Sagewell Bill Pay Service Agreement

Please read this Sagewell Bill Pay Service Agreement (the “Agreement”) carefully and retain it for your future reference. This Agreement contains the general terms, conditions and disclosures related to the online bill payment service (the “Service”) made available to eligible customers by Sagewell Financial, Inc. (“Sagewell”).

When you see the words “we,” “us,” or “our” in this Agreement, it refers to Sagewell and any of Sagewell’s affiliates, successors, assignees, agents and service providers. When you see the words “you” or “your,” it refers to you, the online bill payment service customer, as well as your personal representatives, executors, administrators, and successors.

By using the Service, you agree to be bound by this Agreement as well as any other agreement or document we may provide to you from time to time in connection with the Service.

IMPORTANT NOTE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTIONS AND YOUR RIGHT TO A JURY. THE TERMS OF ARBITRATION AND THE WAIVER APPEAR IN SECTION 5 OF THIS AGREEMENT.

  1. General
    1. How to Contact Us

You may contact us with any questions or concerns regarding the Service. The best way to contact us is through email at [email protected]. You may also contact us by phone at 617-397-3764 Monday through Friday between the hours of 9am and 5pm ET.

  1. Overview of the Service and Eligibility

The Service allows you to make one-time payments to certain companies and other entities (“Billers”) electronically from your Sagewell account (“Account”) held by Choice Financial Group.  The Service is available to consumers and businesses.  Consumers must be United States citizens or lawful permanent residents, be at least 18 years of age, have a U.S. physical address or with military addresses (APO or FPO), and have a valid Social Security Number or Tax Identification Number. Businesses must be a sole proprietorship, corporation, unincorporated association, limited liability company, limited liability partnership, or partnership within the United States or a United States territory.

Certain features of the Service described in this Agreement may not be available on all Accounts.  We may decline to provide you access to the Service or any of its features for any reason.  We are not liable for any damages or liabilities resulting from refusal to provide you access to the Service or any of its features.

  1. Service Requirements
  • A computer or mobile device with Internet or mobile connectivity.
  • A current web browser that includes 128-bit encryption. Minimum recommended browser standards are Microsoft Internet Explorer version 8.0 and above (see www.microsoft.com/ie for current version), Mozilla Firefox current version (see www.mozilla.com for current version), Apple Safari current version (see www.apple.com/safari for current version), or Chrome current version (see www.google.com/chrome for current version). The browser must have cookies enabled.
  • A mobile phone operating system that supports text messaging, downloads, and applications from the Apple App Store or Google Play store.
  • Access to the email address used to create an account for Sagewell’s Services.
  1. Third-Party Service Providers

We are a financial technology company and use CBW Bank (“CBW”), a Kansas chartered bank, to process your payments and remit your funds to Billers.  We also use Arcus Financial Intelligence, Inc. (the “Bill Pay Service Provider”), a software provider, to link the Service to external providers using credentials that you provide. Use of the Service constitutes your consent to authorize us and the Bill Pay Service Provider to access external providers, using the information you provide, to retrieve, process, and store information held by such external providers. You grant us and the Bill Pay Service Provider a limited power of attorney, and you hereby appoint us your lawful attorney-in-fact, in all capacities, to use any information you provide in performing the above.  You agree that the Bill Pay Service Provider may use anonymized and non-personally identifiable information obtained from such external providers for quality assurance and fraud prevention.

We also work with Unit Finance Inc. (“Unit”) in connection with the Service.  Unit may assist us in processing transactions and providing technological connections between Sagewell, the Bill Pay Service Provider, and our bank partner(s).  You agree that Unit may perform any functions related to the Service or your Account that we are otherwise authorized to perform and that Unit’s access and use of your information will be governed by the terms of Unit’s Privacy Policy, available at https://www.unit.co/clients-privacy-policy

You further agree that we, the Bill Pay Service Provider, and Unit will act on your behalf, as your agent, to access information held or maintained by Unit and other third parties.  You agree that neither us, the Bill Pay Service Provider, Unit nor any of their affiliates will be liable for any direct or indirect damages resulting from the use of or inability to use the Service.  You further agree to indemnify and hold us, the Bill Pay Service Provider, Unit and their affiliates harmless from any third-party claims, damages, and costs caused by your use of the Service or your violation of these terms.

