1.1. BY SIGNING UP FOR A VIABILL ACCOUNT AND/OR USING THE VIABILL SERVICE, YOU ARE:
1.1.1. Representing that you are acting on your own behalf, you are a resident of the United States or its territories, you are at least of the age of legal majority where you live (which is currently 18 in most cases), and the application you submitted to us in connection with the account is true in all material respects. If any of the foregoing are not true, you are not eligible to use any Services.
1.2. This Agreement was last revised on November 21, 2019. This Agreement replaces any other agreement relating to your account that you or we made earlier or at the same time.
1.3. Our failure or delay in exercising any of our rights under this Agreement does not mean that we are unable to exercise those rights later.
1.4.1. We reserve the right to amend this Agreement at any time, by adding, deleting, or changing provisions of this Agreement. All amendments will comply with the applicable notice requirements of federal and New York law that are in effect at that time.
1.4.2. If an amendment gives you the opportunity to reject the change, and if you reject the change in the manner provided in such amendment, we may terminate your right to use the Services and may disable your account as a condition of your rejection.
1.4.3. The reasons we may amend this Agreement include but are not limited to the following:
- Changes in applicable regulation or legislation, or a change in the interpretation of a regulation or legislation, or ViaBill’s becoming subject to additional applicable regulations or legislation.
- Changes related to your individual risk profile, your payment or transaction patterns, balance patterns, the utilization levels of this and other accounts, credit bureau information including the age, history and type of other accounts, and the measure of risk associated with each.
- Changes to overall economic and market trends, product design, and business needs.
1.5. Certain Definitions
1.5.1. ”We”, “us”, “our” or “ViaBill” means ViaBill Inc., a Delaware corporation having offices at 43 W 23rd St, 4th Floor, New York, NY 10010.
1.5.2. ”You” and “your” refers to the individual person who creates the associated ViaBill account and each and all of the persons who are granted, accept or use the account and any person who has guaranteed payment of the account.
1.5.3. “Services” means the “Pay with ViaBill” service and any other services or benefits we may provide you from time to time.
1.6. WHAT LAW APPLIES
This Agreement, though accessed by you via the Internet, is made in New York and we extend credit to you from New York. This Agreement is governed by the laws of the State of New York (without regard to its conflict of laws principles) and by any applicable federal laws.
1.7. PROVISIONS OF THIS AGREEMENT ARE SEVERABLE
If any provision of this Agreement is found to be invalid, the remaining provisions will continue to be effective.
We use section headings to organize this Agreement. The headings are for reference purposes only.
2. Our Services
2.1. The “Pay with ViaBill” Service.
2.1.1.Signing up for a ViaBill account and qualifying for “Pay with ViaBill” allows you to buy goods or services offered by merchants (“Merchants”) with a series of payments over time. We pay the Merchant on your behalf for the goods or services you purchase, and you agree to repay those amounts to us in accordance with this Agreement and the specific terms presented to you at the time of purchase. You may use this Service for personal, family, or household purposes. You may not use this Service for business or commercial purposes. You may not use this Service to make a payment on any credit account with us or our affiliates. You may not use or permit your account to be used to make any illegal transaction.
2.1.2. Your Promise to Pay: Before completing any transaction on your behalf through any ViaBill Services, ViaBill will secure your promise to pay by disclosing the terms and conditions applicable to that transaction and securing your affirmative consent to those terms for that transaction, including your promise to pay the Total Payments amount to us or our assigns, by asking you to click the “Confirm” button. Clicking that button indicates that you do accept those associated terms and this Agreement. You also promise to pay us all the amounts of any fees and any other transactions charged to your account.
