Uphold Electronic Transfer Agreement
an authorized agent of Metropolitan Commercial Bank of New York.
This agreement (the “Agreement”) sets out the terms and conditions governing your use of the Uphold Electronic Transfer Service (the “Service”). The Service is offered through the website with its home page located at www.uphold.com. Your use of the Services is governed by this Agreement and constitute the legal relationship between you and us.
BY USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE DO NOT USE THE SERVICES IF YOU DO NOT ACCEPT TO BE BOUND BY THIS AGREEMENT. IT IS IMPORTANT THAT YOU TAKE THE TIME TO READ THIS AGREEMENT CAREFULLY.
As used herein, the terms “Bank”, “we,” “us,” and “our” mean Metropolitan Commercial Bank, and “Uphold” means Uphold HQ Inc. “You” and “your” means the person who is using the Services to transfer funds from a US bank account.
1. Eligibility. As part of your use of the Service, you represent and warrant that:
- If an individual, you are of the legal age of majority in your jurisdiction, but in all events at least 18 years old;
- You have full authority to enter into this Agreement;
- You hold a US bank account that will be the source of funds for transfers using the Service and that, unless you are acting as an agent as set forth below, is held in your name and over which you exercise legal authority and control;
- You will not be violating any laws or regulations by entering into or by performing any part of this Agreement, or by otherwise using the Service;
- You are not an agent acting for an undisclosed principal or third party beneficiary. In the event that you are acting for a third party, you agree to provide us with certified copies of identification evidence of such authorizations that you have received from the third party and obtain our express approval before acting on that third party’s behalf;
- All information provided by you as part of your use of the Service is accurate and complete, and you undertake to promptly notify us of any changes to such information;
- You will ensure that your contact details provided to Uphold remain accurate and up to date. We will use those contact details to contact you wherever required under this Agreement or in connection with the Service. You may update your contact details at any time by logging in to your Uphold account.
2. Identity Verification Process. To help the government fight the funding of terrorism and money laundering activities, Federal law requires the Bank to obtain, verify and record information that identifies each person to whom we provide certain types of services. What this means for you when you use our Service we will require you or Uphold to provide us with certain information such as your name, address, date of birth, taxpayer ID, phone number, email address, and other information that will allow us to identify you. We may require you or Uphold to provide documentation, which may include your passport, driver’s license, or other government issued photo identification document. We may also contact you if we have additional questions. By using the Service, you consent to provide this information directly or to allow Uphold to provide this information on your behalf.
3. Compliance with Office of Foreign Assets Control (“OFAC”). All U.S. persons, including U.S. banks, bank holding companies, and non-bank subsidiaries, must comply with OFAC’s regulations. This means that we may institute a hold on your account or your funds, if you are a Specially Designated National, or fall into the scope of a country-based sanction program.
4. Unlawful And Other Impermissible Use. You agree not to use the Service for any unlawful activity, and we reserve the right to investigate any suspicious activity or in response to any complaints or reported violations. When investigating any such activity, we reserve the right to report suspected unlawful activity to any appropriate regulatory or similar authority or person and to provide such authority or person any relevant information, including personal data.
5. Bank Account Transfer Authorization. In order to use the Services, you will need to provide your bank account details, including your bank account number and routing number (each such bank account is deemed “Your Bank Account”). You represent that Your Bank Account payment details are correct, that you are authorized to access and transmit funds from Your Bank Account, that Your Bank Account is in good standing with the account-holding financial institution, and that you have the authority to initiate an electronic funds transfer in the amount at issue to or from Your Bank Account. You authorize us to initiate electronic credits and debits to Your Bank Account through the automated clearinghouse (ACH) network in order to process a requested transaction (each a “Transaction”), including any applicable fees and charges. Your authorization shall remain in effect for any Transaction that you have authorized unless canceled in accordance with this Agreement. You authorize us to try any bank transfer again if the initial transfer is rejected by your bank for any reason.
6. Settlement. In a timely manner and in accordance with applicable Rules, we will process, transmit, and settle Transactions, other than Refused Transactions, that comply with the terms of the Agreement. Debit Transactions shall be settled in an account designated by us with the Bank. Credit Transactions shall be settled from our account to your designated bank account.
7. Refused Transactions. We reserve the right in our sole discretion to refuse any Transaction. Reasons for refusal may include but are not limited to incorrect bank account details or an insufficient deposit amount. We generally will attempt to notify of you of any refusal, using the contact information provided by you or Uphold, stating (where possible) the reasons for the refusal and whether the problem can be corrected. We will not notify you of a refusal where to do so would be unlawful.
