Visa Business Advantage Rewards Card Agreement
This Visa Business Advantage Rewards Card Customer Agreement, your application for the Account, and all other Account documents provided to you (collectively, “Agreement”) govern the terms and conditions of the Account that Simmons Bank (“Bank”, “we”, “our”, and “us”) may establish for use by the individual (if a sole proprietor), or limited liability company, corporation, partnership, or other business entity or organization listed on an application for the Account (“Company”, “you”, “your”, and “yours”) for use related to business purposes and not for use related to any personal, family, or household purposes. Please read this Agreement in its entirety and keep it for your records. This Agreement requires that disputes be resolved through individual arbitration rather than jury trials or class actions and limits your remedies in the event of a dispute. If you do not wish to agree to arbitration, please follow the instructions in the section entitled “Dispute Resolution by Binding Arbitration” for instructions on how to reject arbitration.
You understand that by submitting an application for the Account or by using the Account or any Cards, you are agreeing to be bound by and comply with each and every term and condition of this Agreement, as amended from time to time, including your obligation to pay the Outstanding Balance on the Account. If you fail to comply with this Agreement, we may cancel your Account and demand immediate payment of all amounts you owe us under this Agreement, in addition to any other remedies available to us under this Agreement.
This Agreement becomes effective on either (i) the date you execute or otherwise submit an application for an Account that we approve; or (ii) the date you use any Card or the Account, whichever is earlier.
Definitions: Capitalized terms used in this Agreement have the meaning defined below or as defined in context in this Agreement, regardless of the tense or plurality.
“Account” means the Visa Business Advantage Rewards Credit Card account established by the Bank for the Company, including the records and ledger we maintain to account for Transactions.
“Account Statement” means the periodic statement we deliver to you each Billing Cycle in connection with the Account.
“Applicable Law” means any applicable federal, state, or local statutes, regulations, licensing requirements, regulatory bulletins or guidance, regulatory examinations, agreements, or orders, and any judicial or administrative interpretations of any of the foregoing.
“Balance Transfer” means the transfer of any balance from a credit account with another financial institution to the Account.
“Billing Cycle” means the time period we use to manage the Account, calculate Finance Charges, and generate the Account Statement; each Billing Cycle is approximately one (1) month.
“Card” means each payment device issued to you or a Cardholder that is linked to or used to access the Account or used to initiate Transactions on the Account, including physical cards and any account numbers or virtual account numbers for your Account.
“Card Network Liability Program” means liability protection insurance coverage that a card network or other third party may separately provide Company for certain Unauthorized Transactions.
“Cardholder” means someone who has been issued a Card in connection with the Account and each current or former employee, officer, partner, agent, or other person of or affiliated with the Company who is or was authorized (whether by actual, apparent, or implied authority) by the Company to use a Card or to otherwise initiate Transactions on the Account.
“Cash Advance” means a Transaction in which (i) a Card is presented to a financial institution or other person that accepts Visa cards for the purpose of the Cardholder receiving cash or cash-equivalents (for example, money orders, traveler’s checks, or other payment instruments) from credit on your Account; (ii) a Convenience Check is used; (iii) a Card is used to make a person-to-person funds transfer; or (iv) a Card is used for a quasi-cash Transactions (for example, a purchase of casino gaming chips).
“Convenience Check” means a check or draft that is drawn on the Account.
“Credit Limit” means the maximum dollar amount of Transactions, Finance Charges, and any other charges or fees that we allow you to owe us on the Account at any time.
“Finance Charge” means any interest and certain fees charged for the credit extended on your Account and calculated as described herein.
“Foreign Transaction” means any Transaction (1) made in a foreign currency, or (2) made in U.S. dollars if the Transaction is made or processed outside of the United States.
“Minimum Payment Due” means the minimum amount that you must pay by the Payment Due Date shown on each Account Statement.
“New Balance” means the total balance on the Account that accrues by the end of a Billing Cycle, which is shown on each Account Statement and is identified as the New Balance.
“Outstanding Balance” means the total amount of your obligations under this Agreement for all Transactions, Finance Charges, and any other charges and fees associated with the Account.
“Payment Due Date” means the date twenty-five (25) days following the closing of the Billing Cycle or such other due date shown on the Account Statement for the applicable Billing Cycle and is the date by which we must receive payment for at least the Minimum Payment Due.
“Pending Transaction” means an approved Purchase, Cash Advance, Balance Transfer, or use of an Account service or Card pre-authorization that has not yet posted to your Account’s Outstanding Balance.
“Periodic Finance Charge” means a Finance Charge attributable to the application of a periodic interest rate.
“Prime Rate” means the highest prime rate published in the “Money Rates” section of The Wall Street Journal, or such other index rate that we may substitute in our sole discretion, as of two business days prior to the close of each Billing Cycle.
“Purchase” means any purchase or lease of goods or services made with a Card.
“Rules” means the rules, requirements, and guidance issued by Visa that govern the use of Visa products and services.
“Summary of Rates, Fees, and Charges” means the summary provided to you by Bank at the time of Account opening, or as may be updated from time to time by Bank, including through posting on a website maintained by Bank.
“Transaction” means any Purchase, Cash Advance, Balance Transfer, or use of an Account service (for example, overdraft protection), including the amount of credit obtained under your Account for each such Transaction and any refund or reversal of such Transaction.