2.1.3. Payments: “Pay with ViaBill” provides Merchants’ end-customers like you with the opportunity to spread their payments over four equal installments of 25% of the total purchase price (including tax and shipping). Your first payment of 25% of the purchase price (including shipping and taxes) is due at the time of purchase (e.g. you buy on January 17, then the due date of your first payment is January 17), and further installments are automatically deducted from your saved repayment method (presently ACH credit if you have provided ViaBill with the necessary valid account information) on the last banking day of each month, starting in the month following the month in which the purchase was made. If the payment due date coincides with a banking holiday, ViaBill will attempt to deduct your payment on the banking day prior to the banking holiday. If you make another purchase with ViaBill according to this Agreement before your previous purchase is completely repaid, ViaBill will recalculate your balance with us, and set forth four new installments of a higher monthly installment amount, but you will technically still repay the previous purchase in the original four installments, meaning that your increased installment amounts include both the original installment amounts and part of the four new equal installment amounts. Let us make an example to clarify this: You make a purchase with ViaBill for $100 on January 17. You pay $25 on January 17, $25 on the last banking day in February and $25 on the last banking day in March. Your balance with ViaBill is then $25, which is due on the last banking day in April. Now, on March 24, you make a new purchase of $200 with ViaBill. ViaBill will charge you for 25% of the purchase price of the new purchase, or $50, on March 24. ViaBill now recalculates your balance, which has increased to $175 (the remaining $25 and the new $150), and sets forth a new installment plan of four equal installments of each $43.75, of which the first is due on the last banking day in April, and which technically consists of $25 (from the original purchase made on January 17), and $18.75 from the new purchase made on March 24. The next three installments (in May, June, and July) each amount to $43.75 as well, but consists now only of the purchase made on March 24. And so forth, if you choose to make more purchases with ViaBill according to this agreement. You may pay the entire amount you owe us at any time; however, payments made in any billing cycle that are greater than the minimum Payment Due but less than the total amount owed will not affect your obligation to make any following regularly scheduled payments. If you overpay, or if there is a credit balance on your account, we will not pay you interest on such amounts. Note that we may reject payments that are not drawn in U.S. dollars or those drawn on a financial institution located outside of the United States, and we reserve the right to reject any payment if your account has a credit balance as of the day we receive that payment. Generally, credits to your account, such as those generated by Merchants, are not treated as payments. Credits will reduce your total balance, but not alter your payment schedule.
2.1.4. Fees: “Pay with ViaBill” is not an interest based lending product. You may, however, incur certain account fees if, for example, your payments are not made timely, you do not maintain a valid method of payment, if you ask us to take certain actions on your behalf, or for other items. Late fees will be assessed on the following schedule: First missed payment within a 6 month period – $29 or the amount of the missed installment, whichever is lower. Second missed payment within a 6 month period – $40 or the amount of the missed installment, whichever is lower.
2.1.5. Qualification. Note that you must be qualified to use the “Pay with ViaBill” Service. Whether you are qualified will be determined by ViaBill in its discretion at the time of an attempted purchase, and may depend on such factors including but not limited to our assessment of your creditworthiness, your history of transactions on our site, the merchant’s account history, or any other reason. ViaBill may cancel transactions at any time before a Merchant delivers any goods or services if you violate any term of this Agreement.
2.1.6. Delays in Processing. In some cases when you attempt to use the Pay with ViaBill Service to make a purchase, the transaction may be held as pending or be otherwise delayed for processing and confirmation by either ViaBill or the merchant and can be cancelled at any time until it is confirmed by ViaBill.
2.1.7. YOUR APPROVED SPEND. Your Approved Spend is disclosed to you when you open your account and, generally, on your online account dashboard on “MyViaBill”. The “Approved Spend” is the total amount available for purchases from Merchants using the account, and it is reduced by any currently outstanding amounts from previous purchases. We may change your Approved Spend from time to time. We base that decision on a variety of factors such as your payment and transaction history with us, and information we receive from third parties, including credit reporting agencies.
2.1.8 Multiple Accounts. Any attempt, whether successful or unsuccessful, to create multiple or duplicate ViaBill accounts will be treated as an attempt to evade the approved spending limit and is expressly prohibited. Violation of this provision will be considered a material breach of this agreement and will result in your account being considered in default.
2.2. Payment Terms (All Services)
2.2.1. How To Make A Payment. You must follow the instructions for making payments provided on your dashboard and/or billing statement. If you do not, credit of your payment may be delayed up to five days.
2.2.2. You may use one of the acceptable methods of payment to make one-time transactions to pay your account as payments become due or to set up automatic scheduled account payments. ViaBill may determine the acceptable methods of payment, and may discontinue accepting any particular method of payment at any time, from time to time, for any reason, as permissible by law. Currently acceptable methods of payment without costs for you are:
- ACH debit: This allows you to make a one-time repayment without any costs for you of at least the minimum Payment Due amount.
- ACH credit: By using this repayment option, you permit ViaBill to automatically attempt to charge your bank account with the minimum Payment Due without any costs for you every 30 days following the purchase date until your balance is repaid in full.
ViaBill does not automatically charge your provided credit card before or on due date, as the installment amount is merely a minimum Payment Due, but completely up to you to decide, if you wish to make a larger monthly repayment. However, by providing your credit card to ViaBill and by making purchases with ViaBill, you allow ViaBill to make a sufficient hold on your credit card and charge your credit card after due date with any amount/balance due including – but not limited to – late fees in order to protect you from entering into expensive external collection process or delinquency. Payments made with credit card will be subject to the terms and conditions established by the card issuer. If charges cannot be processed through your credit card, or if your bank draft or electronic funds transfer is returned for insufficient funds, you will be responsible for any fees incurred and ViaBill will have no liability with respect thereto.
