Terms of Service
BankingOn, Inc. (“BankingOn,” “we,” “us,” “our,” etc.) operates an online cash management and account optimization tool available through Eli (the “Application” or “Eli”). These Terms of Service (“Terms” or “Agreement”) govern your access to and use of the Application, any related websites, and all content and services thereon (collectively, the “Service(s)”). These Terms constitute a binding agreement between BankingOn and you (“you,” “your,” and “User,” etc.) individually. Before using the Services, you must read and accept all of the Terms. By accepting this Agreement as you access our Services, you agree that the Terms will apply whenever you use the Services. If you do not accept and agree to these Terms, you are not permitted to use the Services.
BankingOn reserves the right, in its sole and absolute discretion, to amend, supplement, or otherwise modify these Terms from time to time. Modified Terms will take effect immediately upon posting to the Application. Your continued use of the Services after modified Terms have been so posted shall constitute your acceptance of such modified Terms.
The Service is a tool to enable cash transfers as if you had manually instructed your financial institution to complete such transfers. Based on your instructions and account information provided to us, the Service gathers, stores, processes, and analyzes information about you and deposit accounts you hold at various third-party financial institutions (“Bank Account(s)”), and then, on your behalf, periodically issues funds transfers as if you had instructed such individual transfers yourself. You assume all risk when using the Services, and you acknowledge that BankingOn cannot guarantee and does not promise any specific results from your use of the Services. You must register for an account (“Account”) by creating a username and password in order to utilize the Services.
The Services are not intended to be or to provide, and must not be taken to be or to provide, financial advice from BankingOn, nor does your use of the Services create a fiduciary relationship with BankingOn. By using the Application, you understand and affirmatively acknowledge that BankingOn is not a bank or affiliated with any bank or financial institution. We are not responsible for ensuring your Bank Account has sufficient funds for your designated transactions. You understand and agree that you will not receive any interest or other earnings on your funds in your Account. You irrevocably transfer and assign to BankingOn any and all rights that you may have to any interest that may accrue on funds transferred and held in your Account.
We grant you no rights to our intellectual property or the intellectual property of our affiliates, except as expressly stated herein. We and our third-party affiliates retain all right, title, and interest in and to the Services, and any associated patents, trademarks, copyrights, trade secrets, or other intellectual property rights. While using the Services, you must not:
You do and shall assign and transfer to us all intellectual property rights in and to all feedback, reputation information, reviews, or images you post on the Services consisting of comments and any ratings together with any composite rating by us. You acknowledge that such feedback, reputation, and reviews belong solely to us, notwithstanding that we permit you to use it on our Services while you remain a User. You must not use or deal in such feedback, reputation, and reviews in any way inconsistent with these Terms or our policies as posted on the Services from time to time. You may not do (or omit to do) anything that may undermine the integrity of the BankingOn feedback system. Our feedback ratings belong to us and may not be used for any purpose other than facilitating the provision of design and printing services via the Services.
We may close, suspend, or limit your access to your Account without reason or for any reason at all. Without limiting the foregoing, we may close, suspend, or limit your access to your Account or cancel or suspend any transaction:
Without limiting our other remedies, to the extent you have breached this Agreement, you must pay us all fees owed to us and reimburse us for all losses, costs, and reasonable expenses (including legal fees) related to investigating such breach and collecting such fees.
If a dispute arises between you and BankingOn, our goal is to address your concerns promptly and to provide you with a means of resolving the dispute quickly. We strongly encourage you to contact us directly to seek a resolution by emailing us at [email protected] Furthermore, bank services are provided through our banking software provider, Synapse. To report a complaint relating to the bank services, email [email protected] This Agreement will be governed in all respects by the laws of California, without regard to the internal law of California regarding conflicts of laws. Other than as provided herein, with respect to any suit, action, or proceeding relating hereto, each party hereby irrevocably submits to the exclusive jurisdiction of the courts of competent jurisdiction located in Alameda County, California, and waives any objection thereto. The prevailing party to any dispute shall be entitled to reimbursement of its fees and costs from the other party. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION ARISING HEREUNDER.
