Bobtail Zero Mastercard® Cardholder Agreement

This Bobtail Zero Mastercard® Card Agreement (“Agreement”) sets forth the requirements for your participation in the Fleet Card program (“Program”) and the terms that govern your use of the Fleet Card (“Card” or “Fleet Card”) we make available to you on our website located at bobtail.com (the “Site”) or on our mobile application (the “App”, together with the Site, and/or financial services, collectively the “Services”). The Cards are issued by The Bancorp Bank, N.A. (“Issuer”), the financial institution responsible for issuing the Fleet Card on behalf of and pursuant to its agreement with Bobtail Wallet, LLC (“Bobtail”), the party responsible for extending credit to you pursuant to this Agreement. By opening an account with Bobtail to access or use our Services (“Account”), or otherwise manifesting your assent to these terms and conditions, you signify that you have read, understood and agree to this Agreement and our collection, storage, use and disclosure of your personal information as described in the Bobtail Privacy Policy. Additionally, by submitting your application to open a Bobtail Fleet Card, you signify that you have read, understood, and agree to be bound by this Agreement. “Company” or “you” means the legal entity that is applying for or that has opened an Account to use the Services and the individual applying for the Account. If you are the individual applying for the Account, you represent and warrant that you are an authorized representative of Company with the authority to bind Company to this Agreement (“Administrator”), and that you agree to this Agreement on Company’s behalf. “Users” correspond to individuals authorized by you or by the Administrator to use the Cards. The terms “we,” “us,” and “our” mean Bobtail, and to the extent applicable Issuer and its successors, affiliates, assignees, and service providers. 

This Agreement is supplemented by the Bobtail Privacy Policy, the Issuer Privacy Policy and all other applicable agreements between you, Issuer, and Bobtail. You also agree to receive all notices and other communications from us electronically. We reserve the right to make unilateral modifications to this Agreement and we will provide notice of these changes by posting an updated version to Bobtail’s legal page and/or notifying you via email.

BY USING YOUR FLEET CARD, YOU AGREE TO EXCLUSIVELY USE THE SERVICES AND TECHNOLOGY OFFERED BY BOBTAIL TO INSTRUCT US WITH RESPECT TO YOUR FLEET CARD. PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND AND AGREE TO EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

1. Cards.

A. Eligibility. To help the government fight the funding of terrorism and money laundering activities, US Federal law requires that we obtain, verify, and record information identifying companies and their beneficial owners. We provide Company Information (as defined in Section 3 below) to our Banking Partners (as defined in Section 3 below) and other third-party service providers to determine your eligibility and determine your eligibility for a Card (see Section 3.1 B). We rely on the accuracy of the Company Information you provide us when opening and maintaining your Card. We may deny your application, suspend Cards or close your Card if your Company Information is out of date, incomplete, or inaccurate. You are responsible for notifying us of any changes to your Company Information. You should notify us as soon as possible if you change your beneficial ownership information. Bobtail will periodically review your Card and we may ask you for additional Company Information to establish the amounts you can spend using the Card (“Spending Limit”), and for other purposes related to your Card. We may also request a credit report on your Company and its principals. You will promptly provide us all information we request, and you authorize us to request such credit reports in the event we choose to request them. We may exchange information with business credit reporting agencies or other financial service providers we may use when evaluating your eligibility for a Card.

B. Card Requests and Activation. Administrators may request virtual or physical Cards for Users by logging in to your Bobtail Account. We may refuse to issue any requested Card in our sole discretion. Cards are non-transferable, and we or the Issuer have the right to cancel, revoke, or suspend any Card at any time without notice. To activate a Card, log in to your Account and follow the Card activation instructions, or follow the instructions you received with your Card. Please sign the signature panel on the back of the Card as soon as you receive it (if applicable). You may request a replacement Card by logging in to your Account. Every Card we issue to you remains our property, and you agree to destroy any Card and to discontinue its use upon our request. Additional limitations on the number of Cards we will issue to you in connection with your Card are set forth in your dashboard.

2. Using Cards.

A. Card Security; Liability for Unauthorized Use. You are solely responsible for: (i) securing Cards, Account passwords, Card numbers, CVV, PIN and all other Card security features (“Card Data”); (ii) all charges, fees, penalties and related losses resulting from a User’s failure to exercise reasonable care in protecting Cards from loss or theft, or failure to promptly report loss or theft; (iii) any actions or failure to act on the part of Administrators or Users, (iv) payments initiated by any person given access to Cards even if they are not the person associated with or named on the Card; and (v) all other activity that occurs on your Card. You must notify us immediately via the client portal or by emailing us at compliance@bobtail.com if your Card is lost or stolen or you believe someone is using your Card without your permission.

