), pursuant and subject to the terms and conditions between you and Airwallex.
If you wish to (a) establish a Global Account to receive money outside of the United States, (b) make currency conversions, and/or (c) disburse funds to recipients outside of the United States, you acknowledge and agree that such account and services will be provisioned and administered by Airwallex (Hong Kong) or one of its affiliates (“Airwallex Affiliate”) and not the Bank. Additional terms will apply to the provision of such a Global Account, currency conversions, and transfers made to foreign recipients. Bank is not responsible for the provision or administration of Global Accounts, currency conversions, and any funds transfers occurring outside of the United States, and Bank hereby disclaims all liability for any losses resulting from services provided by an Airwallex Affiliate, including without limitation a Global Account. For more details on Global Accounts, see section 3 below; for more details on currency conversions, see section 10 below; and for more details on foreign disbursements, see section 11 below.
3) Airwallex Platform
Your sole interface with the Services is through an Airwallex technology portal which may be accessed through a website, mobile application, application programming interface (API) or other method (the “Airwallex Platform”), which is governed by separate terms and conditions that apply to your use of the Airwallex Platform (“Airwallex Service Agreement”). The Airwallex Service Agreement can be found by visiting this link. You may only use or access the Services via the Airwallex Platform.
4) Registering for Services
To use some or all of the Services, you must first register and create an account profile (“Account Profile”) on the Airwallex Platform and be approved to receive Services. Please see the Airwallex Service Agreement for additional information.
5) Eligibility for Services
To register to use the Services, you must be a legal entity organized or registered in the United States with a principal place of business located in the United States. Please be aware that we do not offer Services to individual consumers and you agree that you will not use the Services for personal, household or family purposes. For the avoidance of doubt, you must be incorporated or organized as a corporation, unincorporated business association, partnership, limited liability company, incorporated nonprofit organization or sole proprietorship (regardless of whether your sole proprietorship is registered with a government authority). We reserve the right to refuse your registration request or discontinue use of our Services for any reason. To access and use the Services, you must agree to go paperless which means that: (1) you must keep us supplied with your valid email address and telephone number; and (2) you must agree to accept electronic delivery of all communications that we need or decide to send you. Please see the Evolve Bank & Trust Electronic Communication Consent for additional details.
a) Local Accounts. To use our Services, you must open an account subject to the terms and conditions of this Agreement (“Service Account”), which will be administered by Airwallex on our behalf. Upon opening a Service Account you will be provided with an account at the Bank that will allow you to receive U.S. dollars and withdraw or hold U.S. dollar funds received (“Local Account”). You will be provided with one Local Account by default, but we may allow you to open additional Local Accounts. A Local Account is limited in purpose and does not represent a demand deposit account.
b) Global Accounts. In addition to your Local Account, you may also request to open one or more Global Account(s). A “Global Account” is an account established to receive funds outside of the United States in one or more currencies. Global Accounts are provisioned by an Airwallex Affiliate and not the Bank and are governed by Airwallex Affiliate Terms. By requesting a Global Account, you hereby acknowledge that you have read and understood the Airwallex Affiliate Terms and agree to be bound by such terms. You further acknowledge, understand and agree that the Global Account is not provided by Bank and Bank will not be responsible for provisioning, servicing or maintaining the Global Account. Bank shall have no liability for such services of Airwallex Affiliate or the Global Account. Any delays, loss or inquiries regarding a Global Account must be directed to Airwallex Affiliate at [email protected].
For more information about the Global Accounts including the currencies that may be received through a Global Account (each, a “Supported Currency”), please visit this link. You may request to open more than one Global Account. Global Accounts are limited in purpose, do not constitute a demand deposit account, and are provisioned by an Airwallex Affiliate and not by the Bank.
To submit a request to open a Global Account, log on to your Service Account on the Airwallex Platform and provide all necessary information directed.
c) Account Details. Once your request for a Local Account or Global Account is approved, for each account you will be provided with a unique account number and bank routing number (“Account Details”) which you can provide to your payors. You may not disclose or otherwise use the Account Details for any purpose other than to facilitate the use of our Services. Your Account Details are for administrative purposes only and do not represent a separate bank account. You may not sell, transfer, sublicense, or disclose your Account Details to any third party, other than a payor.
7) Receiving Funds
Subject to applicable law and our funds availability policy (which applies to your Local Account), you can receive funds from any payor to which you have provided the Account Details, which will allow such payor to send funds via accepted payment methods. You also can load funds to your Local Account or Global Account by bank transfer. No other funding methods are accepted, including cash, check or credit card. Your Wallet Balance will be credited when funds are received into the applicable Local Account or Global Account.
Neither we nor any Airwallex Affiliate, as applicable, are liable for any inbound funds in transit until we or Airwallex Affiliate, as applicable, receive such funds. Inbound funds must be received in a currency corresponding to an approved Global Account’s Supported Currencies as further described in the Airwallex Affiliate Terms. You may only receive USD funds in your Local Account. Any attempted transfer of funds via your Local Account or Global Account using an unsupported payment method or currency will be rejected and returned to the payor. The timing of receipt of funds and the amount of funds delivered is controlled solely by the payor and may be subject to the payor’s terms and conditions. Any issues or disputes with the delivery, non-delivery or timing of the delivery of your funds must be resolved directly with the payor and is not the responsibility of the Bank, Airwallex, or any Airwallex Affiliate, unless such delivery issues are due to our error.