  1. Confidentiality and Our Privacy Policy

Your privacy is important to us.  Under this Agreement, we will generally only disclose information to third parties about your Account or your use of the Service:

  • To verify your identity and determine if we should open an Account for you using services provided to us by third parties.
  • Where it is necessary for completing a transaction.
  • To verify the existence and condition of your Account for a third party such as a credit bureau or merchant.
  • To comply with government agency or court orders.
  • As disclosed in our Privacy Policy.
  • If you give us your written permission to share your information.
  • Please refer to our Privacy Policy at https://www.sagewellfinancial.com/privacy-policy/ for more information about our commitment to you, your privacy rights and who we share data and information with. 

In addition, we disclose your information to Unit to facilitate the Service, your Account and for other ancillary purposes.  You agree to Unit’s use of your information in accordance with the terms of Unit’s Privacy Policy https://www.unit.co/clients-privacy-policy.  

  1. Cell Phone Communications

By providing us with your cellular phone or other wireless device number, you are expressly consenting to receiving non-marketing communications at that number—including but not limited to prerecorded or artificial voice message calls, text messages, and calls made by an auto-dialer—from us and our affiliates, agents and third-party service providers. This consent applies to all telephone numbers you provide to us now or in the future. Your telephone or mobile service provider may charge you for these calls or messages. You also agree that we may record or monitor any communications for quality control and training purposes.

  1. Our Business Days

Our business days are Monday through Friday, excluding federal holidays.

  1. Your Responsibilities

We strive to keep your Account and your information secure. However, there are certain things you should do to protect your Account and your funds.

  1. Notify Us If Your Information Changes

You must notify us immediately if there is a change to your name, telephone number, mailing address, email address or any other information you have provided us so that we can continue to provide you with important notices concerning the Service and your Account.

  1. Protect Your Login and Account Information

It is important that you protect your login credentials, as well as your Account and personal information, to prevent unauthorized transactions and fraud. Keep your login credentials, computer and/or mobile device secure at all times and avoid accessing the Service when others can see your screen.  If your login credentials are lost or stolen, notify us immediately to limit your liability for unauthorized transactions that may occur. Please refer to Section 3.10 for information and applicable deadlines for notifying us of losses or theft.

  1. Sharing Your Login Information

You are responsible for all transactions you authorize while using the Service.  If you give someone your login credentials for the Service or otherwise permit another person to use the Service, you understand that any transaction performed using the Service shall be deemed authorized by you and valid and we are under no obligation to investigate the instruction or activity.

  1. General Rules Governing the Service
    1. Payment Authorization

You must be an owner of an Account to access that Account through the Service.  By providing payment instructions to us using the Service, you authorize us to debit your Account and remit your funds on your behalf to the Biller you have designated.  You understand that we are entitled to act on any payment instruction we receive through the Service and you agree that the use of your login credentials to access the Service will have the same effect as your signature authorizing the transaction.

We will use reasonable efforts to make all your payments properly. However, we are not liable if we are unable to complete any payment initiated by you under the following circumstances:

  • Through no fault of our own, your Account does not contain sufficient funds to complete the transaction;
  • Your Account is closed or inactive;
  • We have reason to believe the transaction is unauthorized or illegal;
  • The Service is not working properly and you know or have been notified about the malfunction before you requested the transaction;
  • You have provided us with incorrect information; or
  • We are prevented from executing the transaction due to circumstances beyond our control (such as, but not limited to, fire, flood, natural disaster, or interference from an outside force) despite having taken reasonable precautions to avoid such circumstances.

There may be additional exceptions stated in our or Unit’s agreements with you or permitted by law.

  1. Requesting to Send Payments

The Service allows you to send payments to participating Billers.   If you submit a request to make a payment before 1:45 PM ET on a business day, we will initiate your payment to your Biller the same business day.  If you submit a request after 1:45 PM ET on a business day or on a non-business day, we will initiate your payment on the following business day that we are open. Be sure to carefully review all information you provide to us regarding your payment request before authorizing the payment.  We begin processing your request and will debit funds from your Account in the amount of your requested payment immediately.  Once you submit a request, you will not be able to cancel or modify it.

Once we initiate your requested payment to your Biller, it will take up to three (3) business days for your Biller to receive your payment.  You understand that your Biller may not consider your payment made until the Biller receives your funds.

  1. Payment Method

We process payments you make through the Service, including by Automated Clearing House (“ACH”) transactions, card networks, and wire transfers depending on the type of transaction you have requested and the Biller.  Each payment will be debited from your Account at the time you submit a request to make a payment, regardless of when or how we initiate the payment to your Biller. 