2.2.3. When Payments Are Due. You must pay at least the total minimum payment due on your account by 5 p.m. (ET) on the due date of each billing cycle. Payments received after 5 p.m. (ET) will be credited as of the next day. You may at any time pay, in whole or in part, the total unpaid balance without any additional charge for prepayment. We may delay making credit available on your account in the amount of your payment even though we will credit your payment when we receive it.
2.2.4. Payment Allocation. We will apply the required total minimum payment to balances on your account using any method we choose. Applicable law may require or permit us to apply excess payments in a different manner in certain situations, such as when your account has a certain type of special promotion.
2.2.5. TRANSACTIONS MADE IN FOREIGN CURRENCIES
If we permit you to make purchases in one currency and repay them in another currency, then unless a specific rate is required by applicable law, the rates to make conversion from transactions in foreign currencies to U.S. Dollars (or vice versa) shall be the rates posted on our website. They may not be the rates you would be able to achieve via any other third party currency conversion service, bank or broker, and they may include a conversion commission for ViaBill.
2.2.6. WHEN WE MAY REQUIRE IMMEDIATE REPAYMENT
If you are in default, then in addition to our other remedies under this Agreement, we can require immediate payment of your total outstanding balance and, unless prohibited by applicable law, we can also require you to pay the costs we incur in any collection proceeding, as well as reasonable attorneys’ fees if we refer your account for collection to an attorney or collection agency.
2.2.7. No Waiver.
We may choose to accept late payments, partial payments, or payments with any restrictive writing without losing any of our rights under this Agreement. This means that no payment, including those marked with paid in full or with any other restrictive words, shall operate as an accord and satisfaction without the prior written approval of one of our senior officers. You may not use a postdated check to make a payment, and currently, you may not make any payment to us by check. If you do send us a check or postdate a payment check, we may elect to honor it upon presentment or return it uncredited to the person that presented it, without in either case waiting for the date shown on the check, and we are not liable to you for any loss or expense arising out of the action we elect to take.
2.2.8. MODIFICATIONS TO REQUIRED MINIMUM PAYMENTS
We may allow you, from time to time, to omit a scheduled payment or make a reduced payment. We will notify you if and when these options are available. This will only occur on an isolated basis, such as when we are working with customers such as yourself affected by a federally declared disaster. If so offered, you must make the reduced or rescheduled payment(s) on time to avoid any applicable late fees.
2.2.9 Missed Payments. Any balance that is unpaid as of the date it is due will be applied to the due balance for the next month. For example, if $50 is due on March 30th and $50 is due on April 30th, if $50 is not paid by or on March 30th, the due balance for April 30th will now be $100.
2.2.10 Altering or Removing Payment Methods. You must have at least one (1) payment method on your account at any time. You may change your payment method at any time you choose, however, if you only have one (1) payment method on your account, you cannot remove that payment method until you have added another payment method. If, at the time you make changes to your payment method, you have a currently overdue balance, the overdue portion of your balance will be charged to your new payment method immediately upon the addition of your payment method.
2.2.11 Returns and Balance calculation. Any credits, whether originating from ViaBill or from a merchant, such as via a return, will be applied against your total balance with ViaBill. If a credit is applied to your account that results in a positive balance, that balance will not be automatically refunded unless a written request is submitted to ViaBill.
2.3. Other Services or Benefits.
2.3.1. It is important to note that benefits that may be offered by your bank or credit card issuer with respect to purchases of goods and services from merchants may not be applicable to transactions made through “Pay with ViaBill,” and ViaBill does not represent or warrant that any purchase protection, extended warranty, or other such benefits offered by such third parties will be available to you if you make purchases through “Pay with ViaBill.” You should inquire with your bank or card issuer to confirm whether any such benefits may be available, and upon what terms and conditions.
2.3.2. From time to time, we may offer or introduce other Services, in which case, you will be notified of the terms and conditions applicable to such Services (“Additional Terms”) in any associated documents or other materials provided to you from time to time by or on behalf of ViaBill. Unless expressly excluded from this Agreement by their Additional Terms, any such Services are subject this Agreement, as well as their Additional Terms. We may adjust, add, or delete Services at any time and without notice to you. ViaBill is not offering any benefits to you other than the Services.
