Legal

Welcome to Kick! Kick provides financial technology to support individual business owners.

‍

Your use of the Kick technology platform (the “Services”) offered by Kick, Inc. (“Kick,” “we,” “our,” or “us) is governed by these terms of service between you and Kick (the "Agreement"). References to “Company” means a company, partnership, corporation or association that is applying for or has opened a Kick Account to use the Services. References to “User” mean an individual authorized to use the Services on Company’s behalf. References to “you” mean Company and User.

‍

This Agreement provides that all disputes between you and Kick will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. Please review Section 22 (“Dispute Resolution by Binding Arbitration”) for the details regarding your agreement to arbitrate any dispute with Kick.By accessing or using the Services, you agree to be bound to this Agreement, whether or not you are a registered User of the Services and open an account with Kick to access the Services (“Kick Account”).

‍

By using the Services, you are signifying that you have read, fully understand, and agree to be legally bound by this Agreement, and to comply with applicable local, state, national, and international laws, rules, and regulations (“Applicable Law”) as they may change from time to time. To use the Services, you must be able to form legally binding contracts, and may be required to agree to additional terms or agreements that apply to the particular Services you request. In the event of any conflict between this Agreement, and the terms or agreement that governs other services or products offered by Kick, such as the Kick Rewards Program, the provisions of such terms or agreement that apply to the particular Service will govern to the extent of the conflict. IF AT ANY TIME YOU CHOOSE NOT TO ACCEPT THIS AGREEMENT, YOU MUST REFRAIN FROM USING THE SERVICES. You are responsible for obtaining and maintaining all devices and other equipment and software, and all internet service providers, mobile service, and other services needed for your access to and use of the Site and you will be responsible for all charges related to them.

‍

1.  Services Offered by Kick

‍

The Services offered by Kick help self-employed business owners manage their financial life. By opening a Kick account you’ll get access to all the financial tools you need–including cards, expense management, payments, taxes and cash back–without the typical fees.  

‍

‍2.  Eligibility to Use the Services

‍

The Services provided by Kick are commercial in nature and only available for entities organized and registered in the United States (such as S-corps, LLCs or sole proprietors). Upon registration of a Kick Account, such Company may authorize certain Users to access and use the Services provided by Kick on behalf of such Company.  Any access to or use of the Services by anyone under the age of 18 is strictly prohibited and in violation of the Agreement, which is a binding contract between you and Kick.

‍

‍3.  Requirements for a Kick Account

‍

By submitting an application for a Kick Account, the natural person submitting the application on behalf of Company represents and warrants, in an individual capacity and as an authorized representative of Company, that:

‍

i. Company is validly existing and in good standing in its jurisdiction of organization;

ii. Company is not engaged in any Prohibited and Restricted Activities, as identified in this Agreement;

iii. The natural person who applies for a Kick Account on Company’s behalf is authorized to provide information about Company, submit the application on behalf of Company, enter into binding agreements on behalf of Company, and manage Company’s Kick Account;

iv. The natural person who applies for a Kick Account on Company’s behalf is not under the age of 18. By using Kick, you represent and warrant that you are 18 or older; and

v. All information provided to Kick is and will be current, accurate, and complete, and Company will use its Kick Account exclusively for business purposes and not for any personal, family, or household use.

‍

‍4.  Required information

‍

Information required to open, operate, and maintain a Kick Account includes, but is not limited to:

‍

i. Data to apply for and maintain a Kick Account and any Services. Data may include registered business name, business address, ownership details, contact information including email and phone number, tax identification number, the nature of the business, financial information, details for your linked Kick Accounts, and other business information that we may require or request from time to time (the “Company Data”);

ii. You must also provide certain personal data including the names, contact information, personal addresses, social security numbers, and dates of birth of Users, beneficial owners, and control persons (“Personal Data”). We may also require that you provide certain documentary information used to verify Company Data and Personal Data including corporate registration certificate, proof of address, or personal identification.

iii. To help the government fight the funding of terrorism and money laundering activities, U.S. federal law requires that financial institutions obtain, verify, and record Company Data and Personal Data identifying companies and their beneficial owners and control persons. You agree to provide the required information to open and maintain your Kick Account and agree to keep such information current.

‍

‍5.  Verification of Information

‍

Kick relies on the accuracy of the information you provide when opening and maintaining your Kick Account. You acknowledge and agree that we may use and provide Company Data and Personal Data to third-party service providers to validate the information you have provided and determine your initial and continued eligibility for the Services, as described in the Privacy Policy. Your use of the Services must comply with this Agreement and Applicable Law. You are not eligible to use the Services if we have previously blocked your access to the Services and/or your Kick Account. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Services as permitted by this Agreement. We reserve all rights not expressly granted herein in the Agreement. Kick may terminate this license at any time for any reason or no reason.

‍

‍6.  Use of Kick Accounts

‍

Use of the Services requires you to register for an account with us, the Kick Account, which gives you access to the services and functionality that we may offer from time to time, in our sole discretion.

‍

You must provide complete and accurate information when registering your Kick Account, and you are responsible for keeping the information you provide up to date. You may visit our Support to update information about keeping information you provide up to date. As further detailed in our Privacy Policy and the Privacy Notice, in order to register, create and use a Kick Account, we may require that you submit certain personal information, including, but not limited to, your name, email, text-enabled cell phone number or other information. During the registration process, or when you access the Services, your device ID is also stored. You agree that the personal information you provide to us upon registration and at all other times will be true, accurate, current and complete, and you agree to maintain and update this personal information with us as necessary.

‍

You are responsible for the activity that occurs on your Kick Account. You may never use another User’s Kick Account and you may never allow another person to use your Kick Account.

‍

You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. We have no liability for your interactions with other Users, or for any User’s action or inaction.

‍

‍7.  Account Approvals

‍

We reserve the right to approve or deny your application for a Kick Account or grant you provisional access to the Services or your Kick Account while your application is pending additional review. We may deny your application, interrupt provision of the Services to you, or suspend or close your Kick Account where the information you provided is incomplete, inaccurate, or out of date.

‍

‍8.  Managing and Using Your Kick Account

‍

‍Company is responsible and liable for any actions or failure to act on the part of Users, and those using credentials issued to Users to access Company’s Kick Account. Ensuring that Users are aware of and agree to abide by the terms of this Agreement and Applicable Law in connection with their use of the Services. Company is liable for any breach or violation by its Users of this Agreement or any of the agreements, terms, and policies incorporated by reference. Company is responsible for ensuring that Users and any other persons affiliated with Company communicate respectfully and will refrain from using any form of disrespectful, harassing, abusive, or hate speech with Kick team members. If Kick receives reports of any such behavior by representatives of your Company towards our team, we may contact you to suspend access to Company’s Kick Account and the Services, or close your Kick Account.

‍

‍9. Prohibited and Restricted Activities

‍

You agree not to engage in any of the following prohibited activities in connection with the Services and with the use of your Kick Account:

‍

• using the Services for personal, family, or household use;

• copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”;

• using any automated system (including without limitation “robots,” “spiders,” “offline readers,” etc.) or technology or means other than those provided or expressly authorized by the Services, to access the Services;

• attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Services;

• taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on the Services or our infrastructure;

• transmitting invalid data, viruses, worms, Trojan horses, or other software agents that may damage, interfere with, or burden the Services, our infrastructure, or any data stored or accessible in connection with the Services;

• impersonating another person, otherwise misrepresenting your identity, or making payments or transfers on behalf of others;

• transmitting any false, inaccurate, or misleading information;

• conducting fraud, or transferring or receiving fraudulent funds;

• interfering with the proper working of the Services;bypassing the measures we use to prevent or restrict access to the Services, including without limitation features that prevent or restrict access to or use of the Services;

• using the Services to sell or purchase items that encourage, promote, facilitate or instruct others to engage in illegal activity, hate, violence, racial intolerance or harassment, including items that violate any law, statute, ordinance or regulation relating to such sales or purchases;

• using the Services for financing of terrorism, money laundering, tax evasion or any other financial crimes that violate Applicable Laws;

• Using the Services to facilitate transactions involving, but not limited to, production sales or distribution of controlled substances with or without a pharmaceutical license; guns, accessories, ammunition, and other weapons; prostitution or escort services; sale of counterfeit or "gray market" goods or services; facilitating any of the above;

• engaging in any action or activity that violates or causes us to violate Applicable Laws, including any facilitating any transaction involving an individual, organization, country, or jurisdiction that is blocked or sanctioned by the United States, including those identified on any lists maintained by the U.S. Treasury Department’s Office of Foreign Assets Control or the U.S. Department of State;

• engaging in the transferring of funds related to the sale or distribution of marijuana or marijuana paraphernalia, regardless of whether or not such sale is lawful in the jurisdiction in which you or the recipient reside;

• the creation, facilitation, sale or distribution of goods or services that violate the intellectual property rights of a third party;

• engaging in the transferring of funds related to the sale, distribution, or exchange of cryptocurrencies; and

• permitting use of the Services by third parties unaffiliated with Company, or for any purpose not related to the business of Company.

‍

‍10.  Services Features and Availability

‍

We reserve the right, without prior notice, change the Services; stop providing the Services or features of the Services, to you or to other users of the Services generally; or create usage limits for the Services. Notwithstanding the foregoing, if such changes include, without limitation, increases in fees or increased User liability, we will provide you with an electronic change-in-terms notice at least twenty-one (21) days before the changes take effect. We may permanently or temporarily terminate or suspend your access to the Services and/or to your Kick Account without notice or liability for any reason, including without limitation, if in our sole determination you violate any provision of the Agreement, or for no reason. Upon termination, you continue to be bound by the Agreement.

‍

We reserve the right to update the lists of Prohibited and Restricted Activities at any time, and your continued use of the Services constitutes your acknowledgement of and agreement to abide by the same.  

‍

‍11.  Security and Activities

‍

You will keep your Kick Account secure and only provide access to individuals that you have authorized as Users of the Services on your behalf. You will take all reasonable steps to safeguard the privacy, confidentiality, and security of User credentials. You will closely and regularly monitor the activities of Users who access the Services, and you will use all reasonable means to protect Cards, checks, mobile devices, web browsers, and anything else used to access or utilize the Services. We may help you resolve unauthorized transactions, but you acknowledge and understand that you are responsible for any financial loss caused by Users or other persons given access to the Services or your Kick Account, and any financial for loss due to compromised credentials or due to any unauthorized use or modification of your Kick Account or the Services. Kick is not liable or responsible to you, and you waive any right to bring a claim against us, for any such losses. Company’s Kick Account is commercial in nature, and you acknowledge and understand that certain consumer protection laws (including the Electronic Funds Transfer Act or Regulation E) and consumer-specific rules (including NACHA rules specific to consumers) do not apply to transactions on your Kick Account or your use of the Services.

‍

Kick uses what we believe to be commercially reasonable administrative, technical, and physical safeguards to preserve the integrity and security of personal information. However, we cannot guarantee the security of your personal information. It is possible that unauthorized third parties will be able to defeat our safeguards or use your personal information for improper purposes.

‍

‍12.  Notices and Communication

‍

We will provide notices regarding certain activity and alerts to your Kick Account electronically through your Kick Account, email, push notification, or via text or SMS (“Notice”) to the contact information provided to us upon registration of a Kick Account. Notices regarding payments, legal terms, and any other important Notices related to your Company’s Kick Account will be sent to certain Users through your Kick Account or email and are considered received 24 hours after they are sent. You understand that you may not use the Services unless you consent to receive Notices electronically. You may only withdraw consent to receive Notices electronically by closing your Kick Account.

‍

‍13.  Updates to Company Information

‍

You will keep Company Data and each User’s Personal Data current, complete, and accurate in your Kick Account at all times whether we provide you with full or provisional access. At any time during the term of this Agreement and your use of the Services, we may require additional information from you, including Company Data (such as copies of government-issued identification, business licenses, or other information related to your business) and Personal Data (such as copies of government-issued personal identification and proof of address) to verify beneficial owners or control persons, validate information you provided, verify the identity of Users, and assess Company’s financial condition and business risks.

‍

‍14.  Kick Property

‍

The Services and all materials therein or transferred thereby, including, without limitation, software, code, images, text, graphics, illustrations, and logos (collectively, “Kick Content”), and all copyright, trademark, patent, trade secret, and other intellectual property rights (“Intellectual Property Rights”) related thereto, are the exclusive property of Kick and its licensors. Except as expressly provided in this section, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Kick Content. Use of the Kick Content for any purpose not expressly permitted by this Agreement is strictly prohibited.

‍

‍15.  Identification as Customer

‍

We may publicly reference you as a customer on our website or in other communications during the term of this Agreement. We will not express any false endorsement or partnerships. You grant Kick a limited license to use Company trademarks or service marks for this purpose. Please notify us if you prefer that we not identify you as a customer, and we will remove references to you on our website or in other communications.

‍

‍16.  Beta Services and Feedback

‍

We sometimes release beta Services (“Beta Services”) in order to test new products, features, and programs, and we may make these Beta Services available to you to get your feedback. We may change or discontinue Beta Services at any time. Beta Services are confidential until we publicly announce the products, features, or programs, and if you use Beta Services, you agree to keep information about the Beta Services confidential.. Except where specifically notified by us, we will not compensate or credit you for feedback you provide to us. For the avoidance of doubt, the terms of this Agreement apply to the Beta Services offered by us.

‍

‍17.  Term and Termination

‍

As stated above, this Agreement is effective upon your access or use of the Services, whether or not you are a registered User of the Services and open an account with Kick to access the Services. You may terminate your use of the Services by ceasing to use the Services, paying all amounts owed, and providing notice to us. We may decline to close your Kick Account if you have a negative balance in respect of the Services, if any funds that we are holding on your behalf are subject to a hold, lien or other restriction, or if we believe that the Kick Account is being closed to evade any legal or regulatory requirement or investigation.

‍

Kick may permanently or temporarily terminate this Agreement or terminate access to your Kick Account or the Services at any time and for any reason by providing you Notice. If we believe you violated this Agreement or Applicable Law, or if required by one of our third-party service providers or by Applicable Law, we may terminate access to your Kick Account without prior Notice. You are responsible for all charges, fees, fines, and other losses caused by your action or inaction prior to termination, and for any costs we may incur in the process of closing your Kick Account upon termination by you or us. Upon termination of use of the Services, you continue to be bound by this Agreement.

‍

‍18.  Limitation of Liability

‍

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KICK NOR ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICES. UNDER NO CIRCUMSTANCES WILL KICK BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR THE INFORMATION CONTAINED THEREIN.

‍

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, KICK DOES NOT ASSUME LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF KICK CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM SERVICES, OR UNAVAILABILITY OF THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR OTHER MALICIOUS CODE OR SOFTWARE THAT MAY BE TRANSMITTED TO OR THROUGH SERVICES BY ANY THIRD PARTY; (VI) ANY BUGS, ERRORS OR OMISSIONS IN SERVICES OR ANY KICK CONTENT, OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; (VII) DELAYS, DISRUPTIONS OR AVAILABILITY OF THE SERVICES, OR PROCESSING OR SETTLEMENT OF FUND TRANSFERS; (VIII) SUSPENSIONS OR BLOCKING OF YOUR ACCESS TO OR USE OF THE SERVICES BY US; AND/OR (IX) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL KICK OR Its AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO KICK HEREUNDER OR $100, WHICHEVER IS GREATER.

‍

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF KICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

‍

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

‍

‍19.  Disclaimer of Warranties by Kick

‍

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, AND ALL INFORMATION CONTAINED ON OR ACCESSED FROM THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE ARE HEREBY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.