  1. Exception Payments

Payments to government entities, such as tax payments, and court ordered payments (“Exception Payments”) may be initiated through the Service.  However, such payments are discouraged and must be scheduled at your own risk.  In no event will we be liable for any claims or damages resulting from your use of the Service for Exception Payments.  We have no obligation to research or resolve any claim resulting from an Exception Payment and all research and resolution for any misapplied, mis-posted or misdirected payments will be the sole responsibility of you and not us.

  1. Insufficient Funds

You cannot submit a request to make a payment if you do not have sufficient funds in your Account at the time you make the request. If you attempt a request to make a payment but have insufficient funds in your Account, we will deny your request. 

  1. Payments Returned by the Biller

In some cases, your Biller may refuse to accept your payment and return it to us.  This most often occurs if you enter the incorrect Biller information and the Biller is unable to locate your account.  If a Biller returns your payment, your Account will be credited for the amount of the payment within three (3) business days after your payment has been rejected by the Biller.

  1. Limitations on Transactions

There may be limitations on the frequency and amount of payments you can make from your Account using the Service. If applicable, these limitations can be found in the deposit account agreement that governs your Account.  Please refer to your deposit account agreement for more information concerning transaction limits that may apply.

  1. Your Right to Receive Information and Documentation of Your Bill Pay Transactions

Information concerning each transaction you make through the Service will be reflected on your Account statements.  Please refer to the deposit account agreement that governs your Account for more information concerning Account statements.

  1. Our Liability for a Failure To Complete A Transaction

Except as otherwise stated in this Agreement, if we fail to complete a transaction on time or in the correct amount when properly instructed by you in accordance with this Agreement, we will be liable for damages directly caused by the failure or error. If your Account is a business account, then you further agree that in no event will our liability exceed the amount of your loss or five thousand dollars ($5,000), whichever is less..

  1. Your Liability for Unauthorized Transactions

Contact us immediately if you believe that an unauthorized transaction related to the Service has occurred or may occur concerning your Account, or if your mobile device or login credentials have been lost, stolen or compromised. Emailing us at [email protected] is the best way of keeping your losses to a minimum.

You could lose all the money in your Account if you take no action to notify us of the unauthorized transaction or the loss or theft of your mobile device or login credentials.

If your Account is a consumer account, your liability for unauthorized transactions will be as follows if you notify us of the loss:

  • If you tell us within two (2) business days after learning of the loss, theft or compromise of your mobile device or login credentials, you can lose no more than $50.
  • If you do NOT tell us within two (2) business days and we can prove that we could have prevented the loss had you contacted us, you could lose as much as $500.00.
  • If your Account statement shows transactions related to the Service that you did not make and you do NOT contact us within sixty (60) days after the statement was made available to you, you may not get back any money lost after the sixty (60) days if we can prove that your contacting us would have prevent those losses.

We can extend these time periods if extenuating circumstances (such as a long trip or hospital stay) kept you from notifying us.

These liability rules do not apply if your Account is a business account. 

  1. In Case of Errors or Questions About Your Transactions

Contact us at [email protected] or 617-397-3764 as soon as possible if you suspect that there is an error on your Account statement concerning a transaction related to the Service or if you need more information about a transaction listed on a statement. We must hear from you no later than sixty (60) days after the FIRST statement on which the problem or error appeared. You must provide us with the following information:

  • Your name and Account number.
  • A description of the error or the transaction you are unsure about and explain as clearly as you can why you believe it is an error or why you need more information.
  • The dollar amount of the suspected error.
  • If you tell us orally, we may require that you send us your complaint or question in writing by email within ten (10) business days. 

We will determine whether an error occurred within ten (10) business days after we hear from you and will tell you the results and correct any error promptly. If we need more time, we may take up to forty-five (45) days—or ninety (90) days for Accounts open less than thirty (30) days or foreign-initiated transactions — to investigate your complaint or question. If we decide to do this, we will credit your Account within ten (10) business days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within ten (10) business days, we may not credit your account. For Accounts open less than thirty (30) days, we may take up to twenty (20) business days to credit your Account for the amount you think is in error.

We will provide you with the results within three (3) business days after completing our investigation. If we decide that there was no error, we will send you a written explanation by email. You may ask for copies of the documents that we used in our investigation.