B. Prohibited Use; Restrictions. Only Users authorized by you or an Administrator may use Cards, and Users may only use Cards on behalf of your business for legitimate business purposes. You agree that all payments, charges, and any other transactions (“Transactions”) you make using your Card will be treated as business Transactions made solely for business purposes. You may not: (a) use Cards for unlawful, personal or consumer purposes, for any purpose prohibited by the Terms of Use, or in any manner prohibited by the rules of the payment network identified on the front of the Card (“Payment Network”), including Internet gambling; (b) give your Card or Card Data to others or allow them to use your Card for charges, identification or any other purpose; (c) return goods or services obtained using your Card for a cash refund; (d) use your Card to obtain cash from a merchant for a charge recorded as a purchase; (e) use your Card for Transactions that do not represent bona fide sales of goods or services (such as making purchases from businesses owned by you); (f) use your Card if your Company is bankrupt or insolvent, or if you honestly do not expect to be able to pay for the Transactions at your next payment date; (g) use of your Card in or for the benefit of a country, organization, entity, or person on sanctions lists identified by Office of Foreign Assets Control (OFAC) or who is embargoed or blocked by any government.
We, Issuer, the Payment Network or an Administrator may impose geographic or high-risk merchant location restrictions, restrictions to comply with applicable laws or to reduce our liability; and other restrictions to prevent fraud and other losses. We may also block categories of Transactions at the request of your Administrator. For security reasons, we may, with or without prior notice to you, limit the type, amount, or number of Transactions you can make on your Card. We or your Administrator may increase, reduce, cancel, or suspend any of these restrictions or add new ones at any time. We will not be liable to you if: (i) we refuse to authorize a Transaction because you have exceeded your Spending Limit; (ii) a merchant refuses your Card; (iii) a merchant’s Card reader does not operate properly, and you knew about the problem when you initiated the Transaction; (iv) we have blocked access to your Card after you reported your Card lost or stolen; (v) we have placed a hold or your Card due to a legal or administrative process or other encumbrance restricting their use; (vi) we believe the requested Transaction is unauthorized; (vii) circumstances beyond our control (such as fire, flood or computer or communication failure) prevent the completion of the Transaction; or (viii) any other exception stated in this Agreement. We are not responsible for the quality, safety, legality, or any other aspect of any goods or services you purchase with your Card. If you use Card Data without presenting the Card in person (such as for a mail order, telephone, or internet purchase), the legal effect will be the same as if you used the Card itself. You assume all liability for unauthorized use of the Cards issued in connection with your Account. 

C. Fees. We do not impose any charges for the initial issuance or ongoing maintenance of Cards, nor do we levy late payment fees. Any modifications to the fees will be communicated to you and disclosed in your Account (“Fees”).

D. Receipts; Account Statements; Disputed Transactions. The Payment Network requires merchants to provide a record of your authorization for each Transaction using your Card, including copies of any contracts signed by you or invoices issued to you by the merchant (collectively, “Receipts”). You should obtain a Receipt at the time you make a Transaction using your Card to verify your Transactions. You can view a record of all Transactions and Fees (“Account Statement”) by accessing your Account, but you should be aware that the records in your Account Statement are not the equivalent of a Receipt. We will not send you a periodic Account Statement by mail, but you can download it from your Account at any time. You should review your Account Statement regularly and compare it with your Receipts as evidence for reporting Transactions that are erroneous or unauthorized. If you and a merchant have a dispute regarding a Transaction identified on your Account Statement (a “Disputed Transaction”), such as delivery of incorrect goods or services or being charged the wrong amount, you should first attempt to resolve the dispute with the merchant. If the dispute is not resolved to your satisfaction or if you believe the Transaction is unauthorized, you may initiate a chargeback through your Account. You must report any Disputed Transaction no more than 60 days after the Disputed Transaction is posted to your Account Statement. We may not process any Disputed Transactions reported more than 60 days after the Disputed Transaction was made with your Card. Notices for Disputed Transactions must specify the Company, User, details about the Transaction, Receipts, and an explanation of your belief that the Disputed Transaction was made in error or was unauthorized. The information you submit will be reviewed in a commercially reasonable manner. Your Card is commercial in nature and, thus, the Electronic Funds Transfer Act and Regulation E do not apply to Disputed Transactions. By accepting this Agreement, you assign and transfer to us or our agents any rights and claims, excluding tort claims, that you may have against a merchant for any Disputed Transaction fully or partially credited to your Account.