‍

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE RELEASEES MAKE NO REPRESENTATION OR WARRANTY THAT: (I) THE SERVICES WILL BE COMPATIBLE WITH YOUR DEVICE AND SOFTWARE; (II) THE SERVICES WILL BE AVAILABLE OR WILL FUNCTION WITHOUT INTERRUPTION OR ERROR; (III) THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE BROWSING AND DOWNLOADING OF ANY INFORMATION, WILL BE FREE OF ANY VIRUSES, TROJAN HORSES, WORMS OR OTHER DESTRUCTIVE, INTRUSIVE OR DISRUPTIVE COMPONENTS; (IV) THE TRANSMISSION OF INFORMATION TO AND FROM THE SERVICES WILL BE SECURE; (V) THE USE OF THE SERVICES, AND/OR THE CONTENT ON THE SERVICES, WILL NOT INFRINGE THE RIGHTS (INCLUDING, WITHOUT LIMITATION, INTELLECTUAL PROPERTY RIGHTS) OF ANY PERSON; OR (VI) THE USE OF THE SERVICES WILL NOT CAUSE ANY DAMAGE TO YOUR DEVICE SYSTEMS, SOFTWARE OR ELECTRONIC FILES.

‍

COMMENTS OR OPINIONS EXPRESSED ON THE SERVICES ARE THOSE OF THEIR RESPECTIVE USERS ONLY. THE VIEWS EXPRESSED ON THE SERVICES AND IN USER CONTENT DO NOT NECESSARILY REPRESENT OR REFLECT THE VIEWS OF KICK. KICK IS NOT RESPONSIBLE FOR, AND DISCLAIMS ALL LIABILITY IN RELATION TO, THE USER CONTENT POSTED, UPLOADED OR OTHERWISE SUBMITTED TO OR THROUGH THE SERVICES.

‍

ANY PRODUCTS AND/OR SERVICES DESCRIBED ON THE SITE ARE OFFERED IN JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED, AND SUCH DESCRIPTIONS ARE NOT AN OFFER OR SOLICITATION BY ANYONE IN ANYONE IN ANY JURISDICTION IN WHICH AN OFFER OR SOLICITATION CANNOT LEGALLY BE MADE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE A SOLICITATION.

‍

THE RELEASEES WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES WHATSOEVER ARISING FROM, CONNECTED WITH, OR RELATING TO THE SERVICES. YOU EXPRESSLY ACKNOWLEDGE THAT KICK HAS ENTERED INTO THIS AGREEMENT WITH YOU AND MAKES THE SERVICES AVAILABLE TO YOU, IN RELIANCE UPON THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE DISCLAIMERS SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND KICK. YOU EXPRESSLY AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE DISCLAIMERS SET FORTH HEREIN WILL SURVIVE, AND CONTINUE TO APPLY IN THE CASE OF A FUNDAMENTAL BREACH OR BREACHES, THE FAILURE OF ESSENTIAL PURPOSE OF CONTRACT, THE FAILURE OF ANY EXCLUSIVE REMEDY, OR TERMINATION OF THIS AGREEMENT.

‍

Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.

‍

‍20.  Indemnification

‍

You agree to indemnify, defend, and hold harmless Kick and Third-Party Service Providers (including our respective affiliates, directors, employees, agents, and representatives), from and against any and all losses, liabilities, claims, damages, demands, expenses, lawsuits, costs, and debt, including reasonable attorney’s fees, arising out of or related to: proceedings, suits, or actions brought by or initiated against Kick by any third party in connection with: (i) your use of and access to the Services, including, without limitation, any data or content transmitted or received by you; (ii) your use of any products or services provided by Bank; (iii) your violation of any term of this Agreement, including, without limitation, your breach of any of the representations and warranties above; (iv) your violation of any third-party right, including, without limitation, any right of privacy or Intellectual Property Rights; (v) your violation of any Applicable Law; (vi) any content that is submitted to Bank through the Services including, without limitation, misleading, false, or inaccurate information; (vii) your willful misconduct; or (viii) any other party’s access and use of the Services with your Kick Account.  Kick reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will cooperate with Kick in asserting any available defense.

‍

21.  Governing Law

‍

This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles, and federal law. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our Intellectual Property Rights or other proprietary rights, as set forth in the Arbitration provision below, including, without limitation, any provisional relief required to prevent irreparable harm. You agree that California is the proper forum for any Kick related appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.

‍

‍22.  Dispute Resolution by Binding Arbitration

‍

YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN Section 22.3 BELOW.

‍

‍22.1 Election to Arbitrate.

‍

You and Kick agree that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 22 (the “Arbitration Provision”), unless you opt out as provided in Section

‍

22.3 below or your Claim is subject to an explicit exception to in this Arbitration Provision. As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us on the other hand, relating to or arising out of this Agreement, and/or the activities or relationships that involve, lead to, or result from this Agreement, including (except to the extent provided otherwise in the last sentence of Section 22.6 below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise, except that both you and Kick retain the right: (a) to bring an individual action in small claims court (a “Small Claims Action”); or (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, the misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (an “IP Protection Action”). Claims include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.

‍

‍22.2 Opt-Out of Arbitration Provision.

‍

You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to [insert email], within thirty (30) days of the date of your electronic acceptance of the terms of this Agreement (such notice, an “Arbitration Opt-Out Notice”). 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. If you don’t provide Kick with an Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Claim except with regard to a Small Claims Action or an IP Protection Action, as expressly set forth above.

‍

‍22.3 Judicial Forum for Disputes.

‍

‍In the event that (i) you or we bring an IP Protection Action; (ii) you timely provide Kick with an Arbitration Opt-out Notice; or (iii) this “Dispute Resolution by Binding Arbitration” section is found not to apply, the exclusive jurisdiction and venue of any Claim will be the state and federal courts located in Los Angeles County, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.

‍

‍22.4 Informal Dispute Resolution.

‍

If a Claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you will try to resolve the Claim informally by contacting [insert email]. Similarly, Kick will undertake reasonable efforts to contact you (if we have contact information for you) to resolve any claim we may possess informally before taking any formal action. If a Claim is not resolved within 30 days after the email noting the Claim is sent, you or Kick may initiate an arbitration proceeding as described below.

‍

‍22.5 WAIVER OF RIGHT TO LITIGATE.

‍

Unless you timely provide Kick with an Arbitration Opt-out Notice, YOU ACKNOWLEDGE THAT YOU HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.

‍

‍22.6 NO CLASS ACTIONS.

‍

You and Kick agree that the arbitration of any Claim shall proceed on an individual basis, and neither you nor Kick may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Claim against Kick will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR KICK SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE CLAIMS BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY CLAIM IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY CLAIM (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. Any challenge to the validity of this Section 22.6 shall be determined exclusively by the arbitrator.

‍

‍22.7 Arbitration Procedures.

‍

The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Claims involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”).  If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from JAMS’ roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then JAMS will appoint the arbitrator in accordance with the JAMS Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available to you in an individual lawsuit and that are not waivable under applicable law.  Notwithstanding any language to the contrary in this Section 22.7, if a party seeks injunctive relief that would significantly impact other Kick users as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section shall make that determination.  If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.

‍

‍22.8 Arbitration Location.

‍

Unless you and Kick otherwise agree, the arbitration will be conducted in the county where you reside, or if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Kick submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.  

‍

‍22.9 Arbitration Fees.

‍

If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules. However, if the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the administrator rules. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law.  

‍

‍22.11 Arbitrator’s Decision.

‍

‍The arbitrator will render an award within the time frame specified in the administrator rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.  

‍

‍22.12 Survival and Severability of Arbitration Provision.

‍

This Arbitration Provision shall survive the termination of this Agreement. With the exception of Section 22.6 “No Class Actions,” if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 22.6 “No Class Actions,” to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Claim must be litigated in court pursuant to Section 22.4.

‍

‍24.  Privacy

‍

‍Without limiting the generality of this Agreement, your use of the Services is also subject to the terms of our Privacy Policy and Privacy Notice.  Please carefully review our Privacy Policy and Privacy Notice.  By using the Services, you signify that you have read, fully understand and agree to be legally bound by our Privacy Policy and Privacy Notice.

‍

‍25.  Amendments to Agreement

‍

‍Subject to Applicable Law, we reserve the right, in our sole and absolute discretion, to modify all or any portion of this Agreement, at any time without incurring any liability or obligation whatsoever to you or any other person or entity. If we do this, we will post the changes to these this Agreement at least thirty (30) days before the amendment comes into effect, and will indicate at the top of this page the date this Agreement was last revised. In addition, if you have registered for a Kick Account, where required by law or at our discretion, we will provide you notice using email and/or your mailing address, or any other contact information we have for you in our discretion. As required by law, or at our discretion, the notice will set out the new clause, or the amended clause and how it read formerly, and the date on which the change will come into effect. Before the change comes into effect, you may terminate your use of the Services rather than accept the change. To the fullest extent permitted by Applicable Law, your continued access to and/or use of the Services after the date specified in such notice constitutes your full acceptance of, and agreement to be legally bound by, the terms of the Agreement, as revised.

‍

‍26. Severability; Waiver

‍

If any provision of this Agreement is held to be invalid or not enforceable the remaining provisions will continue to be in full force and effect.  Kick’s failure to enforce a right or provision for any period will not be deemed to signify a waiver of such right or provision.

‍

‍27. Assignment

‍

You may not assign or transfer this Agreement or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent.  We may assign this Agreement or any of our rights or obligations under this Agreement at any time without notice to you.

‍

‍28. Headings

‍

‍Section numbers in this Agreement are for convenience of reference only, and shall not govern the interpretation of any provision of this Agreement.

‍

‍29. Contact Us

‍

If you have questions regarding this Agreement or to report any violations of this Agreement, please contact us at support@kick.app.

This Privacy Policy (the “Policy”) describes how Kick, Inc. (“Kick,” “we,” and “us”) collect, use, maintain, protect, and disclose the information we may collect from you or that you may provide when you visit the website https://kick.app (our “Website”), download our mobile application, create or use a Kick account, or otherwise interact with us (collectively, our “Services”).

‍

Please read this Policy carefully to understand our policies and practices regarding your information. By continuing to interact with our Services, you are consenting to the practices described in this Policy. This Policy may change from time to time (see Changes to this Policy). Your continued use of this Website or our other Services after we make changes is deemed acceptance of those changes, so please check the Policy periodically for updates.

‍

1. Information we collect about you and how we collect it

‍Information that we collect from or about you

‍

We collect several types of information that may identify or be reasonably associated with you (“personal information”) when you use our Services, including:

‍

• Identification information, such as your name, email address, zip code, phone number, signature, and authentication credentials (for example, information you use to log in to your Kick account), including Internet Protocol (“IP”) address, full mailing address; date of birth; government-issued identification, including Social Security number, passport, or driver’s license; and photograph if you choose to share such information in order to open a Kick account.

• Financial information, such as bank account and payment card numbers you add to your Kick account, as well as your Kick card number if you have one. In order to provide you with our Services, we will also need to collect information from you about the intended recipient of the payment you request us to make. We will therefore ask you to provide contact details of your intended recipient.

• Credit eligibility and information for identity verification, such as, where lawful and as applicable, your government-issued identification number, information about you for credit investigations, credit eligibility purposes, identity or account verification processes, fraud detection mechanisms, debt collection procedures, or as may otherwise be required or permitted by applicable law. This includes, without limitation and where lawful, the receipt and exchange of account or credit-related information.

• Transaction information, when you use our Services to make, accept, or request payments. This information may include when and where the transactions occur, the names of the transacting parties, a description of the transactions, the payment or transfer amounts, and the devices and payment methods used to complete the transactions.

• Other information, including your photograph, if you choose to upload a picture to the Services; survey responses, if you choose to provide them; and other information that you may voluntarily provide in connection with participation in our contests, or other prospective marketing forms or devices; suggestions for improvements or referrals that you may submit; or any other actions you perform on the Services.Information about your internet connection, the equipment you use to access our Website and other Services, and usage details, such as IP addresses, device-specific identifiers, and information collected through cookies, web beacons, and other tracking technologies.

‍

How we collect your information

‍

We collect this information:

• Directly from you when you provide it to us, such as by filling in forms on our Website, creating a Kick account, opting into rewards programs administered by us or our business partners, or by otherwise interacting with our Services.

• Automatically as you navigate through the Website and use our other Services. The technologies we use for this automatic data collection may include:

‍

‍First-Party Browser Cookies. A cookie is a small file placed on the hard drive of your computer. First-party cookies are required for technical reasons, such as for our Website to operate properly. You may refuse to accept browser cookies by activating the appropriate setting on your browser. However, if you select this setting you may be unable to access certain parts of our Website. Unless you have adjusted your browser setting so that it will refuse cookies, our system will issue cookies when you direct your browser to our Website.

‍

‍Third Party Browser Cookies. Third-party cookies enable us and the third parties we work with to track our Website visitors and their interests. For example, we use several Google Analytics features that give us important information about how our users engage with our content, such as to assist us in gathering analytics and statistical data in connection with the Website, and to make advertisements that you may see more relevant to you. We do not share personal information with Google Analytics, but it may set and access its own cookies, web beacons and embedded scripts on your device, and may otherwise collect or have access to information about you, including non-personally identifiable information. For more information about how Google collects and manages your information, you may review Google’s privacy policy at https://policies.google.com/privacy?hl=en.

‍

‍Web Beacons. Pages of our the Website and our e-mails may contain small electronic files known as web beacons (also referred to as clear gifs, pixel tags, and single-pixel gifs) that permit us, for example, to count users who have visited those pages or opened an email and for other related website statistics (for example, recording the popularity of certain website content and verifying system and server integrity).From our group companies, affiliates, and business partners, such as our banking partners and payment processors.  From third parties and publicly available sources, including from third-party identity verification services, and, to the extent permitted by law and applicable, from credit reporting agencies, and any person or corporation with whom you have had, currently have, or may have a financial relationship, including without limitation past, present, and future places of employment, financial institutions, and personal reporting agencies.

‍

2. How we use your information

‍We may use information about you for the following reasons:

‍

• Providing, Improving, and Developing our Services

• Complying with our legal obligations, such as by determining whether the Services are available in your country and recording payment transactions or money transfers

• Conducting investigations and responding to lawful requests for information from authorities

• Ensuring compliance with our Terms of Service or other applicable agreements or policies

• Preventing, investigating, and reporting fraud or other potentially prohibited, malicious, or illegal activities, as determined at our discretion

• Connecting you with people you already know

• Measuring, tracking and analyzing trends and usage in connection with your use or the performance of our Services

• Carrying out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collection

• Communicating with you about our Services and other information we think you may find useful or which you have requested from us. If we send you marketing emails, each email will have instructions on how you can “opt out” of getting future marketing from us. Fulfilling any other purpose for which you provide us with information about you

‍

Cookies and other tracking technologies

‍

We also may use cookies and other tracking technologies to collect information about your online activities over time and across third-party websites or other online services.  Click here for information on how you can opt out of this type of tracking on this Website. Our Website does not respond to Do Not Track (“DNT”) signals that can be sent by some browsers, because no DNT standard has been adopted by the World Wide Web Consortium at this time.

‍

Some content or applications, including advertisements, on the Website or our other Services are served by third-parties, including advertisers, ad networks and servers, content providers, and application providers. These third parties may use cookies or other tracking technologies to collect information about you when you use our website. The information they collect may be associated with your personal information or they may collect information, including personal information, about your online activities over time and across different websites and other online services. They may use this information to provide you with interest-based (behavioral) advertising or other targeted content. We do not control these third parties' tracking technologies or how they may be used. For information about how you can opt out of receiving targeted advertising from many providers, see Your choices about your information, below.

‍

3. How we share your information

‍We may share aggregated and anonymized information that does not specifically identify you or any individual user of our Services without restriction. We may share your personal information with the following categories of service providers and third parties:

‍

• With other users of our Services with whom you interact. For example, we may share information with the person(s) with whom you transact when you make or accept a payment or money transfer using our Services. This helps to ensure that users of our Services know who has sent them money or payment requests.

• With our affiliates and group companies. For example, we may share your information internally to understand how you engage with Kick company products to help make our Services better for you and for everyone, and to help us build Services tailored to your preferences. We may additionally share your information with our business partner financial institutions and payment processors as necessary to effectuate transactions that you have requested or as otherwise provided in Section 3 of this Policy.