ViaBill operates and controls the Services from its offices in the United States. ViaBill makes no representation that the Services are appropriate or available in other locations. The information provided on the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject ViaBill to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
3. Information about you
3.1. Using And Sharing Your Information.
3.2. Agreement to Provide Accurate Information.
You agree that when you provide information to ViaBill, you will only and at all times provide true, accurate, current and complete information, and you agree not to misrepresent your identity or any of your account information or related details. You further agree to keep your account information up to date and accurate. You represent that any phone number that you provide to us belongs to you and/or that you are authorized to provide that number. You must notify us promptly when you change your address or any phone number. We may also change your address if so notified by the post office or others.
3.3. Credit Bureau Reporting.
3.3.1. By using the ViaBill Service, you give us permission to investigate your credit record and obtain your credit report in connection with the review of your application for the right to use our Services. A credit report may also be requested in connection with an extension or increase of your Approved Spend, account renewal, account collection action or dispute investigation.
3.3.2. You understand that ViaBill may report information about your account (such as ontime, late, and missed payments; any defaults; and the fact you paid off or closed your account) to credit reporting agencies. Late payments, missed payments, or other defaults on your account may be shown in your credit report. Tell us if you think we reported wrong information about you to a credit bureau. Write to us at firstname.lastname@example.org or at ViaBill, Inc., 43 W 23rd St., 4th Floor, New York, NY 10010. Tell us what information is wrong and why you think it is wrong. If you have a copy of the credit report that includes the wrong information, send us a copy.
4. Your Other Agreements/Obligations
4.1. Access to your account
You are responsible for maintaining the secrecy of the login credentials to your ViaBill account. You agree to establish reasonable security procedures and controls to limit access to your password or other identifying information to authorized individuals, which includes choosing passwords and other credentials in a manner that will protect the security of your information. Your credentials include your username and password to your ViaBill account and to any 3rd Party account you have used to login to your ViaBill account.
Please notify us immediately of the loss, theft, or possible unauthorized use of your account at help@ViaBill.com.
If you permit any person to use your account information, login, or other details with the authorization to obtain credit on your account, you will be liable for all transactions made by that person including transactions for which you may not have intended to be liable, even if the amount of those transactions causes your Approved Spend to be exceeded. Further, you acknowledge and agree that you will not hold ViaBill responsible for, and will indemnify ViaBill from, any liability arising from the actions or inactions of this third party in connection with the permissions you grant. Authorized users of this account may have the same access to information about the account and its users as the account holders. Notice to any of you will be considered notice to all of you. We do not advise you to share your account details with other users, but we will consider someone to be an authorized user on your account if you: (1) notify us in writing that you want someone (such as a trustee, executor, or spouse) added to your account as an authorized user; (2) lend or otherwise intentionally give your account access details to another; or (3) take any other action in which you would be legally considered to have allowed another to use your account or to be legally prevented from denying that you did so. You must think carefully before you allow anyone to become an authorized user. By doing so, you authorize the person to use your account to the same extent you can, including but not limited to making any purchases and allowing others to use your account. Your account does not permit you to limit the nature or amount of authority you give to any authorized user and you will not attempt to do so. An authorized user’s authority will continue until you both notify us that you are terminating the authority and you create new access details (i.e. login and/or password).
You agree to allow ViaBill to send you payment reminders from time-to-time. Notwithstanding whether you have consented or withdrawn your consent to the ViaBill E-Sign Consent, you agree that payment reminders may take the form of any available communication.
You also agree that if you fail to pay an amount owed to ViaBill pursuant to this Agreement, ViaBill may engage in collection efforts to recover such amounts from you. These collection efforts may involve contacting you directly, submitting your information to a collections agency, or taking legal action. FAILURE TO PAY MAY AFFECT YOUR CREDIT SCORE.
4.3. Communication & Notification.
You agree that ViaBill may provide you communications about your account and the ViaBill Service electronically or through phone calls or in writing. Standard mobile, message, or data rates may apply and you are responsible for any such fees. ViaBill reserves the right to close or limit access to your account and immediately collect all due amounts if you withdraw your consent to receive electronic or other communications. Any electronic communications will be considered to be received by you within 24 hours of the time we email it to you or otherwise send it to your attention (such as via sms or other online notification). We may assume you have received any communications sent to you by postal mail 3 business days after we send it.
4.4. If we need to contact you to service your account or to collect amounts you owe to us, you give direct consent to us, as well as servicers, agents, contractors and collectors of your account, to communicate with you in any way, such as calling, texting, or e-mail via:
- a mobile phone or landline you provide to us, use to contact us, or at which we believe we can reach you (even if it is not yours),
- any email address you provide to us or one of our merchants,
- automated dialer systems and automatic telephone dialing systems,
- pre-recorded or artificial voice messages and other forms of communications.