When attempting to increase your Wallet Balance by loading funds to your Local Account or Global Account, always ensure that you input accurate information, including relevant banking details or any unique transaction reference number specified by us. Failure to do so may result in a delay or inability to credit your Local Account or Global Account (as applicable), which may result in inaccurate information reflected in your Wallet. Please be advised that depending on the relevant currency and/or payment method used by the payor, there may be monetary limits on the amount that may be received via your Local Account or Global Account for a given transaction or period of time.
Unless we agree otherwise in writing, you must ensure that all funds received in connection with the Services are from a legitimate source (for example, the sale of goods or services).
All funds received, converted, and/or stored using the Services will be reflected in a digital wallet accessible through the Airwallex Platform (the “Wallet”). Your Wallet provides an electronic representation of the physical USD funds maintained in your Local Account and foreign currency funds maintained by an Airwallex Affiliate . The Wallet interface and underlying ledger are provisioned and maintained by Airwallex and not by the Bank, and the Wallet is governed by the Airwallex Service Agreement , provided however that the stored value funds underlying the Wallet are maintained by the Bank (in the case of USD) and/or by an Airwallex Affiliate (in the case of foreign currencies). You further acknowledge, understand and agree that the Bank will not be responsible for provisioning, servicing or maintaining any portion of the Wallet other than the connected Local Account. Bank shall have no liability for any such services of Airwallex or Airwallex Affiliate. Any delays, loss or inquiries regarding services of Airwallex or Airwallex Affiliate, including the Wallet, must be directed to Airwallex at [email protected].
9) Wallet Balance
The amount of each currency in your Wallet available for conversion and/or payment (“Wallet Balance”) will be displayed to you via the Airwallex Platform. Your Wallet Balance will reflect both US Dollar funds deposited directly into your Local Account provisioned by Bank and foreign currency funds collected through your Global Account(s) provisioned by an Airwallex Affiliate, as well as any subsequent Currency Conversions executed by an Airwallex Affiliate. At any time, funds in each displayed currency can be withdrawn up to the applicable Wallet Balance (subject to certain conditions). Your Wallet Balance will not expire, but you will not earn any interest or rewards on any funds you choose to hold in the Wallet.
We will pool your Wallet Balance that are US Dollar funds with that of other customers of the Services and hold those funds on your behalf in an omnibus account for the benefit of you and those other customers (the “Pooled Bank Account”). However, at all times we will associate your individual USD balance with your primary Local Account via a sub-ledger maintained on our behalf. The Pooled Bank Account is limited in purpose and does not represent a demand deposit account. Airwallex Affiliate may, from time to time, provide us with collateral in an amount equal to the USD equivalent of funds you maintain with Airwallex Affiliate in non-USD in order to ensure its obligations to execute your and other customers’ Foreign Currency Transfers (the “Foreign Currency Collateral”). You will not be entitled to any Foreign Currency Collateral but acknowledge that we may use any such Foreign Currency Collateral as security for any losses we may incur in connection with a Foreign Currency Transfer. You will not be able to view the Foreign Currency Collateral amount denominated in USD. In the absence of a Foreign Currency Transfer or a Currency Conversion, the foreign currencies included in your Wallet Balance will remain stable and will not vary from day to day, notwithstanding any fluctuation in the underlying foreign exchange rates.
If you initiate a withdrawal or transfer of non-USD funds from the account(s) underlying your Wallet (each a “Foreign Currency Transfer”), that amount of the applicable currency will be deducted from your Wallet Balance, together with any applicable fees. Although balances disclosed in the Wallet may include one or more foreign currencies, no corresponding foreign currencies will be held by Bank on your behalf and Airwallex Affiliate shall be solely responsible for all foreign currency transactions. Bank shall have no liability for such services of Airwallex Affiliate, including any foreign currency transactions.
10) Currency Conversions
a) Converting Funds. You can convert funds displayed in your Wallet from one currency to another (a “Currency Conversion”), which will be executed by an Airwallex Affiliate. Converted funds will be displayed in your Wallet or, as part of one complete transaction, transferred externally as a Payment after giving effect to the Currency Conversion. Daily or periodic limits may be imposed by an Airwallex Affiliate on the amount of Currency Conversions you may enter into.
b) FX Exchange Rate. The exchange rate applied to your Currency Conversion will be quoted to you by an Airwallex Affiliate when you book the Currency Conversion and/or Payment. The exchange rate quoted may change due to rapid market fluctuations and is not guaranteed until the conversion is finalized by an Airwallex Affiliate. The final exchange rate will be identified on your Confirmation.
c) Lock FX. You may be allowed to enter into Currency Conversion at an agreed FX exchange rate for an agreed period of time (“Lock FX”). If you are provided with Lock FX, the agreed FX exchange rate will apply to all Currency Conversions entered into during the period of the Lock FX.
You acknowledge, understand and agree that Currency Conversions are not provided by the Bank and are instead provided by an Airwallex Affiliate and shall be governed by the Airwallex Affiliate Terms. The Bank shall have no liability for such Currency Conversions. Any delays, loss or inquiries regarding Currency Conversions must be directed to Airwallex Affiliate at [email protected].