• With third parties related to any cash-back reward or other incentive program that you have opted into voluntarily in connection with our Services.

• With our service providers who help us provide, maintain, and improve our Services (e.g., vendors who help us with fraud prevention, identity verification, and fee collection services), as well as financial institutions, payment networks, payment card associations, credit bureaus, carrying brokers, and other entities in connection with your payment, money transfer process, investing activity, or otherwise to help us provide the Services;

• With service providers that help us run our advertising campaigns, contests, special offers, or other events or activities.

• As is reasonably necessary, determined at our discretion (i) to comply with any applicable law, regulation, legal process or governmental request (e.g., from creditors, tax authorities, law enforcement agencies, in response to a garnishment, levy, or lien notice, etc.); (ii) to establish, exercise or defend our legal rights; (iii) to enforce or comply with other applicable agreements or policies; (iv) to protect our or our customers’ rights or property, or the security or integrity of our Services; (v) for an investigation of suspected or actual illegal activity; or (vi) to protect us, users of our Services or the public from harm, fraud, or potentially prohibited or illegal activities.

‍

4. Other important information

Security

‍

To ensure appropriate levels of security Kick applies commercially reasonable technical, administrative and organizational security measures to prevent against accidental or unlawful destruction, loss, alteration, and unauthorized disclosure or access to its systems and environment. Our service is built on Amazon Web Services (AWS) and makes use of 3rd party security services designed to monitor and protect against automated scanners, bots, and targeted attacks.

‍

The safety and security of your information also depends on you. Where we have given you (or where you have chosen) a password for access to certain of our Services, you are responsible for keeping the password confidential. We ask you not to share your password with anyone.

‍

Unfortunately, the transmission of information via the internet is not completely secure. Although we do our best to protect your personal information, we cannot guarantee the security of your personal information transmitted to our Website. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the Website.

‍

Use by minors

‍

Our Services are not intended for children under 13 years of age. No one under age 13 may provide any personal information to us through our Services, including on our Website. If you are under the age of 13, you may not have a Kick Account or use our Services. We do not knowingly process any information from, or direct any of our products or services to, children under the age of 13. If we learn we have collected or received personal information from a child under 13 without verification of parental consent, we will delete that information. If you believe that we might have any information from or about a child under 13, please contact us at privacy@kick.app.  

‍

5. Your choices about your information

‍Electronic communications

‍

You may choose not to receive promotional emails from us by following the unsubscribe/opt-out instructions in those emails, but we may still send you non-promotional messages relating to material or transactional information about our products and services such as updates to our platform agreement, this Privacy Policy, security alerts, and other notices relating to your access to or use of our products and services.

‍

Tracking technologies and advertising

‍

You can set your browser to refuse all or some browser cookies, or to alert you when cookies are being sent. If you disable or refuse cookies, please note that some parts of this Website may be inaccessible or not function properly.If you have any questions about an advertisement or other targeted content, you should contact the responsible provider directly. To opt-out of targeted advertising involving our Website, you may do so by visiting the Network Advertising Initiative opt-out page. For opt-outs from interest-based advertising related to our mobile application, please refer to instructions provided by your mobile operating system provider. You may also you may download and use an opt-out application, such as DAA's AppChoices App or the Truste Privacy App.

‍

Deletion or closure of a Kick account

‍

Closure or deletion of your Kick account will mean that you permanently lose access to the personal information and data associated with the Kick account. Certain personal information or de-identified information associated with your Kick account may nonetheless remain on systems owned or maintained by Kick where required to comply with the law, our contractual obligations, or carrying out legitimate business functions. To comply with legal and regulatory obligations, we retain certain personal information associated with rejected applications for Kick accounts.

‍

Exercising your choices

‍

To exercise your choices about your personal information, please contact our Customer Experience team at support@kick.app. We will need to verify your relationship to the Kick account (for example, if you’re an administrator of a Kick account) and verify your identity. If you are an end user of Kick's services and not a direct customer of Kick (for example, your company uses Kick and you are an employee or authorized representative of that company), you should direct requests relating to your personal information to the administrator of your company’s Kick account. We will not discriminate against you for exercising any of your rights.

‍

6. Changes to this Policy

‍It is our policy to post any changes we make to this Privacy Policy on this page of our Website. The date the privacy policy was last revised is identified at the top of the page. You are responsible for periodically visiting our Website and this privacy policy to check for any changes.

‍

7. Contact information

‍Please contact our privacy team with any questions or concerns regarding this Privacy Policy:

‍

Kick, Inc.

187 Bryant St,Palo Alto, CA 94301, U.S.A.

‍privacy@kick.app

‍In this agreement, "we," "us," "our," and "Kick" mean Kick, Inc. "You" and "your" refer to the business entity signing up for a Kick account or using a Kick product. "Communications" means disclosures, notices, agreements, fee schedules, privacy policies, statements, records, documents, and other information we provide to you, or that you sign and submit or agree to at our request.

‍

Kick is dedicated to providing the best online banking experience possible, including providing information to you electronically. By accepting this agreement, you agree that you are willing and able to receive Communications in electronic form, and consent to receive Communications in electronic form. If you do not give your consent to receive Communications in electronic and not paper form, you may not open a Kick account. If you withdraw your consent to electronic Communications at any point after providing consent hereunder, we reserve the right to terminate your Account.

‍

‍Delivery Methods

‍We will deliver Communications to you electronically, either through the Kick website www.kick.app (“Website"); text or SMS messages ("Text Messages"); or through electronic mail ("E-mail"). If we do not deliver Communications to you through the above manners, we will tell you where you can go to receive such Communications.

‍

We may be required by law to deliver certain Communications to you on paper even though you have consented to receive it electronically.

‍

‍Hardware and Software Requirements

‍To receive and retain electronic Communications from Kick, you will need the following:

‍

• A computer or mobile device with an operating system that supports everything below;

• An internet connection;

• A current version of a web browser that we support, including: Edge version 42 or higher, Firefox version 62 or higher, Safari version 12 or higher, or Chrome version 69 or higher;

• A hard drive or other method of storing data;

• A valid, active email address; and

•  A current version of a program that displays PDF files.

‍

We may update these requirements periodically in order to maintain our ability to provide electronic Communications; if these requirements change in a substantial way, we will notify you of the changes.

‍

‍Updating Contact Information

‍It is your responsibility to maintain accurate and current contact information so that we may send you electronic Communications. You can update your email address and other contact information by logging into your online account at www.kick.app, in the "Settings" section, or by emailing us at support@kick.app

‍

‍Requesting Paper Copies

‍We may choose to make paper copies of certain electronic Communications available upon request, but assume no obligation to do so. You may obtain a paper copy of an electronic Communication by printing it or by requesting we mail a paper copy. You may make requests for paper copies by emailing us at support@kick.app.

‍

‍Communications in Writing

‍We are required by law to give you certain information in writing. All Communications delivered to you in either electronic or paper format will be taken as information delivered "in writing."

‍

‍Withdrawing Consent

‍You have the right to withdraw your consent to this agreement at any time. Withdrawing consent will terminate your Kick account, including access to our Website. A balance refund check may be issued you upon account termination in accordance with this Agreement. You may withdraw consent by emailing us at support@kick.app.

These terms (“Rewards Terms”) govern your participation in the rewards program (“Rewards Program”) and describe how you may be eligible to, accrue, earn, redeem, and forfeit credit, perks, or other benefits (“Rewards”) conferred by Kick, Inc. (“Kick,” “we,” “our,” or “us) through participation in the Rewards Program.

‍

References to “Company” means a company, partnership, corporation or association that is applying for or has opened a “Kick Account” (as such term is defined under the Terms of Service) pursuant to the Terms of Service. References to “User” mean an individual authorized to use the Rewards Program on Company’s behalf. References to “you” mean Company and User. These Reward Terms supplement the Terms of Service, and the Rewards Program constitute a “Service” (as such term is defined under the Terms of Service). Accordingly, use of the Rewards Program is also governed by the Terms of Service. To the extent there is any conflict between the Rewards Terms and the Terms of Service, the provisions of the Rewards Terms shall control.

‍

By opening and maintaining a Kick Account in good standing, Company is automatically enrolled in the Rewards Program. You may only participate in the Rewards Program if you accept all of these Rewards Terms, our Privacy Policy, and our Terms of Service. You may opt out of this program at any time by contacting Kick at support@kick.app.

‍

1. The Rewards Program

The purpose of the Rewards Program is to reward you for certain Qualifying Purchases (as defined below) and other activities.

‍

You may accrue Rewards when you make qualifying purchases (each, a “Qualifying Purchase”) using your Kick Business Debit Card.  Qualifying Purchases include featured promotions and offers (“Offers” or “Drops”) through participating merchants (“Merchants”) accessed through links directly from featured Merchants or by shopping at Merchants we identify to you. For the current list of participating Merchants and Offers, please check the Kick mobile application (“Kick App”) or website (“Site”).

‍

Any Rewards will reflect the Qualifying Purchases you made that are included with the information reported to us by the Merchant. These Rewards may vary depending on whether the reported Qualifying Purchase is inclusive of tax, delivery charges, or other fees. Any Rewards will be pending until the Merchant confirms the Qualifying Purchase, which may take 30-60 days or more from the date of the purchase.  

‍

We are not responsible if the Merchant fails to report your Qualifying Purchase to us. Merchants have their own rules upon which they determine transactions to be genuine and by which we are able to recognize a Qualifying Purchase. These rules are at the discretion of the Merchant. Although we will use reasonable efforts to determine whether a Qualifying Purchase has been completed with a Merchant, the decision of the Merchant is final. At any point, we reserve the right not to seek or pursue any Qualifying Purchase claims you may have.

‍

We may receive referral fees or other funds from Merchants for Qualifying Purchases; however, Rewards are offered solely by Kick subject to our Rewards Program and not offered by or provided through any Merchant.

‍

If you return, charge back, cancel, dispute, or otherwise request a refund for a Qualifying Purchase for which you have already received Kick Rewards, we reserve the right to remove any related Rewards amount from your connected bank account, or offset such amount from any future Rewards. If we choose to remove the amount from your connected bank account, you authorize us to instruct your bank to debit your connected bank account, regardless of whether this causes the connected account to have a negative balance or overdraft, and you agree to provide any documentation or authorizations required to ensure that any such Rewards amount is returned to us.

‍

All Offers made available to you are temporary and may become unavailable without notice.   From time to time, an Offer featured on our Kick App or website may be incorrect or outdated. We take reasonable care to ensure that the data provided on the Kick App or website is accurate and up to date. However, we give no warranty of the accuracy of any information on the Kick App or website and do not accept liability for any errors or omissions, nor do we accept liability for any resulting damage or loss. Offers may appear differently on the Kick App versus the website.

‍

For the avoidance of doubt and notwithstanding any other provision of these Rewards Terms or any information provided on Kick or website, you agree that in all circumstances the provision of Rewards is at our sole discretion and we may cancel, change, suspend, modify any aspect of the Rewards Program for any reason and at any time, including the availability of any Reward. We may limit accrual and redemption of Rewards, including through caps, fees, and expiration.

‍

Additionally, not all Companies will accrue Rewards. Offer availability amounts may vary and fluctuate based on factors determined in our sole discretion, such as geographical location, transactional history with a particular Merchant, transactional trends, the number of followers a Company has on its connected social platform accounts, or its use of Kick “Services” (as such term is defined in the “Terms of Service”). To optimize the Rewards experience for Merchants, Companies, and Users, we retain the right to run occasional tests that will be limited in duration but may alter how we display and allocate Rewards.

‍

Certain transactions may be excluded from accruing Rewards, including cash withdrawals, transactions that are deemed fraudulent, disputed transactions or transactions subject to chargebacks, and certain other non-card payment transactions. We may determine that a transaction type, or particular transaction, is excluded from eligibility for Rewards accrual at any time.

‍

2. Requirements and Eligibility for Participation

To participate in the Rewards Program, your Kick Account must be continuously in good standing. If your Kick Account is not in good standing for any reason, or we determine in our sole discretion that you are misusing the Rewards Program or have otherwise violated our Terms of Service, you may be ineligible to earn Rewards, and you may forfeit any Rewards previously earned or accrued.

‍

Certain Kick Accounts may not be eligible to participate in the Rewards Program. We may update or change eligibility criteria, restrictions, and requirements at any time.

‍

You may be disqualified from participating in the Rewards Program and your accrued Rewards may be forfeited if at any time: (a) any of your payments you owe to Kick are past due, (b) any prior payments were late, (c) you misuse the Rewards Program, (d) you engage in self-dealing (such as earning Rewards by paying for products or services provided by you, your affiliates, your beneficial owners, or other persons affiliated with you), or (e) you engage in other Prohibited Activities found in the Terms of Service.

‍

3. Privacy

By participating in the Rewards Program, you consent to our collection, storage, use, and disclosure of your information as described in our Privacy Policy and this Section 3 of the Rewards Terms. In particular, you consent to us sharing your information with TPSPs for purposes of the Rewards Program. Kick will post the Rewards amount to your Kick account based on the information we receive from our TPSPs. Please review our Privacy Policy and contact us if you have any questions.

‍

• Notwithstanding anything to the contrary in these Rewards Terms or our Privacy Policy, we will use personal information, payment method and transaction information obtained in connection with the Rewards Program solely as follows:

• To confirm a Qualifying Purchase or return to match transactions to confirm whether you qualify for an offer;To create a record of the transaction information and thereafter maintain and use data in connection with the Rewards Program;

• To conduct analysis for the improvement and optimization of the Rewards Program;

• To inform participating Merchants where a transaction occurred as needed for the Merchant to confirm a specific transaction occurred or rewards should be awarded;

• To provide participating Merchants aggregated and anonymized information relating specifically to registered payment card activity solely to allow participating Merchants to assess the results of their campaign;

• To provide information in order to respond to a request from government authority or a payment organization involved in a transaction with you or a Merchant; and

• To enable the sharing, exchange and use of transaction information described above and herein by and among us, applicable TPSPs and applicable Merchants.

‍

4. Taxes

All amounts paid to you hereunder are exclusive of any applicable withholding, sales, use, excise, value added, or other taxes. You acknowledge and agree that you are responsible for determining, paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Rewards Program. We are not responsible for determining whether you owe taxes in connection with your access to or use of the Rewards Program or for collecting, reporting, or remitting taxes arising from your access to or use of the Rewards Program, except for our own income taxes.

‍

5. General Provisions

These Rewards Terms, including our Privacy Policy, constitute the entire agreement between you and us regarding the Rewards Program. We may, without prior notice or liability to you, discontinue the Rewards Program or modify the Rewards Program by adding or removing features or functionalities, even though such changes may affect Rewards awarded to you. We may also revise these Rewards Terms from time to time in our sole discretion, subject to applicable law. When we revise these Rewards Terms, we will update this document to reflect those changes and provide you with a revised version of these Rewards Terms through email prior to any revised version of the Rewards Terms going into effect. Except as otherwise expressly stated by us, your access to and use of the Rewards Program are subject to the version of these Rewards Terms in effect at the time of your access or use. In the event that our relationship with you terminates and the Terms of Service are no longer in effect, these Rewards Terms will immediately terminate.

‍

You are free to decide whether or not to accept a revised version of these Rewards Terms, but accepting these Rewards Terms, as revised, is required for your continued access to and use of the Rewards Program. If you do not agree to these Rewards Terms or any revised version of these Rewards Terms, you may opt out of the program by emailing support@kick.app.

‍

We reserve the right to terminate your participation in the Rewards Program at any time and for any reason, including for your violation of these Rewards terms, violation of the Terms of Service, violation of applicable law, misuse of your Kick Account, or misuse of any connected bank account.

‍

These Rewards Terms and any rights hereunder may not be transferred or assigned by you without our prior written consent but may be assigned by us without restriction and without your prior consent. Any attempted transfer or assignment by you without our prior written consent will be null and void. No agency, joint venture, partnership, trust, or employment relationship is created between you and us by way of these Rewards Terms.