8. Agents and Service Providers. We use agents and service providers to help us deliver the Service to you. For example, Uphold manages the Service on our behalf as our agent. Among other functions, Uphold provides customer service and other functions. Uphold is registered as a money service business with the Department of Treasury and Financial Crimes Enforcement Network. Regardless, all services provided by Uphold or other agents or service providers are performed at our direction and subject to our supervision and control and, in every case, we are fully responsible for and liable to you for the Services provided by Uphold as our agent and by any and all other service providers who may support the delivery of the Services to you.
9. Errors. Once Transactions have been executed, they cannot be reversed, and, except as expressly set out in this Agreement, we will not be liable in any way for any loss you suffer as a result of a Transaction being carried out in accordance with your instructions. If you believe there to be an error in connection with a Transaction, then you should notify us at [email protected]
10. Limitations of Liability. Neither we nor any of our agents, affiliates, holding companies, subsidiaries, employees, officers, directors, service providers, or subcontractors will be liable:
- For losses or damages alleged to result from our failure to properly complete a Transaction (except where the result of our negligence);
- For losses or damages alleged to result from our delay in completing a Transaction;
- If, through no fault of ours, you do not have enough money in Your Bank Account or have not timely deposited sufficient funds with us to make the Transaction;
- If your system or device was not working properly during your use of the Service and you knew about the breakdown when you started the Transaction;
- For errors made by you;
- For errors by your bank, such as the provision of incorrect bank account information for Your Bank Account;
- For losses or damage arising from your misuse or inability to use the Service Website, whether due to reasons within our control or not;
- For losses or damage to you from our inability to complete a Transaction because we are prohibited by law or for losses or damage caused as a result of actions taken due to our obligations under applicable law or order; or
- Due to circumstances beyond our control (such as failure or interruption of telecommunications or data transmission systems) that prevent or affect the Transaction, despite reasonable precautions that we have taken.
11. Disclaimer of Liability. IN PROVIDING THE SERVICE TO YOU, NEITHER WE NOR ANY OF OUR AFFILIATES, HOLDING COMPANIES, SUBSIDIARIES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, SERVICE PROVIDERS OR SUBCONTRACTORS, MAKES ANY EXPRESS WARRANTIES OR REPRESENTATIONS TO YOU WITH RESPECT TO THE SERVICE EXCEPT AS SET OUT IN THIS AGREEMENT, AND ALL IMPLIED AND STATUTORY WARRANTIES AND REPRESENTATIONS, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL WE OR ANY OF OUR AFFILIATES, HOLDING COMPANIES, SUBSIDIARIES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, SERVICE PROVIDERS OR SUBCONTRACTORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, WHETHER BASED ON NEGLIGENCE, WILFUL MISCONDUCT, TORT, CONTRACT OR ANY OTHER THEORY OF LAW, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF INCOME, FAILURE TO REALIZE EXPECTED REVENUES OR SAVINGS, LOSS OF PROFITS OR ANY ECONOMIC OR PECUNIARY LOSS. WE FURTHER DISCLAIM ANY AND ALL LIABILITY FOR ANY GOODS OR SERVICES BOUGHT OR SOLD BY YOU THAT ARE SETTLED THROUGH YOUR PARTICIPATION IN THE SERVICE.
12. Right of Set-Off. You agree that we are authorized at any time to set-off the funds deposited with us against your debts or liabilities owed to us. We may exercise this right of set-off without notice to you.
13. Changes to this Agreement. We may amend this Agreement at any time by posting a revised version on the Service Website (a “Change”). In the event that there is a Change which happens during the time which we have agreed to perform a Service for you but the Service has yet to be fully completed, the original terms and conditions (prior to any such Change) shall apply until such Service has been fully completed or has been cancelled or terminated in accordance with this Agreement, except where a Change is required by applicable law to take effect sooner. For the avoidance of doubt, any Change relating to the addition of a new service, extra functionality or any such change which we believe in our reasonable opinion neither reduces your rights nor increases your responsibilities shall be deemed to be effective immediately. You are recommended to retain a copy of this Agreement at the time a Service is requested for your records. You also may request a copy from us of the version of the Agreement in effect at the time of a particular Transaction that you have requested by emailing [support email].