E. Spending Limits. Bobtail may impose Spending Limits on individual Transactions, and on daily, weekly or monthly Transaction amounts on your Card. Spending limits can be found under Account settings when the user logs into their portal. Your Spending Limits are subject to periodic review and may change based on your Card history, Transaction activity, information from your “Linked Accounts” (as defined below), Company’s business type, and other factors. For security reasons, we, Issuer or your Administrator may also limit the amount or number of such Transactions you may make. We may not disclose your Spending Limits but may explain whether specific Transactions or monthly volumes may exceed any Spending Limits upon request. Spending Limits are dynamic and may be modified at any time with or without notice to you, including temporarily increases or decreases or reducing Spending Limits to $0. We may attempt to notify you before or soon after a potential Spending Limit decrease for your Cards, but we may not always be able to do so.

F. Authorization Holds. When you use your Card to purchase goods or services from certain merchants, such as gas stations or truck stops, the merchant may request authorization from us in advance. In the event of such a request, the Issuer or Payment Network may place a hold on your Card for up to 7 days for the amount of the request, which may reduce your Spending Limit during the hold period. In some cases, a merchant may request pre-authorization for a Transaction, which may be subject to a hold on your Spending Limit for up to 30 days. Merchants may decide to increment the pre-authorized amount if the amount is insufficient for the final purchase, or, they may request to extend the same authorization amount if the final purchase date will be in the future. These events may result in a hold on your Spending Limit for up to another 30 days from the adjustment date. We will not be responsible for any Transactions not completed because of a hold. If the preauthorization request varies from the amount of the actual Transaction, we will reduce your Spending Limit by the amount of the preauthorization request.

G. Linked Account. You must connect at least one Linked Account before we will provide you with the Services. A “Linked Account” is any bank account held with a financial institution that has been linked to or authorized for use through your Account, or any bank account linked to or authorized for use through other products offered by Bobtail or its related companies. 

H. Payments. You are responsible for payment in full of all Transactions and Fees identified on your Account Statement at the end of each billing cycle (“Billing Cycle”). Depending on the information we receive from you when you apply for a Card, your Billing Cycle may be weekly, monthly, semi-monthly, or another billing period at our sole discretion. We will specify your Billing Cycle and the Account Statement due date (“Payment Date”) in your Account. At the end of each Billing Cycle, Bobtail will automatically debit the Linked Account you indicated in your Account in the amount of the Account Statement balance. You may associate more than one Linked Account to pay your Account Statement balance. If available as an option, you may also provide us with an external bank account through your Account to pay all or a portion of your Account Statement balance. If there are insufficient funds in your preferred Linked Account to pay the full amount due on your Account Statement, you authorize us to automatically debit the unpaid remaining balance from your secondary Linked Account (if any). If the Billing Cycle ends on a day that falls on a weekend or a U.S. federal holiday, we may debit your Linked Accounts the last business day prior to the end of the Billing Cycle. If the automatic debit from your Linked Accounts fails for any reason, we will attempt to debit your Linked Account again. In this case, you are also allowed to make payments at any time by logging in to your Account. You may not make payments via check, cash, debit card, credit card or wire transfer.