‍

You release Kick from all liability for your use of Rewards and for your participation in the Rewards Program. Separately, you release Kick from liability for third party claims in accordance with these Rewards Terms. We are not responsible if you access or use the Rewards Program in any manner that violates applicable law.

‍

You acknowledge and agree that the Rewards Program are protected by applicable copyright, trademark, and other intellectual property laws. All words and logos displayed in connection with the Rewards Program that are marked by the ™ or ® symbols are trademarks and service marks of Kick and/or their respective owners. The display of a third-party trademark in connection with the Rewards Program does not mean that we have any relationship with that third party or that such third party endorses the Rewards Program or Kick.

‍Please read this Kick Business VISA Debit Cardholder Agreement (the “Agreement”) carefully and retain it for your future reference. This Agreement applies to all transactions resulting from the use of your Debit Card (the “Card”) through an automated teller machine (ATM), a Point-of-Sale (POS) terminal or any other use of the Card(s), whether electronic or not, which has been made available to you by Kick, Inc. (“Program Partner”), the program partner responsible for managing the Card program, in partnership with Blue Ridge Bank, N.A. (the “Bank”), member of the Federal Deposit Insurance Corporation (“FDIC”).

‍

Please read this Agreement carefully and keep it for your records. The agreement you make with us, and the rights and obligations we both have, are governed by and interpreted according to the state of Virginia and federal law. This Agreement, together with other agreements or disclosures you may receive from us, such as the Kick Business Deposit Account Agreement (“Account Agreement”), establishes our and your rights and obligations.

‍

When you see the words “we,” “us,” or “our” in this Agreement, it refers to the Bank, the Program Partner acting as program manager for the Bank, and any of the Bank’s affiliates, successors, assignees, agents or service providers. When you see the words “you” or “your,” it refers to you, the owner of the Account, as well as your personal representatives, executors, administrators, and successors.You authorize us to pay from your deposit account (“Account”) the total amount of any transaction originated by proper use of the Card. You also agree that the use of the Card described in this Agreement shall be subject to the rules, regulations and fees governing each deposit account which is accessed by such Card, including but not limited to the Bank's right of set-off.

‍

1. Activating the Card and Setting a PIN

1.1 Card Agreement Acceptance and Card Activation

‍

This Card requires activation before you may use it. You may activate the Card by calling 1-833-333-0417. Your activation and use of the Card means that you agree to the terms and conditions described in this Agreement.If you do not want to activate the Card, you should cut the Card in half and dispose of it.

‍

1.2 Personal Identification Number (PIN)

‍

You will be required to select a 4-digit personal identification number (PIN) prior to using the Card for the first time. The 4-digit numerical PIN issued to you is for security purposes. The PIN represents your signature authorizing transactions made using your Card, identifies the bearer of the Card, and serves to validate and authenticate the directions given to complete the Card transactions.

‍

YOU ARE RESPONSIBLE FOR SAFEKEEPING YOUR PIN. YOU AGREE TO TAKE ALL REASONABLE PRECAUTIONS SO NO ONE ELSE LEARNS YOUR PIN AND YOU AGREE NOT TO DISCLOSE OR OTHERWISE MAKE YOUR PIN AVAILABLE TO ANYONE NOT AUTHORIZED TO SIGN ON YOUR DEPOSIT AND/OR LOAN ACCOUNT(S).

‍

Your PIN should NOT be written on the Card or anywhere it is available to others for use by lawful and/or unlawful means.

‍

1.3 Permissible Uses of Your Card

‍

You agree that you will use the Card only for business purposes and it will not be used for personal, household or family purposes.

‍

You agree that you will not use or attempt to use the Card for:

• any illegal purpose or activity;

• any violation of applicable law;

• any internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction;

• any activities that are prohibited by the acceptable business policies of Bank; or

• any transaction or activity that is not specifically authorized and permitted by this Agreement or the Account Agreement.

‍

2. Use of the Card

2.1 ATM Cash Deposits

‍

With your PIN, you can use your Card to deposit cash into your Account at an in-network ATM. You can identify an in-network ATM by looking for the Allpoint logo on or near the ATM. You cannot make cash deposits at out-of-network ATMs.

‍

2.2 ATM and Point-of-Sale PIN Withdrawals

‍

With your PIN, you can use your Card to obtain cash from your Account up to your Available Balance at any ATM or any Point-of-Sale (“POS”) device in the United States that displays the Visa, VisaATM, Plus, Interlink, or Accel acceptance marks. Not all merchants will permit you to get cash back through their POS devices.

‍

If you use an ATM, 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 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 in addition to any applicable fees disclosed in this Agreement or your Account Agreement.

‍

2.3 Retail Card Purchases

‍

You may use your Card to make purchases using your PIN at any merchant with a POS device anywhere that displays the Visa, VisaATM, Plus, Interlink, or Accel acceptance marks. You may also use your Card to make purchases without your PIN anywhere that Visa debit cards are accepted.

‍

2.4 Split Transactions

‍

You can instruct a merchant to charge your 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 Card. If you fail to inform the merchant you would like to complete a split transaction and you do not have sufficient available funds in your Account to cover the entire purchase amount, your Card is likely to be declined.

‍

2.5 Card-Not-Present Transactions

‍

You may make retail card purchases without presenting your Card by providing information from your Card, such as transactions done by internet or telephone. Conducting transactions in this way has the same legal effect as if you used the plastic Card itself. For security reasons, the amount or number of such transactions you may make may be limited.

‍

2.6 Virtual Card Use

‍

When you open an Account, you will also receive a virtual card (“Virtual Card”) represented by a 16-digit card number, a 3-digit card verification value (“CVV”) number, and an expiration date. The Virtual Card is separate from your physical Card and can be managed through the Online Services (see Section 1.4 of the Account Agreement). We will issue you a replacement Virtual Card when it expires. The Virtual Card accesses the available funds in your Account to make card-not-present transactions (see Section 2.5) anywhere Visa debit cards are accepted in the same way as your physical Card. The Virtual Card can also be added to a digital wallet (see Section 2.7) in the same way as your physical 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 Card.

‍

2.7 Use of the Card with Digital Wallets

‍

A digital wallet (“Wallet”) provides another way for you to make purchases with your Card. A digital wallet is a service provided by another company (such as Apple Pay, Android Pay, Samsung Pay, etc.), that allows you to use your Card to enter into transactions where the Wallet is accepted. A Wallet may not be accepted at all places where your Card is otherwise accepted, and your Card may not be eligible for all the features and functionalities of the Wallet. Any use of your 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 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 or remove your Card from a Wallet by following the instructions provided by the Wallet provider. By doing this, you agree to allow us to share your Card information with the Wallet provider. You may be required to take additional steps to authenticate yourself before your Card is added to the Wallet. We do not charge you any additional fees for adding your Card to a Wallet or for using your Card in the Wallet. However, any fees and charges that would apply when you use your Card outside the Wallet will also apply when you use a Wallet to make purchases with your Card or otherwise access your 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 Card in a Wallet may, in our sole discretion, be automatically updated or upgraded without notice to you.We are not the provider of the Wallet, and we are not responsible for providing the Wallet service to you or for ensuring that your Card is compatible with any Wallet service. We are only responsible for supplying information to the Wallet provider to allow usage of your Card in the Wallet as you have requested. We are not responsible for any failure of the Wallet, any mobile device you use with the Wallet, or the inability to use the Wallet for any transaction. We are not responsible for how the Wallet provider performs its services or any other third parties regarding any agreement you enter into with the Wallet provider or other third party. We do not control the privacy and security of any of your information that may be held by the Wallet provider. Any information held by the Wallet provider is governed by the privacy policy given to you by the Wallet provider. If you have location services enabled on your mobile device, the location of your mobile device may be collected and shared by the Wallet provider in accordance with their respective data and privacy policies, including with us. If you request to add your Card to a Wallet, you authorize us to collect, transmit, store, use and share information about you, your mobile device, and your use of the Card in accordance with our privacy policy, as amended from time to time, available at https://www.mybrb.com/privacy-policy.html.

‍

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 CARD OR VIRTUAL CARD IN CONNECTION WITH A WALLET, OR A MOBILE DEVICE.

‍

If you use a Wallet, you should protect your Wallet and your mobile device as you would your Card. If your Wallet or mobile device is compromised, lost or stolen, you should also consider your Card lost or stolen and notify us immediately. Please see Section 7 for instructions for reporting a lost or stolen Card.If you have any questions, disputes, or complaints about a Wallet, contact the Wallet provider using the information given to you by the provider.

‍

2.8 Foreign Transactions

‍

Charges from foreign merchants and financial institutions may be made in a foreign currency. We will bill you in U.S. dollars based on the exchange rate on the day we settle the transaction, plus any special currency exchanges charges that may be imposed by us, the Visa network and/or by any third-party used to complete the transaction.The exchange rate between the transaction currency and the billing currency used for processing international transactions is a rate selected by Visa from the range of rates available in wholesale currency markets for the applicable central processing date, which may vary from the rate Visa itself receives, or the government-mandated rate in effect for the applicable central processing date. The conversion rate may be different from the rate in effect on the date of your transaction and the date it is posted to your Account.Regardless of whether the transaction is made in foreign currency or in US dollars, additional fees may apply to all international transactions using the Card. Please refer to our current fee schedule for more information about our fees.

‍

2.9 Card Authorization Holds

‍

When you use your Card to purchase goods or services or to obtain cash from a merchant, the merchant may request preauthorization (“Card Authorization”) for the transaction. If the merchant makes such a request and there are sufficient available funds in your Account, we will approve the transaction and place a temporary hold on the funds in your Account. This hold will reduce the Available Balance in your Account. The amount of this temporary hold will usually be the amount of the Card Authorization. The hold will remain on your Account until the merchant sends the final amount of the transaction to us and requests payment (“Settlement”). In most cases, if the merchant does not request Settlement or is delayed in requesting settlement, the hold will automatically be removed after three (3) days. However, for transactions with certain merchants, such as hotels, the hold may remain on your account up to seven (7) days.Please note that the merchant controls the timing of both the Card Authorization and Settlement. This means that a merchant may initiate Settlement after Card Authorization hold has already been removed. If the hold is removed and you spend the funds in your Account before Settlement, it may cause your Account to overdraw. In addition, the Card Authorization amount that the merchant requests may be different than the Settlement amount. It is therefore very important that you keep track of your transactions and your Account. We cannot stop a Card transaction once we have approved a Card Authorization and you will be responsible for repaying any negative balance that may occur in your Account.

‍

3. Card Limitations

‍There may be limits on the amount and frequency of withdrawals and deposits you can make using your Card.  Please refer to the Account Agreement for any limits that may apply to your Account.

‍

4. Returns and Refunds

‍Please be aware of the merchant’s return policies before using your Card to make a purchase. Neither the Bank nor the Program Partner is responsible for the delivery, quality, safety, legality or any other aspect of the goods or services you purchase using your Card. If you have a problem with a purchase that you made with your Card or if you have a dispute with the merchant, you must handle it directly with the merchant. If you are entitled to a refund for any reason for goods or services obtained using your Card, you agree to accept credits to your Card for the refund and agree to the refund policy of the merchant. The amounts credited to your Card for refunds may not be available for up to five (5) days from the date the refund transaction occurs.

‍

5. Additional Benefits from Visa and Fraud Alerts Program

‍Your Card may also be eligible for certain benefits provided by Visa. Please see the Visa Debit Card Benefits Guide (https://usa.visa.com/support/consumer/debit-cards.html) for a full description of all additional benefits to which you may be eligible, specifically Visa Zero Liability Benefits (https://usa.visa.com/pay-with-visa/visa-chip-technology-consumers/zero-liability-policy.html). You are also eligible for Visa’s Fraud Alerts Program.

‍

5.1 Fraud Alerts Program Overview

‍

Messaging frequency depends on account activity.  For more information, text HELP to 23618.  To cancel fraud text messaging services at any time reply STOP to any alert from your mobile device.

‍

For Fraud alerts support, call 1-833-333-0417.  By giving us your mobile number, you agree that Fraud Alerts text messaging is authorized to notify you of suspected incidents of financial or identity fraud.  HELP instructions: Text HELP to 23618 for help.  

‍

5.1.1 Stop Instructions

‍

Text STOP to 23618 to cancel.

‍

5.1.2 Release of Liability

‍

Alerts sent via SMS may not be delivered to you if your phone is not in the range of a transmission site, or if sufficient network capacity is not available at a particular time.  Even within coverage, factors beyond the control of wireless carriers may interfere with messages delivery for which the carrier is not responsible.  Carriers do not guarantee that alerts will be delivered.

‍

6. Fees

‍There may be fees associated with your use of the Card.  Please refer to the Account Agreement for any fees that may apply to your use of the Card.

‍

7. Errors and Lost or Stolen Cards

7.1 Error Resolution

‍

You may contact us by calling 1-833-333-0417 with questions concerning transactions involving your Card.

You may also contact us using those methods to report errors or unauthorized transactions.  Be sure to contact us immediately if you believe that an error or unauthorized transaction has occurred or may occur concerning your Card. You must contact us no later than thirty (30) days after we sent the FIRST statement on which the error or unauthorized transaction appeared. You must provide us with the following information:

Tell us your name and Account number.Describe the error or the transaction 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.If you tell us orally, we may require that you send us your complaint or question in writing by email within ten (10) business days. After receiving your notice of error or unauthorized transaction, we will investigate and provide you with the results and any corrections we make to your Account within a commercially reasonable time.

‍

7.2 Reporting Lost or Stolen Cards or Replacing Your Card

‍

If you need to report your Card or PIN as lost, stolen, or compromised, or to replace your Card for any reason, please contact us at 1-833-333-0417 seven days a week, 24 hours a day. You will be required to provide personal information so that we may verify your identity before we will issue you a replacement Card.

‍

8. Electronic Fund Transfers

‍Your Card allows you to withdraw funds from your Account up to the Available Balance through Electronic Fund Transfers (“EFTs”). EFTs are transactions that are processed by electronic means and include, among others, ATM withdrawals and point-of-sale purchases at merchants.

Your Account Agreement provides you with the information and terms about the EFTs that are permitted on your Account.

‍

8.1 Types of EFTs Supported by Your Card

‍

Your Card allows the following types of EFTs:

Transfers to or from your Account to a merchant or other third party by providing the third party with your Card or Card informationATM withdrawals using your Card.

‍

8.2 Limitations on EFTs

‍

There are limitations on the frequency and amount of transactions you can make to or from your Account using your Card. These limits are different for each type of transaction. For limits that apply to Card transactions, please refer to Section 3 of this Agreement.  For other limitations that may apply to your Account, please refer to your Account Agreement. Your Card may also be subject to security-related limits.  These limits may change from time to time.

‍

8.3 Documentation of Your Transactions

‍

You will be provided with information about each transaction using your Card on your Account statements. Please refer to your Account Agreement for more information about statements and other ways to view your transaction history and other information. You will also have the option to receive a receipt when making a withdrawal at an ATM or when you make a POS purchase at a merchant.

‍

8.4 Recurring Card Payments (Preauthorized Transfers)

‍

If you authorize a merchant or other third party to automatically initiate a payment using your Card on a recurring basis, you must do so in writing. If you are issued a new Card with a different expiration date or a different number, we may (but are not obligated to) provide your new Card number and expiration date to a merchant or other third party with whom you have set up a recurring pre-authorized card payment in order to facilitate the continuation of your authorized recurring transactions.If you do not wish Visa to provide your new Card number and/or expiration date to merchants or other third parties, please let us know by emailing us at support@kick.app.

‍

8.4.1 How to Request a Stop Payment

If you authorize a merchant or other third party to take payments from your Account using your Card through recurring card payments, you can place a stop payment on one or all of those payments by contacting us by email at support@kick.app at least three (3) business days before the next payment is scheduled to be made.

You must 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.You may be charged a fee for each stop payment you request under your Account Agreement.  Please refer to your Account Agreement for fees applicable to your Account.