  1. Other Legal Terms and Conditions
  2. No Assignments

Your Account and your obligations under this Agreement are not transferable and not assignable as collateral for a loan or for any other purpose. We may transfer our rights under this Agreement.

  1. Limitation of Liability and Disclaimer of Warranty

EXCEPT AS REQUIRED BY LAW, WE ARE NOT LIABLE FOR ANY CLAIMS, COSTS, LOSSES, OR DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM OUR FAILURE TO ACT, OR ANY DELAY BEYOND TIME LIMITS PRESCRIBED BY LAW OR PERMITTED BY THIS AGREEMENT IF SUCH FAILURE OR DELAY IS CAUSED BY MAINTENANCE OR INTERRUPTION OR MALFUNCTION OF EQUIPMENT OR COMMUNICATION FACILITIES, UNUSUAL TRANSACTION VOLUME, SUSPENSION OF PAYMENTS BY ANOTHER FINANCIAL INSTITUTION, FIRE, NATURAL DISASTERS, ELEMENTS OF NATURE, GOVERNMENT ACTION, ACTS OF WAR, TERRORISM OR CIVIL STRIFE, EMERGENCY CONDITIONS, OR OTHER CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF THE BANK. EXCEPT AS REQUIRED BY LAW, OUR LIABILITY TO YOU FOR A CLAIM IS LIMITED TO THE FACE VALUE OF THE ITEM OR TRANSACTION, OR THE ACTUAL VALUE OF ANY FUNDS NOT PROPERLY CREDITED OR DEBITED. IN NO EVENT WILL WE OR UNIT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES EVEN IF YOU ADVISE US OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT AS REQUIRED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, WE SHALL ONLY BE RESPONSIBLE AND LIABLE FOR OUR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN PERFORMING OUR OBLIGATIONS UNDER THIS AGREEMENT. WE SHALL NOT BE LIABLE TO ANY THIRD PARTY OR FOR ANY ACT OR OMISSION OF YOURS OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, THIRD PARTIES USED BY US IN EXECUTING ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR PERFORMING A RELATED ACT AND NO SUCH THIRD PARTY SHALL BE DEEMED TO BE OUR AGENT.

WE ARE ALSO NOT LIABLE FOR ANY UNAUTHORIZED ACCESS OF YOUR INFORMATION OR DATA BY A THIRD PARTY DUE TO YOUR USE OF THIRD-PARTY COMMUNICATION CHANNELS NOT OFFERED BY US.

ALL SERVICES AND FEATURES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THE BANK’S SERVICES OR ACCOUNT FEATURES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, SECURE, TIMELY, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.

  1. Indemnification

You agree to indemnify and hold us and our officers, directors, shareholders, employees, successors, predecessors, representatives, principals, agents, assigns, parents, subsidiaries and/or insurers harmless for any losses, damages, suits and expenses, including reasonable attorneys’ fees, that we may incur, without regard to the merit or lack thereof, arising out of, or related in any way to (1) the matters set forth herein; (2) our taking any action or not taking any action that we are entitled to take pursuant to this Agreement; (3) any action or omission by you; or (4) our action or inaction in reliance upon oral, written or electronic instructions or information from you.

Equally, you agree to indemnify and hold Unit and its officers, directors, shareholders, employees, successors, predecessors, representatives, principals, agents, assigns, parents, subsidiaries and/or insurers harmless for any losses, damages, suits and expenses, including reasonable attorneys’ fees, that we may incur, without regard to the merit or lack thereof, arising out of, or related in any way to (1) the matters set forth herein; (2) our taking any action or not taking any action that we are entitled to take pursuant to this Agreement; (3) any action or omission by you; or (4) our action or inaction in reliance upon oral, written or electronic instructions or information from you.

  1. Changes in Terms and Additional Services

We may change this Agreement, or any features of the Service, at any time by posting an amended Agreement on Sagewell’s website, www.sagewellfinancial.com, and any such amendment shall be effective upon posting. We will give you advance notice of any change where required by law. We may provide such notice to you with your statement, electronically, or by mail. Any notice we provide to you will be binding and sent to the last (postal or electronic) address in our records. We may change your address if we receive an address change notice from the U.S. Postal Service. We may change or terminate this Agreement without notice at our discretion or to comply with any appropriate federal or state law or regulation.

If we make any of our other banking services available to you in connection with your Account, we may provide certain terms and conditions for those additional services to you in a separate agreement or disclosure.