You also agree that these communications are not unsolicited for purposes of any state or federal law, and you understand that this may result in additional mobile, text message, or data charges.
You understand and agree that ViaBill may, without further notice or warning and in our discretion, monitor or record telephone conversations you or anyone acting on your behalf has with ViaBill or its agents for quality control and training purposes or for its own protection. You acknowledge and understand that, while your communications with ViaBill may be overheard, monitored, or recorded without further notice or warning, not all telephone lines or calls may be recorded by ViaBill, and ViaBill does not guarantee that recordings of any particular telephone calls will be retained or retrievable.
Notwithstanding this provision, ViaBill’s delivery of any Disclosures governed by the ViaBill E-Sign Consent shall be governed by your consent or withdrawal of consent to receiving such Disclosures in electronic form.
4.5. Consent To Communications.
You consent to us, as well as any other owner or servicer of your account, contacting you through any channel of communication and for any purpose, as permitted by applicable law. For informational, servicing or collection related communications, you agree that we may use the phone numbers that you provide to us to contact your cellular phone or wireless device with text messages, artificial or prerecorded voice calls, and calls made by an automatic telephone dialing system. This consent applies even if you are charged for the call under your plan. You are responsible for any charges that may be billed to you by your communications carrier when we contact you.
4.6. TELEPHONE CALLS: CALLING, MONITORING AND RECORDING
You consent to and authorize ViaBill, any of its affiliates, or its marketing associates to monitor and/or record any of your telephone conversations and other electronic communications with our representatives or the representatives of any of those companies for reasonable business purposes including security and quality assurance. We will not remind you that we may be monitoring or recording a call at the outset of the call unless required by law to do so.
Where you have provided a mobile phone number directly to us, you consent and agree to accept servicing calls and text messages to your mobile phone from us. For example, we may place calls to you about fraud alerts or amounts you owe us (collection calls) on your account. For any telephone or mobile phone calls/communications we place to you, you consent and agree that those calls may be automatically dialed including prerecorded messages or texts.
4.7. You may not sell, assign or transfer any of your rights or duties under this Agreement or your account. If your account is closed, you must stop using it. You must still pay the full amount you owe and this Agreement will remain in effect until you do.
5. Our Rights
5.1. You will be in default of this Agreement if you fail to make any required Total Minimum Payment Due by its Payment Due Date or you fail to abide by any other term of this Agreement.
5.2. WHAT WE MAY DO IF YOU ATTEMPT TO EXCEED YOUR APPROVED SPEND
The total outstanding balance on your account plus authorizations at any time must not be more than your Approved Spend. Each time you attempt a transaction which results in your applicable outstanding balance (plus authorizations) exceeding your Approved Spend, we may: (1) permit the transaction without raising your Approved Spend; (2) permit the transaction and treat the amount of the transaction that is more than the Approved Spend as immediately due; or (3) refuse to permit the transaction. If we refuse to permit the transaction, we may advise the person who attempted the transaction that it has been refused.
5.3. SUSPENSION OR CLOSURE OF YOUR ACCOUNT
5.4. Dormant Accounts.
5.5. REFUSAL TO HONOR YOUR ACCOUNT
We may deny any transactions for any reason at our discretion. We are not liable for any refusal to honor your account.
5.6. ASSIGNMENT OR SALE
We may at any time, and without notice to you, sell, assign or transfer your account, any amounts due on your account, this Agreement, or our rights or obligations under your account or this Agreement to any person or entity. The person or entity to whom we make any such sale, assignment or transfer shall be entitled to all of our rights and shall assume our obligations under this Agreement, to the extent sold, assigned or transferred.
6. How ViaBill will resolve disputes.
6.1. Disputes with ViaBill.
If a dispute arises between you and ViaBill, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. In the event of a dispute we encourage you first to contact ViaBill at email@example.com to try resolving your problem directly with us.
RESOLVING A DISPUTE WITH ARBITRATION PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED. What claims are subject to arbitration 1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or dealers/merchants/retailers that accept the card or program sponsors if it relates to your account, except as noted below. 2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate. 3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.
6.2. No Class Actions
YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE. If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void, and the court’s determination shall be subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against us by a state or federal government agency even when such agency is seeking relief on behalf of a class of borrowers, including you. This means that we will not have the right to compel arbitration of any claim brought by such an agency.