‍

8.4.2 Notices of Varying Amounts

‍

If these recurring Card payments vary in amount, the merchant or other third party you are paying will tell you ten (10) days before each payment when it will be made and how much it will be. You may be given the option to only get this notice when the payment will differ by more than a certain amount from the previous payment, or when the amount will fall outside certain limits that you set.

‍

8.4.3 Our Business Days

‍

Our business days are Monday through Friday, excluding federal holidays.

‍

8.5 Your Liability for Unauthorized EFTs

‍

Contact us immediately if you believe that an unauthorized EFT has occurred or may occur concerning your Account, or if your Card has been lost, stolen or compromised. Calling us at 1-833-333-0417 is the best way of keeping your losses to a minimum. Your liability for unauthorized EFTs is outlined in your Account Agreement.  Please refer to your Account Agreement for details.Our Liability for a Failure To Complete A Transaction, Unauthorized Transactions or Failure to Stop a PaymentWe will respond to notices of errors or unauthorized EFTs and requests to stop payments in a commercially reasonable manner and time. Our liability for a failure to complete a transaction, an unauthorized transaction, or failure to stop a payment is limited to terms described in your Account Agreement.  Please refer to your Account Agreement for details.

‍

9. Change of Terms

‍We can change the term of this Agreement at any time. We will provide advance notice to you of a change in terms where required by law.

‍

10. Account Information Disclosed to Third Parties

‍We will disclose information to third parties about your account or the transfers you make: Where it is necessary for completing the transaction To verify the existence and condition of your account with us (such as to confirm that sufficient funds are available to cover specific transactions) upon the request from a third party (such as a credit bureau or merchant)To comply with government agency or court orders If you give us your written permissionYou can more full understand how we use your information by referring to the Bank’s Privacy Policy at https://www.mybrb.com/privacy-policy.html and the Third Party Program Service Provider’s Policy at https://www.unit.co/clients-privacy-policy.

‍

11. Cancellation

‍We may refuse to issue, deactivate, revoke, suspend or cancel your Card at any time with or without notice to you, other than as required by law. This includes deactivating or canceling your Card if it has been lost or stolen to prevent unauthorized transactions. You agree not to use your Card once it has been deactivated, revoked, suspended or canceled. We may also limit your use of the Card, including limiting or prohibiting specific types of transactions. If you would like to cancel your Card, you may do so at any time by contacting us through the Online Services or by emailing us at support@kick.app.

‍

The cancellation of your Card privileges will not otherwise affect your rights and obligations related to your Account.

Please read this Kick Business Deposit Account Agreement (the “Agreement”) carefully and retain it for your future reference. This Agreement contains the general terms, conditions and disclosures related to the demand deposit account (the “Account”) made available to eligible businesses by Kick, Inc. (“Program Partner”), the program partner responsible for managing the Account program, in partnership with Blue Ridge Bank, N.A.

‍

When you see the words “we,” “us,” or “our” in this Agreement, it refers to the Bank, the Program Partner acting as agent for the Bank, and any of the Bank’s affiliates, successors, assignees, agents or service providers. When you see the words “you” or “your,” it refers to you, the commercial owner of the Account, as well as your Authorized Users, representatives, officers, agents and successors.

‍

By opening or continuing to hold an account with us, 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.

‍

IMPORTANT NOTE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTIONS AND YOUR RIGHT TO A JURY. THE TERMS OF ARBITRATION AND THE WAIVER APPEAR IN SECTION 8 OF THIS AGREEMENT.

‍

1. Account Overview

1.1 How to Contact Us

‍

You may contact us with any questions or concerns regarding your Account. All communication between you and us will be handled by the Program Partner. The best way to contact us is through email at support@kick.app. You may also contact us by phone at (909) 316-5331 or through the Online Services (see Section 1.3 below) during our business days between 9AM and 5PM PT. You can also reach us by mail at 548 Market St PMB 28903, San Francisco California 94104-5401, United States.

‍

1.2 Type of Account and Eligibility

‍

The Account is a non-consumer demand deposit account used to hold your business deposits and make certain types of payments and transfers. To open an Account, you must be a sole proprietorship, corporation, unincorporated association, limited liability company, limited liability partnership, or partnership (collectively, “Business Entity”) within the United States and its territories. Other eligibility requirements may apply. This Account may only be used for business purposes and cannot be used for any personal, family or household purposes.We may decline to open an Account for any reason at the sole discretion of the Bank or Program Partner. We are not liable for any damages or liabilities resulting from refusal of an Account relationship.

‍

1.3 Third-Party Service Providers

‍

We work with one or more third-party service providers, including Unit Finance Inc. (“Unit”), in connection with your Account. Unit may assist us in processing transactions, handing account operations, and providing technological connection to the Program Partner and the Bank. By using your Account, you license and authorize us to access information maintained by Unit and/or other third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. In particular, you agree that Unit may perform any functions on your Account that we are otherwise authorized to perform and that Unit’s access and use of your information will be governed by the terms of Unit’s Privacy Policy, available at https://www.unit.co/clients-privacy-policy.

‍

1.4 Tax Sub-Account

‍

The Account will give you the ability to set up a sub-account for the purpose of managing your finances by allocating funds to be used toward tax payments. Your Account and tax sub-account are treated as a single Account for purposes of this Agreement; the sub-account is subject to the same terms and conditions as the Account unless expressly provided otherwise in theAgreement. Closing your primary Account will result in the closure of your tax sub-account as well.

‍

You may transfer funds between your primary Account and tax sub-account at any time. Any funds that you have allocated to the tax sub-account will not be otherwise available for linked account transfers or other ACH transactions using your routing and account numbers until such funds are transferred to your primary Account.

‍

1.5 Online or Mobile Access To Your Account

‍

When you open an Account, you will also be enrolled in an online business banking service or mobile application (collectively, “Online Services”) offered by the Program Partner serving as Bank’s service provider, that you can use to access your Account, view information about your Account and conduct certain transactions. You may also be given access to various features through the Online Services separate from your Account (“Additional Features”). If you cancel your enrollment in the Online Services at any time, we may close your Account (see Section 3.13 below). Unless otherwise specified in this Agreement, the Online Services and any Additional Features are governed by the Program Partner’s Terms of Service, available at http://kick.app/legal/terms and Privacy Policy available at http://kick.app/legal/privacy. Please review these documents carefully because by using the Online Services, you agree to be bound by them. The Online Services and Additional Features are not provided or controlled by the Bank or this Agreement, and you agree not to hold the Bank liable for issues that may arise from your use of the Online Services or Additional Features.

‍

1.6 Paperless Account

‍

To open an Account, you must agree to go “paperless.” This means that you must (1) provide us with and continue to maintain a valid email address and (2) accept electronic delivery of all communications that we need or decide to send you in connection with your Account by agreeing to our E-Sign Consent Agreement, available at https://kick.app/legal/sign.

‍

1.7 Authorized Users

‍

You may be given the ability to designate additional individuals (“Authorized Users”) who you authorize to access your Account and/or conduct transactions through your Account. By establishing an Authorized User, you understand that any transaction authorization, instruction or any other action concerning your Account that your Authorized User engages in shall be deemed authorized by you and valid and we are under no obligation to investigate the authorization, instruction or activity. You also agree that you will not hold us liable for acting upon any such authorization, instruction or activity. We will continue to treat all actions taken by your Authorized User as authorized by you until you revoke the Authorized User’s access to your Account by notifying us by email at support@kick.app. We also reserve the right to terminate your Authorized User’s access to the Account for any reason and without advance notice.

‍

1.8 How To Open an Account

‍

You may open an Account by visiting the Kick website at http://kick.app and following the instructions provided there.

‍

• Any person completing the Account opening process or otherwise completing any Account opening requirements represents and agrees that they:

• Are authorized to execute all documents or otherwise complete our requirements in their stated capacity. Have furnished all documents or other information necessary to demonstrate that authority

• Will furnish other documents and complete other requirements as we may request them

• Certify that, to the best of his or her knowledge, all information provided to us, including information concerning beneficial owners, is complete and correct

‍

We may refuse to recognize any resolution affecting the Account that appears to us to be incomplete or improperly executed.

‍

‍Important information about procedures for opening a new Account: To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify and record information identifying each person who opens an Account. This means that when you open an Account, we will ask for information that allows us to identify you. We may also ask for a driver’s license or other identifying documents for your business, Authorized Users, account owners, and your officers, directors, beneficial owners, controlling shareholders and others.

‍

1.9 Minimum Deposits and Balances

‍

There is no minimum deposit required to open an Account and no minimum balance you need to maintain in your Account.

‍

1.10 Interest Disclosures

‍

This Account is not interest-bearing. No interest will be paid on this Account.

‍

1.11 Authority

‍

You agree that we may honor and rely upon the instructions or the execution, delivery and/or negotiation of any check, substitute check, draft, withdrawal order, instruction or similar instrument (collectively, “items”) or document by any of your authorized agents regardless of the necessity or reasonableness of such action, the circumstances of any transactions affected by such action, the amount of the transaction, the source or disposition of any proceeds and regardless of whether the relevant items or documents result in payment to the authorized agent or an individual obligation of the authorized agent or anyone else. “Authorized agents” include Authorized Users and any person who has signed a signature card, who is authorized by this Agreement, any resolution or otherwise to access or use the Account. It also includes any person who has been permitted by you or another authorized agent to act on your behalf in dealing with us.

‍

You agree that you may not deny the authenticity, validity, binding effect and authorization of any action we take in reliance upon the instructions, items or documents provided by an authorized agent  unless you have previously revoked such person’s authority to access or use your Account by emailing us at support@kick.app and we have confirmed our acceptance of your notice.

‍

1.12 Power of Attorney and Attorneys-In-Fact

‍

We may allow you to give another person (known as an “attorney-in-fact”) power of attorney to act on your behalf for your Account. You must obtain written approval from us before we will honor any power of attorney. Email us at support@kick.app for approval if you plan to create a power of attorney. Please be aware that it may take up to two weeks for us to review your request. If approved, we will honor orders and instructions from your attorney-in-fact until (1) we receive a written revocation from you; (2) we are notified that you or your attorney-in-fact have died or become incapacitated; or (3) we terminate our acceptance of the power of attorney. We may terminate our acceptance at any time, for any reason and without notice to you, and you agree not to hold us liable for any damages that may result from such action. You also agree to hold us harmless for any actions we take based on the instructions of your attorney-in-fact, including if it is later determined that your power of attorney was invalid or improperly executed.

‍

1.13 Death or Incapacitation

‍

You agree that if we receive notification or if we have reason to believe that you or any Authorized User has died or become legally incapacitated, we may place a hold on your Account and refuse all transactions until we know and have verified the identify of your heir, devisee or successor. Until we receive notice and any required proof of death or incapacitation, we may continue to accept deposits and process transactions to your Account. Your estate will be responsible for repaying us for any tax liability resulting from payment of your account balance to your estate. You agree to hold us harmless for any actions we take based on our belief that you have died or become incapacitated. If certain payments originating from government entities are deposited into your Account after your death, we may be required to return those payments to the originator upon notice.

‍

1.14 Our Relationship With You

‍

By opening an Account, we are establishing an Account relationship with you and committing to act in good faith and to the exercise of ordinary care in our dealings with you as defined by the Uniform Commercial Code as adopted by the Commonwealth of Virginia. This Agreement and the Account relationship do not create a fiduciary relationship or any other special relationship between you and us.

‍

1.15 Confidentiality and Our Privacy Policy

‍

Your privacy is important to us. Under this Agreement, we will only disclose information about your Account or the transactions you make in accordance with our Privacy Policy, available at https://www.mybrb.com/privacy-policy.html. Unit may also disclose information concerning your Account and transactions that it obtains as a third-party service provider in accordance with its Unit’s Privacy Policy, available at https://www.unit.co/clients-privacy-policy. By opening an Account, you agree to both our and Unit’s privacy policies.

‍

In addition, we disclose your information to Unit in order to facilitate the Account and for other ancillary purposes. You agree to Unit’s use of your information in accordance with the terms of Unit’s Privacy Policy, available at https://www.unit.co/clients-privacy-policy.

‍

1.16 Cell Phone Communications

‍

By providing us with your telephone number for a cellular phone or other wireless device number, you are expressly consenting to receiving non-marketing communications at that number—including but not limited to prerecorded or artificial voice message calls and text messages—from us and our affiliates and agents. This consent applies to all telephone numbers you provide to us now or in the future. Your telephone or mobile service provider may charge you for these calls or messages. You also agree that we may record or monitor any communications for quality control and training purposes.

‍

1.17 Our Business Days

‍

Our business days are Monday through Friday, excluding federal holidays.

‍

2. Your Account Responsibilities

‍

‍We strive to keep your Account secure and provide you with tools and services to help you manage your Account. However, there are certain things you should do to protect your Account and your funds.

‍

2.1 Notify Us If Your Information Changes

‍

You must notify us immediately if there is a change to your business or trade name, the names of any individual or Authorized User with access to your Account, telephone number, mailing address, email address or any other information you have provided us so that we can continue to provide you with statements and important notices concerning your Account.

‍

2.2 Keep Track of Your Transactions and Available Balance

‍

It is important that you keep track of your transactions and the funds in your Account that are available for you to use (“Available Balance”) by reviewing your transaction history. It is also important to understand that your Available Balance may not reflect transactions you have authorized that have not yet been presented to us for payment.You are also responsible for reviewing your Account statements as they are made available to you for errors or unauthorized activity. If you identify an error or unauthorized activity, you must notify us promptly to avoid losing your money. Please refer to Sections 3.11, 4.5, 4.6, and 5.10 for information concerning errors and unauthorized activity.

‍

2.3 Protect Your Account Information

‍

It is important that you protect your Account information to prevent unauthorized transactions and fraud. Keep your Account number, debit card, ATM card and statements secure, and be careful about who you share this information with. If the Program Partner provides you with access to Online Services, make sure to also keep your computer or mobile device secure and avoid accessing the Online Services when others can see your screen.If your Account number, debit card, ATM card, mobile device or Online Services login credentials are lost or stolen, notify us immediately to keep your losses to a minimum. Please refer to Section 4.5 for information and applicable deadlines for notifying us of losses or theft.

‍

3. General Rules Governing Your Account

3.1 Deposits Into Your Account

‍

You may make deposits into your Account using any of these methods described below. We do not charge you any fees for making deposits.

‍

We do not accept deposits by mail, or paper check or foreign currency deposits: We are not liable for deposits of any kind that you mail to us, including if it is lost in transit, lost in the mail, or otherwise not received by us.

‍

• Cash: We do not accept cash deposits made by mail. If you mail us a cash deposit, we will send the cash back to you.

• Paper Checks: If you mail a paper check to us, including personal or business checks, money orders or cashier’s checks, we may apply the check to any negative balance you have on your Account or send the check back to you.

• Foreign Currency: We do not accept any deposits in foreign currency. Any deposits received in foreign currency, whether in the form of cash or check, will be sent back to you.

‍

We will send all items back to the address we have for you and we are not liable if you do not receive the items.

‍

You may only deposit with us funds that are immediately available, which under applicable law are irreversible and are not subject to any lien, claim or encumbrance.

‍

For more information about deposits and when funds from a deposit will be made available to you, please refer to Section 3.2.

‍

3.2 Our Funds Availability Policy

‍

It is our policy to make deposits made to your Account each business day available for withdrawal according to the table below.  The end of the business day is referred to as the "deposit cut-off time". If you make a deposit before our 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 our cut-off time or on a day we are not open, we will consider the deposit to be made on the next business day that we are open.

‍

The availability of funds transferred to your Account from a linked bank account held by another financial institution follow different rules. Please refer to Section 3.6 for more information.

‍

3.3 ACH Credit Transactions and UCC Article 4A

‍

Credit given by us with respect to an ACH credit entry is provisional until we receive final settlement for such entry through a Federal Reserve Bank.  If we do not receive final settlement, you acknowledge and agree that we are entitled to a refund of the amount credited to you in connection with the ACH credit entry, and the party making payment to you via such entry shall not be deemed to have paid you in the amount of such entry.