I. Authorization to Debit Linked Accounts; Automated Clearing House (ACH)      Authorization.
THIS SECTION PROVIDES AUTHORIZATION TO AUTOMATICALLY DEBIT YOUR LINKED ACCOUNTS, INCLUDING LINKED ACCOUNTS NO LONGER CONNECTED TO YOUR ACCOUNT, FOR ALL AMOUNTS YOU OWE UNDER THIS AGREEMENT. PLEASE READ IT THOROUGHLY.
You authorize Bobtail and our or their respective successors and assign to collect amounts owed under this Agreement by debiting funds from your Linked Accounts (including Linked Accounts no longer connected to your Account). If we, or our respective assigns use the      ACH network to debit your Linked Account, the debits will be governed by the rules established by the National Automated Clearinghouse Association (NACHA) for business-related ACH debits. You also authorize us to debit your Linked Accounts for verification purposes (through microdeposits or similar means). We may initiate debits you have authorized in our name or in the names of our successors or assigns.
You also authorize us to debit your Linked Accounts immediately for the amount of your Account Statement balance and any other amounts you owe us before the due date or at any other time during the Billing Cycle and without additional notice if: (a) the total aggregate balance of your Linked Accounts connected to your Card is less than the balance minimums required by our underwriting criteria; (b) you do not satisfy one or more of our other underwriting or credit requirements; (c) you or the amounts you owe us pose or may pose an unacceptable risk to us, the Issuer, our service providers, or our or their respective successors or assigns; (d) you are unlikely to be able to pay your Account Statement balance at the end of the Billing Cycle because you (i) do or we believe you may cease to exist, (ii) take any action to dissolve or wind up your affairs, or (iii) engage in voluntary or involuntary bankruptcy filings, or such case is filed by or against you, or a receiver or trustee for the benefit of creditors is appointed for you; (e) you have breached the terms of this Agreement; (f) you are in default of any other agreement with us, the Issuer or any of Bobtail’s service providers; or (g) you or we close your Account. In the event there is an error in processing an electronic debit, you authorize us to correct the error by initiating an electronic credit or debit to the relevant Linked Account in the amount of such error on or after the date such error occurs.
To withdraw your debit authorization from a Linked Account, you must provide us 30 days’ notice. If you withdraw the debit authorization from all Linked Accounts, you must pay all Transactions, Fees, and other amounts not yet reflected on your Account Statement balance immediately, and you authorize us to debit your Linked Accounts for such amounts before the withdrawal of authorization takes effect. Withdrawal of a debit authorization does not terminate the Terms of Use, or your obligation to pay all amounts owed under this Agreement.

J. Failure to Pay; Collections; Set-Off; Security Interest. Any failure to pay the full amount you owe us when required is a breach of this Agreement. If you fail to pay the full Account Statement balance amount on time from your Linked Account, we may attempt to collect the unpaid balance from your Linked Account, whether or not your Linked Account is currently connected to your Account. We may collect partial payments for unpaid amounts from any Linked Account, but any partial payment is not a waiver of our rights and will not satisfy your obligation to pay us in full. If we cannot collect the amounts via ACH network or another method, you agree to immediately pay all amounts you owe as directed by us. You are responsible for legal fees, collection fees, and all related costs or expenses. You also agree to immediately pay all amounts you owe that we incur in the process of collecting overdue payments, and you are responsible for paying interest on such amounts at up to the maximum rate permitted under law, to the extent we decide to charge such interest. For the purposes of collections of amounts owed, Bobtail is authorized to pursue collections of all amounts you may owe under this Agreement. We may set off, debit, or collect any amounts you owe from amounts in any Linked Account that you hold jointly with a third party, even if we have closed your Card. We may exercise this right against you or any of your respective successors or assigns, or any assignees for the benefit of your creditors, trustees, or receivers of Company assets. This right will exist even if we do not exercise it prior to the making, filing, or issuance of an arbitration demand, court order, or other action.

K. Closing or Suspending Your Account. We or the Issuer may refuse to authorize any Transaction or may close or suspend your Card at any time if we believe, in our sole discretion, that you, your Account, or your Card present an unacceptable level of financial, reputational or regulatory risk. We may condition the reactivation of your Card upon payment of amounts owed. We may require you to provide financial and other information we deem necessary, including any information we need to comply with legal or regulatory requirements and our internal policies and procedures. If we do, you agree to provide the information to us. You may close your Card by contacting us via the client portal or emailing us at compliance@bobtail.com. You must pay all amounts owed under this Agreement prior to closing your Card.

3. Terms of Use.

    3.1 Use of the Services

A. Applying for an Account. Your Account gives you access to certain Services, including the Card issued on behalf of Bobtail, the Account, and any other functionality that we may establish and maintain from time to time and in our sole discretion. The Cards are issued to Bobtail by one of our financial institution partners (“Banking Partner”), and by agreeing to these terms you are agreeing to use such Cards as authorized by Bobtail. Bobtail will make funds available to the Banking Partner in advance, on your behalf and up to your Spending Limit, to settle the Transactions you make using your Card, subject to the terms and conditions set out in this Agreement. You will need to provide Company information and certain personal information (collectively, “Company Information”), when you apply for an Account. Company Information may include your registered business name and state of incorporation, the business address, ownership details, the nature of the business, and other business information we may request from time to time; the name, contact information, and date of birth of Administrators, Users or beneficial owners, and other personal information; and a corporate registration certificate, proof of address, personal identification, and any other documentary information used to verify business and personal information.  