11) Withdrawals and Transfers
a) Payments. To withdraw funds from the account(s) underlying your Wallet, you must book a Payment on the Airwallex Platform. A “Payment” refers to a transfer of funds to a designated recipient or to your own bank account. To book a Payment, you will be prompted to provide specific information concerning your Payment, including identification information of the recipient, recipient bank account information, the buy/sell currencies (if applicable) and the amount you wish to send (collectively, your “Instructions”). Additional information may be required.
b) Instructions. When booking a Payment, you must ensure that your Instructions are correct and complete. Failure to provide accurate Instructions may result in delay, rejection or mis-delivery of funds. Neither we, Airwallex, nor Airwallex Affiliate will be responsible for money sent to the wrong recipient as a result of incorrect Instructions provided by you. You may only submit Instructions through the Airwallex Platform and you acknowledge and agree that we will not be responsible for executing any Instructions submitted to the Bank or other third party outside of the Airwallex Platform.
c) Confirmation. Upon submission of your Instructions, you will receive a booking confirmation that details: (i) any applicable fees assessed by the Bank on the Payment; (ii) the exchange rate applied to the conversion of funds by an Airwallex Affiliate (if applicable); and (iii) your Instructions for delivery including recipient account information (the “Confirmation”). The Confirmation will be sent by email to the email address associated with your Service Account. Please contact Customer Support if you do not receive a Confirmation. You should review the Confirmation carefully and notify Customer Support immediately if you identify any errors or if any information or Instructions included on the Confirmation is incorrect. All Payments are final upon receipt of Confirmation and cannot be cancelled or amended unless otherwise required by law.
d) Foreign Disbursements. Disbursement of Payments to recipients located outside of the United States (“Foreign Disbursements”) will be carried out and independently handled by an Airwallex Affiliate and not by the Bank. Foreign Disbursements are subject to the Airwallex Affiliate Terms which can be found here. You acknowledge and agree that with respect to Foreign Disbursements you are contracting with a separate entity for such services and your instructions for the Foreign Disbursement will be handled solely by an Airwallex Affiliate. You further agree that the Bank is not responsible or liable for any errors or other matters related to Foreign Disbursements nor services provided by an Airwallex Affiliate. Any delays, loss or inquiries regarding Foreign Disbursements must be directed to the Airwallex Affiliate at [email protected].
e) Card Product. You may be eligible to obtain a debit, credit and/or prepaid card as an alternative means to access funds in your Wallet (“Card Product”). Card Products are not issued by the Bank and one or more separate agreement(s) with a third party issuing bank and/or Airwallex will govern your application for and use of any Card Product. You acknowledge and agree that the Bank is not responsible or liable in any way for the issuance or use of any Card Product. Any delays, loss or inquiries regarding any Card Product must be directed to Airwallex at [email protected].
f) Rejected Payments. Both we and Airwallex Affiliate (as applicable) reserve the right to reject, cancel, delay or block any Payment for any reason, including without limitation because: (i) providing Services to you or processing a particular Payment would constitute a violation of applicable law; (ii) you fail to provide adequate verification of your identity or the purpose of your Payment; (iii) you fail to provide any additional information requested by us; (iv) you provide false or misleading information; (v) we and/or Airwallex Affiliate believe in our/its sole discretion that the Payment is unauthorized, fraudulent or inauthentic; (vi) you have insufficient funds in the relevant source currency to cover the full amount of the Payment (including any applicable Fees); or (vii) you are otherwise in breach of these Terms or the Airwallex Affiliate Terms.
g) Insufficient Funds. You must have a sufficient Wallet Balance in the relevant source currency to cover the full amount of any Currency Conversion or Payment that you wish to make. Your instructions may be declined by us, Airwallex, or Airwallex Affiliate if you do not have enough funds or if you exceed applicable limits. Where there are insufficient funds for one or more Payments at settlement cut-off time, we reserve the right to make the Payment at our discretion. Daily or periodic limits may be imposed on the amount of Payments you may enter into. You understand that any payment instruction provided to us through the Airwallex Platform or activity performed in connection with your Service Account (including electronic fund transfers (“EFTs”)) using the Services shall be deemed authorized and valid and we are under no obligation to investigate the instruction or activity.
a) Requirements. The issuance of a Confirmation means the Currency Conversion or Payment has been created and cannot be canceled by you. The relevant proceeds due and payable in connection with a Currency Conversion or Payment will be deducted from your Wallet Balance on the date designated by you in your Instructions to us, for the Payment to be transferred to the payee (“Payment Date”). You must ensure that there are sufficient funds available by the relevant Payment Date.
b) Timing. If a Payment Date does not fall on a business day (in the country in which the currency is being sold or bought by an Airwallex Affiliate, or transferred by the Bank or an Airwallex Affiliate, as applicable), the Payment Date may be carried over to the following business day. If we receive your Instructions after our settlement cut-off time on a business day, then the Payment Date may be extended to the following day.