Alternatively, for any claim, BankingOn, in its sole discretion, may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. If BankingOn elects arbitration, such arbitration will be initiated through an established alternative dispute resolution (“ADR”) provider, which is to be mutually selected from a panel of ADR providers that BankingOn will provide to you. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online, or be solely based on written submissions; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
All claims you bring against BankingOn must be resolved in accordance with these Terms. All claims filed or brought contrary to this Agreement shall be considered improperly filed and a breach of these Terms. Should you file a claim contrary to these Terms, BankingOn may recover its legal fees and costs accrued in responding thereto (including without limitation in-house lawyer and paralegal fees), provided that BankingOn has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
You shall not pursue any claims arising under this Agreement on a class action or other representative basis, and will not seek to coordinate or consolidate any arbitration or action hereunder with any other proceeding.
If any proceeding by or against you is commenced under any provision of any bankruptcy or insolvency law, BankingOn will be entitled to recover all reasonable costs or expenses (including reasonable legal fees and expenses) incurred in connection with the enforcement of this Agreement.
BankingOn’s failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
If any part of this document is found to be unenforceable, that part will be limited to the minimum extent necessary so that this document will otherwise remain in full force and effect. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision. Any invalid or unenforceable provision shall be deemed severed from this Agreement to the extent of its invalidity or unenforceability, and this Agreement shall be construed and enforced as if the Agreement did not contain that particular provision to the extent of its invalidity or unenforceability.
Our failure to enforce any part of this document is not a waiver of any of our rights to later enforce that or any other part of this document. The waiver of any breach of any term, covenant, or condition herein contained, or our failure to seek redress for the violation of, or to insist upon the strict performance of any covenant or condition of this Agreement shall not be deemed to be a waiver of such term, covenant, or condition or any subsequent breach of the same.
We may assign to third parties any of our rights and obligations under this Agreement from time to time.
If there is a dispute between you or any other third party, BankingOn is under no obligation to become involved. In the event that you have a dispute with one or more Users or other third parties, you release BankingOn, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and the Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
You may close your Account at any time. Account closure is subject to your paying any outstanding fees or amounts owing on the Account accrued prior to your closure. We may retain some of your personal information to satisfy regulatory requirements and our own external obligations. Closing your account does not necessarily delete or remove all of the information we hold.
You shall indemnify, defend, and hold harmless BankingOn (and our officers, directors, agents, managers, members, subsidiaries, lawyers, insurers and employees) from and against any and all claims, liabilities, suits, losses, damages and expenses, including without limitation reasonable attorneys’ fees, due to any claim arising out of your breach of this Agreement or your infringement of any law or the rights of a third party in the course of using the Services.
You must immediately notify us upon becoming aware of any unauthorized access or any other security breach to the Services or your Account and do everything possible to mitigate the unauthorized access or security breach (including preserving evidence and notifying appropriate authorities). Your Account is yours only, and you must not share your password with others. You are solely responsible for securing your password. We will not be liable for any loss or damage arising from unauthorized access of your Account resulting from your failure to secure your password. In the event of an unauthorized access or security breach of any type, notify us by telephone at 855-7717141 between the hours of 10 am Central and 4pm Central on Weekdays or in writing at BankingON, Inc. 5316W Highway 290, Ste 300 Austin TX 78735.
If you notify Eli within two business days after learning of the unauthorized transaction, your liability will not exceed the lesser of; (i) $50; or (ii) the amount of unauthorized transfers that occurred before providing us notice.
If you fail to notify us within two business days, your liability will not exceed the lesser of:
(i) $500; or
(ii) the sum of:
(a) the lesser of:
(x) $50; or
(y) the amount of unauthorized transfers that occurred within the two business days; and
(b) the amount of unauthorized transfers that occur between the close of two business days after learning of the unauthorized transaction and the date notice is provided to us.
