Dated November 16, 2021
Thank you for choosing Nearside Business Corp., Inc. (“Nearside”) for your small business banking needs. We look forward to working with you.
IMPORTANT ACCOUNT OPENING INFORMATION
Due to the passage of the “USA PATRIOT Act,” we are required to notify customers of the following information:
Federal laws and regulations require us to request information from you prior to opening an account or adding an additional signatory to an account. The information we request may vary depending on the circumstances, but at a minimum, will include your name, address, an identification number such as your social security or taxpayer identification number, and for individuals, your date of birth. We are also required to record and verify the information you provide to us. This verification process may require you to provide us with supporting documentation that we deem appropriate. We may also seek to verify the information by other means. We reserve the right to request additional information and/or signatures from you from time to time.
These terms and conditions (the “Terms”), along with any other documents we provide you pertaining to your non-interest-bearing deposit account, associated debit card and all related features (the “Account”) (collectively, the “Agreement”), collectively comprise a contract that establishes the rules that control your Account which is made available to eligible customers through a partnership with LendingClub Bank, National Association (LendingClub), member, Federal Deposit Insurance Corporation (“FDIC”). In order to administer and access your Account, we are providing you with an online dashboard (the “Dashboard”) and/or mobile banking applications (the “Mobile App”) which are also subject to this Agreement. Please read this Agreement carefully and retain it for future reference.
By opening or continuing to hold an Account, you agree to be bound by this Agreement as well as any other agreement or document we may provide to you from time to time in connection with the Account. If you open or continue to use the Account, you accept and agree to these Terms. If you have any questions, please contact us via email at email@example.com or call us at 1-888-516-2369. If there is a conflict between this Agreement and any other document or statement made to you concerning the Account, this Agreement will govern.
The purpose of this document is to:
- summarize some laws that apply to common transactions;
- establish rules to cover transactions or events which the law does not regulate;
- establish rules for certain transactions or events which the law regulates but permits variation by agreement; and
- give you disclosures of some of our policies to which you may be entitled or in which you may be interested.
This Agreement is subject to applicable federal and state laws and other applicable rules such as the payment processing system rules (except to the extent that this Agreement can and does vary such rules or laws). 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. To the extent permitted by law, the parties waive any provision of law that prohibits or renders unenforceable any provisions of this Agreement, and to the extent that such waiver is not permitted by law, you and we agree that such provision will be interpreted as modified to the minimum extent necessary to render the provisions enforceable. We may permit some variations from this Agreement, but we must agree to any variation in writing. Nothing in this document is intended to vary our duty to act in good faith and with ordinary care when required by law.
As used in this document the words “we,” “our,” and “us” means Nearside Business Corp., Inc. and/or LendingClub Bank, as applicable, or any of its affiliates and subsidiaries and the words “you” and “your” means the Account holder on behalf of him/her self and the business. However, this Agreement does not intend, and the terms “you” and “your” should not be interpreted, to expand an individual’s responsibility for an organization’s liability. As this Account is owned by a corporation, partnership or other organization, individual liability is determined by the laws generally applicable to that type of organization. The headings in this document are for convenience or reference only and will not govern the interpretation of the provisions. Unless it would be inconsistent to do so, words and phrases used in this document should be construed so the singular includes the plural and the plural includes the singular.
Each owner, or an agent for a non-personal account, acting alone, has the power to perform all the transactions available to the account. For example, each owner or agent can:
- make withdrawals by whatever means are available for the account;
- make deposits by whatever means are allowed for the account;
- obtain and release information about the account;
- sign or authenticate any document in connection with the account;
- give rights to others to access the account (for example, any owner could grant a power of attorney to have access to the account); and
- close the account.
In addition, if you share ownership of an account with someone else (for example, you have a joint or multi-party account), then each of you can endorse items for deposit to the account on behalf of another owner. If there is shared ownership of an account, it is the intention of all owners that each of you has complete and separate access and withdrawal rights to all the funds in the account irrespective of who had deposited the funds in the account.
AUTHORIZED ACCESS AND POWER OF ATTORNEY
Each owner of your account is independently permitted to authorize someone else to access your account. For example, the following persons will have access to your account:
1. Any person listed on a resolution or certificate of authority as being authorized to make withdrawals or transfers, by check or otherwise, from your account;
2. Any person that you authorize to make withdrawals or transfers from the account by whatever means the account allows (for example, pre-authorized withdrawals, by ATM card, or debit card transactions);
3. Any person you give rights to act on your behalf, such as a power of attorney;
4. Any person to whom you make your checking account number available for purposes of transacting business on the account, and
5. Any person to whom you make your ATM card or debit card personal identification number (PIN) available. If you give any person such “authority,” we are not responsible for actions they take with respect to your accounts.
The word “agent” means 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:
- we may require that you use forms we approve and require each owner to sign the form to be effective;
- 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. For example, if you only give your agent authority to pay your bills and your agent exceeds that authority, we are not responsible for that breach of authority;
- you agree not to hold us responsible for any loss or damage you incur as a result of us following instructions given to us by your agent;
- the owners of the account are responsible to us for any actions of your agent, regardless of whether those actions exceed the authority given or whether the agent is appointed by all the owners or less than all the owners;
- the agency will end if the owner dies and we get notice of that death, or if there is more than one owner, the agency will end after the death of the last owner and we get notice of that death and, in either case, once we’ve had reasonable opportunity to act on it;
- 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
- if you authorize any third person, such as a bookkeeping service, an employee, or agent of yours to retain possession of or prepare items, you agree to assume full responsibility for any errors or wrongdoing performed or caused by third person or any of its agents or employees if we should pay any such item.
BUSINESS, ORGANIZATION AND ASSOCIATION ACCOUNTS
You represent that you have the authority to open and conduct business on this Account on behalf of the entity if the entity is the owner of the Account. We may require the governing body of the entity opening the Account to give us a separate authorization telling us who is authorized to act on its behalf. We will honor the authorization until we actually receive written notice of a change from the governing body of the entity.
YOU CANNOT TRANSFER AN ACCOUNT
You may not transfer an account to someone else without our express written permission. This does not limit your right to access your account by any permissible means.
CHANGE IN AUTHORIZED SIGNERS
Any owner, including one of the owners of a joint account, may add owners or authorized signers to an account; however, we have the right to require the signature of all owners to make the change. Only under special circumstances and subject to prior approval by us may an owner remove another owner or authorized signer from an account. No change in owners or authorized signers is effective until we have received written notice of the change and have had adequate time to approve and act on it.
You agree, for yourself (and the person or entity you represent if you sign as a representative of another) to the Terms of this Account and the schedule of fees set forth in Appendix D. You authorize us to deduct these charges, without notice to you, directly from the Account balance as accrued. You will pay any additional reasonable charges for services you request which are not covered by this Agreement.
If there are multiple users of the account, each of you also agrees to be jointly and severally (individually) liable for any account shortage resulting from charges or overdrafts, whether caused by you or another with access to this Account. This liability is due immediately, and can be deducted directly from the Account balance whenever sufficient funds are available. You have no right to defer payment of this liability, and you are liable regardless of whether you signed the item or benefited from the charge or overdraft.
You will be liable for our costs as well as for our reasonable attorneys’ fees, to the extent permitted by law, whether incurred as a result of collection or in any other dispute involving your Account. This includes, but is not limited to, disputes between you and another joint owner; you and an authorized signer or similar party; or a third party claiming an interest in your Account. This also includes any action that you or a third party takes regarding the Account that causes us, in good faith, to seek the advice of an attorney, whether or not we become involved in the dispute. All costs and attorneys’ fees can be deducted from your Account when they are incurred, without notice to you.
We do not accept deposits made in cash or deposits in foreign currency by mail or physical address. Any deposits made in cash or in a foreign currency will be sent back to the address we have on file for you. We are not liable if you do not receive the returned funds.
We will treat and record all transactions received after our “daily cutoff time” on a business day we are open, or received on a day we are not open for business, as if initiated on the next business day that we are open. Deposits received by us on a business day before 3:30PM Eastern Time will be considered received that day. Deposits received on a business day after 3:30PM Eastern Time, or at any time on a non-business day, will be considered received the following business day.