6.3. How to start an arbitration, and the arbitration process
- The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to ViaBill, Inc., Legal Operation, 43 W 23rd St., 4th Floor, New York, NY 10010, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, 1-800778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.
- If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.
- The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.
- The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.
6.4. Governing Law for Arbitration. This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). New York law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award.
6.5. How to reject this section. You may reject this Arbitration section of your Agreement. If you do that, only a court may be used to resolve any dispute or claim. To reject this section, you must send us a notice within 60 days after you open your account or we first provided you with your right to reject this section. The notice must include your name, address and account number, and must be mailed to ViaBill, Inc., Legal Operation, 43 W 23rd St., 4th Floor, New York, NY 10010, ATTN: ARBITRATION OPT-OUT. This is the only way you can reject this section.
6.6. Exceptions to Informal Negotiations and Arbitration.
You and ViaBill agree that the following disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any disputes seeking to enforce or protect, or concerning the validity of, any of your or ViaBill’s intellectual property rights; and (2) any claim for injunctive relief.
7.1. Enforceability and Governing Law.
The failure of ViaBill to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. This Agreement set forth the entire understanding between you and ViaBill with respect to the Services. If any provision of this Agreement is held to be unenforceable, the unenforceable term or provision shall be replaced by an enforceable term or provision that comes closest to the intention underlying the unenforceable term or provision and the remaining provisions shall be enforced. To the extent that anything in or associated with the
Services is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. The laws of the State of New York govern your access to, and use of, the Services and the terms of this agreement.
7.2. Intellectual Property.
All content, design, graphics, compilation, magnetic translation, digital conversion and other matters to the Services are protected under applicable copyrights, trademarks and other proprietary rights (including but not limited to intellectual property rights) and owned by ViaBill or one of its affiliates. The copying, redistribution, use or publication by you of any part of the Services, unless expressly permitted in this Agreement, is strictly prohibited. Use of the Services does not give you ownership of any intellectual property rights in any of the content, documents or other materials you access. The posting of information or materials on the Services does not constitute a waiver of any right in such information and materials.
“ViaBill” is the marketing name for certain activities of ViaBill Inc. as operator of the Services. “ViaBill” and “Pay with ViaBill” are trademarks of ViaBill, as are all other names, logos and slogans associated with ViaBill products and services. Other featured words or symbols may be the trademarks of their respective owners.
You agree to indemnify, defend and hold harmless ViaBill, its affiliates, and its and their respective officers, directors, employees, agents, representatives, successors, and assigns from any and all claims, debts, losses, liabilities, demands, obligations, costs, expenses (including reasonable attorneys’ fees), fines, penalties, actions and causes of action, judgments (collectively, “Losses”) and threatened Losses arising from or in connection with your use of the Services or violation of this Agreement.
VIABILL AND ITS AFFILIATES MAKE NO COMMITMENTS OR WARRANTIES ABOUT THE CONTENT, RELIABILITY, OR AVAILABILITY OF THE SERVICES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SERVICES. VIABILL AND ITS AFFILIATES DISCLAIM, WITHOUT LIMITATION, ANY WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTY REGARDING NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. VIABILL AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF PAYMENT TRANSACTIONS OR THE SERVICES.
7.6. LIMITATION OF LIABILITY.
VIABILL AND ITS AFFILIATES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY PRODUCT AVAILABLE FROM OR THOUGH THE WEBSITE OR ANYONE’S (INCLUDING YOUR) USE OF THE SERVICES. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, VIABILL AND ITS AFFILIATES ARE NOT LIABLE FOR ANY COMPENSATORY, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE; NOR ARE THE LIABLE
FOR ANY THIRD PARTY CLAIMS OF ANY NATURE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. NONE OF THE SERVICES WOULD BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, YOU OBTAIN FROM US FROM OR THROUGH THE WEBSITE OR SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. NEITHER VIABILL NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY CONDITION BEYOND THE REASONABLE CONTROL OF SUCH PARTY.
7.7. Limitations period.
7.8. No Third-Party Beneficiaries.
This Agreement is between you and ViaBill. No user has any rights to force ViaBill to enforce any rights it may have against any you or any other user.
7.9. Covered Borrowers under the Military Lending Act.
Notwithstanding any provision of this Agreement, nothing in this Agreement shall be construed as applying to a “covered borrower” under the Military Lending Act, as defined in 32 C.F.R. § 232.3(g), to the extent inconsistent with the Military Lending Act.
7.10. Feedback You Provide.
If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. If we accept your submission, we do not waive any rights to use similar or related ideas or feedback previously known to us, developed by our employees, or obtained from sources other than you.