If you find an unauthorized transaction on the periodic statement provided to you from the institutions that hold your Bank Accounts, you must also report such unauthorized transaction within 60 days of the day your statement was transmitted to you by that financial institution to avoid liability for any unauthorized transactions that occurred between the close of the 60 days following your discovery and your notice to Eli. Should your delay be caused by extenuating circumstances, we will work with you to extend these deadlines in a reasonable manner so as to lessen your liability. Nothing herein shall supersede any state law that might impose less liability on you.
Our Services and all content on it are provided on an ‘as is’, ‘with all faults’ and ‘as available’ basis and without warranties of any kind either express or implied. Without limiting the foregoing, and other than as may be expressly set forth herein to the contrary, we make no representation or warranty about:
To every extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose, quality, suitability, and non-infringement.
In no event shall we, our related entities, our affiliates, or staff be liable, whether in contract, warranty, tort (including negligence), or any other form of liability, for:
The limitations on our liability to you above shall apply whether or not we, our related entities, our affiliates, or staff have been advised of the possibility of such losses or damages arising.
Notwithstanding the above provisions, nothing in this Agreement is intended to limit or exclude any liability on the part of us and our affiliates and related entities where and to the extent that applicable law prohibits such exclusion or limitation. Under any applicable law that would prohibit exclusion or limitation, BankingOn’s total aggregate liability, under or in relation to any warranty or condition implied by law, shall be limited to the aggregate sum total of fees paid to BankingOn by you in connection with your access to the Services.
In addition to the foregoing, to the extent permitted by law, BankingOn, its affiliates or its partners, shall not be liable to you (directly or indirectly) for any loss, claim, or damages of whatsoever kind or nature, whether direct, indirect, general, or special, arising out of or relating to the conduct of any User or anyone else in connection with the use of the Services.
Legal notices to you will be served to the email address you provide to BankingOn during the registration process. Notice will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid or that the email has not been delivered. Alternatively, we may give you legal notice by mail to the address provided by you during the registration process. In such case, notice will be deemed given three days after the date of mailing. Any notices to BankingOn must be given by registered U.S. Mail to BankingON, Inc. 5316W Highway 290, Ste 300 Austin TX 78735.
Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section.
22. Account Aggregation
Your use of the automated bank account feeds (“Account Aggregation Services”) in connection with opening your account/requesting your loan is subject to the following terms.
Provide Accurate Information. You agree to provide true, accurate, current and complete information about yourself and your accounts maintained at other websites, including financial institutions. You will not misrepresent your identity or your account information. You represent that you have all the rights to provide such information and license the Content, as defined below. You agree to keep your account information up to date.
License. You are licensing to Platform and its service providers, including Synapse, any information, data, passwords, materials or other content (collectively, “Content”) you provide through the Account Aggregation Services. You license the Content to Platform and its service providers to access, use and store the Content. Platform and its service provider may use, display, distribute and reproduce the information obtained via the Account Aggregation Services exclusively for the purposes of delivering Platform and banking services to you. You may revoke this license at any time by emailing [Platform customer support email].
Third-Party Accounts. By using the Account Aggregation Services, you authorize Platform and its service providers to access third-party sites designated by you, on your behalf, to retrieve information requested by you, and to register for accounts/request loans. For all purposes hereof, you grant Platform and its services providers a limited power of attorney, and you hereby appoint Platform and its service providers as your true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for you and in your name, access third-party internet sites, servers or documents, retrieve information, and use your information exclusively for the purposes of delivering Platform and banking services to you. You understand that Platform and its service providers may access your third-party accounts any time and obtain access to the information in such third-party accounts at any time while you have an account with Platform.
23. Electronic Fund Transfer Disclosure Statement
The following disclosures are made in accordance with the federal law regarding electronic payments, deposits, transfers of funds and other electronic transfers to and from your account(s). There may be limitations on account activity that restrict your ability to make electronic fund transfers. Any such limits are disclosed in the appropriate agreements governing your account.