Please see the section titled “Your Ability to Withdraw Funds” for additional information on funds availability.
Before settlement of any item becomes final, we act only as your agent, regardless of the form of endorsement or lack of endorsement on the item. Unless prohibited by law, we also reserve the right to charge back to your Account the amount of any item deposited to your Account or cashed for you which was initially paid by the payor bank and which is later returned to us due to an allegedly forged, unauthorized or missing endorsement, claim of alteration, encoding error or other problem which in our judgment justifies reversal of credit. If a deposit or transfer to your Account is returned or rejected by the paying financial institution for any reason, or if there is an error or mistake involving a deposit or transfer, we may deduct the amount of the deposit, transfer or error without prior notice to you. If there are insufficient funds in your Account at the time, your Account may become overdrawn.
You authorize us to attempt to collect previously returned items without giving you notice, and in attempting to collect we may permit the payor bank to hold an item beyond the related deadline. We are not responsible for transactions by mail or outside depository until we actually record them. If we accept a third-party check for deposit, we may require any third-party endorsers to verify or guarantee their endorsements.
Generally – Unless clearly indicated otherwise on the account records, any of you, acting alone, who signs to open the Account or has authority to make withdrawals, may withdraw or transfer all or any part of the Account balance at any time. Each of you (until we receive written notice to the contrary) authorizes each other person who signs or has authority to make withdrawals to endorse any item payable to you or your order for deposit to this Account or any other transaction with us.
You may withdraw funds up to the amount of your available balance in your Account by using any of the following described herein. Before permitting a withdrawal or other transaction, we may request that you provide us with additional information or documentation that we deem necessary to confirm your identity or to prevent illegal activity. We may refuse the transaction if you do not comply with our request. Please refer to the Fee section below for more information and all fees applicable to your Account.
You may link another bank account you have to your Account in order to transfer funds between the linked bank account and your Account using the Dashboard and/or Mobile App. You may only link a bank account titled in your name (either individually or jointly) or the name of your business and from which you have the right to authorize charges and debits. You represent and warrant: (1) that you have the right to authorize any and all charges and debits to the linked account; (2) the linked account is held at a depository institution located in the U.S.; and (3) you are individually or jointly the owner of the linked account. By linking a bank account, you agree to indemnify and hold us harmless from any claims by any person related to the linked bank account, including any other owner of the linked bank account. You may only link a bank account that is a deposit account, such as a checking, savings or money market account.
Point-of-Sale Daily Limit (Physical):
Point-of-Sale Daily Limit (Virtual):
Daily ATM Withdrawal Limit:
Per Transaction ATM Withdrawal Limit:
Total Daily Cash Withdrawal:
Max Daily Limit (POS, ATM, Cash Withdrawal):
ATM Count Withdrawals (Max Daily):
Postdated checks – A postdated check is one which bears a date later than the date on which the check is written. We may properly pay and charge your Account for a postdated check even though payment was made before the date of the check, unless we have received written notice of the postdating in time to have a reasonable opportunity to act. Because we process checks mechanically, your notice will not be effective and we will not be liable for failing to honor your notice unless it precisely identifies the number, date, amount and payee of the item.
Checks and withdrawal rules – See the funds availability policy disclosure for information about when you can withdraw funds you deposit. An item may be returned after the funds from the deposit of that item are made available for withdrawal. In that case, we will reverse the credit of the item. We may determine the amount of available funds in your Account for the purpose of deciding whether to return an item for insufficient funds at any time between the time we receive the item and when we return the item or send a notice in lieu of return. We need only make one determination, but if we choose to make a subsequent determination, the Account balance at the subsequent time will determine whether there are insufficient available funds
Unless otherwise provided, the rules in this section cover stopping payment of items such as checks, including Checks Sent. Rules for stopping payment of other types of transfers of funds, such as electronic fund transfers, may be established by law or our policy.
You must make any stop-payment order in the manner required by law and we must receive it in time to give us a reasonable opportunity to act on it before our stop-payment cutoff time. Generally, a stop-payment request takes one Business Day to process so the request may not be effective if the item is submitted for payment prior to processing such request. Because stop-payment orders are handled by computers, to be effective, your stop-payment order must precisely identify the number, date, and amount of the item, and the payee. You may stop payment on any item drawn on your Account whether you sign the item or not. Generally, if your stop-payment order is given to us in writing it is effective for six months. Your order will lapse after that time if you do not renew the order in writing before the end of the six-month period. We are not obligated to notify you when a stop-payment order expires. A release of the stop-payment request may be made only by the person who initiated the stop-payment order.
If you stop payment on an item and we incur any damages or expenses because of the stop payment, you agree to indemnify us for those damages or expenses, including attorneys’ fees. You assign to us all rights against the payee or any other holder of the item. You agree to cooperate with us in any legal actions that we may take against such persons. You should be aware that anyone holding the item may be entitled to enforce payment against you despite the stop-payment order. Additional limitations on our obligation to stop payment are provided by law (e.g., we paid the item in cash or we certified the item).
AMENDMENTS AND TERMINATION
We may change any term of this Agreement without notice by giving you reasonable notice in writing or by any other method permitted by law; including by posting an amended Agreement on Nearside’s website, http://www.nearside.com, and any such amendment shall be effective upon posting. We may also close this Account at any time upon reasonable notice to you and tender of the Account balance. Items presented for payment after the Account is closed may be dishonored. When you close your Account, you are responsible for leaving enough money in the Account to cover any outstanding items to be paid from the Account. Reasonable notice depends on the circumstances, and in some cases such as when we cannot verify your identity or we suspect fraud, it might be reasonable for us to give you notice after the change or account closure becomes effective. For instance, if we suspect fraudulent activity with respect to your Account, we might immediately freeze or close your Account and then give you notice. If we have notified you of a change in any term of your Account and you continue to have your Account after the effective date of the change, you have agreed to the new term(s).
Any written notice you give us is effective when we actually receive it, and it must be given to us according to the specific delivery instructions provided elsewhere, if any. We must receive it in time to have a reasonable opportunity to act on it. If the notice is regarding a check or other item, you must give us sufficient information to be able to identify the check or item, including the precise check or item number, amount, date and payee. Written notice we give you sent via mail is effective when it is deposited in the United States Mail with proper postage and addressed to your mailing address we have on file. Notice to any of you is deemed to be a notice to all of you.
Your duty to report unauthorized signatures, alterations and forgeries – You must examine your statement of account with “reasonable promptness.” If you discover (or reasonably should have discovered) any unauthorized signatures or alterations, you must promptly notify us of the relevant facts. As between you and us, if you fail to do either of these duties, you will have to either share the loss with us, or bear the loss entirely yourself (depending on whether we used ordinary care and, if not, whether we substantially contributed to the loss). The loss could be not only with respect to items on the statement but other items with unauthorized signatures or alterations by the same wrongdoer.
You agree that the time you have to examine your statement and report to us will depend on the circumstances, but will not, in any circumstance, exceed a total of 30 days from when the statement is first sent or made available to you. You further agree that if you fail to report any unauthorized signatures, alterations or forgeries in your Account within 60 days of when we first send or make the statement available, you cannot assert a claim against us on any items in that statement, and as between you and us the loss will be entirely yours. This 60-day limitation is without regard to whether we used ordinary care. The limitation in this paragraph is in addition to that contained in the first paragraph of this section.
Your duty to report other errors – In addition to your duty to review your statements for unauthorized signatures, alterations and forgeries, you agree to examine your statement with reasonable promptness for any other error – such as an encoding error. In addition, if you receive or we make available either your items or images of your items, you must examine them for any unauthorized or missing endorsements or any other problems. You agree that the time you have to examine your statement and items and report to us will depend on the circumstances. However, this time period shall not exceed 60 days. Failure to examine your statement and items and report any errors to us within 60 days of when we first send or make the statement available precludes you from asserting a claim against us for any errors on items identified in that statement and as between you and us the loss will be entirely yours.
