Terms of Service

Flume™ Terms of Service

Effective Apr 10, 2023

These Flume Terms of Service, along with any other documents incorporated by reference below (collectively, the “Terms”), are a contract between WEX Payments Inc. (collectively with its successors and assigns, “we”, “us” or “our”), and the Entity creating an account with us (a “Business Account”) (collectively with its permitted assigns or successors in interest, “you”, “your” or “yourself”).  An “Entity” is any individual, sole proprietorship, corporation, general or limited partnership, limited liability company, or any other form of legal entity meeting the eligibility requirements described below who creates a Business Account.  

These Terms govern the use of your Business Account, including without limitation in connection with, as available and as defined below, the Flume Account, Flume Pay, Send Funds, Get Paid, Smart Funding, the Flume website and mobile applications, and any other services and offerings we may offer or provide to you from time to time (collectively, the “Services”).

By accepting or using any of our Services, you agree to comply, and to cause any person you authorize to act as the administrator of the Business Account (the “Administrator”) or to access or use the Business Account or any of the Services on your behalf (each, an “Authorized User”; and collectively with each Administrator, a “User”) to comply, with all of the terms and conditions set forth or otherwise referenced in these Terms, and all applicable law.  If you allow a User to access or use the Business Account or any of the Services, you agree that you are responsible under these Terms for all such access and use(s) made by that User, regardless of whether you intended to be responsible for all of them, as well as for all associated fees, charges and taxes, if any.  

These Terms include the additional terms and conditions contained in the following documents, each as may be amended from time to time by us:

• WEX Privacy Notice;

• WEX Cookie Notice;

• WEX Inc. Terms of Use;

• Fee Schedule & Transaction Limits Disclosure;

• Appendix A; and

• Any additional terms and conditions, rules, regulations, operating procedures, and related requirements we provide to you or establish related to any of our products and Services.

  
  

You should carefully read these Terms, including the documents listed above, and retain them for your records.

We reserve the right to change these Terms at any time in our sole discretion without advance notice, subject to applicable law.  The current version of these Terms is available at: https://app.flumepay.com/terms.  We will post changes to these Terms on our website and any such Terms will be effective at the time of posting.  We will provide notice to you of any change we believe to be material, or as required by applicable law.  By continuing to use the Services after any change to these Terms is posted, you acknowledge and agree to be bound by the change.  If you do not agree with any such change, you may cease using the Services and close your Business Account.

You understand and agree that use of the Services as contemplated by these Terms is subject to the availability of such Services.  You further understand and agree that not all Services may be available to you and that we may add, change or discontinue the Services available to you at any time.

1. ELIGIBILITY REQUIREMENTS

A Business Account is available to any Entity which: (1) is a United States (“U.S.”) citizen or lawful permanent resident residing in an Eligible Location or is a corporation, general or limited partnership, limited liability company or any other form of legal entity formed or organized under the laws of the U.S., any U.S. state, the District of Columbia or Puerto Rico and located in an Eligible Location; (2) if an individual, is at least 18 years of age (or the age of majority in your state of residence); (3) has a U.S. physical address or military address (e.g., APO or FPO); and (4) has a valid Social Security Number, Employer Identification Number or Tax Identification Number.  An “Eligible Location” is any U.S. state (except California, New York and Virginia), the District of Columbia and Puerto Rico.

A Business Account is only available for business or commercial purposes and, by creating a Business Account, you certify and agree that you will only use the Business Account for such purposes, and that the Business Account may not be used for personal, family or household purposes of any kind.

2. CONTACTING YOU; CONSENT FOR E-MAIL, PHONE AND TEXT COMMUNICATIONS

Solely for purposes of this section, the terms “you” and “your” mean the person agreeing to these Terms, as or on behalf of an Entity, in their personal capacity.  To the extent permitted by applicable law, you authorize us and our affiliates, agents, successors, assigns and service providers (collectively, the “Messaging Parties”) to contact you using voice, automatic telephone dialing systems, artificial or prerecorded voice message systems, text messaging systems and automated e-mail systems in order to provide information about the Services or to provide or obtain information related to your use of the Services.  You authorize each of the Messaging Parties to make such contacts using any telephone numbers (including wireless, landline and VOIP numbers) or e-mail addresses you supply to any of the Messaging Parties in connection with the Services.  You understand that anyone with access to your telephone or e-mail account may listen to or read the messages the Messaging Parties leave or send, and you agree that the Messaging Parties will have no liability for anyone accessing, listening to or reading such messages.  You further understand that, when you receive a telephone call, text message or e-mail, you may incur a charge from the company that provides you with telecommunications, wireless and/or Internet services, and you agree the Messaging Parties will have no liability for such charges except to the extent required by applicable law.  You agree this authorization constitutes a bargained for exchange for consideration.  To the extent you have the right under applicable law to revoke this authorization, you agree you may do so only by e-mailing the Messaging Parties at flumesupport@wexinc.com with the subject line “Contact Opt-Out”.  If any telephone number you have provided to any of the Messaging Parties changes, or if you cease to be the owner, subscriber or primary user of any such telephone number, you agree to immediately give us notice of such facts so the Messaging Parties can update their records.  You expressly authorize each of the Messaging Parties to monitor and record your calls with such Messaging Party(ies).

3. ELECTRONIC COMMUNICATIONS DISCLOSURE AND CONSENT

By creating a Business Account or using the Services, you consent to receive electronic Communications from us regarding your Business Account as described in this section.

1. Scope of Consent

You agree that we may electronically deliver any agreements, disclosures required by federal or state law, notices or other information or communications regarding your Business Account, the use of our websites and our relationship with you (collectively, the “Communications”).  You should print or save a copy of any electronic Communication you receive from us.  We reserve the right to provide a paper copy of any Communication you authorize us to provide electronically.

2. Right to Receive Paper Copies

Upon your request, we will provide you with a paper copy of any Communication we have provided electronically.  You may request a paper copy by emailing us atflumesupport@wexinc.com.  We may charge you a fee to provide paper copies, as set forth in the Fee Schedule & Transaction Limits Disclosure.  Any request for a paper copy will not by itself constitute a withdrawal of your consent to receive electronic Communications.

3. Right to Withdraw Consent

You may withdraw your consent to receive electronic Communications at any time.  To do so, send us an email stating that you withdraw your consent to receive electronic Communications to flumesupport@wexinc.com.  Include your name and Business Account number in any such request.  Your withdrawal will be effective only after we have a reasonable period of time to process your request.  After the effective date of your withdrawal, we will send any required future Communication to you in paper form.  We will not charge any fee in connection with any withdrawal of your consent.  After your withdrawal is effective, we maycharge you a fee for any Communication provided in paper form, as set forth in the Fee Schedule & Transaction Limits Disclosure.  Your withdrawal will not affect any Communications that were provided electronically before the effective date of your withdrawal.