“Unauthorized Use” means the use of a Card by a person, other than a Cardholder, who does not have actual, implied, or apparent authority for such use, and from which the Cardholder or Company receives no benefit.
“Visa” means Visa, Inc., its payment and settlement network, and its affiliates that operate the network.
Permissible Use of Cards, Accounts and Card Products: You agree to use this Account and any Cards for Company’s legitimate business purposes only and not for personal, family, or household purposes. As a business account, the Account is not subject to any laws relating to credit issued primarily for personal, family, or household purposes. You are responsible for instructing all Cardholders, and for ensuring, that the Account and Cards are used only for business purposes. You agree that you are liable for and, to the extent permitted by Applicable Law, will indemnify us against any expenses and liabilities arising directly or indirectly from any claim or action based on actual or purported use of the Account or any Card for personal, family, or household purposes.
You represent that you (i) are not a money services business as defined by any Applicable Law or (ii) have identified yourself to us as such a business and comply with all Applicable Laws governing such businesses.
In connection with your use of the Account and Cards, you agree to comply with Applicable Law, and agree that you will not take any action or make any omission that may allow the Account and Cards to be used in a manner that fails to comply with or that would cause us to fail to comply with Applicable Law. You shall not use your Account or any Cards to: (i) pay any indebtedness to us or our affiliates; (ii) buy, carry or trade in, or repay any indebtedness originally incurred to buy, carry or trade in, any margin stock or margin security; or (iii) otherwise engage in any Transaction that is illegal under Applicable Law. You acknowledge that we may refuse to honor any Transaction we determine or believe to be illegal.
Notwithstanding the foregoing, you are liable for all Transactions resulting from any Cardholder’s use of the Account and Cards, regardless of whether any such Transaction is prohibited by this Agreement.
Limitations on Use of Account or Cards: The Account and all Cards shall at all times remain our property. Unless prohibited by Applicable Law, we may in our sole discretion (i) place limitations or restrictions on use of the Account and Cards, including by limiting the type, number and dollar amounts of any Transactions, even if you have sufficient available credit or (ii) terminate or suspend your use of your Account and Cards without notice, regardless of whether a default has occurred. You agree that you will continue to be responsible for full payment of the Outstanding Balance on the Account, including all charges and fees to the Account arising from, without limitation, Transactions that post, and any Finance Charges that may accrue, after termination of the Account.
Promise to Pay: You promise to pay us all amounts due on the Account, including, but not limited to, Transactions, Finance Charges, and any other charges, fees, or amounts owed under this Agreement. If you are in default, to the extent permitted by Applicable Law, you agree to pay reasonable collection expenses that we incur in enforcing this Agreement, including court costs and attorneys’ fees, not excluding any attorney who is our salaried employee.
Unauthorized Use: You are responsible for all Transactions and other amounts posted to your Account arising from the authorized use of a Card. Each Card should be used only by the Cardholder to whom it is issued or who is authorized to use it, and you may not transfer it to any other person or entity. You are responsible for reviewing all Account Statements and monitoring activity on your Account for Unauthorized Use.
You must notify us immediately if a Card is lost or stolen or you believe someone is using a Card without authorization. If you notice the loss, theft, or possible Unauthorized Use of any Card, you must contact us immediately at (855) 634-1443. If you wish to remove any Cardholder’s ability to use any Card, or deactivate a particular Card, you must notify us in writing. This notice will not be effective until we receive and have had a reasonable opportunity to act on it. You agree to assist us in our investigation and in determining the facts, circumstances, and other pertinent information relating to any loss, theft, or suspected Unauthorized Use of any Card and to comply with such procedures as we may require in connection with our investigation, including assisting in the prosecution of any Unauthorized Use.
You acknowledge and agree that unless you have provided us notice of Unauthorized Use in the manner set forth above and we have had a reasonable opportunity to act on such notice, we shall be entitled to treat all use of the Cards as authorized. If fewer than 10 Cards have been issued for your Account, your liability for Unauthorized Use of a Card will not exceed $50.00. If 10 or more Cards are issued for your Account, there is no limit to your liability for Unauthorized Use that occurs before you notify us as provided herein.
Your liability for Unauthorized Use may be reduced to the extent of any applicable Card Network Liability Program benefits received by you. Your Card Network Liability Program coverage shall be subject to the terms, exclusions, and conditions of such program as may be established, amended or suspended by the provider of the program. If a Card Network Liability Program requires that attempts be made to collect funds from any individual Cardholder, you will be responsible for such collection attempts. Bank shall not have any liability to you related to any Card Network Liability Program.
Card Transactions: You understand that your Card can be used for Transactions at designated locations throughout the world where Visa cards are accepted to make Purchases or obtain Cash Advances. We are not responsible if a third party refuses to accept or honor a Card, even if you have sufficient available credit. Except as required by Applicable Law, we will not be responsible for any claim or defense you may have against any third party that arises out of or in connection with any Transaction with any Card or any services, goods, or other property purchased or leased using your Account or any Card. All Transactions on the Account are subject to our prior approval.
Transactions will not be final until they are settled by us (whether in paper or electronic format). Transactions are governed by the laws of Arkansas and the laws of the United States of America. From time to time we may suspend the operation of Cards in specific countries or specific regions thereof for any reason, including due to ongoing fraudulent activities involving credit cards. Due to the nature of such concerns, we are unable to provide advance notice or the duration of any such suspension. If you use your Card in a check guarantee system, any resulting Transaction will be deemed a Cash Advance.