13) Cancelations and Reversals
a) Cancellation Requests. We will honor your request to cancel or recall any Payment so long as the funds have not been dispatched or delivered to the intended recipient prior to receipt of your cancellation request. Cancellation requests may be submitted by contacting the Airwallex Customer Support team at [email protected]. Refunds for eligible cancellations will be credited to your Wallet Balance and made available for withdrawal as soon as practicable, but in no event later than as may be required by applicable law.
b) Reversals. We may need to reverse a transaction and either deduct funds we have credited to your Wallet, or return funds we have debited from your Wallet, including in the following circumstances: (i) the sender, or any relevant service provider, reverses a transaction; (ii) the sender made a transfer to you by mistake; (iii) you have provided us with incorrect instructions for the transaction; or (iv) we suspect that a transaction is fraudulent, or is in breach of this Agreement or applicable law.
c) Delays or Cancellations. We and/or an Airwallex Affiliate (as applicable) may in our/its sole discretion reject, cancel or delay a Payment or Currency Conversion in certain circumstances, including without limitation if: (i) we suspect fraudulent or unauthorized activity in relation to your account; (ii) you are in default of the Terms or any other terms with us, an Airwallex Affiliate, or our service providers; (iii) your Payment exceeds any applicable Currency Conversion limits prescribed by an Airwallex Affiliate; (iv) a situation arises outside our and/or an Airwallex Affiliate’s reasonable control; or (v) if required by applicable law. In no event will we or Airwallex Affiliate be liable for any losses resulting from such delay, cancellation or rejection.
d) No Negative Balance. You may not have a negative Wallet Balance. If any transaction or charges (including any chargeback, reversal of a transaction, or deduction of fees) results in your Wallet Balance falling below zero, you must immediately fund your Wallet to restore a positive balance. If you fail to remedy the negative balance, we may suspend use of the Services and deem you in default of the Agreement. We may also take reasonable steps to recover any amount owing to us (such as taking legal action or using debt collection services).
Airwallex has been designated as our agent to collect fees from you for Services provided by Bank, as well as Airwallex Affiliate’s agent to collect fees from you for Services provided by Airwallex Affiliate. Fees for Services are listed on the fee schedule posted to the Airwallex Platform (the “Fee Schedule”), or as otherwise agreed between us and you. Fees and the Fee Schedule are subject to change at any time and without notice to you, unless required by law. Please be advised that the receiving bank or other third-party financial institution may independently assess fees on a Payment. We are not affiliated with the receiving bank or any intermediary bank and therefore cannot provide any information on such fees. You should consult directly with the beneficiary bank for information regarding those assessments of receiving or intermediary fees. Any fees charged by us or Airwallex Affiliate in relation to a Payment or Currency Conversion will be deducted from your Wallet Balance. If you do not have sufficient funds to cover the fees, your Instructions will not be accepted or processed. Please be advised that we are not responsible for any fees charged by Airwallex Affiliate and that Bank is responsible only for fulfilling the domestic USD services listed on the Fee Schedule (and not for any services provided by Airwallex or Airwallex Affiliate, including any international and non-USD services), as described in this Agreement.
15) Fraud and Unauthorized Transactions
a) Security Procedures. For each transfer you conduct via the Platform, we utilize certain authentication measures to verify the transaction including but not limited to two-factor authentication in which in addition to logging on with your user ID and password, we will provide a unique identification number which must be provided in order to authenticate the transaction (each, a “Security Procedure”). Your use of the Platform constitutes your acceptance of those Security Procedures as commercially reasonable for the type, size, frequency and volume of your transactions. You acknowledge that the Security Procedures are used to verify the authenticity of, and not to detect errors in, any transfer instructions.
b) Duty to Safeguard. You agree to keep any account information, Account Details, security codes, passwords or other confidential identification number used to access the Services (collectively, “Login Credentials”) secure and strictly confidential and to not permit disclosure of such information to any unauthorized person. You agree to immediately notify Airwallex if this information has become known to, or been used by, an unauthorized person. You acknowledge that we have no method to determine whether a transaction conducted with use of a valid account name, account number, password and/or security code was proper, and you therefore authorize us to complete any transaction made with the use of such information.
c) No Liability. You agree to be responsible for any transaction initiated with the use of valid Login Credentials or any access device. For the avoidance of doubt, if any transaction initiated received or processed by Bank purports to be transmitted or authorized by you, it will be deemed effective as your transaction request and you shall be obligated to pay Bank the amount of transaction even though the transaction was not authorized by the you, provided Bank acted in compliance with the Security Procedures. If a transaction received by Bank was transmitted or authorized by you, you shall be obligated to pay the amount of the transaction, whether or not Bank complied with the Security Procedures and whether or not that transaction was erroneous in any respect or that error would have been detected if Bank had complied with such Security Procedures. Bank nor any of its service providers, including Airwallex, shall be liable for any loss, claim, or damage sustained as a result of the use of your Login Credentials or access device whether such transaction was authorized or not and you agree to indemnify and hold harmless Bank and Airwallex for any such transaction alleged to be unauthorized.
d) Duty of Care. You agree that you will exercise ordinary care in managing your Service Account. In exercising ordinary care, you shall have the duty to: carefully examine your transaction history for fraudulent or unauthorized transactions and promptly notify us of any such transaction; timely reconcile your transaction history with your internal records to detect any other discrepancies, including any missing or diverted deposits; implement security precautions regarding the use and access of your Service Account through any access device. Your failure to exercise ordinary care will constitute negligence and will preclude you from asserting against Bank any unauthorized transaction on your Service Account.
e) Limitation to File Claim. You agree that no legal proceeding or action may be commenced against Bank to recover any amounts alleged to have been improperly paid out due to any fraudulent or unauthorized transaction unless: (i) you have timely provided written notice as required by subsections (a) and (b) of this Section 15 (Fraud and Unauthorized Transactions), and (ii) such proceeding or action shall have been commenced within six (6) months from the date that the unauthorized transaction took place. Any proceeding or action not brought within one year from the date of the first statement containing the unauthorized transaction is forever barred.