B. Sharing information. We provide Company Information to our Banking Partners and other third-party service providers to determine your eligibility for access to certain Services. We rely on the accuracy of the Company Information you provide us when opening and maintaining your Account. We may deny your applications, suspend provision of such Services to you, or close your Account if Company Information is out of date, incomplete, or inaccurate.

C. Account Management and Security. You must specify at least one Administrator to manage your Account when submitting your Application. Administrators can request and manage Cards for Users; view Transactions and run reports; provide or update Company Information; connect third-party services, and other accounts to your Account; and perform other tasks to manage your Account. You are responsible for any actions or failure to act on the part of Administrators or Users, or those using their credentials to access your Account. You are solely responsible for the activity that occurs on your Account, and you must keep your Account password secure. We encourage you to use “strong” passwords (for recommendations on what constitutes a strong password, check the National Institute of Standards and Technology (NIST)) with your Account. You must notify Bobtail immediately of any breach of security or unauthorized use of your Account. Bobtail will not be liable for any losses caused by any unauthorized use of your Account. We may suspend access to your Account if we believe that your Account has been compromised.

D. Prohibitions. You may agree that you will not: (a) use the Account or the Services for any purpose that is unlawful or prohibited by this Agreement; (b) use the Account or the Services for any personal, family, household, or other use that is not related to the Company’s business purpose; (c) use the Account or the Services for the benefit of an individual, organization, or country identified on the United States Office of Foreign Asset Control’s Specially designated Nationals List, (d) use the Account or the Services for any third parties unaffiliated with Company, (e) use the Account or the Services to collect any market research for a competing business, (f) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity, (g) interfere with or attempt to interrupt the proper operation of the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any Bobtail IP (as defined below), data, files, or passwords related to the Services through hacking, password or data mining, or any other means; (h) decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Services; (i) circumvent, remove, alter, deactivate, degrade, or thwart any of the Content protections in the Services; (j) use any robot, spider, scraper, or other automated means to access the Services for any purpose without our express, written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the public portions of the Services for the sole purpose of, and solely to the extent necessary for, creating publicly-available searchable indices of the materials, but not caches or archives of such materials; and (k) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure.

    3.2 Proprietary Rights

Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Services as permitted by the features of the Services. Bobtail reserves all rights not expressly granted herein in the Services and the Bobtail IP (as defined below). Bobtail may terminate this license at any time for any reason or no reason. The Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and any information submitted by Company through the Services (collectively, “User Content”) belonging to other Users (the “Bobtail IP”), and all Intellectual Property Rights related thereto, are the exclusive property of Bobtail and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Bobtail IP. Use of the Bobtail IP for any purpose not expressly permitted by this Agreement is strictly prohibited.

You may choose to, or we may invite you to, submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction, and will not place Bobtail under any fiduciary or other obligation, and that we are free to use your Feedback without any additional compensation to you, or to disclose your Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Bobtail does not waive any rights to use similar or related ideas previously known to Bobtail, or developed by its employees, or obtained from sources other than you.

For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

    3.3 Site Data and Privacy

By using the Services, you grant Bobtail a non-exclusive, royalty-free, license during the term to collect, use, disclose, combine, transmit, format, and display Company Information, personal information, and User Content, for the purposes provided in the Privacy Policy. Additionally you grant Bobtail the right to aggregate data we collect from your use of the Services (“Site Data”) and use such Site Data for our business purposes. You also acknowledge and agree that by using the Services, User Content and Site Data will be collected, used, transferred to and processed in the United States and abroad. Bobtail uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your Company Information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use User Content for improper purposes. You acknowledge that you provide User Content at your own risk. Your use of the Cards may also be subject to the privacy policies of our Banking Partners.

    3.4 Third-Party Links and Information

The Services may contain links to third-party materials that are not owned or controlled by Bobtail. Bobtail does not endorse or assume any responsibility for any such third-party services, information, materials, or products. If you access a third-party website, application or service from the Services, you do so at your own risk, and you understand that this Agreement and Bobtail’s Privacy Policy do not apply to your use of such third-party services. You expressly relieve Bobtail from any and all liability arising from your use of any third-party websites, applications, services, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Bobtail shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

    3.5 Representations and Warranties Indemnification

You hereby represent, warrant, and covenant that:

A. You own or have the necessary licenses, rights, consents, and permissions to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your User Content and any other works that you incorporate into your User Content, and all the rights necessary to grant the licenses and permissions you grant hereunder; and

B. Use of User Content in the manners contemplated in this Agreement shall not violate or misappropriate the intellectual property, privacy, publicity, contractual, or other rights of any third party.