Credit Limit: You will be advised of the Credit Limit when we open the Account or issue Cards. We may establish a maximum Cash Advance amount that is less than your Credit Limit. You may request a change in the Credit Limit at any time. Such change is subject to our approval.
You agree not to allow your Outstanding Balance to exceed the Credit Limit approved by us. We may refuse to honor any Transaction that would cause your Outstanding Balance to exceed the Credit Limit. Notwithstanding the foregoing, you are still responsible to pay the total Outstanding Balance even if it exceeds the Credit Limit. You will also be assessed a fee for the Account going over the Credit Limit (“Overlimit Fee”).
If the Outstanding Balance exceeds the Credit Limit, you must pay the total amount by which the Account is over the Credit Limit, including all applicable charges and fees, before payments will begin to restore your available credit. If the Outstanding Balance exceeds the Credit Limit, payments may not be posted to the Account until we have collected and settled the funds you have submitted to us in payment. If you exceed the Credit Limit, the Credit Limit will not be increased by the amount you exceed the Credit Limit. If we authorize any Transaction in excess of the Credit Limit, our authorization shall not be deemed an increase in the Credit Limit.
The amount of available credit on your Account for use in Transactions is generally the Credit Limit less the Outstanding Balance and any Pending Transactions. We may increase or decrease your available credit or the amount of credit available for Cash Advances without notice at any time for any reason, and we can refuse to accept or process a Transaction (without prior notice) at any time for any reason not prohibited by Applicable Law. We are not responsible for any losses if a Transaction is declined for any reason, either by us or someone else, even if you have available credit.
Posting Transactions; New Balance: Account entries for Transactions are posted the day they are settled. Entries for Purchases, Cash Advances, and Balance Transfers are each aggregated into a separate balance for that type of Transaction. At the end of each Billing Cycle, your New Balance will be calculated by taking the New Balance from your prior Billing Cycle, adding the Purchase, Cash Advance, and Balance Transfer balances, applicable Finance Charges, and any other applicable fees and charges that were assessed during the most recent Billing Cycle and then deducting from that sum all credits and payments received during that same time.
Finance Charge: Your Finance Charge for any Billing Cycle will include the following components, the total of which constitutes your total Finance Charge for the Billing Cycle:
- Cash Advance Fees and other Transaction fees in the amounts shown in the Summary of Rates, Fees, and Charges table;
- Periodic Finance Charge amounts computed as set out below under “Periodic Finance Charges,” at the rates shown in the Summary of Rates, Fees, and Charges table; and
- Other fees as described below under “Other Services and Fees,” including:
- Balance Transfer Fees in the amount shown in the Summary of Rates, Fees, and Charges table for all Balance Transfers Transactions posted during a Billing
- Foreign Transaction Fees in the amount shown in the Summary of Rates, Fees, and Charges table for all Foreign Transactions posted during a Billing
For the purpose of calculating Finance Charges, the date of the Transaction is the later of the Transaction date or the first day of the Billing Cycle in which the Transaction is posted to the Account.
Periodic Finance Charges: Periodic Finance Charges on Cash Advances and Balance Transfers will accrue from the date of the Transaction and continue to accrue until the amount of the applicable Cash Advance or Balance Transfer is paid in full.
Periodic Finance Charges on Purchases will accrue from the date of the Transaction if there was a New Balance at the end of the prior Billing Cycle or from the first day of the Billing Cycle next following the date of the Transaction if there was not a New Balance at the end of the prior Billing Cycle. A Periodic Finance Charge will not be imposed on (i) the Purchase balance included within the New Balance, if payment in full of the New Balance is received by the Payment Due Date or (ii) that part of the Purchases balance equal to the amount of any payment received by the Payment Due Date and credited to the Purchases balance in accordance with this Agreement.
We calculate the Periodic Finance Charge on Purchases, Balance Transfers, and Cash Advances, where applicable, by applying to your average daily balance for Purchases, Balance Transfers, and Cash Advances, the daily periodic rate, which is determined by dividing the applicable Annual Percentage Rate (“APR”) set forth in the Summary of Rates, Fees, and Charges by the number of days in the year.
If a transaction fee is applied to any Transaction, the APR for such Transaction may be higher than the periodic interest rate described above. The maximum interest rate applicable to your Account is governed by the laws of the United States of America and the State of Arkansas.
If you make a late payment twice during any six (6) month period, we may at our sole discretion increase the daily periodic rate for the Periodic Finance Charge on Purchases (“Penalty Rate”). We calculate the Penalty Rate by applying to your average daily balance for Purchases the daily periodic rate, which is determined by dividing the applicable APR set forth in the Summary of Rates, Fees, and Charges by the number of days in the year. The Penalty rate will be effective immediately following the Billing Cycle in which the second payment was late. The Periodic Finance Charge on Purchases will return to the lower periodic rate after you have made the Minimum Payment Due by the Payment Due Date for six consecutive Billing Cycles.
Other Services and Fees: If you obtain a Balance Transfer, you may be required to pay a fee. If a fee is required, we will tell you the amount of the fee before your Balance Transfer is completed. If a fee incurred, we will add the fee to your Balance Transfer balance as of the Transaction date. We may at our sole discretion decline any Balance Transfer request, and if we do, we will notify you. The Balance Transfer limit, including all applicable fees, may not exceed the available credit on the Account. If the total Balance Transfer amount you request including the Balance Transfer fee exceeds the available Credit Limit, you authorize us to send either full or partial payment to your creditors in the order you provide them to us.