4. Hardware and Software Requirements

To electronically receive and view and electronically save or print the Communications, you must have: (i) a personal computer, mobile phone or other device with Internet access; (ii) a widely-used, recent-generation web browser (for example, Safari, Firefox or Chrome); (iii) a widely-used, recent-generation portable document file (“PDF”) reader (for example, Adobe Reader); (iv) an email address; and (v) either a printer, hard drive or other storage device.  You understand that we may send Communications to you by email containing attachments in PDF format or in HTML format or make Communications available to you via Flume.  You should make sure that any spam filter you use is set to allow receipt of emails from us.  You represent that you have the hardware, software, email address, and email capacities described above.

5. Updating Your Records

You agree to notify us immediately of any changes to your email address, contact information or any other information related to your ability to receive electronic or paper Communications.  You can update this information by directly editing your Business Account information in the Flume application or emailing flumesupport@wexinc.com.

4. CREATING A BUSINESS ACCOUNT

In order to use the Services, you must first register and create a Business Account.  The Business Account will be in the name of an Entity.  Each person creating a Business Account or otherwise submitting the required information certifies they are duly authorized to act on behalf of the Entity and that all information provided is true, accurate and not misleading.  

Important information about procedures for creating a Business Account: To help the government fight the funding of terrorism and money laundering activities, federal law requires us to obtain, verify and record information identifying each Entity who opens a Business Account.  This means that when you open a Business Account, we will ask for your name; street address; Social Security Number, Taxpayer Identification Number or Employer Identification Number; date of birth (if applicable) and other information that will allow us to identify you.  We may also ask to see identifying documents, such as a driver’s license or business related documents such as proof of business existence.  During the Business Account opening process or thereafter, we may ask for additional information about your business and the industries in which you operate, signatures or documentation from you as part of our ongoing customer due diligence.  You agree to assist us by promptly complying with any such request.  You agree to notify us immediately if you change industries, enter additional industries or make any other changes regarding the industries in which you operate.  You further agree to hold us harmless for refusing to pay or release funds, or take any other action relating to your Business Account or Flume Account where the refusal is based on your failure to provide the information, signatures or documentation requested by us.  We reserve the right to reject any application or to close any Business Account if we are unable to verify your identity, the identity of an Entity’s beneficial owners or the valid existence of an Entity.

As part of creating a Business Account, you must designate at least one person as the Administrator.  The Administrator is responsible for overseeing your Business Account, including designating any Authorized Users and setting permissions for any Authorized Users.  At least one Administrator must be designated at all times.  You may designate more than one Administrator.  

Each User must also be registered with us in order to access the Business Account.  As part of registration, we will collect certain information about each User, including a name, address, e-mail address, telephone number and other contact or identifying information.  By submitting such information, each of you and each User certifies the information is accurate and complete and agrees to keep such information up to date at all times by notifying us promptly of any change in such information.  We may require additional documentation to process the change. You agree that any User you allow to access or use the Business Account or any of the Services is duly authorized to act on behalf of the Entity in all respects with regard to such use and the activities contemplated in these Terms.  

If you or anyone with a right to withdraw funds dies or is adjudicated incompetent, we may continue to honor your transactions and instructions until we know of the death or adjudication and have had a reasonable opportunity to act on that knowledge.

5. ACCOUNT SECURITY

Each User must maintain a valid and unique username and a valid and unique password (together the “Login Credentials”) in order to access the Business Account.  We may also require each User to comply with any additional security procedures, such as providing a device on which to receive a multifactor authentication code, one-time password or similar authentication token or mechanism.  Each User is responsible for maintaining the security and confidentiality of their Login Credentials.

Only those Users with valid Login Credentials will be permitted to access the Business Account and use the Services.  You agree the requirement of Login Credentials in combination with any additional security procedures we have in place constitute commercially reasonable security procedures for limiting access to those persons you have authorized to have such access, and for permitting us to verify that any access, request for payment, funds transfer, withdrawal from your Flume Account or communication was properly authorized by you.  You acknowledge and agree you have had the opportunity to review these security procedures and have determined that they are reasonable based upon your consideration of the size, type and frequency of payments, funds transfers, withdrawals and communications you intend to originate and alternative security procedures available.  We reserve the right to modify our security procedures or to impose additional security procedures at any time.  By continuing to use the Services, you acknowledge and agree to be bound by such modified security procedures.  If you do not agree with any such modifications, you may cease using the Services and close your Business Account.

You agree to immediately notify us at flumesupport@wexinc.com if you believe your Business Account has been compromised or accessed without authorization or if someone has attempted to access your Business Account without authorization.  Each User agrees to immediately notify us if their Login Credentials have been lost, stolen or compromised.  If you fail to timely notify us, you will be fully liable for any payments, funds transfers or withdrawals, except as otherwise provided by applicable law.

6. LINKED ACCOUNTS

You may be required to link at least one of your bank accounts (each, a “Linked Account”) in order to create a Business Account.  Each Linked Account can be used to deposit funds to and withdraw funds from your Flume Account and to pay Vendors via Send Funds.  For each Linked Account, you represent and warrant: (1) you have the right to authorize any and all debits and credits to the Linked Account; (2) the Linked Account is held at a depository institution located in the U.S.; (3) the Linked Account is a deposit account, such as a checking, savings or money market account; (4) the Linked Account is enabled for Automated Clearing House “ACH” debits; (5) the Linked Account funds are not subject to any (i) security interest, (ii) exemption from execution, levy, attachment, garnishment, seizure, setoff or other equitable process, or (iii) other restriction which will prevent, render illegal, or adversely affect our ability to draw funds from the Linked Account as you authorize; (6) the Linked Account is in the same name of the Entity holding the Business Account; and (7) the Linked Account is used for business or commercial purposes only and was not established for personal, family or household purposes.  By adding a Linked Account, you agree to indemnify and hold us harmless from any claims by any person related to the Linked Account, including any other owner of the Linked Account.

For each Linked Account you add, you authorize us to verify the account’s ownership, balance or other information by initiating an authorization request, non-monetary entry or similar entry to the Linked Account directly or by using a third party service provider.  You also authorize us to verify any account information and to obtain account balance information from the financial institution holding the Linked Account.  You agree to keep all information you provide to us about each Linked Account accurate and up to date at all times.  If such information changes, you agree we may update it using such information we receive from any third party service provider or your financial institution without any action on your part.

You authorize us to debit or credit your Linked Account, including via ACH, in accordance with any instructions you provide to us and in accordance with your and our rights and obligations under these Terms.

7. FLUME ACCOUNT

Your Business Account includes access to a “Flume Account”, which is a virtual account that can, as available, be used to receive and store your deposits or funds received from third parties, to make transfers between any Linked Accounts and to pay third parties using the stored funds.  