ACCOUNT TRANSFER AND ASSIGNMENTS
This Account may not be transferred or assigned without our prior written consent. Your obligations under this Agreement are not transferable and not assignable. We may transfer our rights under this Agreement to any other party, including to LendingClub Bank.
If we are required for any reason to reimburse the federal government for all or any portion of a benefit payment that was directly deposited into your Account, you authorize us to deduct the amount of our liability to the federal government from the Account or from any other account you have with us, without prior notice and at any time, except as prohibited by law. We may also use any other legal remedy to recover the amount of our liability.
RIGHT OF SETOFF
We may (without prior notice and when permitted by law) set off the funds in this Account against any due and payable debt any of you owe us now or in the future. If this Account is owned by one or more of you as individuals, we may set off any funds in the Account against a due and payable debt a partnership owes us now or in the future, to the extent of your liability as a partner for the partnership debt. If your debt arises from a promissory note, then the amount of the due and payable debt will be the full amount we have demanded, as entitled under the terms of the note, and this amount may include any portion of the balance for which we have properly accelerated the due date.
This right of setoff does not apply to this Account if prohibited by law. For example, the right of setoff does not apply to this Account if: (a) the debt is created by a consumer credit transaction under a credit card plan (but this does not affect our rights under any consensual security interest), or (b) the debtor’s right of withdrawal only arises in a representative capacity, or (c) setoff is prohibited by the Military Lending Act or its implementing regulations. We will not be liable for the dishonor of any check when the dishonor occurs because we set off a debt against this account. You agree to hold us harmless from any claim arising as a result of our exercise of our right of setoff.
RESTRICTIVE LEGENDS OR ENDORSEMENTS
The automated processing of the large volume of checks we receive prevents us from inspecting or looking for restrictive legends, restrictive endorsements or other special instructions on every check. Examples of restrictive legends placed on checks are “must be presented within 90 days” or “not valid for more than $1,000.00.” The payee’s signature accompanied by the words “for deposit only” is an example of a restrictive endorsement. For this reason, we are not required to honor any restrictive legend or endorsement or other special instruction placed on checks you write unless we have agreed in writing to the restriction or instruction. Unless we have agreed in writing, we are not responsible for any losses, claims, damages, or expenses that result from your placement of these restrictions or instructions on your checks.
PAYMENT ORDER OF ITEMS
The order in which items are paid is important if there is not enough money in your Account to pay all of the items that are presented. The payment order can affect the number of items overdrawn or returned unpaid. To assist you in managing your Account, we are providing you with the following information regarding how we process those items.
To determine your available Account balance, we generally start with your ledger balance at the beginning of the business day, remove any applicable holds from your balance and make any adjustments from prior days. All debit card (including PIN transactions and ATM withdrawals) and other transactions conducted through the Mastercard network are processed based on the time of the transaction. For electronic funds (including ACH transactions), we generally group transactions up to 3 times a day. Within a group, we add available deposits and credits to your balance first then subtract all other electronic fund transfers (including ACH transactions) based on the order it is listed in the group.
Keep in mind that your available Account balance may not reflect every transaction you have initiated or previously authorized. For example, your available Account balance may not include (1) transactions you have authorized that we have not received, (2) debit card transactions where the card authorization has been removed before the transaction is settled, or (3) the full amount of a debit card transaction where the settlement amount is greater than the card authorization amount. Your available Account balance is viewable at any time through your dashboard and/or Dashboard and/or Mobile App, but it is important to understand that it may not reflect transactions you have authorized that have not yet been presented to us for payment.
Notwithstanding anything to the contrary, when we process multiple transactions for your Account on the same day, you agree that we may in our discretion determine our posting orders for the transactions and that we may credit, authorize, accept, pay, decline, or return credits, debits, and holds in any order at our option. We do not always receive debits on the same day that you conduct them. We generally post credits and debits to your Account, and report them on your statement, in a different order than the order in which you conduct them or we receive them. We may change the way we group transactions together or the order in which we post transactions to your Account at our discretion and without notice to you. We sometimes add or delete categories, change posting orders within categories and move transaction types among categories. You agree that we may in our discretion make these changes at any time without notice to you. It is therefore important for you to keep track of the deposits you make and the transactions you authorize to make sure there are sufficient funds in your Account to cover all transactions and any applicable fees.
We process items mechanically by relying solely on the information encoded in magnetic ink along the bottom of the items. This means that we do not individually examine all of your items to determine if the item is properly completed, signed and endorsed or to determine if it contains any information other than what is encoded in magnetic ink. You agree that we have exercised ordinary care if our automated processing is consistent with general banking practice, even though we do not inspect each item. Because we do not inspect each item, if you write a check to multiple payees, we can properly pay the check regardless of the number of endorsements unless you notify us in writing that the check requires multiple endorsements. We must receive the notice in time for us to have a reasonable opportunity to act on it, and you must tell us the precise date of the check, amount, check number and payee. We are not responsible for any unauthorized signature or alteration that would not be identified by a reasonable inspection of the item. Using an automated process helps us keep costs down for you and all account holders.
To ensure that your check or share draft is processed without delay, you must endorse it (sign it on the back) in a specific area. Your entire endorsement (whether a signature or a stamp) along with any other endorsement information (e.g. additional endorsements, ID information, driver’s license number, etc.) must fall within 11/2” of the “trailing edge” of a check. Endorsements must be made in blue or black ink, so that they are readable by automated check processing equipment.
As you look at the front of a check, the “trailing edge” is the left edge. When you flip the check over, be sure to keep all endorsement information within 1 1/2″ of that edge.
It is important that you confine the endorsement information to this area since the remaining blank space will be used by others in the processing of the check to place additional needed endorsements and information. You agree that you will indemnify, defend, and hold us harmless for any loss, liability, damage or expense that occurs because your endorsement, another endorsement or information you have printed on the back of the check obscures our endorsement.
DEATH OR INCOMPETENCE
You agree to notify us promptly if any person with a right to withdraw funds from your Account(s) dies or is adjudicated (determined by the appropriate official) incompetent. We may continue to honor your checks, items, and instructions until: (a) we know of your death or adjudication of incompetence, and (b) we have had a reasonable opportunity to act on that knowledge. You agree that we may pay or certify checks drawn on or before the date of death or adjudication of incompetence for up to ten (10) days after your death or adjudication of incompetence unless ordered to stop payment by someone claiming an interest in the Account.
Accounts may be opened by a person acting in a fiduciary capacity. A fiduciary is someone who is appointed to act on behalf of and for the benefit of another. We are not responsible for the actions of a fiduciary, including the misuse of funds. This Account may be opened and maintained by a person or persons named as a trustee under a written trust agreement, or as executors, administrators, or conservators under court orders. You understand that by merely opening such an account, we are not acting in the capacity of a trustee in connection with the trust nor do we undertake any obligation to monitor or enforce the terms of the trust or letters.
You agree that we may verify credit and employment history by any necessary means, including preparation of a credit report by a credit reporting agency.
LEGAL ACTIONS AFFECTING YOUR ACCOUNT
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), we will comply with that legal action. Or, in our discretion, we may freeze the assets in the Account and not allow any payments out of the Account until a final court determination regarding the legal action. We may do these things even if the legal action involves less than all of you. 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. Any fees or expenses we incur in responding to any legal action (including, without limitation, attorneys’ fees and our internal expenses) may be charged against your Account. The list of fees applicable to your Account(s) provided elsewhere may specify additional fees that we may charge for certain legal actions.
It is your responsibility to protect the Account numbers and electronic access devices (e.g., an ATM card) we provide you for your Account(s). Do not discuss, compare, or share information about your Account number(s) with anyone unless you are willing to give them full use of your money. If you furnish your access device and grant actual authority to make transfers to another person (a family member or coworker, for example) who then exceeds that authority, you are liable for the transfers unless we have been notified that transfers by that person are no longer authorized. Your account number can also be used to electronically remove money from your Account, and payment can be made from your Account even though you did not contact us directly and order the payment.