A. Definitions: Electronic Fund Transfer: Any transfer of funds, other than a transaction originated by check, draft or similar paper instrument, that is initiated through an electronic device or computer to instruct us to debit or credit an account. Electronic Fund Transfers include such electronic transactions as direct deposits or withdrawals of funds, transfers initiated via telephone, website or mobile application. Preauthorized Electronic Fund Transfer: An Electronic Fund Transfer that you have authorized in advance to recur at substantially regular intervals; for example, direct deposits into or withdrawal of funds out of your account.
B. Your Liability: Authorized Transfers: You are liable for all Electronic Fund Transfers that you authorize, whether directly or indirectly. Unauthorized Transfers: Tell us at once if you believe your account or PIN or Access Information (as defined below) is lost or stolen or has been or may be subject to unauthorized Electronic Fund Transfers. Support message us immediately to keep your possible losses to a minimum. You could lose all the money in your account(s). If you tell us within two (2) business days after learning of the loss or theft of your account access device, or after learning of any other unauthorized transfers from your account involving your account access device, you can lose no more than $50 if Electronic Fund Transfers are made without your permission. For these transactions, if you DO NOT tell us within two (2) business days after learning of the loss, theft or unauthorized use, and we can establish that we could have prevented the unauthorized transfer(s) if you had told us in time, you could lose as much as $500. Also, if your periodic account statement shows unauthorized transfers and you DO NOT tell us within sixty (60) days after the statement was delivered to you, you may not get back any money you lose after the sixty (60) day period if we can prove that we could have prevented the unauthorized transfer(s) if you had told us in time. If an extenuating circumstance (such as extended travel or hospitalization) prevents you from promptly notifying us of a suspected lost or stolen access device or of any other suspected unauthorized transfer(s), the time periods specified in this Section B may be extended for a reasonable period.
24. Errors or Questions about Transactions
Please contact us by emailing us at [email protected] (1) if you believe a transaction receipt or a statement is wrong, or (2) if you need more information about a transaction on the receipt or statement. For consumer accounts, we must hear from you no later than sixty (60) days after we sent you the first statement on which the error or problem appeared. For business accounts, we must hear from you within one (1) business day of us sending you a receipt. Your inquiry must include: (x) your name, email associated with your account, and your account number (if available); (y) a description of the error or the transaction you are unsure about, and a clear explanation of why you believe there is an error or why you need more information; and (z) the dollar amount of the suspected error. If you tell us orally, we may require that you send us your inquiry via email within ten (10) business days.
Ten-Day Time Period: Eli will investigate promptly and, except as otherwise provided in this paragraph, shall determine whether an error occurred within 10 business days of receiving a notice of error. Eli shall report the results to the consumer in writing within three business days after completing its investigation. Eli shall correct the error within one business day after determining that an error occurred.
Forty Five-Day Time Period:
If Eli is unable to complete its investigation within 10 business days, Eli may take up to 45 days from receipt of a notice of error to investigate and determine whether an error occurred, provided Eli does the following: (1) Provisionally credits the consumer's account in the amount of the alleged error (including interest where applicable) within 10 business days of receiving the error notice. Eli need not provisionally credit the consumer's account if:*
· Eli does not receive written confirmation within 10 business days of an oral notice of error; or
alleged error involves an account that is subject to Regulation T (Securities
Credit by Brokers and Dealers, 12 CFR part 220)
(2)Informs the consumer, within two business days after the provisional crediting, of the amount and date of the provisional crediting and gives the consumer full use of the funds during the investigation;
(3) Corrects the error, if any, within one business day after determining that an error occurred; and
(4) Reports the results to the consumer within three business days after completing its investigation (including, if applicable, notice that a provisional credit has been made final).
(3) Extension of time periods. The time periods described above may be extended as follows:
· Extension of Ten-Day Time Period - The time limit for resolution is extended to 20 business days in place of 10 business days if the notice of error involves an electronic fund transfer to or from the account within 30 days after the first deposit to the account was made; or
· Extension of Forty Five-Day Time Period - The time limit for resolution is extended to 90 days in place of 45 days for completing an investigation, if a notice of error involves an electronic fund transfer that occurred within 30 days after the first deposit to the account was made.