Funds deposited in your Flume Account will be held by us in an omnibus account at a federally insured depository financial institution (“Bank”).  Funds you deposit in such account will benefit from federal pass-through deposit insurance up to $250,000, subject to the regulatory limitations of such insurance pursuant to applicable federal law.  Your Flume Account records, including your deposit, withdrawal and transaction history, are held and maintained by us.  You acknowledge and agree that we may choose the Bank in our sole discretion and that we may transfer your Flume Account to another federally insured depository financial institution at any time without notice to you, provided we continue to maintain accurate books and records for such account as contemplated by these Terms.

The omnibus account at the Bank may be interest-bearing.  Any interest earned is paid to us.  You understand and agree that we may choose whether or not to pass on any portion of such interest to you in our sole discretion.

6. Depositing Funds to Your Flume Account

You may deposit funds to your Flume Account from any Linked Account via an ACH transaction initiated through your Business Account or through the financial institution holding your Linked Account.  You may only deposit funds that belong to you and may be legally transferred in this manner.

You may also use your Flume Account to receive funds from third parties via Get Paid to the extent such method is made available to you through the Services.

We may impose limits on the dollar amount and frequency of deposits you may make or funds you may receive. We reserve the right to change these limits at any time without notice to you, unless required by law.  The current deposit limits are set forth in the Fee Schedule & Transaction Limits Disclosure.

We do not accept deposits of cash, foreign currency or transfers from bank accounts located outside the U.S. We also do not accept any deposits by mail.  If you attempt to deposit funds using any of these methods, we will send all items back to you at the address we have on file, or reject and return any funds to the originating bank, without notice to you.  We are not liable to you for any deposits you attempt to make using any of these methods or for the unavailability to you of such funds.

7. Funds Availability

Our policy is to make funds from your deposits submitted in accordance with these Terms available to you on the first business day after the day we receive your deposit.  Electronic direct deposits to your Flume Account, including funds received via Flume Pay, will be available on the day we receive the deposit.  Once the funds are available, you can use them to pay Vendors or transfer them to a Linked Account and we will use them to pay checks that you have written.

For determining the availability of your deposits, a business day is any day the Bank is open for business except Saturdays, Sundays and federal holidays.  Deposits received by us on a business day before 6:00 p.m. Eastern Time will be considered received that day.  Deposits received on a business day after 6:00 p.m. Eastern Time or on a non-business day will be considered received the following business day.

If a deposit to your Flume Account is returned to us unpaid after the funds have been made available to you, we may deduct the amount of the deposit from your Flume Account without prior notice to you.  If you do not have sufficient funds, we reserve the right to demand payment from you immediately.

8. Withdrawing Funds from Your Flume Account

You can withdraw funds from your Flume Account via ACH to a Linked Account or via Send Funds, to the extent such methods are made available to you through the Services.  ATM and telephone transfers are not permitted.  

You may withdraw funds from your Flume Account up to your Available Balance (as calculated below), subject to any withdrawal limitations.  We may impose limits on the dollar amount and frequency of withdrawals you may make.  We reserve the right to change these limits at any time without notice to you, unless otherwise required by law.  The current withdrawal limits are set forth in the Fee Schedule & Transaction Limits Disclosure.

We may delay a withdrawal in certain circumstances, such as if we learn a deposit is being returned unpaid.  We may impose fees for certain types of withdrawals, as set forth in the Fee Schedule & Transaction Limits Disclosure.

9. Available Balance

We will use your Available Balance to determine whether you have sufficient funds in your Flume Account to pay any withdrawal from your Flume Account.  Your “Available Balance” is calculated as follows: we start with a real-time check of your account balance via API, subtract any unsettled payments made from the accountant add any deposits available that business day.  

Your Available Balance may not include every transaction you have initiated or that we have previously authorized.  For example, your Available Balance may not include withdrawals you have authorized that we have not received for payment, such as checks or ACH transfers authorized in advance.

We may not receive and may not process deposits and withdrawals in the order in which you make them.  We reserve the right to determine the timing and order in which such transactions are posted, to the extent permitted by law.  You should monitor your Flume Account balance to ensure you have sufficient funds to pay your withdrawals.

10. Statements

Electronic statements of your account activity each month will be available via the “My Activity” section in Flume.  You may customize and download your account activity.

11. Negative Balance

You are responsible for any shortage resulting from withdrawals, fees, charges, taxes or returns.  If your Available Balance is not sufficient to cover any withdrawal, fee, or charge, we reserve the right to reject the transaction.  If your Flume Account balance becomes negative for any reason, you authorize us to immediately debit any Linked Account in the amount necessary to eliminate the negative balance.  If we are unable to debit your Linked Account we reserve the right to demand payment from you immediately.

We may close or suspend your Business Account in the event your Flume Account balance becomes negative.

12. Stop Payments

Before we pay a check, you have the right to place a stop payment order on the check.  We may charge you a Stop Payment Fee for each stop payment request, as set forth in the Fee Schedule & Transaction Limits Disclosure.  Your request will not be honored if we have already paid the check.

You can submit a stop payment request by emailing us atflumesupport@wexinc.com in such time to allow us a reasonable opportunity to act on your request.  Make sure to provide us with (1) your name, (2) your Business Account number, (3) the company or person taking the payment, and (4) the date and amount of the payment you wish to stop.  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.
Any stop payment request will apply only to the specific transfer you identify in your request.  If you want all future transfers from the company or person stopped, you must submit a separate request for each transfer.  

Any written stop payment request will terminate at the earliest to occur of: (1) six months from the date we receive your request, (2) the date the transfer is stopped one time, or (3) you withdraw the request.  You may renew a stop payment request by emailing us at flumesupport@wexinc.com.

If we incur any damages or expenses because of a stop payment that you put in place, you agree to indemnify us for those damages or expenses, including attorneys’ fees.  You assign to us all rights against the payee or other holder of the item, and agree to cooperate with us in any legal action that we may take against such persons.

13. Your Liability for Unauthorized Transfers

You are responsible for timely reviewing your transaction history and notifying us immediately of any unauthorized transfer by emailing us at flumesupport@wexinc.com.  You will not be liable for checks you did not make or authorize if you notify us within thirty (30) days after we have made your statement available to you.  Except as otherwise provided by applicable law, you will not be liable for any ACH transfer you did not make or authorize if you notify us by 3:00 p.m. Eastern Time on the business day after the transfer has posted to your account.  See also Section 10 regarding Funds Transfers.

Flume Pay transfers are effective immediately once we receive your payment instructions, subject to any applicable stop payment.  You will not be liable for any Flume Pay transfer you did not make if you notify us within three (3) days from the date the transfer is debited from your Flume Account provided we are able to recover the funds.  