f) Duty to Cooperate. If you report any unauthorized transaction, you agree to cooperate with Bank in its investigation of the claim. This includes preparing an affidavit and report containing whatever information Bank requires concerning the account information, the transaction and the circumstances surrounding the loss.
g) Limitation of Liability. You agree that we have a reasonable time to investigate the facts and circumstances surrounding any claimed loss and that we have no obligation to provisionally credit your Wallet Balance. Our maximum liability is the lesser of actual damages proved or the amount of the unauthorized withdrawals, reduced by an amount which could have been avoided had you exercised ordinary care. In no event will Bank be liable for special or consequential damages, including loss of profits and opportunity or for attorneys’ fees. We will not be liable for any items that are forged or altered in such a way that such forgery could not be reasonably detected.
You must not use the Services for any illegal transaction or activity including those prohibited by the Unlawful Internet Gambling Enforcement Act. This prohibition includes any transaction that is illegal in the jurisdiction where you live, in the jurisdiction where the transaction is consummated, in the jurisdiction in which we are located, 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. Nevertheless, we may deny transactions or authorizations if we believe the transaction is or may be illegal. We reserve the right to refuse or return any item that we believe is related to an illegal transaction, an Internet or online gambling transaction or a high-risk transaction. To the fullest extent permitted by law, you agree to pay for any item or transfer that you authorized, even if the transaction related to that item or transfer is determined to be illegal.
17) Account Termination or Suspension
We reserve the right to terminate or suspend your use of the Services, upon notice to you, at any time and for any reason or no reason (subject to applicable law), including without limitation if:
we suspect you are utilizing the Services for criminal activity or that your Local Account is being used fraudulently;
we reasonably believe you are in violation of applicable law or regulation;
we are legally required to do so, including by any relevant governmental authority;
you have breached the Terms;
your Service Account has been inactive for an extended period of time (as reasonably determined by us);
you provide false, misleading or inaccurate information, or we have been unable to verify any information you have provided;
you notify us, or we suspect or identify, any suspected or actual unauthorized transactions;
you have a negative Wallet Balance and you haven’t promptly repaid the amount owing to us;
Airwallex or Airwallex Affiliate informs us of any of the above with respect to the services they provide to you, or you have breached the Airwallex Service Agreement or Airwallex Affiliate Terms; or
one of our banking partners, or other service provider necessary to provide the Services, requires us to terminate the Agreement.
If we terminate your use of the Services, we will promptly make available for withdrawal any funds that are not otherwise restricted or held for settlement of outstanding transactions, including fee payments.
18) Closing your Account
You may close your Service Account and terminate your relationship with us at any time by contacting Customer Support by emailing us at [email protected]. You will remain liable for any outstanding obligations after closure. You must withdraw your Wallet Balance before closing it. You may not close your Service Account with us if your Wallet reflects a negative balance.
19) Dormant Accounts
State laws (called "escheat" or unclaimed property laws) require us to deactivate your Local Account and transfer your money to the state if your Local Account is dormant for a period of time as defined by your state of residence. Your Local Account can become dormant if there is no transactional activity for a period of time defined by applicable law. If your Local Account becomes dormant, you can still view your accounts online on the Airwallex Platform. State abandoned property law establishes guidelines under which unclaimed property must be surrendered to the applicable state. Generally, the funds in your Local Account are considered unclaimed if you have not had any activity or communication with us regarding your Local Account over a period of years, defined by your state of residence. All products offered by us are subject to abandoned property laws. If your funds are surrendered to the state, you may be able to reclaim them, but your claim may need to be presented to the state. You can avoid the transfer of your money to the state simply by signing into your Service Account, transacting periodically, or contacting us, or replying to any abandoned property correspondence.
20) Legal Process and Claims
If we receive a levy, attachment, or other legal process against you we may refuse to permit withdrawals or transfers from your Wallet until the legal process is dismissed or satisfied. Any levy, attachment, or other legal process will be subject to our right of set-off and security interest. You are responsible for any losses, costs, or expenses we incur as a result of any dispute or legal proceeding involving your Service Account. If we receive a claim against your funds, or if we know of or believe that there‘s a dispute as to the ownership or control of funds held by us for your benefit, we may, in our discretion: (1) place a hold on your funds and refuse to pay out any funds until we‘re satisfied that the dispute is settled; (2) close your Service Account and send the balance to the named account holder(s); (3) require a court order to act; or (4) take any other action we feel is necessary to protect us. We will not be liable to you for taking any such action.
21) Bankruptcy Cost.
If your Service Account becomes subject to a receivership, court order or bankruptcy, and we incur costs as a result thereof, you agree to reimburse us for such costs (including legal fees).
22) Power of Attorney/Agents.
References to you herein also include any person who you authorize to act on your behalf, whether by following the process we require or on your own (for example, by creating a power of attorney). If you name such an agent, you acknowledge and agree that:
a) We may require that you use forms we approve and require each owner to sign the form to be effective;
b) The powers you give to your agent, and any limitations on those powers, are between you and your agent, even if we have express written notice of those powers. You understand and agree that we have no duty or responsibility to monitor the acts of your agent or ensure that the acts of your agent are for your benefit;
c) You will not hold us responsible for any loss or damage you incur as a result of us following Instructions given to us by your agent;
d) You are responsible to us for any actions of your agent, regardless of whether those actions exceed the authority given or whether the agent is formally nominated by all the owners or less than all the owners;
e) The agency will end after the owner notifies us in writing to end the agency and we have had a reasonable opportunity to act on it; and
f) If you authorize any third person, such as a bookkeeping service, an employee, or agent of yours to retain possession of or prepare items or any transactions using your Account Details, you agree to assume full responsibility for any errors or wrongdoing performed or caused by such third person or any of its agents or employees.