Except for consumer electronic funds transfers subject to Regulation E, you agree that if we offer you services appropriate for your Account to help identify and limit fraud or other unauthorized transactions against your Account, such as positive pay or commercially reasonable security procedures, and you reject those services, you will be responsible for any fraudulent or unauthorized transactions which could have been prevented by the services we offered, unless we acted in bad faith or to the extent our negligence contributed to the loss. If we offered you a commercially reasonable security procedure which you reject, you agree that you are responsible for any payment order, whether authorized or not, that we accept in compliance with an alternative security procedure that you have selected.
Unless required by law or we have agreed otherwise in writing, we are not required to act upon instructions you leave by voice mail or on a telephone answering machine.
MONITORING AND RECORDING TELEPHONE CALLS AND CONSENT TO RECEIVE COMMUNICATIONS
We may monitor or record phone calls for security reasons, to maintain a record and to ensure that you receive courteous and efficient service. You consent in advance to any such recording. We need not remind you of our recording before each phone conversation unless required by your state’s law.
To provide you with the best possible service in our ongoing business relationship for your Account we may need to contact you about your Account from time to time by telephone, text messaging or email. However, we must first obtain your consent to contact you about your Account because we must comply with the consumer protection provisions in the federal Telephone Consumer Protection Act of 1991 (TCPA), CAN-SPAM Act and their related federal regulations and orders issued by the Federal Communications Commission (FCC).
- Your consent is limited to this account, and as authorized by applicable law and regulations.
- Your consent does not authorize us to contact you for telemarketing purposes (unless you otherwise agreed elsewhere).
With the above understanding, you authorize us to contact you regarding this Account throughout its existence using any telephone numbers or email addresses that you have previously provided to us or that you may subsequently provide to us. This consent is regardless of whether the number we use to contact you is assigned to a landline, a paging service, a cellular wireless service, a specialized mobile radio service, other radio common carrier service or any other service for which you may be charged for the call. You further authorize us to contact you through the use of voice, voicemail and text messaging, including the use of pre-recorded or artificial voice messages and an automated dialing device. If necessary, you may change or remove any of the telephone numbers or email addresses at any time using any reasonable means to notify us. To revoke the consent provided pursuant to this subsection, you must send ten (10) days’ prior written notice of such revocation to firstname.lastname@example.org.
CLAIM OF LOSS
If you claim a credit or refund because of a forgery, alteration, or any other unauthorized withdrawal, you agree to cooperate with us in the investigation of the loss, including giving us an affidavit containing whatever reasonable information we require concerning your Account, the transaction, and the circumstances surrounding the loss. You will notify law enforcement authorities of any criminal act related to the claim of lost, missing, or stolen debit card or unauthorized withdrawals. We will have a reasonable period of time to investigate the facts and circumstances surrounding any claim of loss. Unless we have acted in bad faith, we will not be liable for special or consequential damages, including loss of profits or opportunity, or for attorneys’ fees incurred by you. You 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.
ADDRESS OR NAME CHANGES
You are responsible for either making the change in your Dashboard or notifying us of any change in your address or your name. Unless we agree otherwise, change of address or name must be made in writing by at least one of the Account holders. We will attempt to communicate with you only by use of the most recent address you have provided to us.
RESOLVING ACCOUNT DISPUTES
We may place an administrative hold on the funds in your Account (refuse payment or withdrawal of the funds) if it becomes subject to a claim adverse to (1) your own interest; (2) others claiming an interest as survivors or beneficiaries of your Account; or (3) a claim arising by operation of law. The hold may be placed for such period of time as we believe reasonably necessary to allow a legal proceeding to determine the merits of the claim or until we receive evidence satisfactory to us that the dispute has been resolved. We will not be liable for any items that are dishonored as a consequence of placing a hold on funds in your Account for these reasons.
WAIVER OF NOTICES
To the extent permitted by law, you waive any notice of non-payment, dishonor or protest regarding any items credited to or charged against your Account.
ACH AND WIRE TRANSFERS
This agreement is subject to Article 4A of the Uniform Commercial Code – Fund Transfers as adopted in the state in which you have your Account with us. If you originate a fund transfer and you identify by name and number a beneficiary financial institution, an intermediary financial institution or a beneficiary, we and every receiving or beneficiary financial institution may rely on the identifying number to make payment. We may rely on the number even if it identifies a financial institution, person or account other than the one named. You agree to be bound by automated clearing house association rules. These rules provide, among other things, that payments made to you, or originated by you, are provisional until final settlement is made through a Federal Reserve Bank or payment is otherwise made as provided in Article 4A-403(a) of the Uniform Commercial Code. If we do not receive such payment, we are entitled to a refund from you in the amount credited to your Account and the party originating such payment will not be considered to have paid the amount so credited. Credit entries may be made by ACH. If we receive a payment order to credit an account you have with us by wire or ACH, we are not required to give you any notice of the payment order or credit.
TRUNCATION, SUBSTITUTE CHECKS, AND OTHER CHECK IMAGES
If you truncate an original check and create a substitute check, or other paper or electronic image of the original check, you warrant that no one will be asked to make payment on the original check, a substitute check or any other electronic or paper image, if the payment obligation relating to the original check has already been paid. You also warrant that any substitute check you create conforms to the legal requirements and generally accepted specifications for substitute checks. You agree to retain the original check in conformance with our internal policy for retaining original checks. You agree to indemnify us for any loss we may incur as a result of any truncated check transaction you initiate. We can refuse to accept substitute checks that have not previously been warranted by a bank or other financial institution in conformance with the Check 21 Act. Unless specifically stated in a separate agreement between you and us, we do not have to accept any other electronic or paper image of an original check.
UNLAWFUL INTERNET GAMBLING NOTICE
Restricted transactions as defined in Federal Reserve Regulation GG are prohibited from being processed through this Account or relationship. Restricted transactions generally include, but are not limited to, those in which credit, electronic fund transfers, checks, or drafts are knowingly accepted by gambling businesses in connection with the participation by others in unlawful Internet gambling.
The terms used in this section have the meaning given to them in Article 4A of the Uniform Commercial Code – Funds Transfers (UCC 4A). This section will generally not apply to you if you are a consumer. However, even if you are a consumer, this section will apply to that part of any funds transfer that is conducted by Fedwire. This section is subject to UCC 4A as adopted in the state in which you have your deposit with us. This agreement is also subject to all clearing house association rules, rules of the Board of Governors of the Federal Reserve System and their operating circulars. If any part of this Agreement is determined to be unenforceable, the rest of the agreement remains effective. This agreement controls funds transfers unless supplemented or amended in a separate written agreement signed by us. This agreement does not apply to a funds transfer if any part of the transfer is governed by the Electronic Fund Transfer Act of 1978 (EFTA), except this Agreement does apply to a funds transfer that is a remittance transfer as defined in EFTA unless the remittance transfer is an electronic fund transfer as defined in EFTA. See Appendix A: Electronic Fund Transfers for more details.
Funds transfer – A funds transfer is the transaction or series of transactions that begin with the originator’s payment order, made for the purpose of making payment to the beneficiary of the order. A funds transfer is completed by the acceptance by the beneficiary’s bank of a payment order for the benefit of the beneficiary of the originator’s order. Credit entries may be made by ACH.
Authorized account – An authorized account is a deposit account you have with us that you have designated as a source of payment of payment orders you issue to us. If you have not designated an authorized account, any account you have with us is an authorized account to the extent that payment of the payment order is not inconsistent with the use of the Account.
Acceptance of your payment order – We are not obligated to accept any payment order that you give us, although we normally will accept your payment order if you have a withdrawable credit in an authorized account sufficient to cover the order. If we do not execute your payment order, but give you notice of our rejection of your payment order after the execution date or give you no notice, we are not liable to pay you as restitution any interest on a withdrawable credit in a non-interest-bearing account.
Cutoff time – If we do not receive your payment order or communication canceling or amending a payment order before our cutoff time on a funds transfer day for that type of order or communication, the order or communication will be deemed to be received at the opening of our next funds transfer business day.