If you fail to timely notify us of any unauthorized transfer or fail to comply with any required security procedure described in Section 5, you will be fully liable for the amount of such transfer, including any associated fees, except as otherwise provided by applicable law.

14. Our Right of Setoff

If you owe us any money for any reason, we reserve the right to apply funds in your Flume Account to pay what you owe, in whole or in part, subject to applicable law.  This means we can take funds from your Flume Account up to the amount of your liability to us, subject to applicable law.  Unless required by applicable law, we will not provide you any advance notice when we exercise our right of setoff.

8. SEND FUNDS, GET PAID, FLUME PAY AND SMART FUNDING

You may send funds from your Flume Account to Vendors (“Send Funds”) and you may receive funds from third parties to your Flume Account (“Get Paid”).  By permitting a User to use your Business Account, you certify to us the User is authorized to initiate debit or credit entries, as applicable, to or from your Flume Account, as provided under these Terms.  You will be responsible for any and all debit or credit entries made by a User, whether or not authorized by you.  You agree any Payment requests we receive through your Business Account shall be deemed authorized and valid.  

All requests via the Send Funds and Get Paid Service will be processed in U.S. dollars.  If funds are received via Get Paid in a foreign currency, you agree we may convert such transaction into U.S. dollars at a then-current conversion rate we may choose in our sole discretion.  You agree to be liable for any related foreign transaction fees.  We reserve the right to reject any funds received in a foreign currency and return any such funds to the originating bank, without notice to you.  We are not liable if you do not receive the funds.  

You agree to pay all fees associated with using the Send Funds and Get Paid Services, as set forth in the then-current Fee Schedule & Transaction Limits Disclosure.

15. Vendor Information

To use the Send Funds service, you will be required to provide information about each third party to whom you intend to send funds (each a “Vendor”).  You agree to provide correct and current information for each Vendor and by providing us with such information, you certify you are authorized to share such information with us.  If and to the extent such option is made available to you through the Services, you may sync Vendor information you maintain in any enterprise resource planning software and save such information in your Business Account for future use.  You understand the Send Funds service may not be available for all Vendors, such as Vendors outside the U.S., Vendors engaged in any Restricted Industry or to whom funds transfers are prohibited by law.  

You are solely responsible for verifying the accuracy of any Vendor information and Payment instructions provided to us in connection with using the Send Funds services.  We have no liability for losses or damages resulting from the accuracy or inaccuracy of Vendor information you have provided, including bank account information.  You acknowledge and agree that you are solely responsible and liable for selecting and paying the correct Vendor.  We have no liability or responsibility if you select or pay an incorrect Vendor.

You certify all Payments to any Vendor are for business or commercial purposes only and each Vendor bank account you provide was established primarily for business or commercial purposes.  

16. Send Funds

To pay a Vendor via Send Funds (each, a “Payment”), you must choose a Payment Method.  Available methods may include ACH, checks or Flume Pay (each, a “Payment Method”), to the extent such methods are made available to you through the Services.  You must also choose a “Payment Account”, which can either be your Flume Account or any Linked Account.

Payments require sufficient time for us to process your request and debit your Payment Account and for the Vendor to receive payment.  For each Payment request, you must select the date on which we will process your request (the “Payment Date”).  You agree that you are solely responsible for scheduling each Payment and selecting an appropriate Payment Date.  We do not guarantee payment to a Vendor will be made within any specific time frame of the Payment Date.  We have no liability or responsibility to you if a Payment is not made to a Vendor on or before any specific date.  You are solely responsible for ensuring any Payment to a Vendor is made as required or permitted by agreement, contract or law.  Except as required by applicable law, we have no liability or responsibility to you or any Vendor for any interest, late payment fees or any other charges associated with Payments that are delivered after their due date.  In processing your request for Payment, you agree we may rely solely on the account number you provide even if it identifies a party other than the named Vendor, and that you shall be responsible for all such Payments.

We reserve the right, in our sole discretion, to change or limit the available Payment Methods and Payment Dates and to select the Payment Method by which a Payment can be made.  We reserve the right to limit, to cap or to refuse to honor any Payment request from your Payment Account, for any reason, in our sole discretion, without incurring any liability to you.

For Payments made by check, you authorize us to process such checks as remotely created checks or electronically created items in our sole discretion.  You and each User authorize us to generate a digital signature and to append such digital signature to each check as necessary to process the check.

1. Cancellation and Changes

Before we process a Payment, you may cancel or change the Payment request by contacting us at flumesupport@wexinc.com.

If we have already started to process the Payment, you may request we cancel the Payment by contacting us at flumesupport@wexinc.com.  We will use commercially reasonable efforts to cancel the Payment, but you understand and agree we may not be able to cancel the Payment.  You agree we will not have any liability to you for failing to cancel a Payment that has begun to process or to obtain a return of a Payment that has been transmitted to the Vendor.  You shall remain liable for any unpaid amounts owed in connection with the Payment.  If we cancel a Payment, you authorize us to credit the amount of the Payment to your Payment Account, less any applicable fees or other amounts you owe to us.

2. Returned Payments

If a Payment is refused or returned, we will void your Payment request.  If a returned or refused Payment is voided, you authorize us to credit the amount of the Payment to your Payment Account, less any applicable fees or other amounts you owe to us.

17. Get Paid

You may receive funds via Get Paid to your Flume Account via ACH or Flume Pay, to the extent such methods are made available to you through the Services.  You are solely responsible for the accuracy of the account information and the payment instructions you provide to any third party.  We have no liability for losses or damages arising or resulting from the accuracy or inaccuracy of information you provide.

3. Sending an Invoice

You may request that a third party send funds to you via Get Paid by creating and/or sending an invoice to such third party.  By using this Service, you agree all invoices are issued pursuant to a contractual relationship or other arrangement with the third party and that each invoice complies with the terms of such contract or arrangement.  We are not responsible for any invoices you send, including those that are misdirected or not received.

4. Accepting Payment Card Payments

You may be eligible to enroll through the Flume platform with a third-party service provider (“TSP”) to allow your customers enrolled in our Essentials plan to make Flume payments to you using their existing payment card(s) (“Payment Card Acceptance” or “PCA”). In order to enroll, you must agree to the Payment Card Acceptance terms and conditions that will be specified by the TSP. The PCA agreement will be directly between you (the Business) and the TSP. Flume is not a party to any such agreement and does not manage the merchant card acceptance relationship in any fashion. More specifically, the TSP rather than Flume will support your PCA relationship for items such as disputes, chargebacks, missing payments, fraud, and any other aspect of your relationship with the relevant payment card networks. Consequently, Flume bears no liability for any such PCA matters. Rather Flume is responsible for handling your PCA funds once they are actually sent to your Flume account. Please note that Flume may charge a separate fee per transaction for accessing your PCA service through the Flume platform. Such fee will be in addition to any amounts owed to or from the TSP per the terms of your PCA agreement. Upon your consent at the time of enrollment with the PCA service, you agree that Flume may provide to the TSP any requested account setup information that you have provided to Flume at the time of your Flume account setup or thereafter. The information in question would include items such as your business name and contact information. Our goal is to make your enrollment with the TSP reasonably seamless, without your being required to re-input information that you have already provided to us.