You authorize us to share information about you and your use of the Services with our affiliates and third parties, unless applicable law or our Privacy Notice prohibits us from doing so. Please see our Privacy Notice for your choices about information sharing. Additional services provided by Airwallex and Airwallex Affiliate may be subject to additional privacy policies, as further described in the applicable terms.
ALL ACCOUNT FEATURES AND SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
25) Reimbursement for Losses.
If we take any action to collect debt incurred by you or other amounts you owe us under this Agreement or defend ourselves in a lawsuit brought by you where we are the prevailing party, you agree to reimburse us for our losses, including, without limitation, reasonable attorneys’ fees, to the extent permitted by applicable law.
You agree to defend, indemnify and hold harmless us and Airwallex (and each of our respective affiliates, subsidiaries, officers, directors, employees, contractors, agents, licensors and suppliers) from and against any and all claims, losses, judgments, damages, interest and expenses including without limitation reasonable attorneys’ fees arising out of or relating to any claim, action, or other proceeding that arise out of or relates to: (i) any actual or alleged breach of your obligations, representations or warranties set forth in the Terms; (ii) your wrongful or improper use of the Services; (iii) your violation of any federal or state law, rule, or regulation of the United States, or any other country; (iv) any other party’s access and/or use of the Services using your log-in or security credentials; (v) any overpayment, invalid instructions, or payment caused by you; (vi) your violation of the rights of a third party; or (vii) the actions or inactions of any third party to whom you grant permissions to use your account or the Services.
27) Limitation of Liability
EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, NEITHER WE NOR OUR SERVICE PROVIDERS ARE LIABLE FOR ANY CLAIMS, COSTS, LOSSES, OR DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM OUR FAILURE TO ACT, OR ANY DELAY BEYOND TIME LIMITS PRESCRIBED BY LAW OR PERMITTED BY THIS AGREEMENT IF SUCH FAILURE OR DELAY IS CAUSED BY YOUR NEGLIGENCE, ACTS OR OMISSIONS OF THIRD PARTIES, INTERRUPTION OR MALFUNCTION OF EQUIPMENT OR COMMUNICATION FACILITIES, SUSPENSION OF PAYMENTS BY ANOTHER FINANCIAL INSTITUTION, FIRE, NATURAL DISASTERS, ELEMENTS OF NATURE, GOVERNMENT ACTION, ACTS OF WAR, TERRORISM OR CIVIL STRIFE, EMERGENCY CONDITIONS, OR OTHER CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF THE BANK, PROVIDED THE BANK EXERCISED SUCH DILIGENCE AS THE CIRCUMSTANCES REQUIRE. EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, THE BANK SHALL BE EXCUSED FROM SUCH FAILURE TO ACT OR DELAY AS LONG AS SUCH CIRCUMSTANCES PREVAIL, AND THE BANK CONTINUES TO USE ITS COMMERCIALLY REASONABLE EFFORTS TO RECOMMENCE PERFORMANCE. EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, OUR LIABILITY TO YOU FOR A CLAIM IS LIMITED TO THE FACE VALUE OF THE ITEM OR TRANSACTION, OR THE ACTUAL VALUE OF ANY FUNDS NOT PROPERLY CREDITED OR DEBITED. IN NO EVENT WILL WE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES EVEN IF YOU ADVISE US OF THE POSSIBILITY OF SUCH DAMAGES.
To the fullest extent permitted by law, we are not liable for the Airwallex Platform, the services or products of Airwallex Affiliates offered under the Airwallex Affiliate Terms or the services of Airwallex offered under the Airwallex Service Agreement, and we disclaim all warranties, either express or implied or statutory, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose and lack of viruses related to the Airwallex Platform. Any delays, loss or inquiries regarding the foregoing must be directed to Airwallex or the Airwallex Affiliate at [email protected].
28) Liability for Service Interruptions.
From time to time, due to maintenance, malfunctions or failures of software, equipment, or telecommunications devices, as well as unusual transaction volume or similar reasons, access to the Services may not be available to you. Access to the Services may also be interrupted as a result of things beyond our reasonable control, computer failures, loss of power, failure or interruption of communication or transportation facilities, riots, strikes, or civil unrest. You agree that we shall not be responsible for any loss, damages, costs or expenses that you may suffer or incur, directly or indirectly, as a result of the unavailability of access to the Services, regardless of whether it could be shown that we could have prevented or reduced the duration of such unavailability by taking any action within our reasonable control. We shall also not be responsible for any loss, damages, costs or expenses which you may suffer or incur, directly or indirectly, as a result of your inability to access the Services caused directly or indirectly, in whole or in part, by your computer or mobile device, your inability to establish a connection to or to access the Internet, or other limitations or constraints of the Internet. We are under no obligation to provide notice of any unavailability of the Services. The provisions set forth in this section shall apply in addition to any other provisions in this Agreement, but as applied to service interruptions for access to the Services, this section shall control.