Where accepted, you may use your Card to make Transactions in foreign currencies. If you initiate a Transaction in a foreign currency, the amount will be converted to U.S. dollars before posting to your Account. Visa will convert the Transaction into a U.S. dollar amount by using its currency conversion procedure in accordance with the Rules. Currently, the Rules state that the currency conversion rate is either (i) a wholesale rate, determined by the processor, which rate may vary from the rate Visa itself receives or (ii) a government-mandated rate for the applicable currency as determined under the Rules. This rate may differ from the rate in effect when the Transaction occurred or when it was posted to your Account. Your Account Statement will show additional details with most foreign currency Transactions, such as name of the foreign currency, units of the foreign currency, and the exchange rate. In addition, Bank charges a Foreign Transaction Fee as provided in the Summary of Rates, Fees, and Charges.
Account Statements—Duty to Review: We will provide a periodic Account Statement that includes all activity on the Account, including for all Cards. You agree to review each Account Statement, and if you believe that an Account Statement contains an error or if you want to dispute a charge on the Account Statement, you agree to notify us in writing within sixty (60) days of the date of the Account Statement on which any such error or charge first appears. If you do not notify us at the address or method provided on the Account Statement within such time period, you waive all rights with respect to such error or charge to the fullest extent permitted by Applicable Law. Transaction disputes will be addressed and processed in accordance with the Rules, and you agree that you will not refuse to pay amounts due under this Agreement or bring a claim against the Bank in connection with a dispute you may have with any merchant as to the quality of goods or services received.
Payments: Payments are due on or before the Payment Due Date shown on each Account Statement. You must pay at least the Minimum Payment Due, which will be the greater of (i) 1.00% of the New Balance, plus all Finance Charges and fees assessed during the Billing Cycle, plus any past- due amounts, or (ii) $10.00. You must pay the total New Balance if it is less than $10.00. You have the option of paying the New Balance in full prior to the Payment Due Date. If an Account Statement includes new Purchases, you may avoid the Finance Charge on such Purchases by paying in full the New Balance reflected on that Account Statement by the Payment Due Date. If we do not receive the entire New Balance by the Payment Due Date, Finance Charges will apply to Purchases as described in this Agreement. In addition, if we do not receive a payment for at least the Minimum Payment Due by the Payment Due Date, a late payment fee may be assessed. Assessment of a late payment fee or Finance Charge shall not be deemed to extend the time for any payment hereunder or to constitute a “grace period” in which to cure any default.
The available payment options for your Account are included in the payment instructions on the Account Statement, and include checks drawn on a U.S. financial institution, payment online through the Software, and transfer from a deposit account at Bank. If any payment you make on your Account is returned or reversed for any reason or otherwise results in a fee charged on the account used for such payment, you will be responsible for such fee.
We will allocate payments on your Account in an order determined by Bank at its sole discretion. Generally, payments are first applied to any fees owed, then to Finance Charges, then to balances of Transaction types with lower daily periodic rates, and then to balances with higher daily periodic rates, each as calculated for Finance Charges. This allocation description is provided for informational purposes only and is not a commitment to allocate payments on your Account in that order.
Payments received by the Payment Due Date that are applied to your Purchases balance will be credited as of the beginning of the Billing Cycle in which the payment is received. Any part of a payment that is to be applied to your Cash Advances balance or your Balance Transfers balance and all of any payment received after the Payment Due Date will be credited as of the banking day received, if received by us before 4 p.m. CT, otherwise on the next banking day, provided that any payment made in person at a branch of the Bank will be credited no later than the day received. Payments received and accepted by us that do not comply with the payment instructions on the Account Statement may result in a delay in crediting the payment to your Account.
Rewards: You may be eligible to earn rewards through your use of the Account and Cards. Complete reward program details will be provided upon enrollment. If you have multiple Cardholders, you must designate one Cardholder to accumulate rewards earned on all of your Cards. We reserve the right to terminate any rewards program without notice for any reason.
Account Management Software: We may provide you with the option to use online card management software (“Software”) to manage your Account and Cards. You may access the Software through a service provider designated by us in our sole discretion. Your use of the Software will be subject to, and you agree to comply with, any terms and conditions provided on the website through which you access the Software. The Software is the exclusive property of Bank or Bank’s licensor, and you will have no right, title, or interest in the Software, except for a non-exclusive license and right to use the Software pursuant to a software licensing agreement which will accompany the Software. No right is granted for the use of the Software by any third party, either directly or indirectly. We may revoke the option to use the Software in our sole discretion. You agree not to use or transmit the Software to any additional sites, except for Company’s own back-up purposes. You agree to keep the Software free and clear of all claims, liens, or encumbrances of any kind claimed by or through any party other than the owner, and to make no alterations of any kind to the Software.
The Software may be available through a compatible mobile, internet, or network access device and may require additional software. You agree that you are responsible for these requirements, including any application changes, updates, and fees, as well as the terms of your agreement with your mobile device and telecommunications provider.
Bank makes no, and expressly disclaims any and all, representations or warranties, express or implied, regarding the quality, availability, or security of the telecommunication devices and services you use to access the Software. Except as otherwise expressly set forth in this Agreement and in any separate licensing agreement, Bank provides the Software “as is” and without any warranty of any kind and assumes no responsibility or liability for the accuracy or completeness of any data transmitted to or from the Software.
