Section 3 includes the capitalized, defined terms used in this Agreement.
The Services allow you to maintain a digital account that permits you to, among other things: (i) electronically maintain deposit balances, (ii) initiate Automated Clearinghouse (ACH) transfers from your designated digital account to (A) a Linked Account, (B) other members of the Confia Network, and (C) in certain circumstances, to a service provider, (iii) access your online digital account, and (iv) access other functionality through your Confia Account. Confia may change or provide new Services but will not materially diminish or remove Services without Notice except where necessitated by Third-Party Service Providers or required by law.
You will need to provide Accountholder Data and certain Personal Data when submitting an application for a Confia Account. Accountholder Data may include business information (such as registered business name and state of incorporation for Accountholder, the business address, ownership details, EIN, formation documents, licensing information, financial information, and other business information we may request from time to time), Personal Data (such as the name, contact information, SSN/TIN and date of birth of Users or beneficial owners), and documentary information used to verify business and Personal Data (such as corporate registration certificate, proof of address, or personal identification).
We may provide Accountholder Data and Personal Data to our Third-Party Service Providers to determine your eligibility for the Services. We may approve or deny your application or grant you provisional access, on a limited basis at Confia’s discretion, to the Services or your Confia Account while your application is pending additional review. Confia and our Third-Party Service Providers rely on the accuracy of Accountholder Data and Personal Data when opening and maintaining your Confia Account. You authorize Confia, directly or through third parties, to make any inquiries or otherwise use such data to verify your identity. We may deny applications, interrupt provision of the Services to you, or suspend or close your Confia Account for any reason including where Accountholder Data or Personal Data is incomplete, inaccurate, or out of date. You will keep Accountholder Data and each User or beneficial owner’s Personal Data current, complete, and accurate in your Confia Account at all times, whether we provide you with full or provisional access.
We will disclose Fees to you when opening your Confia Account or through our website.
You must specify at least one Administrator to manage your Confia Account when submitting your application. Administrators can add, remove, or manage additional Administrators and Users; set or change privileges; view transactions; run reports and download statements; provide or update Accountholder Data; connect Linked Accounts and other accounts to your Confia Account; and perform other tasks on your behalf. You are responsible for any actions or failure to act on the part of Administrators, Users, and those using credentials issued to Users to access Accountholder’s Confia Account.
You will keep your Confia Account secure and only provide access to individuals that you have authorized to use the Services or access the Confia Account on your behalf. You will immediately disable User access to the Services where you know or believe your Confia Account has been compromised or may be misused; and you will promptly notify us of any unauthorized access or use. We may help you resolve unauthorized transactions, but you are ultimately responsible for financial loss caused by Administrators, Users, or other persons given access to the Services or your Confia Account. We may suspend access to your Confia Account if we believe your Confia Account has been compromised or that not doing so may pose a risk to you, Confia, or any third parties.
Only (i) companies organized and registered in the United States (such as C-corps, S-corps, LLCs, or LLPs) and operating under the laws of the United States, and (ii) consumers whose identity is verified may apply for a Confia Account. Unincorporated partnerships, companies registered outside the United States, or operating outside of the laws of the United States are not permitted to use or attempt to open or use a Confia Account. Businesses that require licensing to operate will be required to maintain applicable state or federal licenses active and in good standing; if licenses expire, are terminated, or are otherwise not maintained in good standing, Confia shall have the right to suspend the account until a license is shown to be active and or in good standing.
Your Confia Account and Services may only be used for the Accountholder’s bona fide business purposes, or in the case of consumers, to perform transactions with other Accountholder’s as permitted. Your Confia Account and Services may not be (a) used for any purpose that is unlawful or prohibited by this Agreement and the Account Terms & Conditions; (b) used for any personal, family, or household use other than retail transactions with certain Accountholders designated as retailers; (c) provided to or used for the benefit of an individual, organization, or country that is blocked or sanctioned by the United States, including those identified: (i) on the United States Office of Foreign Asset Control (OFAC) including without limitation, its Specially Designated Nationals and Blocked Persons List, and or (ii) as financially sanctioned by the United States Department of State; (d) by unaffiliated third parties; or (e) used for any other activities, not for the benefit of the Accountholder.
We will not approve and may close Confia Accounts that we know or believe are engaged in any Prohibited Activities. Where Accountholder is engaged in Restricted Activities, Confia may require that you provide additional information to open or maintain your Confia Account. We may update the list of Prohibited Activities or Restricted Activities at any time. You agree to review this regularly and contact us with any questions you have about how this list may apply to an Accountholder.
We may suspend or terminate access to your Confia Account if we believe this section was violated or if required by a Third Party Service Provider. You agree to pay all Fines imposed on Confia by a Third Party Service Provider, regulators, or government agencies for your violation of this section.