18. Flume Pay

You may also pay Vendors using “Flume Pay”, which is a service where you can use Send Funds to transfer funds from your Flume Account to another Flume Account.  You may use this Service to pay any Vendor with a Flume Account.  Funds transferred via Flume Pay will be debited from your Flume Account and credited to the Vendor’s Flume Account instantly.  You may also Get Paid to your Flume Account from another Flume Account.  Funds received via Flume Pay are made available to you in accordance with Section 7.2 of these Terms.

19.  Smart Funding

You may make a Payment even if you do not have enough funds in your Flume Account to cover such Payment through “Smart Funding”, if and to the extent such option is made available to you through the Services.  When using Smart Funding, you authorize us to debit your Linked Account in the amount of the difference between the amount of the Payment and the available balance in your Flume Account at the time we process the transaction, if such funds are available from your Linked Account.  For example, if you request a Payment of $100 and your available Flume Account balance is $75, we will debit your Linked Account for the $25 difference.  The debit to your Linked Account will occur only if you have sufficient funds in your Linked Account to cover the entire amount of the desired debit.  Any limitations on the amount of funds you may transfer using Smart Funding is set forth in the Fee Schedule & Transaction Limits Disclosure.

The Smart Funding program is a courtesy program extended at our discretion.  We may refuse to debit your Linked Account at any time without prior notice, reason or cause, even though your Linked Account or Business Account is in good standing and even though we have previously done so to cover Payments for you.  We reserve the right to exclude you from the Smart Funding program at any time and for any reason, and without prior notice.

9. AGREEMENT TO ORIGINATE ACH ENTRIES

These Terms are subject to the operating rules and guidelines of Nacha (the “Nacha Operating Rules”) with respect to the ACH entries contemplated under these Terms.  Words that are used but not defined in these Terms have the same meaning as in the Nacha Operating Rules.

You may originate ACH entries and, by doing so, you authorize us, in our capacity as a third party sender, to transmit such entries to the Bank on your behalf and you authorize the Bank to transmit such entries, as set forth in this section.

20. Compliance with Rules and Laws

You understand and agree that you are acting as an Originator under these Terms with respect to ACH entries.  You agree to be bound by and comply with the Nacha Operating Rules and you agree not to originate any entries that would violate federal, state or local laws or regulations, including those of the Office of Foreign Assets Control (“OFAC”).  We will provide you with notice of applicable changes to the Nacha Operating Rules in sufficient time for you to implement such changes before the applicable effective date.  

We and the Bank reserve the right to audit your compliance with these Terms and the Nacha Operating Rules with respect to your ACH origination activities and entries.  You agree to comply with any audit request.

21. Types and Timing of Entries

You may originate credit entries to non-consumer accounts, subject to the limitations set forth in the Fee Schedule & Transaction Limits Disclosure.  You may only originate single entries.  You must submit entries to us by the cut-off times set forth in Appendix A.  Even if you timely submit entries to us, we do not guarantee an entry will be made available to a Vendor within any specific time frame.  We have no liability or responsibility to you if a Payment is not made to a Vendor on or before any specific date.  

22. Security Procedures and Data Security

You, and each User, agree to comply with the security procedures set forth in Section 5.  You agree these procedures are not intended to detect errors in the transmission or content of any entry you submit.  We will transmit such entries based solely on the information you provide and we will not examine any entry for accuracy, Vendor name or amount.  You agree that in transmitting entries in such manner we and the Bank will be deemed to have acted in good faith and to have exercised ordinary care.

You agree that any ACH banking information exchanged or transmitted via a wireless or Unsecured Electronic Network must be encrypted or transmitted via a secure session.  You, and each User, agree not to access the Business Account from a wireless or unsecured electronic network environment.  

You agree to protect the confidentiality and integrity of all Information, protect against anticipated threats or hazards to the security or integrity of Information and protect against the unauthorized use of Information.  As used in this paragraph, “Information” is any non-public personal information, including financial information, used to create, or contained within, an entry and any related addenda record.  It does not include information that (a) is already publicly available when received; (b) becomes publicly obtainable from other sources; (c) is required to be disclosed by law or in any document filed with any agency of any federal, state or other government authority; or (d) is used or disclosed as provided in these Terms or with the consent of the person whose information is being used or disclosed.

23. Your Representations

You warrant to us all warranties we are deemed to make under the Nacha Operating Rules with respect to entries you originate.  This includes a warranty that each entry is accurate, timely, has been authorized by the party whose account will be credited or debited, and otherwise complies with the Nacha Operating Rules.  You agree to indemnify us and the Bank against any loss, liability or expense resulting from or arising out of any breach of the warranties of this Section 9.  

24. Our Obligations, Warranties and Representations

You authorize us to transmit entries you submit to the Bank on your behalf.  We will transmit such entries, to the extent they comply with this Section 9, to the Bank in a timely manner and in accordance with the Nacha Operating Rules.  You agree that we and the Bank will be excused from any failure 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, emergency conditions or any other circumstance beyond our control.  You further agree we may delay transmission of an entry if we receive information that you do not have or will not have sufficient available funds to fund the entry.

25. Payment for Entries; Funding Account

You agree to pay us and/or the Bank the amount of each entry you originate and each returned entry.  You may fund entries from your Linked Account or your Flume Account (each, a “Funding Account”).  You agree to maintain sufficient available funds in your Funding Account(s) to fund all such entries.  You authorize us to debit your Funding Account for each entry on or after the date you submit the entry to us.  You authorize us to debit or credit your Funding Account for all returned entries.

To help us determine whether a debit to your Funding Account will be successful, you authorize us, prior to initiating any entry, to initiate an authorization request, non-monetary entry or similar entry to your Funding Account, or use a third party service, to verify your Funding Account balance or status and/or to obtain balance information from the financial institution holding the Funding Account.  

In the event we make an error in processing an entry, you authorize us to correct the error by initiating an ACH debit or credit to your Funding Account in the amount of such error on or after the date such error occurs.  

26. Authorization of ACH Entries

You agree to obtain authorization to initiate ACH entries to each Vendor’s account in compliance with the Nacha Operating Rules.  Such authorization must contain the Vendor’s agreement to be bound by the Nacha Operating Rules.  You must retain such consents and authorizations for two years after they expire.  Upon request, you will provide a copy of the authorization to us or the Bank within two (2) banking days of receiving such request.