29) Arbitration and Waiver
THIS ARBITRATION PROVISION WILL HAVE A SUBSTANTIAL IMPACT ON HOW LEGAL DISPUTES BETWEEN YOU AND US ARE RESOLVED. PLEASE READ THIS SECTION 29 (ARBITRATION AND WAIVERS) CAREFULLY. For a dispute subject to arbitration, neither you nor we will have the right to: (A) have a court or a jury decide the dispute; (B) engage in information-gathering (discovery) to the same extent as in court; (C) participate in a class action in court or in class arbitration; or (D) 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.
a) Definitions. If you have a dispute with us or our Service Provider, and we are not able to resolve the dispute informally, you and we agree that upon demand by either you or us, the dispute will be resolved through the arbitration process as set forth in this section. A “claim” or “dispute,” as used in this Section 29 (Arbitration and Waivers), is any unresolved disagreement between you, us and/or our Service Provider, arising from or relating in any way to the Services or this Agreement. The terms “claim” and “dispute” are to be given the broadest possible meaning that will be enforced and includes, by way of example and without limitation, any disagreement relating in any way to services offered in connection with the Services or any other services offered pursuant to this Agreement; to your use of any of our banking products or services; to any means you may use to access your Service Account(s); to any advertisements, promotions or oral or written statements related to the Services; to the benefits and services related to the Services; or your approval, registration for use of the Services. Claims also include disagreements about the meaning, application or enforceability of this arbitration agreement. As solely used in this Section 29 (Arbitration and Waivers), “we” or “us” shall include the Bank, its affiliates and service providers and their successors, employees, directors, officers and agents, and the terms “you” or “yours” shall mean any and all persons or entities approved to have, approved to use and/or given access to the Services.
b) Binding Arbitration and Appeals. Arbitration applies whenever there is a claim between you and us. If a third party is also involved in a claim between you and us, then the claim will be decided with respect to the third party in arbitration as well, and it must be named as a party in accordance with the rules of procedure governing the arbitration. No award or relief will be granted by the arbitrator except on behalf of, or against, a named party. Claims are subject to arbitration, regardless of on what theory they are based, whether they seek legal or equitable remedies, or whether they are common law or statutory (Federal or state) claims. Arbitration applies to any and all such claims or disputes, whether they arose in the past, may currently exist, or may arise in the future. Judgment upon the arbitrator’s award may be entered by any court having jurisdiction. The arbitrator’s decision is final and binding, except for any right of appeal provided by the FAA. However, if the amount of the claim exceeds $25,000 or involves a request for injunctive or declaratory relief that could foreseeably involve a cost or benefit to either party exceeding $25,000, any party can, within thirty (30) days after the entry of the award by the arbitrator, appeal the award to a three-arbitrator panel administered by the forum. The panel shall reconsider anew all factual and legal issues, following the same rules of procedure and decide by majority vote. Reference in this Section 29 (Arbitration and Waivers) to “the arbitrator” shall mean the panel if an appeal of the arbitrator’s decision has been taken.
c) Initiation of Arbitration. Any claim must be resolved, upon the election by you or us, by arbitration pursuant to this Section 29 (Arbitration and Waivers) 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 have the right within ten (10) 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. In the event that JAMS or the AAA is unable to handle the dispute for any reason, then the matter shall be arbitrated instead by a neutral arbitrator selected by agreement of the parties pursuant to the AAA rules of procedure; or, if the parties cannot agree, selected by a court in accordance with the Federal Arbitration Act (Title 9 of the United States Code) (“FAA”). To the extent that there is any variance between the selected forum’s rules and this Section 30 (Arbitration and Waivers), this Section 30 (Arbitration and Waivers) shall control. If you initiate the arbitration, you must notify us in writing at: [email protected]. If we initiate the arbitration, we will notify you in writing at your last known address in our file.
d) Class Action and Jury Waiver. NEITHER YOU NOR WE SHALL BE 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 SHALL HAVE THE RIGHT TO LITIGATE A CLAIM IN COURT 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.
e) Location of Arbitration and Cost. The arbitration shall take place in the Federal judicial district located in Memphis, Tennessee, unless the parties agree to a different location in writing. The party initiating the arbitration (or appeal of the first arbitration award) shall pay the initial filing fee. All fees and costs will be allocated in accordance with the rules of the arbitration forum. Each party shall bear the expense of their respective attorneys, experts, and witnesses and other expenses, regardless of who prevails, but the arbitrator will have the authority to award attorneys and expert witness fees and costs to the extent permitted by this Agreement, the forum’s rules, or applicable law.
f) Governing Law. You and we agree that in our relationship arising from this Agreement: (1) the parties are participating in transactions involving interstate commerce; (2) the arbitrator shall decide any dispute regarding the enforceability of this arbitration agreement; and (3) this arbitration agreement and any resulting arbitration are governed by the provisions of the FAA, and, to the extent any provision of that act is inapplicable, the laws of the State of Tennessee. The arbitrator must apply applicable substantive law consistent with the FAA and applicable statutes of limitations and claims of privilege recognized at law. At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award.
g) Continuation and Severability. This Section 29 (Arbitration and Waivers) shall survive termination of your Service Account, this Agreement and any bankruptcy by you or us. If any portion of this Section 29 (Arbitration and Waivers) 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 Section 29 (Arbitration and Waivers), this Agreement or any prior agreement you may have had with us, each of which shall be enforceable regardless of such invalidity.