Confia and licensors own all Confia Property. You, Administrators, and Users may use Confia Property only as and for the purposes provided in this Agreement and the Account Terms & Conditions. You may not modify, reverse engineer, create derivative works from, or disassemble Confia Property; or register, attempt to register, or claim ownership in Confia Property or portions of Confia Property.
Confia grants you a nonexclusive and nontransferable license to use Confia Property as provided through the Services and as permitted by this Agreement. This license terminates upon termination of this Agreement unless terminated earlier by us.
Confia collects Accountholder Data through the use of the Services. We may use Accountholder Data (a) to provide Services to Accountholder and Users; (b) for underwriting, identity verification, internal reporting and analysis, and fraud prevention; (c) as needed in dispute resolution; and (d) for development of products and services, including data products.
We provide Accountholder Data to certain of our third parties: (a) to provide the Services to you, or as required by law; (b) for internal analytics and reporting; (c) to obtain additional information about the Accountholder; and (d) report Accountholder performance to credit reporting agencies and credit rating agencies, where appropriate. Confia may include De-Identified Data in both public and private reports where such De-Identified Data cannot be reasonably used to identify Accountholder or Users. We will not share any Accountholder Data with third parties for marketing unaffiliated products without your consent but may use Accountholder Data to identify Services or Third-Party Services that we believe may be of interest to you. Where Accountholder Data is shared with third parties, Confia will implement controls to reduce the risk of loss or accidental disclosure.
You grant Confia a worldwide, irrevocable license to use, modify, distribute, copy, and create derivative works from Accountholder Data for the purposes identified in this Agreement.
This Agreement is effective when you start an application for a Confia Account and continues until terminated by either you or us or in accordance with the Account Terms & Conditions or as otherwise set forth in this Agreement. In the event that this Agreement is terminated, the use of the Services and the Confia Account will immediately terminate.
You may terminate this Agreement by paying all amounts owed and providing Notice to us of your intent to terminate, however, you will still remain responsible for Charges, Fees, Fines, and other losses caused by your action or inaction prior to terminating the Agreement. If you reapply or reopen your Confia Account or use or attempt to use the Services you are consenting to the Agreement in effect at that time. Confia may terminate this Agreement, or suspend your Confia Account by providing you Notice.
Sections 1.4 (Security and Monitoring your Confia Account), 1.7 (Data), 1.8 (Privacy), 2.1 (Term and Termination), 2.2 (Notice and Communication), 2.3 (Limitation of Liability; Force Majeure), 2.5 (Disclaimer of Warranties by Confia), 2.6 (Indemnification), 2.7 (Governing Law and Venue), 2.8 (Binding Arbitration), and 2.9 (Assignment); the provisions of the Account Terms & Conditions that identify continuing obligations; and any other provisions of this Agreement giving rise to continued obligations of the parties will survive termination of this Agreement.
You consent to us providing Notices to you under this Agreement electronically and understand that this consent has the same legal effect as a physical signature. We will provide Notices regarding activity and alerts to your Confia Account electronically through your Confia Account or email provided to us by Administrators and Users. Notices affecting payment and legal terms 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 Confia Account.
Administrators and Users are required to maintain an updated web browser and computer and mobile device operating systems to receive Notices correctly. Administrators and Users are responsible for all costs imposed by Internet or mobile service providers for sending or receiving Notices electronically.
Contact us immediately if you are or believe you are having problems receiving Notices.
Confia is not liable to you for consequential, indirect, special, exemplary, or punitive damages, lost profits, or lost revenue arising from or related to your use of or inability to use the Services, lost profits or reputational harm, physical injury or property damage, or any other losses or harm arising from or related to this Agreement, whether or not we were advised of their possibility by you or third parties. Our maximum liability to you under this Agreement is limited to the greater of the total amount of Fees actually paid by you to Confia in the three months preceding the event that is the basis of your claim or $5,000. These limitations apply regardless of the legal theory on which your claim is based.
Further, Confia shall not be liable for any delay or failure in the performance or in delivery or shipment of materials, or for any damages suffered by you by reason of such delay or failures, directly or indirectly caused by or in any manner arising from or connected with acts of God, acts of public enemies, riots, strikes, acts of governmental agencies, labor difficulties, failure of our power, telecommunications or other suppliers, viruses or other malware, security breaches, delays in securing or shortages of raw materials, breakdown or destruction of any system or equipment, pandemics or other widespread illness, or any other cause or causes beyond Confia’s control, whether or not similar to those enumerated herein.