You agree to defend, indemnify and hold harmless Bobtail and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, our Banking Partners, and our third-party service providers, from and against any and all third-party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising out of, related to, or resulting from: (a) your use of and access to the Services, including any data or content transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) your intentional misconduct; or (f) any other party’s access and use of the Services with your unique username, password or other appropriate security code.

    3.6 Communications

A. Text Messaging. Bobtail and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Service, as well as marketing messages. You may opt out of receiving marketing and/or operational text messages at any time by sending an email to hello@bobtail.com indicating that you no longer wish to receive such texts along with the phone number of the mobile device receiving the texts. You may continue to receive text messages for a short period while Bobtail processes your request, and you may also receive text messages confirming the receipt of your opt-out request. Opting out of receiving operational text messages may impact the functionality that the Service provides to you. Your agreement to receive text messages is not a condition of any purchase or use of the Service. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.

B. Push Notifications. When you install our App on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page.

C. Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself. The services are provided on an “as is” and “as available” basis. Use of the services is at your own risk.

4. Additional Terms.

A. Notices and Communications. You consent to us providing notices to you under this Agreement electronically and understand that this consent has the same legal effect as a physical signature.  We may send notices to your Account or to the Company, Administrator, or User email addresses or phone numbers maintained in your Account. Notices are considered received 24 hours after delivery to you. Administrators and Users are required to maintain a regularly updated web browser, and computer and mobile device operating systems to receive notices correctly. Administrators and Users will be responsible for all costs imposed by internet or mobile service providers for sending or receiving notices electronically. Contact us immediately at compliance@bobtail.com if you are having trouble receiving notices from us. You understand that you may not use the Services unless you consent to receive notices from us electronically. You may only withdraw consent to receive notices electronically by closing your Account.

B. No Warranty. The Services are provided on an “as is” and “as available” basis. Use of the Services is at your own risk. To the maximum extent permitted by applicable law, the Services are provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from Bobtail or through the Services will create any warranty not expressly stated herein. without limiting the foregoing, Bobtail, its subsidiaries, its affiliates, and its licensors do not warrant that the information provided to your through the Services is accurate, reliable or correct; that the Services will meet your requirements; that the Services will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Services are free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Services is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the services.
Bobtail does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Services or any hyperlinked website or service, and Bobtail will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.

C. Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall Bobtail, its affiliates, agents, directors, employees, Banking Partners, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Services. Under no circumstances will Bobtail be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Services or your Account or the information contained therein.
To the maximum extent permitted by applicable law, Bobtail assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our Services; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Services; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our Services by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Services; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall Bobtail, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding $100.00.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Bobtail has been advised of the possibility of such damage. the foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.

D. Indemnification. You agree to defend, indemnify and hold harmless us, the Issuer and our service providers, and their respective subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, and our third-party service providers, from and against any and all claims brought against us by any third party for damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising out of, related to, or resulting from: (a) your use of and access to the Card, (b) your violation of any term of this Agreement; (c) your violation of any applicable law, rule or regulation; (d) your intentional misconduct; or (e) any other party’s access and use of the Card authorized by you.

E. Governing Law. You agree that: (i) the Services shall be deemed solely based in Delaware; and (ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Delaware. This Agreement shall be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). You agree to submit to the personal jurisdiction of the federal and state courts located in Delaware which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. Subject to Section 9B, you agree that the federal or state courts located in Delaware are the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the Arbitration provision below is found to be unenforceable.

F. Severability. In the event that any part of this Agreement is deemed by a court, regulatory authority, or other public or private tribunal of competent jurisdiction to be invalid or unenforceable, such provision will be deemed to have been omitted from this Agreement. The remainder of this Agreement will remain in full force and effect, and will be modified to any extent necessary to give such force and effect to the remaining provisions, but only to such extent.

G. Survival. All representations and warranties herein, and all provisions that would allow a party to enforce its rights hereunder, will survive any termination or expiration of this Agreement.

H. Assignment. This Agreement, and any rights and obligations under this Agreement are personal and you may not be transferred or assigned by you, but may be assigned by Bobtail without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.