‍

Under the operating rules of the National Automated Clearing House Association, which are applicable to ACH transactions involving your Account, we are not required to give next day notice to you of receipt of an ACH item and will not do so. However, we will continue to notify you of the receipt of ACH items through your Account statements.

‍

We may accept on your behalf payments to your Account which have been transmitted through one or more Automated Clearing Houses and which are not subject to the Electronic Fund Transfer Act and your rights and obligations with respect to such payments shall be construed in accordance with and governed by the laws of the Commonwealth of Virginia, unless otherwise specified in a separate agreement that the law of some other state shall govern.

‍

3.4 Problems that Could Occur With Deposits

‍

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. Please refer to Section 3.12 concerning overdrafts for more information.

‍

3.5 Transfers To or From Two Accounts You Have With Us

‍

You may transfer funds from one Account in your name to another account in your name held by us that is managed by the Program Partner (an “internal transfer”). There are no limits on the number of internal transfers you may make, and internal transfers are immediately available.

‍

3.6 Withdrawals From Your Account

‍

You may withdraw funds up to the amount of your Available Balance in your Account using any of the following methods.

‍

If you have been issued a debit card or ATM card for your Account, there may also be limitations that apply to your use of the card. Please refer to the applicable cardholder agreement provided to you with your card for information on any applicable limitations and other terms.

‍

You cannot withdraw funds by check, and we do not permit you to create checks drawn on your Account.

‍

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.

‍

3.7 Transfers To or From Linked Bank Accounts

‍

You may be provided with the ability to link another bank account you have with another financial institution (“linked bank account”) to your Account with us to make inbound and outbound ACH transfers between the linked bank account and your Account through the Online Services. An “inbound transfer” moves funds into your Account from a linked bank account. An “outbound transfer” moves funds from your Account to a linked bank account. We will facilitate transfers to a linked bank account separate and apart from any access we provide you to the ACH Origination Service (see Section 5 below).

‍

For inbound transfers, we will debit your linked bank account and credit your Account with us on the next business day after you initiate the transfer. The funds you transfer to your Account will be made available to you by the fifth (5th) business day after the funds have been credited to your Account.

‍

For outbound transfers, we will debit your Account with us and credit your linked bank account on the next business day after you initiate the transfer. The financial institution that holds your linked bank account determines when those funds will be made available to you in your linked bank account.

‍

The cut-off time for both inbound and outbound transfers is 3:00 PM ET. Transfer requests that you make on a business day before the cut-off time will be considered initiated on that day. Transfer requests that you make after the cut-off time, or on a day that is not a business day, will be considered initiated the following business day that we are open.

‍

There are limits to the dollar amount of both inbound and outbound transfers you can make. Please see sections 3.1 and 3.6.

‍

You agree that you will only attempt to link a bank account for which you have the authority to transfer funds. You also agree to indemnify and hold us harmless from any claims by any business or 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.

‍

3.8 No Illegal Activity, Internet Gambling and Right to Refuse Transactions

‍

You must not use your Account for:

• any illegal purpose or activity;

• any violation of applicable law;

• any internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction;

• any activities that are prohibited by the acceptable business policies of Bank; or

• any transaction or activity that is not specifically authorized and permitted by this Agreement or the Account Agreement.

‍

We may deny any transaction or refuse to accept any deposit that we believe is related to illegal activity, online gambling or for any other reason at our discretion.

‍

3.9 How We Post Transactions To Your Account and Determine Your Available Balance

‍

3.9.1 Posting Overview

‍

To understand how we post transactions to your Account, it is important to first understand the difference between your Available Balance and your ledger balance. Your Available Balance is the amount of money you have in your Account at any given time that is available for you to use. Your ledger balance is the balance in your Account at the beginning of the day after we have posted all transactions to your Account from the day before. We use your Available Balance to authorize your transactions throughout the day and determine whether you have sufficient funds to pay your transactions. Here are some additional terms that are helpful to understand:

‍

• Credit and debit – A credit increases your balance and a debit decreases your balance.

• Post or posted – Transactions that are paid from or deposited to your Account. Posted transactions will either increase or decrease both your Available Balance and your ledger balance.

• Pending – Transactions that we receive notice of and are scheduled to post to your Account. Pending transactions affect your Available Balance, but not your ledger balance.

• Card authorization and settlement – When you use a debit card to make a purchase, the transaction occurs in two steps: card authorization and settlement. Card authorizations reduce your Available Balance, but not your ledger balance. Settlement reduces both your Available Balance and your ledger balance. Card authorizations are removed when settlement occurs or after a certain number of days have passed, whichever is sooner. Please see Section 3.9.4 for more information about card authorizations and settlement.

‍

3.9.2. Posting Order

‍

We receive transactions throughout the day and post them to your Account as they are received and in the order that they are received. Note that for debit card transactions, we consider the transaction received when the merchant requests settlement, which may occur several days after you authorize the transaction. See Section 3.9.4 for additional information concerning how debit card transactions are processed.

‍

We may change the order in which we post transactions to your Account at our discretion and 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.

‍

3.9.3 Determining Your Available Balance

‍

To determine your Available Balance, we start with your ledger balance at the beginning of the business day, add any pending credits or deposits that we make available to you, and subtract any card authorizations and pending debits. All transactions are debited or credited from your Available Balance in the order received.

‍

You may check your available balance through the Online Services. Keep in mind that your Available Balance may not reflect every transaction you have initiated or previously authorized. For example, your Available Balance may not include transactions you have authorized that we have not received.

‍

3.9.4 Debit Card Authorizations

‍

If you are issued a debit card with your Account, you will be able to use your card to pay for goods or services or conduct other transactions with a merchant. When you engage in a transaction with a merchant using your debit card, the merchant will request preauthorization (“card authorization”) for the transaction. If there are sufficient available funds in your Account, we will approve the request and reduce your Available Balance for as long as the card authorization remains on your Account.

‍

Your Available Balance will generally be reduced by the amount of the card authorization.

‍

The card authorization will remain on your Account until the merchant sends us the final amount of the transaction and requests payment (“settlement”). In most cases, If the merchant does not request settlement, or the merchant is delayed in requesting settlement, the card authorization will automatically be removed after 3 days. However, certain merchants such as hotels may hold for a period of up to 7 days.

‍

It is important to understand that the merchant controls the timing of card authorizations or settlement. A merchant may request settlement after the card authorization has been removed from your Account. This means that if you use the funds in your Account after the card authorization has been removed and the merchant later requests settlement, your Account may become overdrawn. A merchant may also request settlement for an amount that is different than the card authorization. Therefore, it is important that you keep track of your transactions and your balance. Once we have approved a card authorization, we cannot stop the transaction and you will be responsible for repaying any negative balance that may occur.

‍

3.10 Statements

‍

Statements will periodically be provided to you through the Online Services as long as your Account is not inactive. You will receive a statement monthly as long as you have transactions on your Account during the statement period. If there were no transactions on your Account, we may not provide you with statements or may provide you with statements on a less frequent basis. You will not receive paper statements.

‍

If you have a tax sub-account connected to your primary Account (see Section 1.4), you will be provided a statement for your tax sub-account in addition to your primary Account statement.

‍

3.11 Errors On Your Account and Limitations of Liability

‍

You agree to carefully review your statements and promptly report to us any suspected errors or unauthorized activity by email at support@kick.app within thirty (30) days after we make the statement available to you. Unless otherwise specified in this Agreement or required by law, if you do not provide us with timely notice of an error or unauthorized activity, we will deem our records concerning your Account to be correct and you agree that we will not be liable to you for any loss you suffer relating to the error or unauthorized activity. You further agree that we may debit or credit your Account at any time and without notice to you to correct an error or address unauthorized activity.

‍

In any case, our maximum liability to you will never exceed the amount of actual damages proven by you. Our liability may also be further reduced by the amount of the loss that is caused by your own negligence or lack of care, as well as any recovery of the loss you obtain from third parties. Please refer to Section 4 for additional information concerning errors and unauthorized transactions involving electronic fund transfers and related limitations of liability. There may also be other limitations of liability contained in this Agreement.

‍

3.12 Overdrafts, Nonsufficient Funds and Negative Balances

‍

We do not permit you to overdraw your Account. If the Available Balance in your Account is not sufficient to cover any transaction you have authorized, we may return the transaction or refuse to process the transaction. However, there may be instances where your Account can still go into the negative, such as if a deposit you make is returned. You must make a deposit immediately to cover any negative balance. If your Account has a negative balance for sixty (60) calendar days or more, we may close your Account.

‍

3.13 Closing Your Account and Account Suspensions

‍

You can close your Account at any time and for any reason by email at support@kick.app. We reserve the right to refuse your request if you have a negative balance on your Account. We recommend that you transfer or withdraw any funds you may have in the Account prior to submitting a request to close the Account to avoid delays in receiving your funds.

‍

We may also suspend or close your account at our discretion 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 Unit, or if you otherwise present undue risk to us or Unit. We may also close your Account if you have not made any deposits or withdrawals from your Account in over twelve (12) months. In addition, cancelling your enrollment in the Online Services with the Program Partner will result in our closure of the Account and our return of your funds. We are not responsible to you for any damages you may suffer as a result of the closure or suspension of your Account.

‍

If your Account is closed with a balance greater than $1.00, we will return any funds you may have in the Account to you by ACH transfer to another bank account or by paper check. We reserve the right not to return the funds to you if the balance in your Account is $1.00 or less. 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 (including, but not limited to, any indemnification obligation by you, our limitations of liability, and any terms governing arbitration).

‍

3.14 Dormancy, Inactivity and Unclaimed Property

‍

State law and our policy govern when your Account is considered dormant. Your Account is usually considered dormant if you have not accessed your Account, communicated to us about your Account or otherwise shown an interest in your Account within the period of time specified under applicable law. Each state has varying laws as to when an account becomes dormant, and we may be required to send the balance in your Account if it becomes dormant to the state of your last known address. We will make reasonable efforts to contact you if required by applicable law before transferring the remaining balance of your Account to the applicable state. After we surrender the funds to the state, you must apply to the appropriate state agency to reclaim your funds. You can avoid the surrender of your funds simply byconducting transactions, contacting us about your Account or replying to any abandoned property notices we may provide to you.

‍

We may also place your Account in an inactive status if you have not had any transactions for at least six (6) months. If your Account becomes inactive, you may not receive statements or be able to conduct certain transactions. Inactive Accounts must be reactivated. Contact us by email at support@kick.app to reactivate your Account. Account Fees and Fee Schedule You agree to pay all fees and charges applicable to your Account. All fee amounts will be withdrawn from your Account and will be assessed regardless of whether you have sufficient funds in your Account, except where prohibited by law. Fees are subject to change at any time. We will provide you advance notice of any changes where required by law.

‍

4. Electronic Fund Transfers

‍Your Account allows you to withdraw funds up to the Available Balance or make deposits through Electronic Fund Transfers (“EFTs”). EFTs are transactions that are processed by electronic means and include, among others, ACH transfers, debit or ATM card transactions and direct deposits. This Section provides you with information and important disclosures and terms about the EFTs that are permitted on your Account. You may also receive additional services through Online Services provided by the Program Partner, that allow you to initiate EFTs to and from your Account that are not described in this Agreement. You will be provided separate agreements and disclosures applicable to those services by the Program Partner, if applicable.

‍

4.1 Types of EFTs Supported by Your Account

‍

Your Account allows the following types of EFTs:

‍

• Direct deposits from your employer or other source of income

• Transfers to or from your Account to or from a linked bank account (see Section 3.6)

• Transfers to or from your Account to a merchant or other third party by providing the third party with your

• Account routing number and account number

• Purchases or other transactions using your debit card

• ATM deposits or withdrawals using your debit card or ATM card

‍

4.2 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 Section 3.1 concerning deposits. For limits that apply to transactions that debit or withdraw from your Account, please refer to Section 3.6 concerning withdrawals. For limits that apply to transfers to or from your Account from a linked bank account, please refer to Section 3.7. These security-related limits may change from time to time.

‍

If you have been issued a debit card or ATM card for your Account, there may also be transaction limitations that apply to your use of the card. Please refer to the applicable cardholder agreement provided to you with your card for information on any limitations and other terms.

‍

4.3 Documentation of Your Transactions

‍

We will provide you information about each transaction that debits or credits your Account on your statements. Please refer to Section 3.10 for information about statements. You may also be able to view your transaction history and other information through Online Services provided to you by the Program Partner. You may also contact us by email at support@kick.app for information concerning your Account or your transactions.

‍

If you are provided with a debit card or ATM card, you can get receipts at the time you make a withdrawal at an ATM or a purchase at a point-of-sale terminal when using your card.

‍

4.4 Preauthorized Transfers, Stop Payments and Notices of Varying Amounts

‍

If you authorize us or another company or person to withdraw from your Account on a regular basis (such as when you sign up for “autopay” to pay a recurring bill or invoice), it is called a Preauthorized Transfer. You may request that we place a stop payment on Preauthorized Transfers, as well as get notification when the amount of a particular withdrawal will be different from the amount of the last withdrawal.

‍

4.4.1 How to Request a Stop Payment

‍

If you authorize a third party to take payments from your Account on a regular basis through a Preauthorized Transfer, you can place a stop payment on those payments by contacting us by email at support@kick.app at least three (3) business days before the next payment is scheduled to be made.

‍

You must 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.

‍

4.4.2 Notices of Varying Amounts

‍

If these regular payments vary in amount, the person or company you are paying should tell you ten (10) days before each payment when it will be made and how much it will be. You may be given the option to only get this notice when the payment will differ by more than a certain amount from the previous payment, or when the amount will fall outside certain limits that you set.

‍

4.5 Questions About Your EFTs and Reporting Errors or Unauthorized EFTs

‍

You may contact us at (909) 316-5331 or email us at support@kick.app with questions concerning EFTs that occur on your Account. If you have questions about debit card transactions, you may also contact 1-833-333-0417.

‍

You may also contact us using the methods above to report suspected errors or unauthorized EFTs.  Be sure to contact us immediately if you believe that an error or unauthorized EFT has occurred or may occur concerning your Account, or if your Account, debit card, ATM card or Online Services login credentials have been lost, stolen or compromised. You must contact us no later than thirty (30) days after we sent the FIRST statement on which the error or unauthorized EFT appeared. You must provide us with the following information:

‍

• Your name and Account number.

• A description of the error or the EFT you are unsure about and explain as clearly as you can why you believe it is an error or why you need more information.

• The dollar amount of the suspected error.

• If you tell us orally, we may require that you send us your complaint or question in writing by email within ten (10) business days.

‍

After receiving your notice of error or unauthorized EFT, we will investigate and provide you with the results and any corrections we make to your Account within a commercially reasonable time.

‍

4.6 Our Liability for a Failure To Complete A Transaction, Unauthorized Transactions or Failure to Stop a Payment

‍

We will respond to notices of errors or unauthorized EFTs and requests to stop payments in a commercially reasonable manner and time. You agree that in no event will we be liable in an amount exceeding the lesser of five thousand dollars ($5,000) or the actual amount of your loss. You also agree that we will not be liable for any amount of loss that you may incur if you:

‍

• Do not tell us about a suspected error or unauthorized EFT within thirty (30) days after the first statement showing the error or unauthorized EFT is made available to you; or

• If you do not provide us with the information necessary to place a stop payment on a Preauthorized Transfer in a timely manner.

‍

In addition, we are not liable for any losses you may incur in any of the following circumstances:

‍

• If the Available Balance in your Account is not sufficient to complete the transaction through no fault of ours. If the ATM you use does not have enough cash.

• If the failure is due to an equipment or system breakdown, such as a problem with the Online Services provided by the Program Partner, that you knew about before you began a transaction.

• The failure was caused by an Act of God, fire or other catastrophe, or any other cause beyond our control despite reasonable precautions we have taken.

• If your funds are not available due to a hold or if your funds are subject to legal process.

• If we do not complete a transaction because we or Unit has reason to believe the transaction is unauthorized or illegal.