7.11. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods. This Agreement is effective until terminated by either party. You may terminate this Agreement by destroying all Service-related materials obtained from the Service, ViaBill or any other web site or source and paying all amounts you owe (including any fees or expenses incurred or imposed by ViaBill) in full. The privileges granted to you under this Agreement will terminate immediately and automatically without notice from ViaBill if, in our sole discretion, you fail to comply with any term or provision of this Agreement. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement. This Agreement contains the entire understanding between you and ViaBill, and supersedes all prior understandings of the parties hereto relating to the subject matter hereof, and cannot be changed or modified by you except by ViaBill as provided herein. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. Upon ViaBill’s request, you will furnish ViaBill any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against ViaBill by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
8. Billing Rights Notice
Your Billing Rights: Keep This Document For Future Use
This notice tells you about your rights and our responsibilities under the Fair Credit Billing Act.
What To Do If You Find A Mistake On Your Statement
If you think there is an error on your statement, write to us at:
43 W 23 street, 4th Floor, 10010 New York, NY or,
write to us electronically at:
In your letter, give us the following information:
- Account information: Your name and account number.
- Dollar amount: The dollar amount of the suspected error.
- Description of problem: If you think there is an error on your bill, describe what you believe is wrong and why you believe it is a mistake.
You must contact us:
- Within 60 days after the error appeared on your statement.
- At least 3 business days before an automated payment is scheduled, if you want to stop payment on the amount you think is wrong.
You must notify us of any potential errors in writing. You may call or email us, but if you do, we are not required to investigate any potential errors, and you may have to pay the amount in question.
What Will Happen After We Receive Your Letter
When we receive your letter, we must do two things:
- Within 30 days of receiving your letter, we must tell you that we received your letter. We will also tell you if we have already corrected the error.
- Within 90 days of receiving your letter, we must either correct the error or explain to you why we believe the bill is correct.
While we investigate whether or not there has been an error:
- We cannot try to collect the amount in question, or report you as delinquent on that amount.
- The charge in question may remain on your statement, and we may continue to charge you interest on that amount.
- While you do not have to pay the amount in question, you are responsible for the remainder of your balance.
- We can apply any unpaid amount against your Credit Line.
After we finish our investigation, one of two things will happen:
- If we made a mistake: You will not have to pay the amount in question or any interest or other fees related to that amount.
- If we do not believe there was a mistake: You will have to pay the amount in question, along with applicable interest and fees. We will send you a statement of the amount you owe and the date payment is due. We may then report you as delinquent if you do not pay the amount we think you owe.
If you receive our explanation but still believe your bill is wrong, you must write to us within 10 days telling us that you still refuse to pay. If you do so, we cannot report you as delinquent without also reporting that you are questioning your bill. We must tell you the name of anyone to whom we reported you as delinquent, and we must let those organizations know when the matter has been settled between us.
If we do not follow all of the rules above, you do not have to pay the first $50 of the amount you question even if your bill is correct.
Your Rights If You Are Dissatisfied With Your ViaBill Account Purchases
If you are dissatisfied with the goods or services that you have purchased with your ViaBill Account, and you have tried in good faith to correct the problem with the Merchant, you may have the right not to pay the remaining amount due on the purchase.
To use this right, all of the following must be true:
- The purchase must have been made in your home state or within 100 miles of your current mailing address, and the purchase price must have been more than $50 (Note: Neither of these are necessary if your Purchase was based on an advertisement we mailed to you, or if we own the company that sold you the goods or services).
- You must have used your ViaBill for the purchase.
- You must not yet have fully paid for the purchase.
If all of the criteria above are met and you are still dissatisfied with the purchase, contact us in writing at:
43 W 23 street, 4th Floor, 10010 New York, NY or,
write to us electronically at:
While we investigate, the same rules apply to the disputed amount as discussed above. After we finish our investigation, we will tell you our decision. At that point, if we think you owe an amount and you do not pay, we may report you as delinquent.
CONSENT TO ELECTRONIC COMMUNICATIONS
By (i) submitting an application online or (ii) registering for online or mobile services for your Account, you hereby agree to the following and this will constitute your consent for us to send you electronic communications about your Account. When you successfully consent through the online or mobile site, you have successfully demonstrated that you are able to access information we have posted on such online or mobile site.