27. Cancellation, Amendment or Rejection of Entries

You may cancel or change an entry in accordance with Section 8.2.1.  We reserve the right to reject any entry that does not comply with this Section 9 or if you are otherwise in breach of these Terms.  We will notify you of any rejected entry.  You agree that the Bank may refuse to process any entry at any time and in its sole discretion.

28. Returned Entries, Notifications of Change and Reversals

We will notify you of any returned entry and any notification of change (“NOC”) entry no later than one (1) business day after the business day of such receipt.  We are under no obligation to re-transmit a returned entry if we have complied with our obligations with respect to the original entry.  You must ensure all changes requested by the NOC are made within six (6) banking days of receipt of the NOC information from us or prior to initiating another entry to the Vendor, whichever is later.

You may initiate a reversing entry or file of entries for erroneous or duplicate transactions, as permitted by the Nacha Operating Rules and only upon prior written approval by us.

10. FUNDS TRANSFERS

These Terms are subject to Article 4A of the Uniform Commercial Code (“UCC”), as adopted in the state of Delaware.  Words that are used but not defined in these Terms have the same meaning as in the UCC.  This section applies to any funds transfer.

If you originate a funds transfer and you identify a beneficiary by name and account number, we may rely solely on the account number even if it identifies a party other than the named beneficiary.  You agree funds transfers to and from your Flume Account are governed by the UCC and the rules of the funds transfer systems through which the transfers are made, including but not limited to Fedwire, Nacha and the Electronic Check Clearing House Organization.

You understand and agree that credit entries may be made by ACH.  These credits are provisional until final settlement is made through a Federal Reserve Bank or payment is otherwise made as provided in Article 4A-403(a) of the Uniform Commercial Code.  If we do not receive such payment, we are entitled to a refund from you in the amount credited to your Flume Account and the party originating such payment will not be considered to have paid the amount so credited.  If we receive a payment order to credit an account you have with us by ACH, we are not required to give you any notice of the payment order or credit.

You agree to use ordinary care to determine whether a funds transfer from your Flume Account was either not authorized or inaccurate and to notify us of such unauthorized or inaccurate funds transfers.  You must notify us within ninety (90) days after the earlier of the date we notify you the funds transfer has been executed or the date your Flume Account was debited for the funds transfer to be entitled to a refund from us.  If you do not notify us within such time period, we will be entitled to retain payment for the funds transfer.

11. FEES AND OTHER CHARGES

We may impose fees or other charges, including but not limited to subscription plan fees, transaction fees or payment error fees, as set forth on the Fee Schedule & Transaction Limits Disclosure, in providing you with access to certain Services.  You agree to pay us the full amount of any fee or charge at the time it is imposed.  We reserve the right to close your Business Account due to any unpaid fees or charges.

We reserve the right to change the amount of any fees or charges from time to time, in our sole discretion.  We will notify you of such changes as required by applicable law.  By continuing to use the Services after any such changes, you acknowledge and agree to be bound by those changes.  If you do not agree with any such changes, you may cease using the Services and close your Business Account.

You authorize us to debit your Flume Account in the amount of any applicable fees, charges or taxes.  If we are unable to debit your Flume Account for any reason or you otherwise instruct us to debit your Linked Account, you authorize us to debit any Linked Account in the amount of any outstanding fees, charges or taxes.  If we are unable to collect the amount of any fees, charges or taxes, you agree to pay all amounts immediately upon notice of non-payment from us.

12. ADDITIONAL SERVICES

Upon opening your Business Account, you will have access to the following Services, to the extent they are then-currently available: Flume Account, Flume Pay, Send Funds, Smart Funding and Get Paid.  If you do not add at least one Linked Account, you may not have access to all of these Services, such asdigital and physical check payments.  We may provide additional Services to you at an additional cost as set forth in the Fee Schedule & Transaction Limits Disclosure.  Such additional Services are subject to these Terms and any terms and conditions provided at the time you agree to use such Services.

You may be able to sync certain enterprise resource planning software you may maintain.  If you choose to sync any such enterprise resource planning software, you understand and agree you are solely responsible for the information and data you choose to share by doing so.  Note that not all enterprise resource planning software is compatible with our systems, and we are not responsible or liable to you or any User if that is the case with respect to your enterprise planning software.

13. THIRD PARTY SERVICE PROVIDERS

You agree we may engage certain third party service providers to offer Services to you.  You agree we may share information you provide to us with any third party service providers, including the Bank, in accordance with our Privacy Notice.  You further agree that any such third party service provider has the right to store, share, use, disclose, reformat and distribute and otherwise process such information, and that upon our request, you will provide or arrange for the provision of such information in a manner that is suitable for any third party service provider for purposes of offering or providing any of its products or the Services.  

You may access third party websites, software, systems or applications when using the Services.  You understand and agree we do not control third party service providers and we are not responsible or liable for the content, operation or use of their websites, software, systems or applications.  We are not responsible or liable for any issues, damages, losses or expenses caused by any of those third parties, or by your accessing or using any of their websites, software, systems or applications, including but not limited to any unavailability of such services, errors, data loss or monetary loss you may incur.

By using the Services, you agree to be bound by any terms and conditions or privacy policies of any third party service provider we engage.  You are solely responsible for reviewing any such terms and conditions and privacy policies.  You agree not to use the name or mark of any third party service provider, including the Bank, publicly, for marketing, or for any other purpose.

14. USE OF INFORMATION

You agree we may use any information we obtain in connection with your use of the Services in our sole discretion, except as otherwise provided by applicable law, and consistent with our privacy policies.  This includes, but is not limited to, any information you provide to us as well as any information we obtain through any third party or software application you connect to your Business Account (including any enterprise resource planning software).  You further agree that we may use this information to market any of our products or any of our affiliate’s products to you, consistent with our applicable privacy policies.

15. INACTIVE ACCOUNTS

We will consider your Business Account or your Flume Account to be inactive when, if not enrolled in a monthly subscription package, your account is not accessed for ninety (90) days.  If your account becomes inactive, we may close your Business Account and send any funds in your Flume Account to the address we have on file or, if and as required by applicable law, we may escheat such funds to the applicable state.  We may charge you an inactive account fee, as provided in the then-current Fee Schedule & Transaction Limits Disclosure, and deduct the amount of any such fee from the funds to be transferred under this section.