• If your Account is closed or inactive.There may be additional exceptions stated in our or Unit’s agreements with you or permitted by law.

‍

5. ACH Origination Service

5.1 Description of ACH Origination Service

‍

You may be provided with access to the ACH Origination Service. The ACH Origination Service allows you to instruct us to create and/or send a NACHA formatted file on your behalf in order to execute the transfer of funds to another financial institution to disburse funds or to make payments funds to another party via the System. All transactions executed through the ACH Origination Service described above will be collectively known as (“ACH transactions”.) If the ACH Origination Service is made available to you, it will only be accessible through the Online Banking Services. Your use of and access to the ACH Origination Service is separate and apart from your ability to facilitate transfers via ACH to a linked bank account (see Section 3.7).

‍

We will facilitate only Internet-Initiated/Mobile Entry (“WEB”) and Corporate Credit or Debit Entry (“CCD”) ACH transactions through the ACH Origination Service. We will select, at our sole discretion, whether to facilitate any given ACH transaction as a WEB transaction or CCD transaction.

‍

Unless otherwise defined in this Agreement, capitalized terms that appear in this Section 5 shall have the meanings set forth in the Operating Rules (the “Rules”) of the National Automated Clearing House Association (“NACHA”).

‍

5.2 Processing Deadlines

‍

Except as provided in Security Procedures in Section 5.4 below, we shall (i) process entries received from you to conform with the file specifications set forth in the Rules, (ii) transmit such entries as an Originating Depository Financial Institution to the Federal Reserve Bank, and (iii) settle for such entries to the specified accounts as provided in the Rules.

‍

We shall transmit such entries to the Federal Reserve Bank by the deadline of the ACH one business day prior to the Effective Entry Date shown in such entries, provided (i) such entries are received 3:00 PM ET on a business day, (ii) the Effective Entry Date is at least 2 days after such business day, and (iii) the Federal Reserve is open for business on such business day. A “business day” is a day in which the Federal Reserve Bank is opened to the public for substantially carrying on its business, other than a Saturday, Sunday, or legal holiday.

‍

If any of the requirements of clause (i), (ii), or (iii) listed above are not met, we shall use reasonable efforts to transmit such entries to the Federal Reserve Bank by the next deposit deadline on which the Federal Reserve is open for business.

‍

5.3 ACH Rules

‍

When engaging in any transaction through the ACH Origination Service, you agree to comply with the Rules. You can obtain a copy of the Rules from NACHA at 13450 Sunrise Valley Drive, Suite 100 Herndon, VA 20171; instructions for obtaining a copy of the Rules are also available at www.nacha.org. You agree to comply with and be bound by the Rules. In the event you violate any of the applicable Rules and NACHA imposes a fine on us because of your violation, we may charge the fine to you. We agree to inform you of revisions to the Rules of which we have knowledge. Our current process does not support the origination of IAT’s (International ACH Transactions).

‍

5.4 Security Procedures

‍

Our security procedures or security requirements are integrated into the Online Banking Services, and you acknowledge and agree that these security procedures are a commercially reasonable method of providing security against unauthorized payment orders. You agree to submit ACH origination requests solely through the Online Banking Services if access to the ACH Origination Service is provided to you.

‍

5.5 Our ACH Origination Obligations

‍

If you are given access to the ACH Origination service, in a timely manner and in accordance with the Rules, we will process, transmit and settle for the entries received from you, which comply with the terms of this Agreement and/or any addendums or future addendums.

‍

5.6 Warranties

‍

You warrant and agree that:

• Each entry is accurate, timely, and has been authorized by the party whose account will be credited or debited, and otherwise complies with the Rules.

• Each debit entry is for an amount, which on the settlement date with respect to it, will be owing to you from the party whose account will be debited, is for a sum specified by such party to be paid to you, or is a correction of a previously transmitted erroneous credit entry.

• You have complied with all pre-notification requirements of the Rules.

• You will comply with the terms of the Electronic Funds Transfer Act, if applicable, or Uniform Commercial Code Article 4A if applicable, and the laws of the United States. You shall otherwise perform your obligations under this Agreement in accordance with all applicable laws and regulations. You shall indemnify us against any loss, liability or expense (including attorney’s fees and expenses) resulting from or arising out of any breach of any of the foregoing warranties or agreements.

‍

5.7 Authorized Daily Dollar Limits

‍

There are limitations on the frequency and amount of ACH transactions you can originate from your Account using the ACH Origination Service. For limits that apply to transactions that debit or withdraw from your Account, please refer to Section 3.6 concerning withdrawals. These security- and related limits may change from time to time.Inherent to the implementation of any ACH Origination Service is a degree or risk assumed by us. It is possible for you to expose us to significant financial liability if you do not have sufficient funds on deposit in the Account to settle ACH transactions or returns. We reserve the right to periodically request and review your financial information and revoke your access to ACH Origination Service if we believe, in our sole discretion, that you cannot financially support your liability for ACH transactions originated from the Account. The following types of ACH transactions may be originated using the Account and the Online Banking Services: CCD and WEB.

‍

5.8 Provisional Credit

‍

You acknowledge that the Rules make provisional any credit given for an entry until the financial institution crediting the account specified in the entry receives final settlement. If the financial institution does not receive final settlement, it is entitled to a refund from the credited party and the originator of the entry shall not be deemed to have paid the party.

‍

5.9 Settlement

‍

You will maintain the Account during the term of this Agreement. As of the applicable settlement date, you will maintain in the Account as of the applicable settlement date immediately available funds sufficient to cover all credit entries initiated by you. You authorize us to debit the Account on the applicable settlement date in the amount of each entry. If there are not sufficient available funds in the Account to cover your obligations under this Agreement, you agree that we may debit any account maintained by you with us or that we may set-off against any amount we owe to you, to obtain payment of your obligations under this Agreement.

‍

5.10 Cancellation or Amendment

‍

You shall have no right to cancel or amend any entry/file after its receipt by us. However, we shall use reasonable efforts to act on a request, in writing, by an Authorized User to cancel an entry/file before transmitting it to the Federal Reserve Bank. Any such request shall comply with the security procedures described in Section 5.4 above. You may be required to submit a new transfer request in writing or electronically through the Online Banking Services. We shall have no liability if the cancellation or change is not affected.

‍

5.11 Reversals

‍

You may request the reversal of an entry for erroneous or duplicate transactions that have been transmitted to the Federal Reserve by contacting us through the Online Banking Services.

‍

5.12 Rejection of Entries

‍

We shall reject any entry, including an on-us entry, which does not comply with the requirements of this Agreement and may reject any entry if you are not otherwise in compliance with the terms of the Agreement. We shall notify you by email or via the Online Banking Services of such rejection no later than the business day such entry would otherwise have been transmitted by us to the ACH or, in the case of an on-us entry, its effective entry date.

‍

5.13 Returned EntriesWe shall notify you by email or via the Online Banking Services of the receipt of a returned entry from the Federal Reserve no later than one business day after the business day of such receipt. We shall have no obligation to re-transmit a returned entry if we complied with the terms of this Agreement with respect to the original entry.

‍

You agree not to exceed ninety-five percent (95%) of any thresholds set forth in the NACHA Rules for returns on the basis that the Transaction was unauthorized, returns for administrative reasons, or all returns regardless of the cause in any thirty (30) day period. You further agree not to exceed one-half percent (0.5%) returns on the basis that the Transaction was unauthorized in any thirty (30) day period irrespective of whether any NACHA thresholds have been exceeded.  Returns on the basis that the transaction was unauthorized will be assigned a NACHA return status of R07 (“authorization revoked by customer”), R10 (“customer advises not authorized”), or R29 (“corporate customer advises not authorized”).

‍

We reserve the right to limit, suspend, or terminate your ACH Origination Service privileges for any violation of this Section 5.13.

‍

5.14 Notifications of Change

‍

We shall notify you of all notifications of changes that we receive related entries that you transmit by email or via the Online Banking Services no later than five (5) business days after receipt thereof.

‍

5.15 Fees

‍

You agree to pay us for ACH Origination Service provided under the Agreement in accordance with the current schedule of fees in Section 3.15 above. We may change our fees from time to time upon written notice.

‍

5.16 Audits

‍

We shall have the right to audit any records for compliance with the agreements and Rules relating to ACH Transactions originated by you.

‍

5.17 ACH Origination Service Liability, Limitations on Liability & Indemnity

‍

IF YOU ARE GIVEN ACCESS TO THE ACH ORIGINATION SERVICE, WE SHALL BE RESPONSIBLE ONLY FOR PERFORMING THE ACH ORIGINATION SERVICE EXPRESSLY PROVIDED FOR IN THIS AGREEMENT AND SHALL BE LIABLE ONLY FOR OUR GROSS NEGLIGENCE IN PERFORMING THIS SERVICE. WE SHALL NOT BE RESPONSIBLE FOR YOUR ACTS OR OMISSIONS (INCLUDING WITHOUT LIMITATION THE AMOUNT, ACCURACY, TIMELINESS OF TRANSMITTAL OR AUTHORIZATION OF ANY FILE RECEIVED FROM YOU) OR THOSE OF ANY OTHER PERSON. WE ARE AUTHORIZED BY YOU TO PROCESS TRANSACTIONS IN ACCORDANCE WITH THE INFORMATION THAT WE RECEIVE IN THE ISSUED FILE TRANSMISSION FROM YOU. YOU SHALL BE SOLELY RESPONSIBLE FOR THE INFORMATION CONTAINED IN THE FILE, AND WE SHALL HAVE NO RESPONSIBILITY FOR ERRONEOUS DATA PROVIDED BY YOU. YOU WILL INDEMNIFY AND HOLD US HARMLESS FROM AND AGAINST ANY LOSS, CHARGE, LIABILITY, COST, FEE OR EXPENSE (INCLUDING ATTORNEYS’ FEES AND EXPENSES) WE SUFFER OR INCUR RESULTING FROM ANY THIRD-PARTY LAWSUIT, CLAIM, ARBITRATION OR OTHER ACTION, ACTUAL OR THREATENED, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.

‍

IN NO EVENT SHALL WE BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT LOSS OR DAMAGE THAT YOU MAY INCUR OR SUFFER IN CONNECTION WITH THIS AGREEMENT, INCLUDING LOSSES OR DAMAGES FROM SUBSEQUENT WRONGFUL DISHONOR RESULTING FROM OUR ACTS OR OMISSIONS PURSUANT TO THIS AGREEMENT.

‍

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING PROVISIONS, WE SHALL BE EXCUSED FROM FAILING TO ACT OR DELAY IN ACTING IF SUCH FAILURE OR DELAY IS CAUSED BY LEGAL CONSTRAINT, INTERRUPTION OF TRANSMISSION OR COMMUNICATION FACILITIES, EQUIPMENT FAILURE, WAR, NATURAL DISASTER, EMERGENCY CONDITIONS, OR OTHER CIRCUMSTANCES BEYOND OUR CONTROL.  NOTWITHSTANDING THE ABOVE, WE WILL REIMBURSE YOU FOR EXPENSES INCURRED (E.G. WIRE FEES) IN THE EVENT OF OUR FAILURE OR DELAY IN TRANSFERRING FUNDS SOLELY CAUSED US.

‍

IN ADDITION, WE SHALL BE EXCUSED FROM FAILING TO TRANSMIT OR DELAY IN TRANSMITTING AN ENTRY IF SUCH TRANSMITTAL WOULD RESULT IN OUR HAVING EXCEEDED ANY LIMITATION UPON ITS INTRA-DAY NET FUNDS POSITION ESTABLISHED PURSUANT TO PRESENT OR FUTURE FEDERAL RESERVE GUIDELINES OR IN OUR REASONABLE JUDGMENT OTHERWISE VIOLATE ANY PROVISION OF ANY PRESENT OR FUTURE RISK CONTROL PROGRAM OF THE FEDERAL RESERVE, OR ANY RULE OR REGULATION OF ANY OTHER U.S. GOVERNMENTAL REGULATORY AUTHORITY. SUBJECT TO THE FOREGOING LIMITATIONS, OUR LIABILITY FOR LOSS OF INTEREST RESULTING FROM ITS ERROR OR DELAY SHALL BE CALCULATED BY USING A RATE EQUAL TO THE AVERAGE FEDERAL FUNDS RATE SET BY THE FEDERAL RESERVE BANK FOR THE PERIOD INVOLVED. AT OUR OPTION, PAYMENT OF SUCH INTEREST MAY BE MADE BY CREDITING THE ACCOUNT RESULTING FROM OR ARISING OUT OF ANY CLAIM OF ANY PERSON WE ARE RESPONSIBLE FOR, ANY ACT OR OMISSION OF YOU OR ANY OTHER PERSON.PERFORMANCE INTERRUPTION OF THE ACH ORIGINATION SERVICE FOR ANY REASON SHALL NOT RELIEVE YOU OF YOUR OBLIGATION TO MAKE ANY TAX DEPOSIT, AND WE WILL INCUR NO LIABILITY TO YOU FOR YOUR FAILURE TO MAKE ANY REQUIRED TAX PAYMENT BY OTHER MEANS IN THE EVENT OF SUCH INTERRUPTIONS.

‍

5.18 Inconsistency of Name and Account Number

‍

You acknowledge that, if an entry describes the Receiver inconsistently by name and/or account number, payment of the entry may be made on the basis of the account number even if it identifies a person different from the named Receiver. You are solely responsible for providing correct information for all ACH Origination Service requests through the Online Banking Services.

‍

5.19 Termination

‍

You may cancel your ACH Origination Service at any time by providing us with written notice. Your access to the ACH Service through Online Banking Services will be suspended within three (3) business days of our receipt of instructions to cancel your ACH Origination Service from any Authorized User. We shall be entitled to rely on any written notice believed by us, in good faith, to be signed by any Authorized User. We shall have no obligation to transmit entries if you are in default of any of its obligations under this Agreement, including the obligation to pay any related fees for each credit entry.

‍

You will remain responsible for all transactions that occur prior to termination, whether termination by you or by us, and for any fees and charges incurred prior to the date of cancellation. Any unprocessed transactions including future dated and recurring transactions, will be cancelled as a result of termination of your ACH Origination Service. You agree that we can terminate or limit your access to the ACH Origination Service for any of the following reason without prior notice:

• If you have insufficient funds in your Account. The ACH Origination Service may be reinstated, at our sole discretion, once sufficient funds are available to cover any fees, pending transfers, and debits.

• You breach of any term of this Agreement and/or the Rules.

• Upon reasonable notice (including immediate), for cause (including the foregoing) or without cause, in our sole discretion. Any unprocessed transactions including future dated and recurring transactions will be cancelled as a result of termination of your ACH Origination Service.

‍

5.20 Notice Disclosure

‍

Under the operating rules of NACHA, which are applicable to ACH transactions involving your Account, we are not required to give next day notice to you of receipt of an ACH item, and we will not do so. However, we will continue to notify you of the receipt of payments in the periodic statements we provide you.

‍

6. Wire Transfers

‍Your Account may support domestic wire transfers. While domestic wire transfers may be requested through Online Services, such domestic wire transfers are provided to you by the Bank.

‍

6.1 Types of Wire Transfers Supported by Your Account

‍

If wire services are made available to you, your Account will be able to both receive and initiate wire transfers. We may select any means for the transmission of funds that we consider suitable. We may make use of correspondents, agents, subagents, and funds transfer and communication systems. Such third parties shall be deemed your agents, and we shall not be liable for any errors, delay, misdelivery, or failure of delivery by any of them unless applicable law says otherwise.

‍

We will not be liable for our inability to perform our obligations under this Agreement when such inability arises out of causes beyond our control, including but not limited to, any act of God, accident, labor disputes, power failures, system failure, equipment malfunction, suspension of payment by another bank, refusal or delay by another bank to accept the wire transfer, war, emergency conditions, fire, earthquake, or the failure of any third party to provide any electronic or telecommunication service used in connection with the execution or cancellation of a wire transfer.