If you use such Software, you acknowledge that Transactions conducted over the internet and information transmitted over the internet may be subject to interception by outside parties not under our control or the provider of the Software. You agree to protect, secure, and preserve the confidentiality of any login credentials that you use to access the Software and to maintain reasonable security procedures to avoid any unauthorized use of the Software. You agree to release us from any liability for any claims or losses that arise from or relate to your use of any such Software.
No Waiver: We can delay enforcing or not enforce any of our rights under this Agreement without waiving our right to enforce them against you or your Account in the future. Bank may, at its sole discretion, accept late payments, partial payments, post-dated checks, or any form of payment containing a restrictive endorsement, without losing any of our rights under this Agreement. Our acceptance of checks or money orders labeled “payment in full” (or words to that effect) will not constitute an accord and satisfaction or a waiver of any rights we may have to receive full payment, and such payments may not discharge your full debt.
Default: Subject to Applicable Law, your Account will be in default under this Agreement if any one of the following occurs: (i) Company becomes insolvent, assigns any property to creditors, goes into bankruptcy or receivership, or you otherwise become generally unable to pay your debts; (iii) Company fails to remain in existence and good standing or you (if an individual) become incapacitated or deceased; (iii) a merger (for which Company is not the surviving entity), sale of substantially all assets of Company, or the transfer of more than 25% of the ownership interests of Company; (iv) you fail to make any payment when due under this Agreement or to comply with any of the other terms of this Agreement in existence now or in the future; (v) any payment you make to the Account is returned, dishonored, or reversed for any reason; (vi) any other creditor tries by legal process to take money of yours in our possession; (vii) you make any false or misleading statements in any credit application or credit update, or violate any other provision of this Agreement; (viii) we believe your ability to pay what is owed under this Agreement has been substantially reduced; (ix) you fail to pay any other indebtedness owed to us or our affiliates existing now or coming into existence in the future by the date it becomes due or otherwise default in your obligations under any other agreement with us; (x) legal proceedings are commenced to take any property belonging to you whether now existing or hereafter acquired; (xi) any tax or other involuntary lien is filed or recorded against any property belonging to you now or in the future; (xii) we determine, in our sole discretion, that the Account is in default following a revaluation of your financial condition and credit history (as described below); (xiii) any of the events in sections (i)-(iii) or (vii) of this paragraph occur with respect to an individual or entity which has guaranteed your obligations under this Agreement, or a guarantor attempts to repudiate or revoke its guaranty of your obligations under this Agreement; or (xiv) you breach any of your other obligations under this Agreement.
If you are in default, you acknowledge and agree that we may, without notice to you (i) declare the Outstanding Balance and any other amounts you owe to be immediately due and payable; (ii) prohibit further Transactions; (iii) cancel the Cards, terminate the Account, and revoke any privileges associated with the Cards or Account; (iv) setoff and deduct amounts you owe under this Agreement from any balance or account you maintain with us, including any savings or checking account; and (v) deem any other extensions of credit with us to be in default and immediately due and payable. The payment of any default fee charged by us will not cure the default that caused the fee.
Termination: Subject to Applicable Law, we may terminate this Agreement or revoke your right to use your Account or Cards, along with your right to make future Transactions, at any time and for any reason without notice to you. You understand that you do not own your Card or the Account. You cannot use the Account or a Card after any such termination or cancelation has occurred. You agree to immediately surrender or destroy all physical Cards issued on your Account when we ask you to or when this Agreement is terminated. You may terminate your Account and any or all Cards at any time by notifying us at 844-320-6674, email@example.com, or in writing to PO Box 6609 Pine Bluff, AR 71611-6609. Any request to terminate your Account will be effective after we have had a reasonable opportunity to act on such request. The termination of this Agreement, whether initiated by us or you, will not affect any of your or our rights and obligations under this Agreement. If this Agreement is terminated, you must still repay any amounts you owe us, even if we allow a Transaction to be completed with your Account or a Card after this Agreement has been terminated.
Indemnification; Limitation of Liability: You agree, to the extent permitted by Applicable Law, to indemnify, defend, and hold us harmless from and against any and all losses, damages, expenses or liabilities of any kind or nature and from any suits, claims or demands, including all reasonable counsel fees incurred in investigating, evaluating or defending such claim, suffered by us and caused by, relating to, arising out of, resulting from, or in any way connected with your use of the Account or the Card(s) or your breach of this Agreement; provided, however, that you shall not be responsible for any such claim that is a result of our gross negligence or willful misconduct. If you know about any facts or circumstances which may result in an indemnification claim by us under this section, you must immediately tell us about it in writing to PO Box 6609 Pine Bluff, AR 71611- 6609. You acknowledge that this covenant shall survive repayment of all amounts owed under this Agreement and termination of this Agreement.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BANK SHALL NOT BE LIABLE TO ANY PARTY TO THIS AGREEMENT OR THEIR RESPECTIVE SUBSIDIARIES, PARENTS OR AFFILIATES, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT. ALL SERVICES PROVIDED BY BANK HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, BANK DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATINGTO OR ARISING OUT OFTHIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
Telephone Monitoring and Recording: You acknowledge that telephone calls and other communications you provide to us may be monitored and recorded for record retention, training, and quality control purposes. From time to time, we may monitor and/or record telephone calls regarding your Account with us, and you agree to any such monitoring or recording.