  1. No Waiver of Rights

We may waive or decline to enforce any of our rights under this Agreement without obligating ourselves to waive such rights in the future or on any other occasion. We may release any other person obligated under this Agreement without affecting your responsibilities under this Agreement.

  1. Conflicts and Section Headings

If there is a conflict between this Agreement and any other document or statement made to you concerning the Account, this Agreement will govern. If there is a conflict between this Agreement and any other document or statement made to you concerning any services or products other than the Account, the separate terms and conditions applicable to that service or product will govern. Section headings that appear in this Agreement are for convenience purposes only and are intended to help you find information. They should not be construed as affecting the meaning of the Agreement.

  1. Severability

If any court or tribunal of competent jurisdiction determines that any provision of this Agreement is illegal, invalid or unenforceable, the remainder of this Agreement shall not be affected. To the extent permitted by law, the parties waive any provision of law which prohibits or renders unenforceable any provisions of this Agreement, and to the extent that such waiver is not permitted by law, you and us agree that such provision will be interpreted as modified to the minimum extent necessary to render the provisions enforceable.

  1. Governing Law, Forum and Time Limits

All actions relating to your Account and this Agreement will be governed by the laws and regulations of the United States and the Commonwealth of Massachusetts where your Account will be opened, irrespective of conflict of law principles. You agree that any dispute arising under this Agreement or relating in any way to your relationship with us that is not arbitrated will be resolved in a federal or state court located in Massachusetts and that you will be subject to such court’s jurisdiction.

Except where prohibited by law, you agree that you must file any lawsuit or arbitration against us within two (2) years after the claim arises unless federal or Massachusetts law, or another agreement you have with us, provides for a shorter time. If federal or Massachusetts law requires a longer time period than the time periods in this Agreement, you agree to the shortest time period permitted under the law.

  1. Arbitration and Waivers

BE SURE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. 

  1. Election to Arbitrate. 

You and us agree that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 5 (the “Arbitration Provision”). As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us on the other hand, relating to or arising out of this Agreement, and/or the activities or relationships that involve, lead to, or result from this Agreement, including the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. Please note that you may continue to assert Claims in small claims court, if your Claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.

  1. Applicability of the Federal Arbitration Act; Arbitrator’s Powers. 

This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the Federal Arbitration Act (the “FAA”). The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.

  1. Informal Dispute Resolution. 

If a Claim arises, our goal is to address your concerns and, if we are unable to do so, to provide you with a neutral and cost-effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you will first submit your Claim to us by Email at [email protected] and provide us with the opportunity to resolve your concern prior to initiating arbitration.

  1. Arbitration Procedures. 

The party initiating arbitration shall do so with the American Arbitration Association (the “AAA”) or Judicial Alternatives and Mediation Services (“JAMS”). The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1(800) 778-7879 or visit the AAA’s web site at: www.adr.org. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply. The arbitration will be held in the United States county where you live or work, or any other location we agree to.

  1. Arbitration Fees. 

If we initiate arbitration, we shall pay all the administrator’s filing costs and administrative fees (other than hearing fees). If you initiate arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator’s rules. We shall pay the administrator’s hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator’s rules or applicable law require otherwise, or you request that we pay them and we agree to do so. Each party shall bear the expense of its own attorneys’ fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.

  1. Appeals. 

Within thirty (30) days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within thirty (30) days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act (“FAA”), and may be entered as a judgment in any court of competent jurisdiction.

  1. No Class Actions. 

NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this Section 5.7, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this Section 5.7 shall be determined exclusively by a court and not by the administrator or any arbitrator.

  1. Survival and Severability of Arbitration Provision. 

This Arbitration Provision shall survive the termination of this Agreement. If any portion of this Arbitration Provision other than Section 5.7 is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If there is a final judicial determination that applicable law precludes enforcement of this Arbitration Provision’s limitations as to a particular claim for relief or particular term, then that claim (and only that claim) or that term (and only that term) must be severed from the Arbitration Provision and may be brought in court. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in Section 5.7 are finally adjudicated pursuant to the last sentence of Section 5.7 to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.

  1. Judicial Forum for Claims. 

Except as otherwise required by applicable law, if this Arbitration Provision is found not to apply to you or your Claim, you and the Bank agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Massachusetts. Both you and we consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.

  1. WAIVER OF RIGHT TO LITIGATE. 

THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT ARE WAIVING THAT RIGHT BY ENTERING INTO THIS AGREEMENT. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.