Payment of your order – If we accept a payment order you give us, we may receive payment by automatically deducting from any authorized account the amount of the payment order plus the amount of any expenses and charges for our services in execution of your payment order. We are entitled to payment on the payment or execution date. Unless your payment order specifies otherwise, the payment or execution date is the funds transfer date we receive the payment order. The funds transfer is completed upon acceptance by the beneficiary’s bank. Your obligation to pay your payment order is excused if the funds transfer is not completed, but you are still responsible to pay us any expenses and charges for our services. You will not be entitled to interest on any refund you receive because the beneficiary’s bank does not accept the payment order.
Security procedure – The authenticity of a payment order or communication canceling or amending a payment order issued in your name as sender may be verified by a security procedure. You affirm that you have no circumstances which are relevant to the determination of a commercially reasonable security procedure unless those circumstances are expressly contained in a separate writing signed by us. You may choose from one or more security procedures that we have developed. If you refuse a commercially reasonable security procedure that we have offered you, you agree that you will be bound by any payment order issued in your name, whether or not authorized, that we accept in good faith and in compliance with the security procedure you have chosen.
Duty to report unauthorized or erroneous payment – You must exercise ordinary care to determine that all payment orders or amendments to payment orders that we accept that are issued in your name are authorized, enforceable, in the correct amount, to the correct beneficiary, and not otherwise erroneous. If you discover (or with reasonable care should have discovered) an unauthorized, unenforceable, or erroneously executed payment order or amendment, you must exercise ordinary care to notify us of the relevant facts. The time you have to notify us will depend on the circumstances, but that time will not in any circumstance exceed 14 days from when you are notified of our acceptance or execution of the payment order or amend mentor that your Account was debited with respect to the order or amendment. If we can prove that you failed to perform either of these duties with respect to an erroneous payment and that we incurred a loss as a result of the failure, you are liable to us for the amount of the loss not exceeding the amount of your order.
Identifying number – If your payment order identifies an intermediate bank, beneficiary bank, or beneficiary by name and number, we and every receiving or beneficiary bank may rely upon the identifying number rather than the name to make payment, even if the number identifies an intermediate bank or person different than the bank or beneficiary identified by name. Neither we nor any receiving or beneficiary bank have any responsibility to determine whether the name and identifying number refer to the same financial institution or person.
Record of oral or telephone orders – You agree that we may, if we choose, record any oral or telephone payment order or communication of amendment or cancelation.
Notice of credit – If we receive a payment order to credit an account you have with us, we are not required to provide you with any notice of the payment order or the credit.
Provisional credit – You agree to be bound by the automated clearing house association operating rules that provide that payments made to you or originated by you by funds transfer through the automated clearing house system are provisional until final settlement is made through a Federal Reserve Bank or otherwise payment is made as provided in Article 4A-403(a) of the Uniform Commercial Code.
Refund of credit – You agree that if we do not receive payment of an amount credited to your Account, we are entitled to a refund from you in the amount credited and the party originating such payment will not be considered to have paid the amount so credited.
Cancelation or amendment of payment order – You may cancel or amend a payment order you give us only if we receive the communication of cancelation or amendment before our cutoff time and in time to have a reasonable opportunity to act on it before we accept the payment order. The communication of cancelation or amendment must be presented in conformity with the same security procedure that has been agreed to for payment orders.
Intermediaries – We are not liable for the actions of any intermediary, regardless of whether or not we selected the intermediary. We are not responsible for acts of God, outside agencies, or nonsalaried agents.
Limit on liability – You waive any claim you may have against us for consequential or special damages, including loss of profit arising out of a payment order or funds transfer, unless this waiver is prohibited by law. We are not responsible for attorney fees you might incur due to erroneous execution of payment order.
Erroneous execution – If we receive an order to pay you, and we erroneously pay you more than the amount of the payment order, we are entitled to recover from you the amount in excess of the amount of the payment order, regardless of whether you may have some claim to the excess amount against the originator of the order.
Objection to payment – If we give you a notice that reasonably identifies a payment order issued in your name as sender that we have accepted and received payment for, you cannot claim that we are not entitled to retain the payment unless you notify us of your objection to the payment within one year of our notice to you.
YOUR ABILITY TO WITHDRAW FUNDS
Funds from your check deposits, direct deposits, money orders and ACH transfers will be made available to you no later than the 5th business day after the day we receive your deposit. However, funds from wire transfers and cash deposits at ATMs will generally be available the next business day after receipt.
Please remember that even after we have made funds available to you, and you have withdrawn the funds, you are still responsible for checks you deposit that are returned to us unpaid and for any other problems involving your deposit.
For determining the availability of your deposits, every day is a business day, except Saturdays, Sundays, and federal holidays. If you make a deposit before the related cut-off time on a business day that we are open, we will consider that day to be the day of your deposit. However, if you make a deposit after closing or on a day we are not open, we will consider that the deposit was made on the next business day we are open.
LONGER DELAYS MAY APPLY
Case-by-case delays. In some cases, we may not make all of the funds that you deposit by check available to you on the date specified above. If we are not going to make all of the funds from your deposit available on the date specified above, we will notify you at the time you make your deposit. We will also tell you when the funds will be available.
Safeguard exceptions. In addition, funds you deposit by check may be delayed for a longer period under certain circumstances, including the following:
- We believe a check you deposit will not be paid.
- You deposit checks totaling more than $500 on any one day.
- You redeposit a check that has been returned unpaid.
We will notify you if we delay your ability to withdraw funds for any of these reasons, and we will tell you when the funds will be available.
ADDITIONAL TERMS FOR YOUR NEARSIDE DEBIT CARD
Generally. You will receive a Nearside debit card that is associated with your Account. The Nearside debit card allows you to access funds in your Account, subject to limits set forth in this Agreement. The Nearside debit card will expire on the expiration date printed on the back of the card. As long as your Account is in good standing, we will send you a replacement Nearside debit card as your expiration date nears. The Nearside debit card is the property of LendingClub Bank and must be surrendered upon demand. The Nearside debit card is non transferable, and it may be cancelled, repossessed, or revoked at any time without prior notice except where required by law. Not all services or features of your Nearside debit card described in this Agreement are available to all persons or at all locations. Any offer of a service or feature of your Nearside debit card in this Agreement will be deemed void where prohibited. Use of the Nearside debit card is also subject to all applicable rules and customs of any payment network, clearing house, or other association involved in transactions in addition to this Agreement.
Activating your Nearside Debit Card. You must activate your Nearside debit card by following the instructions that come with the card before it can be used. You will also need to set up a Personal Identification Number (“PIN”). Do not write down your PIN or give your PIN number to anyone. You may be required to provide personal information to verify your identity to complete the activation process. You agree to sign the back of your Nearside debit card immediately upon receipt.
Nearside Debit Card Purchases. You may use your Nearside debit card to make purchases using your PIN at any merchant with a point-of-sale (“POS”) device anywhere that displays the Allpoint, Mastercard, Visa Plus, Plus, Interlink, Maestro, or Cirrus acceptance marks. You may also use your Nearside debit card to make purchases without your PIN anywhere that Mastercard debit cards are accepted.
Split and Card-Not-Present Transactions. You can instruct a merchant to charge your Nearside debit card for part of a purchase and pay any remaining amount with cash or another card. This is called a “split transaction.” Some merchants do not permit split transactions. If you wish to conduct a split transaction, you must tell the merchant the exact amount you would like charged to your Nearside debit card. If you fail to inform the merchant you would like to complete a split transaction and you do not have sufficient funds in your Account to cover the entire purchase amount, your Nearside debit card may be declined. You may make retail card purchases without presenting your Nearside debit card by providing information from your Nearside debit card, such as in transactions done by internet or telephone. Conducting transactions in this way has the same legal effect as if you used the physical Nearside debit card itself. For security reasons, the amount or number of such transactions you may make may be limited.