You represent and warrant that (a) Accountholder is and will continuously throughout this Agreement be duly organized and in good standing under the laws of its jurisdiction of incorporation, (b) Administrators have requisite organizational power and authority to conduct business and manage Accountholder’s Confia Account, (c) you and Users will not engage in activities prohibited by this Agreement, and (d) Accountholder Data provided to Confia is complete, accurate, and current.
THE SERVICES AND CONFIA PROPERTY ARE PROVIDED TO YOU AS IS AND AS AVAILABLE. CONFIA DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF SERVICES AND CONFIA PROPERTY AND NOTHING IN THIS AGREEMENT WILL BE INTERPRETED TO CREATE OR IMPLY ANY SUCH WARRANTY TO YOU.
THIRD-PARTY SERVICES ARE NOT PROVIDED OR CONTROLLED BY CONFIA. CONFIA DOES NOT PROVIDE SUPPORT FOR AND DISCLAIMS ALL LIABILITY ARISING FROM FAILURES OR LOSSES CAUSED BY THIRD-PARTY SERVICES.
CONFIA DISCLAIMS ALL WARRANTIES AND DOES NOT GUARANTEE THAT (A) SERVICES AND DATA PROVIDED UNDER THIS AGREEMENT ARE ACCURATE OR ERROR-FREE; (B) THE SERVICES WILL MEET YOUR SPECIFIC NEEDS OR REQUIREMENTS; (C) THE SERVICES WILL BE USABLE BY ACCOUNTHOLDER, ADMINISTRATORS, OR USERS AT ANY PARTICULAR TIME OR LOCATION; (D) SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE FROM HACKING, VIRUSES, OR MALICIOUS CODE; AND (E) ANY DEFECTS IN THE SERVICES WILL BE CORRECTED, EVEN WHEN WE ARE ADVISED OF SUCH DEFECTS.
You agree to indemnify and defend Confia (including our affiliates, employees, contractors, and Third-Party Service Providers) against losses, claims, damages, liabilities, or expenses that result from or are related to claims, proceedings, suits, or actions brought by or initiated against Confia by any third party due to your breach of this Agreement, or an Administrator’s or User’s breach of obligations owed under this Agreement, a User Agreement, the Account Terms & Conditions or any other agreements with Confia; for amounts owed by Accountholder to third parties; for acts or omissions of Administrators, Users, or other Accountholder employees or agents; for Accountholder’s use of Third-Party Services; or for disputes over Charges between Accountholder and certain service providers.
This Agreement will be construed, applied, and governed by the laws of the State of California exclusive of its conflict or choice of law rules except to the extent that US federal law controls. Subject to Section 2.8, all litigation will be brought in the state or federal courts located in Orange County, California.
The parties agree to resolve all disputes arising under or in connection with this Agreement as provided in this section. Any arbitration or other legal proceedings under this Agreement will only be on an individual basis. There is no right or authority for any claims or disputes to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other users of the Confia Network or other persons similarly situated. Each party waives its rights to participate in a Consolidated Action against the other party.
Accountholder and Confia agree to first attempt to resolve Disputes in good faith and in a timely manner. Where no resolution can be found, Disputes will be resolved by arbitration in Orange County, California before a single arbitrator, as provided in this section; except that Disputes principally arising from the protection of intellectual property rights or breach of confidential information will be resolved through litigation in accordance with Section 2.7. The prevailing party is entitled to recover its reasonable attorneys’ fees, expert witness fees, and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
Proceedings and information related to them will be maintained as confidential, including the nature and details of the Dispute, evidence produced, testimony given, and the outcome of the Dispute, unless such information was already in the public domain or was independently obtained. Accountholder and Confia, and all witnesses, advisors, and arbitrators will only share such information as necessary to prepare for or conduct arbitration or other legal proceedings, or enforcement of the outcome unless additional disclosure is required by law.
Confia may assign, pledge, or otherwise transfer this Agreement or its rights and powers under this Agreement without providing Notice to you. Any such assignee will have all rights as if originally named in this Agreement instead of Confia. You may not assign this Agreement or rights provided, or delegate any of its obligations, without Confia’s express written consent.
Except where otherwise specified, all references to sections or provisions refer to this Agreement or the applicable incorporated terms. Other than as provided for in the Account Terms & Conditions or any other agreement between Accountholder and Confia, this Agreement constitutes the entire understanding between Accountholder and Confia for the subject matter described herein and no other agreements, representations, or warranties other than those provided in this Agreement will be binding unless in writing and signed by Accountholder and Confia.
The unenforceability or invalidity of any clause in this Agreement shall not have an impact on the enforceability or validity of any other clause. Any unenforceable or invalid clause shall be regarded as removed from this Agreement to the extent of its unenforceability and invalidity. Therefore, this Agreement shall be interpreted and enforced as if it did not contain the said clause to the extent of its unenforceability and invalidity.