16. CLOSING YOUR BUSINESS ACCOUNT

You may close your Business Account by emailing us at flumesupport@wexinc.com.  You must provide us with at least thirty (30) days’ advance written notice in order to close your Business Account.  We reserve the right to refuse your request if you have a negative Flume Account balance or otherwise owe any amount to us.  You authorize us to return any balance remaining in your Flume Account via a credit to your Linked Account, or, if you do not have a Linked Account, to the account by which you most recently funded your Flume Account.  We reserve the right to return any such remaining balance via a check mailed to the business address we have on file for you.

Your Business Account closure request will be effective immediately for accounts with no monthly subscription packages, while accounts using monthly subscription packages will be closed at the last date of the current paid-for period.

17. PROHIBITED ACTIVITIES

You may not, directly or indirectly:

• Breach any of these Terms;

• Violate any applicable federal, state or local law, ordinance or regulation or any applicable network rule in connection with accessing or using your Business Account, Flume Account or any of the Services, or otherwise in relation to or in connection with these Terms;

• Use your Business Account for any illegal purpose;

• Use your Business Account for any consumer or other personal, family or household purpose;

• Engage in any of the following industries (each a “Restricted Industry”): gambling, payday lending, money services businesses, marijuana related businesses, providing adult content, selling counterfeit goods, or any form of illegal industry or activity;

• Facilitate any payments to OFAC sanctioned countries or to specially designated nationals;

• Provide false, inaccurate or misleading information;

• Send or receive any fraudulent funds;

• Refuse to cooperate in any investigation of unauthorized activity;

• Circumvent any security procedures;

• Attempt to transfer or assign any of your rights under these Terms; or

• Fail to correct a negative Flume Account balance.

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If we believe you have engaged in any of the above activities, we may, in our sole discretion:

• Close your Business Account;

• Suspend your Business Account;

• Limit your access to the Services; or

• Take legal action against you.

18. TERMINATION AND SUSPENSION; OUR RIGHT TO FREEZE FUNDS

We reserve the right to terminate these Terms and the Services and to suspend or close your Business Account and/or Flume Account at any time and for any reason or no reason.  We may delayavailability of funds being credited to your Flume Account, refuse to process any withdrawal from your Flume Account or freeze funds in your Flume Account for any reason including, but not limited to, if we believe your account is involved in any legal proceeding or any unauthorized, illegal or fraudulent activity; if we suspect you may be the victim of fraud; or to comply with federal, state or local law.

Customer requests to terminate their Business Account must be received thirty (30) days in advance of said termination.

19. GOVERNING LAW

Expect as otherwise explicitly stated, these Terms and all matters arising from your use of the Services are governed by federal law and the laws of the state of Delaware, without regard to principles of conflicts of law.  These Terms are further subject to, as applicable, the rules and regulations of any payment network(s) utilized by us to assist in providing the Services to you and/or the Nacha Operating Rules.  

20. ARBITRATION

PLEASE READ THIS PROVISION OF THE TERMS CAREFULLY.

This section provides that disputes may be resolved by binding arbitration.  Arbitration replaces the right to go to court, have a jury trial or initiate or participate in a class action.  In arbitration, disputes are resolved by an arbitrator, not a judge or jury.  Arbitration procedures are generally simpler and more limited than in court.  This arbitration provision is governed by the Federal Arbitration Act (“FAA”), and shall be interpreted in the broadest way the law will allow.

Covered Claims.  (a) You or we may arbitrate any claim, dispute or controversy between us arising out of or related to these Terms, the relationship between us, or any other product or service provided by or through us (called “Claims”).  Claims include disputes relating to incentives or benefits relating to your Business Account.  A Person who asserts a Claim, or against whom a Claim may be asserted, that is subject to this Arbitration provision may be referred to as a “Covered Person.”  A “Person” is an individual, corporation, general or limited partnership, limited liability company, trust or other organization or other form of legal entity.  (b) If arbitration is chosen by a Covered Person, then no Covered Person will have the right to litigate that Claim in court or have a jury trial on that Claim.  (c) Except as stated below, all Claims are subject to arbitration, no matter the legal theory on which they are based on or the remedy (damages, or injunctive or declaratory relief) they seek, including Claims based on contract, tort (including intentional tort), fraud, agency, any Person’s negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; Claims made regarding past, present or future conduct; and Claims made independently or with other Claims.  This also includes Claims made by or against any Person connected with your or us, or by a Person making a Claim through you or us, such as a User, employee, agent, representative or an affiliated/parent/subsidiary company.

Arbitration Limits.  (a) Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court.  (b) Claims brought as part of a class action, private attorney general or other representative action can be arbitrated only on an individual basis.  The arbitrator has no authority to arbitrate any claim on a class or representative basis and may award relief only on an individual basis.  If arbitration is chosen by any Covered Person, the Covered Person asserting the Claim may not pursue the Claim as part of a class action or other representative action.  Claims of two (2) or more Persons may not be combined in the same arbitration.  However, applicants, Users on a single Business Account and/or related Business Accounts or corporate affiliates are considered as one Person for these purposes.

How Arbitration Works.  (a) Arbitration shall be conducted by the American Arbitration Association (“AAA”) according to this arbitration provision and the applicable AAA arbitration rules in effect when the claim is filed (“AAA Rules”), except where those rules conflict with this arbitration provision.  The AAA Rules may be obtained at the AAA’s website (www.adr.org) or by calling 800-778-7879.  A Covered Person may choose to have a hearing, appear at any hearing by phone or other electronic means, and/or be represented by counsel.  Any in-person hearing will be held in the same city as the U.S. District Court closest to Company’s billing address.  (b) If the AAA is not available to conduct the arbitration, then a Covered Person may petition a court of appropriate jurisdiction to designate an appropriate arbitrator.  (c) Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun or a final judgment entered.  A Covered Person does not waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion or discovery in a court lawsuit.  To choose arbitration, a Covered Person may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to the AAA.  (d) The arbitration shall be conducted by a single arbitrator in accord with this arbitration provision and the AAA Rules, which may limit discovery.  The arbitrator shall not apply any federal or state rules of civil procedure for discovery, but the arbitrator shall honor claims of privilege recognized at law and shall take reasonable steps to protect Business Account information and other confidential information of a Covered Person if requested to do so.  The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statute of limitations, and may award damages or other relief under applicable law.  (e) The arbitrator shall make any award in writing and, if requested by a Covered Person, shall provide a brief statement of the reasons for the award.  An arbitration award shall decide the rights and obligations only of the Persons named in the arbitration, and shall not have any bearing on any other Person or dispute.

Paying for Arbitration.  Arbitration fees will be allocated according to the applicable AAA Rules.  All Persons are responsible for their own attorneys’ fees, expert fees and any other expenses, unless the arbitrator awards such fees or expenses to a Person based on applicable law or these Terms.