ATM and POS Withdrawals. With your PIN, you can use your Nearside debit card to obtain cash from your Account at any ATM in the United States that displays the Allpoint, Mastercard, Visa Plus, Plus, Interlink, Maestro, or Cirrus acceptance marks. Not all merchants will permit you to get cash back through their POS devices. If you use an ATM not owned by Allpoint for any transaction, including a balance inquiry, you may be charged a fee by the ATM operator even if you do not complete a withdrawal. This ATM fee is a third-party fee amount assessed by the individual ATM operator only and is not assessed or controlled by us. This ATM fee amount will be charged to your Account.
Authorized Users. The Nearside debit card provided to you is solely for your use. If you give anyone else access to your Nearside debit card, we will treat any transaction they initiate as authorized by you and you will be responsible for all transactions and fees that occur.
Currency Conversion and Cross-Border Transaction Fees. If you effect a transaction with your Nearside debit card in a currency other than US Dollars, Mastercard, will convert the charge into a US Dollar amount. The Mastercard currency conversion procedure includes use of either a government-mandated exchange rate, or a wholesale exchange rate selected by Mastercard. The exchange rate Mastercard uses will be a rate in effect on the day the transaction is processed. This rate may differ from the rate in effect on the date of purchase or the date the transaction was posted to your Account.
Virtual Card. When you open an Account, you will also receive a virtual debit card (“Virtual Card”) represented by a 16-digit card number, a three-digit card verification value (“CVV”) number and an expiration date. The Virtual Card is separate from your physical Nearside debit card and can be managed through the Dashboard and/or Mobile App. The Virtual Card accesses the available funds in your Account to make card-not-present transactions anywhere Mastercard debit cards are accepted in the same way as your physical Nearside debit card. Your use of the Virtual Card is subject to the terms of this Agreement, including transaction limitations, to the same extent as your physical Nearside debit card, and is referred to as Nearside debit card.
Temporary debit authorization holds affect your Account balance. On Nearside debit card purchases, merchants may request a temporary hold on your Account for a specified sum of money or a preauthorization for the transaction, either of which may be more than the actual amount of your purchase. When this happens, our processing system cannot determine that the amount of the hold exceeds the actual amount of your purchase. This temporary hold, and the amount charged to your Account, will eventually be adjusted to the actual amount of your purchase, but it may be up to seven days or more before the adjustment is made. For transactions at hotels, it may take up to thirty (30) days for the hold to be removed. For transactions at rental car companies, it may take up to sixty (60) days for the hold to be removed. Until the adjustment is made, the amount of funds in your Account available for other transactions will be reduced by the amount of the temporary hold or preauthorization. If another transaction is presented for payment in an amount greater than the funds left after the deduction of the temporary hold or preauthorization amount, that transaction will be declined if the amount exceeds the amount of the funds in your Account. The transaction will be declined even if you would have had sufficient funds in your Account if the amount of the hold had been equal to the amount of your purchase.
As an example, some merchants may request an authorization for the amount that they estimate you will spend and place a temporary hold for that amount. This estimated amount is likely to be different (either more or less) than the actual transaction amount. Typically, temporary holds are placed for up to three business days, but exact times may vary. If a temporary hold is placed, please note that it may impact your available balance by an amount either more or less than you expected until the transaction posts. We are not responsible for damages or losses of any type, including wrongful dishonor, for any transaction that is not authorized or that is returned unpaid because of a hold.
Advisory Against Illegal Use. You agree not to use your Nearside debit card for illegal gambling or other illegal purposes. Display of a payment card logo by, for example, an online merchant does not necessarily mean that transactions are lawful in all jurisdictions in which the cardholder may be located.
Return and Refunds. Please be aware of the merchant’s return policies before using your Nearside debit card to make a purchase. We are not responsible for the delivery, quality, safety, legality or any other aspect of the goods or services you purchase using your Nearside debit card. If you are entitled to a refund for any reason for goods or services obtained using your Nearside debit card, you agree to accept credits to your Nearside debit card for the refund and agree to the refund policy of the merchant. The amounts credited to your Nearside debit card for refunds may not be available for up to five (5) business days from the date the refund transaction occurs.
Replacing Your Nearside debit card. If you need to replace your Nearside debit card for any reason, please contact us by email at email@example.com or via the Dashboard and/or Mobile App. You will be required to provide personal information so that we may verify your identity before we will issue you a replacement Nearside debit card. If you believe your Nearside debit card has been lost or stolen, you may immediately disable your Nearside debit card via your Dashboard or by contacting us at 1-888-516-2369.
Mastercard Benefits. Your Nearside debit card is eligible for certain benefits provided by Mastercard. Please visit Mastercard’s website for additional information and check inside the benefits section of the Nearside website at nearside.com.
Suspension and Cancellation. We may refuse to issue or deactivate, revoke, suspend or cancel your Nearside debit card at any time with or without notice to you, other than as required by law. This includes deactivating or canceling your Nearside debit card if it has been lost or stolen to prevent unauthorized transactions. You agree not to use your Nearside debit card once it has been deactivated, revoked, suspended or canceled. We may also limit your use of the Nearside debit card, including limiting or prohibiting specific types of transactions. If you would like to cancel your Nearside debit card, you may do so at any time by emailing us at firstname.lastname@example.org. The cancellation of your Nearside debit card privileges will not otherwise affect your rights and obligations under this Agreement. You can also de-activate your Nearside debit card(s) through your Dashboard.
Using a Digital Wallet. A digital wallet (“Wallet”) provides another way for you to make purchases with your physicial Nearside debit card. A Wallet is a service provided by another company (such as Apple Pay, Google Pay, etc.) that allows you to use your Nearside debit card to enter into transactions where the Wallet is accepted. A Wallet may not be accepted at all places where your Nearside debit card is otherwise accepted, and your Nearside debit card may not be eligible for all the features and functionalities of the Wallet. Any use of your Nearside debit card in or through the Wallet continues to be subject to all terms and conditions of this Agreement. We may terminate your access to or use of your Nearside debit card with a Wallet at any time and for any reason, including if you violate any of the terms or conditions of this Agreement.
You can add your Nearside debit card to or remove your Nearside debit card from a Wallet by following the instructions provided by the Wallet provider. By doing this, you agree to allow us to share your Nearside debit card information with the Wallet provider. You may be required to take additional steps to authenticate yourself before your Nearside debit card is added to the Wallet. We do not charge you any additional fees for adding your Nearside debit card to a Wallet or for using your Nearside debit card in the Wallet. However, any fees and charges that would apply when you use your Nearside debit card outside the Wallet will also apply when you use a Wallet to make purchases with your Nearside debit card or otherwise access your Nearside debit card. The Wallet provider and other third parties, such as wireless companies or data service providers may charge you fees. The digital version of your Nearside debit card in a Wallet may, in our sole discretion, be automatically updated or upgraded without notice to you.
If you use a Wallet, you should protect your Wallet and your mobile device as you would your Nearside debit card. If your Wallet or mobile device is compromised, lost, or stolen, you should also consider your Nearside debit card lost or stolen and notify us immediately. If you have any questions, disputes, or complaints about a Wallet, contact the Wallet provider using the information given to you by the provider.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY ARE WE LIABLE FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF A WALLET, YOUR USE OF THE DEBIT CARD OR VIRTUAL CARD IN CONNECTION WITH A WALLET, OR A MOBILE DEVICE.
Closing your Account
You can close your Account at any time by contacting us by email at email@example.com. It is important to understand that simply reducing your Account balance to zero ($0) is not sufficient to close your Account. We reserve the right to refuse your request if you have any outstanding amounts on your Account.
We may also suspend or close your Account, at our discretion and for any reason with or without notice. This includes if we believe you are using your Account for fraudulent or illegal purposes or in violation of law or regulation, this Agreement, any other agreement you may have with us, or if you otherwise present undue risk to us. We are not responsible to you for any damages you may suffer as a result of the closure or suspension of your Account.
Subject to applicable law, if your Account is closed, we will return your funds to you by ACH transfer to a linked bank account or by paper check. The closure of your Account or termination of this Agreement does not impact any right or obligation that arose prior to closure or termination, or any right or obligation that, by its nature, should survive termination.