I. No Waiver. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and Bobtail’s failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision.

J. Entire Agreement; Amendments. This Agreement constitutes the entire agreement between you and us Parties and supersedes all prior agreements, understandings, and arrangements, oral or written, between you and us with respect to the subject matter of the agreement. We can amend any of the terms of this Agreement at any time by providing notice at least 7 days prior to the effective date of the amendment; except that we may only make amendments to Fees 30 days prior to the effective date of the amendment. Any such changes will be posted on the Site. By accessing the Services after we make any such changes to this Agreement, you are deemed to have accepted such changes. At our option, we may also make any such amendment effective if you elect to use your Card after the effective date of the amendment. We may apply any amendments to all outstanding amounts you owe us and to any future Transactions on the Card.

K. Term and Termination. This Agreement is effective when you start using our Services and continues until terminated by either you or us, or as otherwise set forth in this Agreement . You may terminate this Agreement by paying all amounts you owe and providing notice to us; except that you will still be responsible for any charges, fees, fines, and other losses caused by your action or inaction prior to terminating this Agreement. We may terminate this Agreement, or suspend your Account, by providing you notice.

L. Additional Offers. You agree that you will only be eligible for benefits, including but not limited to discounts on products, promotional offers, loyalty programs, cashback rewards, referral bonuses, or any other form of advantage if you adhere to the terms set forth in these Terms of Use, including but not limited to not having overdue balances or late payments. The Issuer issues the Card only and does not endorse or sponsor the associated products, services or offers from Bobtail.

M. Legal Orders. We may respond to and comply with any subpoenas, warrants, liens, or any other legal order we receive related to your use of the Services. We are not responsible to you for any losses you incur due to our response to such legal order. We may hold funds or provide information as required by the issuer of the legal order or take any other actions we believe are required of us under legal orders. Where permitted, we will provide you reasonable notice that we have received such an order.

N. Jurisdiction; Waiver of Jury Trial; Class Action Waiver. You waive any objection to jurisdiction or venue on grounds that you are not a resident of the county or state where our offices are located. You authorize us to bring any action to enforce your obligations under this Agreement in any state court having jurisdiction or in the United States District Court for any District where our offices are located.
YOU AGREE THAT WE MAY SELECT THE COURT IN OUR SOLE DISCRETION. YOU AND WE HEREBY KNOWINGLY AND VOLUNTARILY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY DISPUTE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THIS AGREEMENT OR THE CARD.

 You agree that any arbitration or proceeding shall be limited to the Claims between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Claim to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Claim to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

O. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BOBTAIL. 