Communicating with You; Consent to Contact by Electronic Other Means: You agree that we may contact you or any Cardholder for any lawful reason, including for the collection of amounts owed to us and for the offering of products or services in compliance with our Privacy Notice as in effect from time to time. No such contact will be deemed unsolicited. We may contact you at any address or telephone number (including wireless cellular telephone or ported landline telephone number) that you may provide to us from time to time and you agree to be responsible for any carrier charges that may apply. We may use any means of communication, including, but not limited to, postal mail, electronic mail, telephone or other technology, to reach you. You agree that we may use automatic dialing and announcing devices which may play recorded messages. We may also send text messages to your telephone. You may contact us at any time to ask that we not contact you using any one or more methods or technologies.
Underwriting; Revaluation of Financial Condition and Credit History: To help the government fight the funding of terrorism and money laundering activities, we may obtain, verify, and record information that identifies each person who receives access to the Account or Cards. You agree to provide us all documentary and other evidence and information we require to verify your identity or the identity of your beneficial owners or the identity of any persons that access the services under this Agreement. We may engage in any investigation of your finances, activities, and operations that we reasonably deem necessary to confirm your eligibility for and use of the Account, and you agree to provide us with any information required to complete such investigation. We may reevaluate your financial condition and investigate any information you provided on your Account application at any time. In the course of doing so, we may obtain a current credit report and ask you for additional information about your financial condition by completing such other forms that we may request from time to time. You give us your permission to obtain any information about you that we believe would be beneficial to facilitate our determination of your eligibility for the Account and Cards, including credit reports from consumer reporting agencies. Whenever we ask you to do so, you must promptly submit to us a financial statement in a form satisfactory to us. We may, as a result of any such re-evaluation, (i) increase your Credit Limit; (ii) decrease your Credit Limit; or (iii) deem your Account to be in default. If we determine, in our sole discretion, that we require credit, background check, or other reports on your owners, officers, directors, or other principals in their individual capacity, you may not be permitted to receive an Account or Cards or your use thereof may be suspended until we have received appropriate authorization to obtain such reports and have conducted a satisfactory review. You agree to work with us in timely obtaining any necessary authorizations from the appropriate individuals. You represent and warrant that all information you provide to us is complete, accurate, and up to date.
Notification of Material Changes: You agree to promptly notify us and provide updated information in the event of any of the following: (i) change in the Company’s ownership, (ii) change in the Company’s primary address, (iii) change in the Company’s contact information, including mailing address and phone number, and (iv) any unfavorable material change in the Company’s financial condition. You agree to provide us with notice in the event a receiver or trustee for the benefit of creditors is appointed for you, you declare bankruptcy, or you are subject to a judgment of a material nature or amount.
Assignment: You may not sell, assign or transfer your Account or any Card or any of your rights and obligations under this Agreement without our prior written consent, which may be granted or withheld in our sole discretion. We may, however, sell, assign or transfer your Account, or any balance due thereunder, and our rights and obligations under this Agreement to another entity without your consent and without prior notice. That entity will take our place in this Agreement. Subject to the foregoing, this Agreement shall be binding on the parties and their respective successors and assigns.
Severability: If any provision of this Agreement is deemed to be void or unenforceable by a court of competent jurisdiction, or any governmental agency, that provision will continue to be enforceable to the extent permitted by that court or agency, and the remainder of that provision will no longer be considered as part of this Agreement. All other provisions of this Agreement will, however, remain in full force and effect.
Governing Law: This Agreement is entered into between you and us, in the State of Arkansas, where we and your Account are located. Regardless of the state of your residence, the Company’s place of business, or the place in which you submitted an application, or where your Account is used, except as provided otherwise in the Arbitration provision below, any legal question concerning your Account, including, without limitation, provisions of the Agreement relating to Finance Charges or other charges and fees, will be decided in accordance with applicable federal law and Arkansas state law without regard to its conflict of law principles. The legality, enforceability and interpretation of this Agreement and the amounts contracted for under this Agreement also are governed by Arkansas law and applicable provisions of federal law.
Amendment of the Agreement: Subject to Applicable Law, we may change the terms of this Agreement from time to time, regardless of whether you have access to your Account, by adding, deleting, or modifying any provision (an “Amendment”). Once amended, any reference to your Agreement will mean the Agreement as modified by the Amendment. Our right to add, delete, or modify provisions includes financial terms, such as the Finance Charges and fees, and any other terms including, for example, the nature, extent, and enforcement of the rights and obligations you or we may have relating to this Agreement. Notice of any change will be given in accordance with Applicable Law. The Amendment will become effective on the effective date stated in the notice. Use of your Card or the Account after receiving notice of a change constitutes your agreement to the change. If permitted by Applicable Law, and unless otherwise specified in the notice to you, the change will apply to your Outstanding Balance as well as to future Transactions. If you give us written notice that you do not agree to the change, we will have the right to terminate your Account and all Cards, and you will be permitted to pay the Outstanding Balance as of the effective date under the terms of the Agreement governing your Account at the time our notice was given. If you or any Cardholder on the Account use your Card or the Account after the effective date of the Amendment, you will be considered to have agreed to the new terms even if you have sent us such written notice.
Dispute Resolution by Binding Arbitration; Jury and Class Action Waiver: This arbitration provision is optional. If you do not wish to accept it, you must follow the instructions in paragraph (9) below to reject arbitration. Unless you timely reject arbitration, this arbitration provision is binding on you and us.