State escheat or unclaimed property laws require us to close your Account and transfer your money to the state if your Account is dormant for a period of time as defined by your state of residence. Your Account can become dormant if there is no transactional activity for a period of time specified by applicable state law or you do not communicate with us regarding your Account during such period. You will be charged any applicable monthly fees on your account each month throughout the 12 months that your account is dormant. Thereafter, you shall be charged a $20/year annual account maintenance fee and your account shall remain in a dormant state. Our assessment of fees will not constitute "transactional activity", and will not affect the dormancy period . If your Account becomes dormant, you may no longer receive statements, but you can still view your Account through the Dashboard and/or Mobile App. If your funds are remitted or escheated to the state, you may be able to reclaim them by petitioning the state listed on your account application.
You may contact us with any questions or concerns regarding your Account. The best way to contact us is by email at firstname.lastname@example.org, use the Dashboard and/or Mobile App or call us at 1-888-516-2369.
This Agreement shall be governed by and construed in accordance with federal law and any applicable laws of the State of Massachusetts without regard to rules concerning conflicts of law or choice of law.
To the extent permitted by applicable law, you agree to indemnify and hold us and our officers, directors, shareholders, employees, successors, predecessors, representatives, principals, agents, assigns, parents, subsidiaries and/or insurers harmless for any losses, damages, suits and expenses, including reasonable attorneys’ fees, that we may incur, without regard to the merit or lack thereof, arising out of, or related in any way to (1) the matters set forth herein; (2) our taking any action or not taking any action that we are entitled to take pursuant to this Agreement and applicable law; (3) any action or omission by you in violation of this Agreement or applicable law; or (4) our action or inaction in reliance upon oral, written or electronic instructions or information from you.
Limitations of Liability
EXCEPT AS REQUIRED BY LAW, WE ARE NOT 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, MAINTENANCE OR INTERRUPTION OR MALFUNCTION OF EQUIPMENT OR COMMUNICATION FACILITIES, UNUSUAL TRANSACTION VOLUME, 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 LENDINGCLUB BANK, PROVIDED LENDINGCLUB BANK EXERCISED SUCH DILIGENCE AS THE CIRCUMSTANCES REQUIRE. EXCEPT AS REQUIRED BY 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. WE SHALL NOT BE LIABLE TO ANY THIRD PARTY OR FOR ANY ACT OR OMISSION OF YOURS OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, THIRD PARTIES USED BY US IN EXECUTING ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR PERFORMING A RELATED ACT, AND NO SUCH THIRD PARTY SHALL BE DEEMED TO BE OUR AGENT. WE ARE NOT LIABLE FOR ANY UNAUTHORIZED ACCESS OF YOUR INFORMATION OR DATA BY A THIRD PARTY DUE TO YOUR USE OF THIRD-PARTY COMMUNICATION CHANNELS.
ALL ACCOUNT FEATURES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND, WITH RESPECT TO THE MOBILE APP OR ANY OTHER SERVICES, LACK OF VIRUSES RELATED TO SUCH MOBILE APP AND OTHER SERVICES.
The undersigned hereby acknowledges and agrees to these Nearside Business Checking Account Terms.
APPENDIX A: COVER PROTECTION TERMS
Cover – means a fee-free optional account feature offered by Nearside, the purpose of which is to allow customers to make certain transactions that exceed the available balance in their Account.
Cover Amount – means the amount that was withdrawn that exceeds the remaining balance of your Account.
Cover Amount Balance – means the sum of the unpaid amounts advanced by us to you under the terms of this Agreement.
Maximum Cover Amount - means the maximum Cover Amount Balance that may be extended to you under this Agreement, as set forth in your Dashboard or Statement.
You request advances by drawing your Account below $0.00 through debit transactions and ACH or other transfers. Cover cannot be used to obtain cash from any sources, including ATM withdrawals and merchants offering cash back or money services. We will record your Cover amount as an advance and increase your Cover Amount Balance by the amount of such advance. Your Account will show a negative balance until the Cover Amount that was advanced to your Account is repaid. Your Cover Amount Balance cannot exceed the Maximum Cover Amount at any time. Any transaction that would cause the Cover Amount Balance to exceed the Maximum Cover Amount will be declined.
PROMISE TO PAY
You promise to pay any Cover Amount Balance that is outstanding on your Account. This liability is due immediately, and can be deducted directly from the Account balance whenever sufficient funds are available.
NO INTEREST CHARGES OR FEES
No interest charges or fees will be assessed for incurring or maintaining a Cover Amount Balance while your Account is in good standing.
If your Account is not in good standing or is closed, then the Cover Amount Balance will, to the extent permitted by law, be immediately due and payable. Failure to pay the outstanding Cover Amount Balance within 30 days of the due date will constitute a default under this Agreement and any and all remedies that we have under state or federal law may be used by us; including but not limited, reporting your default to a credit reporting agency.
APPENDIX B: ELECTRONIC FUNDS TRANSFERS
Your Rights and Responsibilities
Your Account and Nearside debit card allow you to withdraw funds or make deposits through electronic funds transfers (“EFTs”). EFTs are transactions that are processed by electronic means and include, among others, ACH transfers, debit card transactions, and ATM withdrawals. This section provides you with information and important disclosures and terms about the EFTs that are permitted on your Account or in connection with your Nearside debit card.
Types of EFTs Supported
Indicated below are types of EFTs we are capable of handling in connection with your Account. Please read this disclosure carefully because it tells you your rights and obligations for the transactions listed. You should keep this notice for future reference.
- EFTs Initiated By Third Parties. You may authorize a third party to initiate EFTs between your Account and the third party’s account. These transfers to make or receive payment may be one-time occurrences or may recur as directed by you. These transfers may use the Automated Clearing House (ACH) or other payments network. Your authorization to the third party to make these transfers can occur in a number of ways. A third party may initiate EFTs with your Account number and bank information. Thus, you should only provide your bank and Account information (whether over the phone, the Internet, or via some other method) to trusted third parties whom you have authorized to initiate these EFTs.
- Preauthorized credits. You may make arrangements for certain direct deposits to be accepted into your Account.
- Preauthorized payments. You may make arrangements to pay certain recurring bills from your Account.
- Nearside debit card. You may make purchases or other transactions using your Nearside debit card at merchants that have agreed to accept the Nearside debit card.
- ATM Withdrawals. You may make ATM withdrawals using your Nearside debit card.
- Transfers to or from Linked Accounts. You may transfer to or from your Account to a linked bank account through the Dashboard and/or Mobile App.
Limitations on EFTs
There are limitations on the frequency and amount of transactions you can make to or from your Account. These limits are different for each type of transaction. For limits that apply to transactions that credit or deposit funds into your Account, please refer to the section titled “Deposits” above. For limits that apply to transactions that debit or withdraw from your Account, please refer to the section titled “Withdrawals” above. These limits are designed to be flexible in order to protect the security and integrity of the service and accounts, including protecting you and all other users of the service. These limitations may be based on confidential fraud and risk criteria that are essential to our management of risk and the protection of you and the integrity of the service and may be modified at our sole discretion without advance notice.
In addition to those limitations on transfers elsewhere described, if any, the following limitations apply:
- For security reasons, there are other limits on the number of transfers you can make by ATM.
- For security reasons, there are other limits on the number of transfers you can make by Nearside debit card.
- For security reasons, there are other limits on the number of transfers you can make by the Dashboard and/or Mobile App.
- Terminal transfers. You can get a receipt at the time you make a transfer to or from your Account using an automated teller machine or point-of-sale terminal. However, you may not get a receipt if the amount of the transfer is $15 or less.
- Preauthorized credits. If you have arranged to have direct deposits made to your Account at least once every 60 days from the same person or company, you can contact us using our Dashboard and/or Mobile App or by email at email@example.com to find out whether or not the deposit has been made or you can check if the deposit has been made by reviewing your transaction history in the Dashboard and/or Mobile App.
- Statements. We will provide you information about each transaction that debits or credits your Account on your statements. Please refer to the section titled “Statement” for information about statements. You may also view your transaction history at any time through the Dashboard and/or Mobile App.