Categories of Communications. You consent to receive communications relating to your Account in electronic form. The communications covered by your consent may include, but are not limited to, (i) the initial disclosure statement or agreement governing your Account, (ii) any disclosure required by federal, state or local law, including disclosures under the federal Truth in Lending Act, the federal Fair Credit Reporting Act, the Equal Credit Opportunity Act and the financial privacy provisions of the Gramm-Leach-Bliley Act, (iii) your billing statement, if you have signed up to receive electronic statements, (iv) letters, notices or alerts regarding your Account and any changes to your Account, and (v) other disclosures, notices or communications in connection with the application for, the opening of, maintenance of or collection of your Account. These electronic communications may include your name and some information about your Account, including your balance or the due date. Electronic communications may be reviewed by any party with access to your Account, the e-mail account you have provided to us for delivering these communications, or the hardware or software you use to view your Account information or your e-mail account.
How to Withdraw Your Consent. You may not apply online for an Account and you may not use your account, unless you also provide your consent to receive electronic communications. If you have successfully created an account and you wish to withdraw your consent to receive future electronic communications, you must cancel and close your account in accordance with the account Agreement to completely withdraw your consent to receive electronic communications. We will not impose any fee to process the withdrawal of your consent to electronic communications. However, you will not be able to receive or review your account information if you do not consent to receive electronic communications or withdraw your consent. Any withdrawal of your consent to electronic communications will be effective only after we have a reasonable period of time to process your account cancellation request, and only if you have also met the other conditions for closing your account.
How to Update Your Records. You agree to promptly update your e-mail address if a change occurs by updating your information by contacting customer service.
Hardware and Software Requirements. In order to access and retain electronic communications, you must have the following:
Paper Copies of Communications. Upon your request we will provide you with a paper copy of a communication that we provide you electronically. If you would like a paper copy of any material, please write to us at: ViaBill Inc., 43 W 23rd St., 4th Floor, New York, NY 10010 or call us at the phone number listed on your account dashboard or billing statement. There will be no charge for a paper copy of any material we have sent you electronically.
Communications in Writing. All communications in either electronic or paper format from us to you will be considered “in writing.” You should print or download a copy of this consent, the Account agreement, and any other electronic communication that is important to you for your records.
Electronic Signatures. You acknowledge that by clicking on the “Submit,” “Apply,” “Pay with ViaBill” or similar button, you are indicating your intent to sign up for electronic communications and that this shall constitute your signature, which has the same effect as if you signed a paper copy in ink.
Federal Law. You acknowledge and agree that your consent is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act, and that you and we both intend that the Act apply to the fullest extent possible to validate our ability to conduct business and communicate with you by electronic means.
IMPORTANT TERMS FOR ELECTRONIC STATEMENTS
In addition to the above, the following information applies:
- Statement Inserts. Any inserts that would be included with a statement sent by U.S. mail may also be sent to you electronically. If an insert contains legally required material, to ensure that you receive the necessary material, we may send you a paper copy of your statement in addition to making the statement available to you electronically. Any legally required insert that would not be available electronically will be sent to you by U.S. mail.
- Payment Information. Even though you will not receive paper statements, you must still pay at least your Minimum Payment and have it received by us by 5 p.m. (ET) on the Payment Due Date. You can do this through your account dashboard, an electronic bill pay service (whether through this website or using a third party servicer or bank) or by mailing your payment to us at the address shown on your electronic statement. Please note, if you do not pay us electronically, the crediting of your payment may be delayed by up to five days after receipt.
- Returned E-mails. If e-mails advising you of your account status are returned to us, we may attempt to reach you via other methods, which may include paper communications, but our inability to contact you shall have no impact on your due dates, amounts due, or other aspects of your account with us.
- SPAM Filters. We will make every effort to ensure our e-mail notifications are properly listed with all SPAM filter agencies. However, you are responsible for ensuring that any SPAM filters recognize e-mail originating from us. If you fail to receive e-mail notifications from us after enrolling for electronic statements, please check with the provider of your e-mail account and/or the SPAM filter associated with your e-mail account.
- Account Delinquency. We reserve the right, at any time and without notice, to stop providing you with electronic statements and provide you with paper statements, if your account is not maintained in good standing.
- Cancellation. We reserve the right, at any time, to stop providing you electronic statements and provide you with paper statements. If we do so, we will provide you with prior notice, except in the case of account delinquency.
Definitions used in this consent: “You” and “your” mean the primary applicant or accountholder; “We”, “us” and “our” mean ViaBill, Inc.; “Account” means your ViaBill, Inc. account.
All other terms used in this consent shall have the meanings given to them in the Account agreement.
I understand that the following notices are or may be required by state law and that these notices may not describe all of the rights that I have under state and federal law. Unless otherwise indicated, each notice applies or may apply to borrowers who live in the indicated state on the dates that they signed their applications and to borrowers who are residents of that state.