(1) Claims Subject to Arbitration: Except as specified in paragraph (2) below, any dispute or claim between you and us must be arbitrated if either party elects arbitration of that dispute or This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- claims arising out of or relating to any aspect of the relationship between you and us, whether based in contract, tort, fraud, misrepresentation, or any other statutory or common-law legal theory;
- claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising or disclosures for any of our products or services);
- claims asserted in a court of general jurisdiction against you or us, including counterclaims, cross-claims, or third-party claims, that you or we elect to arbitrate in the answer or other responsive pleading;
- claims for mental or emotional distress or injury not arising out of bodily injury:
- claims relating to the retention, protection, use, or transfer of information about you or any of your Accounts for any of our products or services;
- claims relating to communications with you, regardless of sender, concerning any of our products or services, including emails and automatically dialed calls and text messages; and
- claims that may arise after the termination of this
In this arbitration provision only, references to “we”, “us”, and “our” mean the financial institution and its parents, subsidiaries, affiliates, predecessors, successors, and assigns, as well as each of those entities’ agents and employees. In this arbitration provision only, references to “you” and “your” mean the Account owners, all authorized or unauthorized users or beneficiaries of the Account (including each Cardholder), each of those person’s assignees, heirs, trustees, agents, or other representatives, and if the Account owner is a business, the Account owner’s parents, subsidiaries, affiliates, predecessors, successors, assigns, and each of those entities’ agents and employees. This arbitration agreement does not preclude you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against you or us on the other’s behalf. Nor does this arbitration agreement preclude either you or us from exercising self- help remedies (including setoff) and exercising such a remedy is not a waiver of the right to invoke arbitration of any dispute. You and we each waive the right to a trial by jury or to participate in a class action whenever either you or we elect arbitration. This agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
If any claims or disputes between you and us also are subject to arbitration under the terms and conditions of an existing deposit account, the arbitration provision in those terms is controlling in the event of any inconsistency between that provision and this arbitration provision. In the event of any inconsistency between this arbitration provision and a provision in any other agreement between you and us (including the terms and conditions of a closed deposit account), this arbitration provision is controlling with respect to any claims or disputes arising out of or relating to this Agreement (or any prior credit card agreement), the Account (or any prior credit card account), any Card, or any Transaction.
(2) Claims Not Subject to Arbitration: You and we agree that the following disputes or claims cannot be arbitrated:
- claims arising from bodily injury or death;
- claims seeking only individualized relief asserted by you or us in small claims court, so long as the action remains in that court and is not removed or appealed to a court of general jurisdiction, in which case either party may elect arbitration;
- claims to collect or challenge debts owed pursuant to an extension of credit under a separate agreement or note (such as a separate loan agreement, separate promissory note, or separate bank card agreement), in which case the dispute over the debt shall be governed by the dispute-resolution procedures set forth in that separate agreement or note; and
- disputes over the scope and enforceability of this arbitration provision or whether a dispute or claim can or must be brought in arbitration.
These exclusions from arbitration are intended to be interpreted narrowly. Excluded claims must be resolved by a court with jurisdiction.
(3) Pre-Arbitration Notice of Disputes: Before either you or we commence arbitration, the claimant must first send to the other a written Notice of Dispute (“Notice”). The Notice to us should be sent by certified mail to: Legal Department, Simmons Bank, O Box 7009, Pine Bluff, Arkansas 71611-7009 (“Notice Address”). The Notice to you will be sent to your address on file with your Account. The Notice must (a) include your name and Account number; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought.
If you and we do not reach an agreement to resolve the claim within 45 days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you are entitled. If you have complied with the requirements of this paragraph and the arbitrator awards you an amount of money that exceeds the value of our last written settlement to you before the appointment of the arbitrator, then we will pay you $500 in lieu of any smaller award.
In determining whether you are entitled to the minimum $500 recovery, the arbitrator shall not consider amounts offered or awarded for attorneys’ fees or costs. Any disputes as to recovery of the $500 minimum recovery shall be resolved by the arbitrator and must be raised within 14 days of the arbitrator’s ruling on the merits.
(4) Arbitration Procedure: The arbitration will be governed by the Consumer Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this arbitration provision, and will be administered by the AAA. (If the AAA is unavailable or unwilling to administer arbitrations consistent with this arbitration provision, another arbitration provider shall be selected by the parties or by the ) The AAA Rules are available online at www.adr.org or by writing to the Notice Address. All issues are for the arbitrator to decide, except that the court will decide any disputes over the arbitrability of claims. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers. Except as provided in paragraph (6) below, the arbitrator shall apply the same substantive law that a court would apply and can award the same individualized remedies (including punitive and statutory damages and statutory attorney’s fees and costs) that a court could award under Applicable Law. Unless you and we agree otherwise, any arbitration hearings will take place in the county of your address on file with your Account. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
(5) Arbitration Fees: If you complied with the notice requirements above in paragraph (3), after we receive notice at the Notice Address that you have commenced arbitration, we will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000 in value. (The filing fee currently is $200 but is subject to change by the arbitration provider. If you are unable to pay this fee, we will pay it directly upon receiving a written request at the Notice Address.) We also will pay all other AAA filing, administration, and arbitrator fees for that arbitration. If, however, the arbitrator finds that either the substance of your claim or the relief you seek is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse us for all monies previously disbursed that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek relief valued at greater than $10,000 (either to you or to us), the payment of these fees will be governed by the AAA rules. We will pay all AAA filing, administration, and arbitrator fees for any arbitration we commence against you.