‍

6.2 Limitations on Wire Transfers

‍

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 Section 3.1 concerning deposits. For limits that apply to transactions that debit or withdraw from your Account, please refer to Section 3.6 concerning withdrawals. There may be limits on the beneficiaries who can receive a wire transfer you initiate from your Account. These security-related limits may change from time to time.

‍

6.3 Cut-Off Times for Wire Transfers

‍

We have cut-off hours for processing wire transfers. If a wire request is received by 3:00 PM ET on a Business Day and verified through our security procedures outlined in the section below titled “Security Procedures,” funds will be processed the same business day. If it is received after 3:00 PM ET or on a non-Business Day and verified through our security procedures, funds may be processed the next business day that we are open.

‍

We may treat any wire transfer request received at or after our cut-off time as if it was received that business day, or we may treat it as if it were received at the opening of the next business day.

‍

6.4 Security Procedures

‍

You agree and consent to the use of certain security procedures by us to confirm the validity of the wire transfer request made pursuant to this Agreement. You understand the security procedures are not designed to detect errors in the content of the wire transfer request or to prevent duplicate transfers. Some elements of the procedures will vary, depending upon the method used to initiate a wire transfer. You hereby agree that your utilization of any security procedure established hereunder shall constitute your agreement to its use and affirmative acknowledgment of its commercial reasonableness. You further agree that any wire transfer request that is acted upon in good faith by us in compliance with these security procedures, whether or not in fact authorized by you, shall constitute an authorized wire transfer.

‍

6.5 Liability for Incorrect Wire Transfers

‍

You are responsible for providing us with the accurate name and account number for wire transfers, and we are responsible for transmitting money to the account number you provided.

‍

When you provide us with a name and account number in order for us to process a wire transfer, we may make payment solely on the basis of the account number, even if the account number identifies a person different from the beneficiary so named. We or an intermediary bank may send a wire transfer to an intermediary bank or beneficiary's/designated recipient's bank based solely on the bank identifying number, even if the payment order indicates a different name. You should be careful when providing the account number for a wire transfer.

‍

If you have provided us with the wrong account number, there may be no way to correct the error or retrieve the funds. You agree that you will pay the amount of a wire transfer even in such circumstances. You are responsible for any losses resulting from an incorrect account number or your misidentification of the beneficiary/designated recipient.

‍

If you think a wire transfer is wrong or if you need more information about a wire transfer, you must contact us by email at support@kick.app as soon as possible and no later than fourteen (14) days after you receive your monthly statement. If you don’t tell us about an error, we will not have any obligation to pay interest on the amount of an unauthorized or erroneous wire transfer for which we are liable, and you will also be liable to us for any damages or losses we may incur.

‍

6.6 Payment

‍

You must pay us the amount of the wire transfer, plus any applicable fees, before we will execute the wire transfer request. Please see Section 3.15 of this Agreement for fees applicable to wire transfers.

‍

6.7 Execution of Wire Transfers

‍

A wire transfer request is considered accepted by us when we execute it. Please refer to Section 6.3 concerning cut-off times for more details. You can verify whether your wire transfer request has been executed by emailing us at support@kick.app.We have no responsibility to accept any incoming wire transfer(s) for your benefit. Likewise, we have a right to reject any wire transfer request(s) for an outgoing wire transfer for reasons including, but not limited to, insufficient or uncollected funds in the account specified in the wire transfer request, a request that fails any requires security procedures, our inability to execute the wire transfer for the reasons set out in the section of this agreement entitled method used to make the wire transfer above, or if we are unable to verify the authenticity of the wire transfer request. If we stop a domestic outgoing wire transfer, we will refund the fee.If we determine, in our sole discretion, not to honor, execute, or accept a wire transfer request, we will make reasonable efforts to notify you. We will also make reasonable efforts to notify you promptly if a wire transfer is returned to us after its execution. In either case, we shall have no liability by reason of our delay or failure to provide you with notice, and we shall have no obligation to resend a wire transfer if we complied with the original wire transfer request and such wire transfer was returned to us.

‍

6.8 Cancellation or Amendment of Wire Transfer

‍

Once we receive a wire transfer request, it may not be able to be canceled or amended. However, at our discretion, we may use reasonable efforts to act on any request for cancellation or amendment, provided that the method by which we are notified of a request for cancellation or amendment complies with our security procedures. However, we shall have no liability if such cancellation or amendment is not affected. You agree to indemnify and hold us harmless from any and all liabilities, claims, damages, costs, and expenses we may incur in attempting to cancel or amend the wire transfer. any cancellation or amendment of a wire transfer by us shall relieve us of any obligation to act on the original wire transfer request.

‍

6.9 Our Liability for Failure to Complete a Wire Transfer

‍

We shall be responsible only for performing the wire transfer service expressly provided for in this Agreement; provided however, we shall be liable only for our own gross negligence or willful misconduct in performing such service. 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 a wire transfer or performing a related act and no such third party shall be deemed to be our agent. IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSSES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THE WIRE TRANSFER SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SAME. Except as otherwise provided by applicable law, the maximum period for which we shall be liable for interest on any amount to be refunded or paid to you with respect to an unauthorized, erroneous, or other wire transfer request is thirty days.

‍

6.10 Your Liability for Unauthorized Wire Transfers

‍

Except as otherwise provided by law, you shall be liable for any loss or damage to which your negligence contributed or which resulted in unauthorized, fraudulent, or dishonest acts by your current and/or former authorized representatives. Such liability includes instances when a current or former authorized representative effects one or more wire transfers or improper use of telephone security procedures to effect a wire transfer to your detriment.

‍

6.11 Compliance with Anti-Money Laundering and Exchange Control Regulations and OFAC Enforced Sanctions

‍

You agree to observe all Anti-Money Laundering and Exchange Control laws and regulations including economic and trade sanctions promulgated by the Office of Foreign Assets Control of the U.S. Department of Treasury in relation to any wire transfer, and you will use all reasonable endeavors to assist us to do likewise. In particular, you agree that the information given to us by you is accurate. We may disclose any information given to us that we in our sole discretion think necessary or desirable to disclose; except we will only disclose confidential information if required by law, a court, or legal, regulatory, or governmental authority, or as permitted by law in order to combat, prevent, or investigate issues arising under anti-money laundering laws, economic sanctions, or criminal law.

‍

Sometimes legal, regulatory, or governmental authorities require additional information, either in respect of individuals, entities, or particular transactions. You agree to promptly supply all such information, which any such authority may require, and/or which we may be required to supply, in relation to the individual, entity, or particular transaction.

‍

If you, or your authorized representative, breach any such laws or regulations, you irrevocably agree that we may retain any monies or funds transmitted to us pursuant to this Agreement and/or not fulfill any wire transfer request if we are required to take or refrain from such action by any legal, regulatory, or governmental authority or if we reasonably believe that such action may violate any laws or regulations described herein, and such monies shall not bear interest against us. You further agree that we may pay such monies to the appropriate legal, regulatory, or governmental authority, when required by law.

‍

7. Other Legal Terms and Conditions

7.1 No Assignments

‍

Your Account and your obligations under this Agreement are not transferable and not assignable as collateral for a loan or for any other purpose. We may transfer our rights under this Agreement.

‍

7.2 Legal Processes and Claims Affecting Your Account

‍

If we receive a levy, attachment, or other legal process against you (collectively, “Legal Process”), we may refuse to permit withdrawals or transfers from your Account until the Legal Process is dismissed or satisfied. Any Legal Process will be subject to our right of set-off and security interest. You are responsible for any losses, costs or expenses we incur as a result of any dispute or legal proceeding involving your Account. If we receive a claim against the funds in your Account, or if we know of or believe that there is a dispute as to the ownership or control of funds in your Account, we may, in our discretion: (1) place a hold on your Account and refuse to pay out any funds until we are satisfied that the dispute is settled; (2) close your Account and send the balance to the named account holder; (3) require a court order to act; or (4) take any other action we feel is necessary to protect us. We will not be liable to you for taking any such action.

‍

7.3 Limitation of Liability and Disclaimer of Warranty

‍

THIS SECTION LIMITS OUR LIABILITY TO YOU WITH RESPECT TO THE SERVICES DISCUSSED HEREIN.  HOWEVER, PLEASE READ ANY OTHER TERMS OF SERVICE YOU HAVE ENTERED WITH PROGRAM PARTNER CAREFULLY, AS SUCH TERMS OF SERVICE MAY INCLUDE ADDITIONAL LIMITATIONS OF LIABILITY WHICH SPECIFICALLY PERTAIN TO THE SERVICES PROVIDED BY PROGRAM PARTNER.

‍

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 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 THE BANK. 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 OR UNIT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES EVEN IF YOU ADVISE US OF THE POSSIBILITY OF SUCH DAMAGES.

‍

EXCEPT AS REQUIRED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, WE SHALL ONLY BE RESPONSIBLE AND LIABLE FOR OUR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN PERFORMING OUR OBLIGATIONS UNDER THIS AGREEMENT. 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.IN ADDITION, EXCEPT AS REQUIRED BY LAW, BLUE RIDGE BANK, N.A. IS NOT LIABLE OR RESPONSIBLE FOR ANY SERVICES OR FEATURES OF ANY ONLINE SERVICES PROVIDED TO YOU BY KICK, INC. WE ARE ALSO NOT LIABLE FOR ANY UNAUTHORIZED ACCESS OF YOUR INFORMATION OR DATA BY A THIRD PARTY DUE TO YOUR USE OF THIRD-PARTY COMMUNICATION CHANNELS NOT OFFERED BY US.

‍

ALL BANK SERVICES AND ACCOUNT FEATURES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THE BANK’S SERVICES OR ACCOUNT FEATURES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, SECURE, TIMELY, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.

‍

7.4 Indemnification

‍

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; (3) any action or omission by you; or (4) our action or inaction in reliance upon oral, written or electronic instructions or information from you.Equally, you agree to indemnify and hold Unit and its 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; (3) any action or omission by you; or (4) our action or inaction in reliance upon oral, written or electronic instructions or information from you.

‍

7.5 Our Right of Set-Off and Security Interest

‍

We have the right to set-off any liability, direct or contingent, past, present or future that you owe against any account you have with us. This means that we can take any funds in your Account or any other account you have with us to pay any debt or liability you owe us. You also agree to grant us a security interest in your Account to secure payment of any money that you owe to us or will owe us arising under this Agreement or any other agreements with us. You acknowledge that this security interest is consensual and in addition to any right of set-off. We may exercise our security interest or right of set-off without regard to the source of the funds in your Account or prior recourse to other sources of repayment or collateral, even if it causes you to incur penalties or suffer any other consequence. You waive any conditions or limits to our right of set-off to the maximum extent permitted by law. We will notify you if we exercise our right to set-off if required by law.If we take any action to collect debt incurred by you or other amounts you owe us under this Agreement or defend ourselves in a lawsuit brought by you where we are the prevailing party, you agree to reimburse us for our losses, including, without limitation, reasonable attorneys’ fees, to the extent permitted by applicable law. We may charge your Account for our losses without prior notice to you.

‍

7.6 Changes in Terms and Additional Services

‍

We may change this Agreement, or any fees and features of your Account, at any time by posting an amended Agreement on Kick, Inc.’s website, kick.app, and any such amendment shall be effective upon posting. We will give you advance notice of any change where required by law. We may provide such notice to you with your statement, electronically, or by mail. Any notice we provide to you will be binding and sent to the last (postal or electronic) address in our records. We may change your address if we receive an address change notice from the U.S. Postal Service. We may change or terminate this Agreement without notice at our discretion or to comply with any appropriate federal or state law or regulation.If we make any of our other banking services available to you in connection with your Account, we may provide certain terms and conditions for those additional services to you in a separate agreement or disclosure.

‍

7.7 No Waiver of Rights

‍

We may waive or decline to enforce any of our rights under this Agreement without obligating ourselves to waive such rights in the future or on any other occasion. We may release any other person obligated under this Agreement without affecting your responsibilities under this Agreement.

‍

7.8 Conflicts and Section Headings

‍

If there is a conflict between this Agreement and any other document or statement made to you concerning the Account, this Agreement will govern. If there is a conflict between this Agreement and any other document or statement made to you concerning any services or products other than the Account, the separate terms and conditions applicable to that service or product will govern. Section headings that appear in this Agreement are for convenience purposes only and are intended to help you find information. They should not be construed as affecting the meaning of the Agreement.

‍

7.9 Severability

‍

In the event that any court or tribunal of competent jurisdiction determines that any provision of this Agreement is illegal, invalid or unenforceable, the remainder of this Agreement shall not be affected. To the extent permitted by law, the parties waive any provision of law which prohibits or renders unenforceable any provisions of this Agreement, and to the extent that such waiver is not permitted by law, you and us agree that such provision will be interpreted as modified to the minimum extent necessary to render the provisions enforceable.

‍

7.10 Governing Law, Forum and Time Limits

‍

All actions relating to your Account and this Agreement will be governed by the laws and regulations of the United States and the Commonwealth of Virginia where your Account will be opened, irrespective of conflict of law principles. You agree that any dispute arising under this Agreement or relating in any way to your relationship with us that is not arbitrated will be resolved in a federal or state court located in Virginia and that you will be subject to such court’s jurisdiction.Except where prohibited by law, you agree that you must file any lawsuit or arbitration against us within two (2) years after the claim arises unless federal or Virginia law, or another agreement you have with us, provides for a shorter time. If federal or Virginia law requires a longer time period than the time periods in this Agreement, you agree to the shortest time period permitted under the law.

‍

8. Arbitration and Waivers

‍BE SURE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US.

‍

8.1 Election to Arbitrate

‍

You and the Bank agree that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 8 (the “Arbitration Provision”). As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us on the other hand, relating to or arising out of this Agreement, and/or the activities or relationships that involve, lead to, or result from this Agreement, including the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. Please note that you may continue to assert Claims in small claims court, if your Claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.

‍

8.2 Applicability of the Federal Arbitration Act; Arbitrator’s Powers

‍

This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the Federal Arbitration Act (the “FAA”). The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.

‍

8.3 Informal Dispute Resolution

‍

If a Claim arises, our goal is to address your concerns and, if we are unable to do so, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you will first submit your Claim to us by email at support@kick.app and provide us with the opportunity to resolve your concern prior to initiating arbitration.

‍

8.4 Arbitration Procedures

‍

The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”) or Judicial Alternatives and Mediation Services (“JAMS”). The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1(800) 778-7879 or visit the AAA's web site at: www.adr.org. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply. The arbitration will be held in the United States county where you live or work, or any other location we agree to.

‍

8.5 Arbitration Fees

‍

If we initiate arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you initiate arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules. We shall pay the administrator's hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator's rules or applicable law require otherwise, or you request that we pay them and we agree to do so. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.

‍

8.6 Appeals

‍

Within thirty (30) days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within thirty (30) days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator's rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (“FAA”), and may be entered as a judgment in any court of competent jurisdiction.

‍

8.7 No Class Actions

‍

NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this Section 8.7, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this Section 8.7 shall be determined exclusively by a court and not by the administrator or any arbitrator.

‍

8.8. Survival and Severability of Arbitration Provision

‍

This Arbitration Provision shall survive the termination of this Agreement. If any portion of this Arbitration Provision other than Section 8.7 is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If there is a final judicial determination that applicable law precludes enforcement of this Arbitration Provision’s limitations as to a particular claim for relief or particular term, then that claim (and only that claim) or that term (and only that term) must be severed from the Arbitration Provision and may be brought in court. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in Section 8.7 are finally adjudicated pursuant to the last sentence of Section 8.7 to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.

‍

8.9 Judicial Forum for Claims Except as otherwise required by applicable law, in the event that this Arbitration Provision is found not to apply to you or your Claim, you and the Bank agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Virginia. Both you and the Bank consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.

‍

8.10 WAIVER OF RIGHT TO LITIGATE

‍

THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT ARE HEREBY KNOWINGLY AND VOLUNTARILY WAIVING THAT RIGHT BY AGREEING TO THIS AGREEMENT AND ARBITRATION PROVISION.