1. This Arbitration provision sets forth the circumstances and procedures under which Claims (as defined below) will be arbitrated instead of litigated in court upon the election of any party. If you do not want to arbitrate all Claims as provided in this Agreement, then you have the right to reject such arbitration provisions by delivering a written notice to compliance@bobtail.com, Attention: Compliance Department within 30 days after the date you have entered into this Agreement. Your rejection of any arbitration provisions does not affect any independent arbitration agreements with third parties, and you remain subject to any arbitration, class action or jury trial waiver or dispute resolution processes set out in those separate agreements. For any Claim, you agree to first email compliance@bobtail.com and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a dispute with you after 60 days, such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act. 9 U.S.C. Sections 1-16, as it may be amended (the “FAA”). Any election to arbitrate, at any time, will be final and binding on the other party.
2. Definitions. The term “Claim” means any claim, dispute or controversy between you and us, or between you and us and any of our agents or retailers, arising from or relating to the Card or this Agreement as well as any related or prior agreement that you may have had with us or the relationships resulting from this Agreement, including the validity, enforceability or scope of this Arbitration Provision or the Agreement. “Claim” includes claims of every kind and nature, including but not limited to initial claims, counterclaims, cross-claims and third-party claims and claims based upon contract, tort, fraud and other intentional torts, statutes, regulations, common law and equity. The term “Claim” is to be given the broadest possible meaning that will be enforced and includes, by way of example and without limitation, any claim, dispute or controversy that arises from or relates to (i) your Card; (ii) the amount of available credit on your Card; (iii) advertisements, promotions or oral or written statements related to your Card, goods or services purchased with your Card; (iv) the benefits and services related to with your Card; and (v) your application for any Card. We will not elect to use arbitration under the Arbitration Provision for any Claim that you properly file and pursue in a small claims court of your state or municipality so long as the Claim is individual and pending only in that court; any appeals from that court will be pursued only in arbitration. As used in this Arbitration Provision, the terms “we” and “us” will for all purposes mean Bobtail, and any wholly or majority owned subsidiaries, affiliates, licensees, predecessors, successors, and assigns of Bobtail; and all our agents, employees, directors and representatives. In addition, “we” or “us” will include any third party using or providing any product, service or benefit in connection with your Card (including, but not limited to merchants who accept the Card, third parties who use or provide services, debt collectors and all of their agents, employees, directors and representatives) if, and only if, such third party is named as a co-party with us (or files a Claim with or against us) in connection with a Claim asserted by you. As solely used in this Arbitration Provision, the terms “you” or “yours” means all persons or entities approved by us to have or to use a Card, including but not limited to all persons or entities contractually obligated under any of your agreements with us.
3. Initiation of Arbitration Proceeding/Selection of Administrator. Any Claim will be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration Provision and the code of procedures of the national arbitration organization to which the Claim is referred in effect at the time the Claim is filed. Claims will be referred to either Judicial Arbitration and Mediation Services (“JAMS”) or the American Arbitration Association (“AAA”), as selected by the party electing to use arbitration. If a selection by us of one of these organizations is unacceptable to you, you will have the right within 30 days after you receive notice of our election to select the other organization listed to serve as arbitrator. For a copy of the procedures, to file a Claim or for other information about these organizations, contact them as follows: (i) JAMS at 555 West 5th St., 32nd Floor, Los Angeles, CA 90013; website at www.jamsadr.com; and (ii) AAA at 335 Madison Avenue, New York, NY 10017; website at www.adr.org.
4. Significance of Arbitration. IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE CODE OF PROCEDURES OF JAMS OR AAA, AS APPLICABLE (THE “CODE”). FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. THE ARBITRATOR WILL NOT CONDUCT A CLASS ARBITRATION OR A JOINT ARBITRATION EXCEPT AS SET FORTH BELOW. THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
5. Restrictions on Arbitration. If either party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. There will be no right or authority for any Claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other Card holders, Users, or other persons similarly situated. The arbitrator’s authority to resolve Claims is limited to Claims between you and us alone, and the arbitrator’s authority to make awards is limited to you and us alone. Furthermore, Claims brought by you against us or by us against you may not be joined or consolidated in arbitration with Claims brought by or against someone other than you, unless otherwise agreed to in writing by all parties.
6. Arbitration Procedures. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and will be governed by the FAA. The arbitration will be governed by the applicable Code, except that (to the extent enforceable under the FAA) this arbitration Provision will control if it is inconsistent with the applicable Code. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law and, at the timely request of either party, will provide a brief written explanation of the basis for the decision. In conducting the arbitration proceeding, the arbitrator will not apply the Federal or any state rules of civil procedure or rules of evidence. Either party may submit a request to the arbitrator to expand the scope of discovery allowable under the applicable Code. The party submitting such a request must provide a copy to the other party, who may submit objections to the arbitrator with a copy of the objections provided to the request party, within 15 days after receiving the requesting party’s notice. The granting or denial of such request will be in the sole discretion of the arbitrator who will notify the parties of his/her decision within 20 days of the objecting party’s submission. The arbitrator will take reasonable steps to preserve the privacy of individuals, and of business matters. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA. However, any party can appeal that award to a three-arbitrator panel administered by the same arbitration organization, which will consider anew any aspect of the initial award objected to by the appealing party. The appealing party will have 30 days from the date of entry of the written arbitration award to notify the arbitration organization that it is exercising the right of appeal. The appeal will be filed with the arbitration organization in the form of a dated writing. The arbitration organization will then notify the other party that the award has been appealed. The arbitration organization will appoint a three-arbitrator panel which will conduct arbitration pursuant to its Code and issue its decision within one 120 days of the date of the appellant’s written notice. The decision of the panel will be by majority vote and will be final and binding.
7. Continuation. This Arbitration Provision will survive termination of your Card as well as voluntary payment of any debt you owe us in full, any legal proceeding by us to collect a debt owed by you, and any bankruptcy by you or us. If any portion of this Arbitration Provision is deemed invalid or unenforceable under any principle or provision of law or equity, consistent with the FAA, it will not invalidate the remaining portions of this Arbitration Provision, the Agreement or any prior agreement you may have had with us, each of which will be enforceable regardless of such invalidity.