14. Applicable Law and Arbitration. This Agreement and any claim or controversy arising out of or relating thereto, including any claim in connection with the Service (collectively, a “Claim”) is governed by the laws of the United States and the state of New York, without regard to conflicts or choice of laws principles, whether or not you live in New York. YOU HEREBY CONSENT TO ARBITRATION OF ALL CLAIMS BEFORE A SINGLE ARBITRATOR. THE ARBITRATOR WILL BE SELECTED AND THE ARBITRATION CONDUCTED PURSUANT TO THE CONSUMER ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. NO “CLASS” OR SIMILAR GROUP ARBITRATION SHALL BE PERMITTED. ALL ARBITRATION HEARINGS OR SIMILAR PROCEEDINGS SHALL BE HELD IN NEW YORK, NEW YORK, ALTHOUGH YOU MAY ELECT TELEPHONIC PROCEEDINGS OR WAIVE ANY HEARING. The AAA Consumer Arbitration Rules are available for review at: https://www.adr.org/aaa/faces/rules (click Rules, then click Consumer Arbitration Rules).Any arbitral award shall be final and binding and may be enforced by any court of competent jurisdiction.You understand that, in return for your agreement to this Section, we are able to offer you the Service at the terms designated, and that your assent to this Section is an indispensable consideration to this Agreement. You also acknowledge and understand that, with respect to any Claim:
- YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY;
- YOU ARE GIVING UP YOUR RIGHT TO HAVE A COURT RESOLVE ANY SUCH DISPUTE; and
- YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY ARBITRATION OR LAWSUIT INVOLVING ANY SUCH DISPUTE.
This Section is made pursuant to a transaction involving interstate commerce and will be governed by the Federal Arbitration Act, 9 U.S.C.1-16.
15. Severability. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be deemed to be modified to the minimum extent necessary to make it valid and enforceable and the rest of this Agreement will not be affected.
16. Assignment. You may not transfer or assign this Agreement to any other person without our prior written consent. We may assign our obligations to you under this Agreement without your consent or any prior notice.
17. English Language. This Agreement may be provided to you in English or any other language that we support. For the avoidance of doubt, any non-English version of the Agreement is provided for translation purposes only. In the event that any conflict arises between the English and non-English versions of the Agreement, the English version shall prevail.
18. Entire Agreement. This Agreement and any document expressly referred to in it constitutes the whole agreement between us and supersedes any previous discussions, correspondence, arrangements or understandings between us.
19. Notices to Us. If you have any problems using the Service, you should contact Uphold Support via email, [email protected]. Any notice of legal claim or other process pursuant to this Agreement shall be delivered via post to:
Metropolitan Commercial Bank of New York
Attn: Chief Administrative Officer
99 Park Avenue, Manhattan
20. “Business Day” is a day Metropolitan Commercial Bank is open to the public for carrying on substantially all of its business (other than Saturday, Sunday, or listed holidays). “Effective Date” must be a business day, or the record will be processed on the first business day following the effective date.
Holiday Schedule (Non-processing Days)
- New Year’s Day
- Martin Luther King Jr. Day
- President’s Day
- Memorial Day
- Independence Day
- Labor Day
- Columbus Day
- Veteran’s Day
- Thanksgiving Day
- Christmas Day
21.Warranties for Businesses or Corporate Originators. If you are business or corporate customer performing your own Origination, then you warrant to Metropolitan Commercial Bank all warranties Metropolitan Commercial Bank< span style="background-color: initial;"> is deemed by the Rules to make with respect to entries originated by you. Without limiting the foregoing, you warrant and agree that (a) each entry is accurate, is timely, has been authorized by the party whose account will be credited or debited, and otherwise complies with the Rules; (b) each debit entry is for a sum which, on the settlement date with respect to it, will be owing to You from the party whose account will be debited, is for a sum specified by such party to be paid to You or is a correction of a previously transmitted erroneous credit entry; (c) you have complied with all pre-notification requirements of the Rules; (d) you will comply with the terms of the Electronic Funds Transfer Act if applicable or Uniform Commercial Code Article 4A (UCC4A) if applicable and shall otherwise perform its obligations under this Agreement in accordance with all applicable laws and regulations. All authorization records as required by the Rules shall be retained for a period of not less than two years after termination or revocation of such authorization and you will, upon request, furnish such original or copy of authorization records to Metropolitan Commercial Bank. You shall indemnify Metropolitan Commercial Bank against any loss, liability, or expense (including attorneys’ fees and expenses) resulting from arising out of any breach of any of the foregoing warranties or agreements.