30) Governing Law
All actions relating to this Agreement, will be governed by the laws and regulations of the United States and the State of Tennessee (to the extent that laws of the State of Tennessee are not preempted by federal law). Federal and the laws of the State of Tennessee shall be applied without giving effect to principles of conflicts of law. To the extent any dispute arising under this Agreement or relating in any way to the Services or your relationship with us is not arbitrated, you consent to the jurisdiction of, and agree that such dispute will be resolved by the Federal or state court located in Shelby County, Tennessee. You must file any lawsuit or arbitration against us within one (1) year after the claim arises, unless otherwise required by applicable law. This limit is in addition to any limits on notice as a condition to making a claim. If Tennessee law does not permit contractual shortening of the time during which a lawsuit must be filed to a period as short as one (1) year, you agree to the shortest permitted time under Tennessee law. Any action against us must be brought within the period that the applicable law requires us to preserve records, unless applicable law or this agreement provides a shorter limitation period.
31) Security Interest
You grant us a security interest in your Local Account to secure payment of any money that you owe to us arising under this Agreement or any other agreements with us. You acknowledge and grant us the right to use any of the funds in your Local Account to cover any money you owe to us (a “right of set-off”). You agree that the security interests you have granted to us are consensual and in addition to any rights of set-off. We may exercise our security interest or right of set-off without prior recourse to other sources of repayment or collateral, if any, and even if such action causes you to lose interest, incur any penalty or suffer any other consequence. If we exercise our security interest or right to set-off, we will notify you to the extent required by applicable law. If the law imposes conditions or limits on our ability to take or set off funds in your Local Account, to the extent that you may do so by contract, you waive those conditions and limits, and you authorize us to apply funds as we deem applicable. We will consider this Agreement as your consent for us asserting our security interest or exercising our right of set-off should any laws governing your Local Account require your consent.
32) No Fiduciary Obligation.
You agree that any act or omission made by us in reliance upon or in accordance with any provision of the Uniform Commercial Code as adopted in the State of Tennessee, or any rule or regulation of the State of Tennessee or a federal agency having jurisdiction over the Bank, shall constitute ordinary care. We do not assume any fiduciary obligation on your behalf. This means that we do not act as your trustee or financial advisor, and we don't assume any responsibility for your account beyond reasonable care.
33) Account Disputes.
If a dispute arises concerning your use of the Services, or if we believe we have a claim against you or we have or receive a claim by a third party (including our affiliates) to all or a portion of the funds in your Local Account, or if we have concerns regarding your use of the Services, we have the right to hold any portion of your funds until the dispute, claim, or concern is resolved to our satisfaction. We will not be liable to you if the hold we place on your funds leaves insufficient ability to cover outstanding transactions. If the dispute, claim or concern remains unresolved, you agree that we may at our option deposit the funds with a court and ask the court to determine to whom the property belongs. If we deposit your property with a court, you agree that we may charge you for our costs, including attorney’s fees and expenses related to doing so.
34) Reporting Information.
We may report information about you to consumer reporting agencies, governmental agencies, and/or third-party data services. Defaults may be reflected in your business credit report.
35) Compliance with Law.
You agree to comply with applicable law and to not use the Services for any illegal transactions or activities.
a) Changes to Agreement and Communications. We may modify the terms of this Agreement, or any fees and features of the Services, at any time. We will give you advance notice of any change required by law in accordance with such law. We may provide this notice to you by emailing the notice to you directly at the email address we have on file for you or by posting the notice on the Airwallex Platform. By providing us or Airwallex with your email address, you consent to our using the email address to send you Services-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Services. We may change or terminate this Agreement without notice to you in order to comply with any appropriate federal or state law or regulation.
b) No Waiver of Rights. If we fail to exercise or waive a right with on one or more occasions, it does not mean we have waived, or are obligated to waive, the same right on any other occasion. We may release any other person obligated under this Agreement without affecting your responsibilities under the Agreement. In any event, no such waiver or delay by us is effective unless it is in writing and approved by us.
c) No Assignment. Your Service Account and Local Account are not transferable and your Wallet Balance is not assignable as collateral for a loan or for any other purpose.
d) Other Services and Conflicts. If we make available to you any of our other banking services, we may provide certain terms and conditions of the additional service to you in a separate agreement or disclosure. If a service we offer has a separate agreement, and there is a conflict between the terms of this Agreement and the separate agreement, the separate agreement shall control to the extent of such conflict.
e) Severability. In the event that any court or tribunal of competent jurisdiction determines that any provision of this Agreement is illegal, invalid, or unenforceable, the remainder of this Agreement shall not be affected thereby. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders unenforceable any provision hereof, and to the extent that such waiver is not permitted by applicable law, the parties intend that such provision be interpreted as modified to the minimum extent necessary to render such provision enforceable.
f) Section Headings and Successors. 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 the Agreement. This Agreement is and will be binding on your personal representatives, executors, administrators, and successors.
g) Communications. You acknowledge that communications to us or Airwallex, including emails, may be accessed by unauthorized third parties when communicated between you and the Bank, using the Internet, telephone, or other electronic devices. We are not responsible for any misdirected data or disclosures that occur as a result of your use of third-party electronic communication channels.
h) Survival. 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 (including, but not limited to Sections 29 (Arbitration and Waivers) and Section 36 (General) of this Agreement).