(6) Requirement of Individual Arbitration: The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate the claims of more than one person (except for the claims of co- or joint Account owners pertaining to that Account), and may not otherwise preside over any form of a representative, class, or private attorney general If, after exhaustion of all appeals, any of these prohibitions on non individualized declaratory or injunctive relief; class, representative, and private attorney general claims; and consolidation are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief), then that claim or request for relief shall be severed and decided by a court, and all other claims and requests for relief shall be arbitrated.
(7) Future Changes to Arbitration Provision: Notwithstanding any provision in this Agreement to the contrary, you and we agree that if we make any future change to this arbitration provision (other than a change to the Notice Address), you may reject that change by sending us written notice within 30 days of the change to the Notice Address provided By rejecting that future change, you are agreeing that you will arbitrate any dispute or claim between you and us in accordance with the language of this provision, as amended by any changes that you did not timely reject.
(8) Additional Procedures for Complex Disputes: If the actual damages sought by either you or us in an arbitration exceeds $250,000 (not counting amounts sought for punitive, statutory, treble, or emotional harm damages or for attorneys’ fees or costs), then the following additional procedures First, if you are a business customer, the AAA’s Commercial Arbitration Rules rather than the Consumer Arbitration Rules shall apply and, unless you and we agree otherwise, the dispute shall be resolved by a three-arbitrator panel, with each party choosing one arbitrator from the AAA’s roster and the two party-appointed arbitrators selecting a third, who shall preside over the panel. If you are a consumer customer, the same switch to the Commercial Arbitration Rules and a three-arbitrator panel shall apply if both you and we agree. Second, regardless of whether you are a business or consumer customer, either party may appeal the final award to a three-arbitrator panel pursuant to the AAA’s Optional Appellate Rules by providing written notice within 30 days of the award. The appellant shall pay all fees and costs for the appeal unless the panel determines that the appellant is the prevailing party, in which case the panel shall have the discretion in its final award to reallocate the fees and costs as justice or otherwise Applicable Law requires. If there is a cross-appeal, the costs shall be borne equally by both sides, subject to reallocation by the panel in its final award as justice or otherwise Applicable Law requires.
(9) Right to Reject Arbitration Provision: If you do not wish to arbitrate, you have 30 days to reject this arbitration provision by sending a rejection notice to the Notice Address above by certified mail (“Rejection Notice”). To be valid, a Rejection Notice must: (a) include your name, Account number, and a statement that you are rejecting the arbitration provision in this Agreement; and (b) be received by us within 30 days after the opening of your If an arbitration provision has been added for the first time to the agreement for an existing Account, your Rejection Notice must be postmarked on or before the effective date of that amendment to that agreement. If your Rejection Notice complies with these requirements, this arbitration provision will not apply to you with respect to any claims that you or we commence in litigation or arbitration after we receive your Rejection Notice. Rejecting this arbitration provision will not affect your other rights or responsibilities under this Agreement. Nor will it affect any other arbitration agreements between you and us, such as arbitration provisions in other contracts between you and us.
(10) Military Lending Act: If you are a covered member of the armed forces or the dependent of a covered member within the meaning of the Military Lending Act and your Agreement with us involves an extension of consumer credit under that Act, then you are not required to arbitrate
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IF A DISPUTE OR CLAIM IS NOT SUBJECT TO ARBITRATION FOR ANY REASON, THEN THE DISPUTE OR CLAIM SHALL BE DECIDED IN A COURT OF COMPETENT JURISDICTION IN LITTLE ROCK, ARKANSAS WITHOUT A JURY. EXCEPT WHERE OTHERWISE PROHIBITED BY APPLICABLE LAW, YOU AND THE BANK HEREBY VOLUNTARILY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
Force Majeure: Bank will not be deemed to be in breach of its obligations under the Agreement or liable for any delay or loss in the performance, failure to perform, or interruption of any Account-related services to the extent it results from any cause or causes beyond Bank’s reasonable control, including, but not limited to, natural disasters, infrastructure failures, pandemics, civil unrest, and public health emergencies. Upon such an occurrence, performance by Bank will be excused until the cause for the delay has been removed, and Bank has had a reasonable time to again provide the Card related services.
Entire Agreement: You acknowledge that receipt of this Agreement, your use of the Account and any Card, any application or sales slip that you signed or otherwise submitted in connection with any Card or the Account (which is hereby incorporated by reference in this Agreement), and any indebtedness incurred using any Card or the Account, constitutes acceptance of the terms of this Agreement, as amended from time to time. This Agreement, and the documents accompanying each Card that apply to your Account, which are incorporated by reference into this Agreement, make up the entire agreement between you and us and supersedes and may not be contradicted by evidence of any prior or contemporaneous written or oral communications and understandings between you and us concerning the Account and the Cards. Neither you nor we intend that anything in this Agreement should result in the assessment of fees or charges in excess of those permitted by Applicable Law. If any fee or charge assessed under this Agreement is finally determined to be in excess of that permitted by Applicable Law, the excess amount will be applied to reduce the Outstanding Balance in your Account or, if there is no Outstanding Balance, will be refunded to you. You agree that any documentation provided to you that indicates that a Transaction was made shall be admissible as evidence of such Transaction and shall be proof that such Transaction was made.
Customer Agreement v.2022.1