- Right to stop payment and procedure for doing so. If you have told us in advance to make regular payments out of your Account, you can stop any of these payments. Here is how: email us at firstname.lastname@example.org or call us at 1-888-516-2369 or contact us using the Dashboard and/or Mobile App in time for us to receive your request three business days or more before the payment is scheduled to be made. If you use the Dashboard and/or Mobile App, we may also require you to put your request in writing and get it to us within 14 days after you call. Make sure to provide us with (1) your name, (2) your Account number, (3) the company or person taking the payments, and (4) the date and amount of the scheduled payment you wish to stop. If you want all future payments from that company or person stopped, be sure to tell us that as well. If you do not provide us with the correct information, such as the correct payee or the correct amount of the payment you wish to stop, we may not be able to stop the payment.
- Notice of varying amounts. If these regular payments may vary in amount, the person you are going to pay will tell you, 10 days before each payment, when it will be made and how much it will be. You may choose instead to get this notice only when the payment would differ by more than a certain amount from the previous payment, or when the amount would fall outside certain limits that you set.
- Liability for failure to stop payment of preauthorized transfer. If you order us to stop one of these payments three business days or more before the transfer is scheduled, and we do not do so, we will be liable for your losses or damages.
Our Liability for Failure to Complete an EFT
If we do not complete a transfer to or from your Account on time or in the correct amount according to this Agreement, we will be liable for your losses or damages. However, there are some exceptions. We will not be liable, for instance:
- If, through no fault of ours, you do not have enough money in your Account to make the transfer.
- If you have an overdraft line and the transfer would go over the credit limit.
- If the automated teller machine where you are making the transfer does not have enough cash.
- If the terminal or system was not working properly and you knew about the breakdown when you started the transfer.
- If circumstances beyond our control (such as fire or flood) prevent the transfer, despite reasonable precautions that we have taken.
- Your Nearside debit card has been frozen, revoked, canceled or suspended.
- Your Account is closed or inactive.
- If we do not complete a transaction because we believe the transaction is unauthorized or illegal.
- If your funds are not available due to a hold or if your funds are subject to legal process.
- There may be other exceptions stated in our agreement with you or permitted by law.
Liability for Unauthorized Transfers
Please contact us immediately if you believe your Nearside debit card, PIN and/or code has been lost or stolen, or if you believe that an EFT has been made without your permission. Calling us at 1-888-516-2369, emailing us at email@example.com or contacting us through your Dashboard and/or Dashboard and/or Mobile App is the best way of keeping your possible losses down. You could lose all the money in your Account (and any bank accounts you have linked through the Dashboard and/or Mobile App) if you take no action to notify us of the unauthorized EFT or the loss or theft of your Nearside debit card, PIN or your Dashboard and/or Mobile App login credentials. For unauthorized EFT involving your Nearside debit card, you will not be held responsible for unauthorized transactions if you have used reasonable care in protecting your Nearside debit card, PIN and card number from loss or theft and you promptly report the loss or theft to us when you discover it. For all other unauthorized EFTs and where Mastercard’s Zero Liability protection does not apply, your liability will be as follows if you notify us of the loss: (1) if you tell us within two (2) business days after learning of the loss, theft or compromise of your Nearside debit card, PIN or your Dashboard and/or Mobile App login credentials, you can lose no more than $50; (2) if you do NOT tell us within two (2) business days and we can prove that we could have prevented the loss had you contacted us, you could lose as much as $500.00; and (3) if your statement shows EFTs that you did not make and you do NOT contact us within sixty (60) days after the statement was made available to you, you may not get back any money lost after the sixty (60) days if we can prove that your contacting us would have prevent those losses. If a good reason (such as a long trip or a hospital stay) kept you from telling us, we will extend the time period.
Error Resolution Notice
In Case of Errors or Questions About Your EFTs, email us at firstname.lastname@example.org, call us at 1-888-516-2369 or contact us through the Dashboard and/or Mobile App as soon as you can if you think your statement or receipt is incorrect or if you need more information about a transfer listed on the statement or receipt. We must hear from you no later than 60 days after we sent the FIRST statement on which the problem or error appeared.
- Tell us your name and account number (if any).
- Describe the error or the transfer you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information.
- Tell us the dollar amount of the suspected error.
We will investigate your complaint and will correct any error promptly. If we take more than 10 business days (20 business days for new Accounts) to finish our investigation, we will credit your account for the amount you think is in error so that you will have use of the money during the time it takes us to complete our investigation.
If we need more time, however, we may take up to 45 days (90 days if the transfer involved a new Account, a point-of-sale transaction, or a foreign-initiated transfer) to investigate your complaint or question. If we ask you to put your complaint or question in writing and we do not receive it within 10 business days, we may not credit your Account. Your Account is considered a new account for the first 30 days after the first deposit is made, unless each of you already has an established transaction Account with us before this account is opened.
We will tell you the results within three business days after completing our investigation. If we decide that there was no error, we will send you a written explanation.
You may ask for copies of the documents that we used in our investigation.
Nearside Business Corp., Inc.
Attn: Error Resolution
PO Box 7775
San Francisco, California 94120-7775
APPENDIX C: MANDATORY ARBITRATION
If a dispute arises between you and Nearside, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. In the event of a dispute we encourage you first to contact Nearside at email@example.com or at the following number 1-888-516-2369 to try resolving your problem directly with us.
THIS SECTION AFFECTS YOUR RIGHTS, PLEASE READ CAREFULLY BEFORE AGREEING TO THESE TERMS BY USING THE NEARSIDE SERVICE OR THE WEBSITE. Except as explicitly provided in this Agreement, any dispute or claim relating in any way to your visit to the Website, your use of the Nearside Services, a product offered or provided by or through the Website or Service, or otherwise arising out of or relating to this Agreement or the Services that cannot be resolved directly between you and Nearside shall be resolved by non-appearance based binding arbitration, rather than in court. Except as otherwise provided in this Agreement, this includes any claims based in contract, statute, tort, fraud, misrepresentation or any other legal theory. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration and court review of an arbitration award is limited, but an arbitrator can award an individual the same damages and relief as a court and must apply and follow the terms of this Agreement as a court would. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
Either you or we can initiate arbitration through the alternative dispute resolution provider the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA rules. If such costs are determined by the arbitrator to be excessive, Nearside will pay all arbitration fees and expenses. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1(855) 891-2885 or visit the AAA’s web site at: www.adr.org.
The arbitration shall be conducted by telephone or electronic means and/or shall be solely based on written submissions, the specific manner of which shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless the arbitrator determines that an in-person hearing is necessary based on the request of one of the parties and any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. You and Nearside each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial and agree to proceed only on an individual basis and not in a class, consolidated, or representative action. The parties hereby appoint the arbitrator the exclusive power to rule on any challenges to the requirement for the use of alternative dispute resolution process in these terms.
We also both agree that you or we may bring suit in court to obtain interim or preliminary injunctive relief necessary to protect the rights or property of you or Nearside and all of its partners. Except as explicitly provided elsewhere in this Agreement, all claims you bring against Nearside must be resolved in accordance with this Section. Any claim filed or brought contrary to this Section shall be considered improperly filed.
You may opt out of this Arbitration Provision by sending an arbitration opt out notice to Nearside Business Company, Inc., PO Box 7775, PMB 68032, San Francisco, CA 94120-7775, Attention: Legal Department, which is received at the specified address within 30 days of the date of your electronic acceptance of the terms of this Agreement. The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you.
You and Nearside agree that any arbitration shall be limited to the dispute between Nearside and you individually. To the fullest extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration.
You and Nearside agree that the following disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any disputes seeking to enforce or protect, or concerning the validity of, any of your or Nearside's intellectual property rights; and (2) any claim for injunctive relief.
APPENDIX D: CURRENT FEE SCHEDULE
Monthly Fee $10.00
ATM Fee- cash withdrawal (Allpoint ATMs) $1.00
ATM Fee- cash withdrawal (Non-Allpoint ATMs) Variable + $1.00
Stop Payment $25.00
Check Sent $1.00
Dormancy Fee $20.00