The Final Award.  (a) Any award by an arbitrator is final unless a Covered Person appeals it in writing to the AAA within thirty (30) days of notice of the award.  The arbitration appeal shall be determined by a panel of three (3) arbitrators.  The panel will consider all facts and legal issues anew based on the same evidence presented in the prior arbitration, and will make decisions based on a majority vote.  Arbitration fees for the arbitration appeal shall be allocated according to the applicable AAA Rules.  An award by a panel on appeal is final.  A final award is subject to judicial review as provided by applicable law.  (b) A final award may be entered in any court of appropriate jurisdiction.

If any part of this arbitration provision is deemed invalid or unenforceable, the other terms shall remain in force, except that there can be no arbitration of a class or representative Claim.  This arbitration provision may not be amended, severed or waived, except as provided in this Agreement or in a written agreement between you and us.

21. LIMITATIONS OF LIABILITY AND DISCLAIMER OF WARRANTIES; WAIVER OF CLAIMS

You agree that neither we nor Bank shall be liable for any loss sustained by you or any User resulting from any act or omission by us or any other Person, including without limitation Bank or any Person who provides, enables or supports the offering or provision of any of the Services, whether with respect to the exercise or enforcement of its rights or remedies under these Terms or otherwise, unless the loss is caused solely by our or Bank’s gross negligence, fraud or other willful misconduct, and, to the fullest extent permitted by applicable law you waive, and release each of us, Bank and such other Persons from, any and all claims you may otherwise have relating to such loss or losses.  Our liability shall be limited to actual damages incurred by you as a direct result of our gross negligence, fraud or other willful misconduct.  Our liability for actual damages shall not exceed the sum of: (a) all fees paid by you to us under these Terms in the three (3) month period prior to the date when any claim is made against us; plus (b) all other revenue earned by us for all of your Business Account activity conducted in the three (3) months prior to the date of any claim made against us.  In no event will we or Bank be liable for any indirect, incidental, special, consequential, exemplary or punitive damages, including without limitation lost profits, lost revenue or damages for loss of data, and you expressly and unconditionally waive any right to such damages to the fullest extent not prohibited by applicable law, and even if you advise us of the possibility of such damages.  Except as otherwise required under applicable law, we make no warranty with respect to goods, products, or services purchased through your Business Account, or with respect to merchantability or fitness for use thereof, or with respect to the provision or operation of the Services or of the software or computer systems utilized in offering or providing any of the Services.  

Without limitation of the foregoing, neither we nor Bank are liable to you for any loss, liability or damages that you suffer as a result of, related to, or in any way are connected with (i) any fraud control or purchase restriction measures we elect to implement from time to time, unless such loss, liability or damage is a direct result of our gross negligence or willful misconduct, or (ii) delays or mistakes which happen because of reasons beyond our control, including, without limitation, acts of civil, military or banking authorities, legal constraint, interruption of transmission or communication facilities, equipment failure, emergency conditions, pandemic or plague, fire, flood, hurricane or other significant adverse weather event, labor dispute or work stoppage, insurrection, war, riots, or acts of terrorism.

YOU AND WE AGREE VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY TO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING INSTITUTED IN ANY COURT, ARISING OUT OF THIS AGREEMENT.

You waive personal service of process in connection with any action or proceeding commenced by us in connection with these Terms, and agree that service may be made by certified mail to the last known address for you we have in our records.

22. INDEMNIFICATION

You agree to indemnify and hold us, our affiliates and our and their respective directors, officers, employees, and agents harmless from and against any and all monetary loss, liabilities, claims, fines, penalties, fees, costs and expenses including, without limitation, attorneys’ fees and litigation costs of any kind (“Losses”), arising in connection with the Services provided under these Terms, except for Losses arising from our own gross negligence, fraud or willful misconduct.  You further agree to hold us, our affiliates and our and their respective directors, officers, employees, and agents harmless from Losses arising out of actions taken or omitted in good faith by us in reliance upon instructions from you, and from Losses arising out of your violation of any law, regulation or rule or your engagement in any of the prohibited activities in Section 17.  We are not responsible for any actions or omissions by any third party, subject to applicable law.  

If you provide instructions to us that we believe may expose us to potential liability, we may refuse to follow such instructions.  We are under no obligation to follow, and we will not be liable to you if we choose not to follow, such instructions.

23. MISCELLANEOUS

1.  Severability

If any provision of these Terms is deemed to be invalid, illegal or otherwise unenforceable in any respect by a court or governmental agency of competent jurisdiction over us, that provision will be considered changed as necessary to continue to be enforceable to the extent permitted by that court or agency, and the remainder of that provision will no longer be considered part of these Terms.  All other provisions of these Terms will, however, remain in full force and effect.  

2. No Waiver

No delay or waiver by us of any right, remedy or obligation under or in connection with these Terms on any one occasion will constitute a waiver of that right, remedy or obligation on any subsequent occasion.  In any event, no such waiver by us will be effective as such unless it is in writing and signed and approved.

3. Headings

The headings used in these Terms are for convenience of reference only and have no legal effect on your or our rights or obligations under these Terms.

4. Assignment

You may not pledge, grant a security interest in, sell, transfer or assign any rights or obligations you have under these Terms or your Flume Account, unless we agree in writing prior to such sale, transfer or assignment.  We may transfer or assign these Terms or any right or obligation we have under these Terms at any time without prior notice to or consent by you

5. Entire Agreement

You acknowledge that these Terms, including all notices, terms and conditions incorporated by reference herein, constitute the entire agreement between you and us with respect to the Services, and supersede any prior or contemporaneous written or oral communication or agreement.

BY CLICKING ACCEPT, YOU AGREE TO THESE FLUME TERMS OF SERVICE, INCLUDING CONSENTING TO RECEIVE ELECTRONIC COMMUNICATIONS AND TO THE ARBITRATION PROVISIONS, AND YOU CERTIFY ALL INFORMATION YOU PROVIDE TO US IN CONNECTION WITH YOUR BUSINESS ACCOUNT IS ACCURATE AND COMPLETE.

Appendix A

Cut-Off Times for ACH Processing

All entries must be received by us in accordance with the schedule set forth below.

Same-Day ACH Entries:

• For a credit entry to be processed in the first same-day processing window, we must receive the entry by 8:45 am Eastern Time on the intended settlement date.  Any same-day entry received after this cut-off time will be processed in the second same-day processing window.

• For a credit entry to be processed in the second same-day processing window, we must receive the entry by 1:00 pm Eastern Time on the intended settlement date.  Any same-day entry received after this cut-off time will be processed in the third same-day processing window.

• For a credit entry to be processed in the third same-day processing window, we must receive the entry by 3:00 pm Eastern Time on the intended settlement date.  Any same-day entry received after this cut-off time will be processed with the Standard ACH entries.

  
  

For Standard ACH entries, we must receive the entry by 11:15 pm Eastern Time on the business day before the intended settlement date.