Revised March 29, 2019
This Finicity Corporation End User License Agreement with Terms and Conditions is a binding agreement between you ("Licensee," "You," "you," "Your," or "your") and Finicity Corporation ("Finicity," "Company," "we," "us" or other similar terms) to use the services (the "Services") offered by the Company.
You agree that by agreeing to these terms, or accessing or using our Services, website(s), program interface(s) or mobile application(s), as well as any content provided or accessible in connection with the website(s), program interface(s) or mobile application(s), including information, user interfaces, source code, reports, images, products, services, and data (each website, program interface and mobile application referred to herein as a "Website," and collectively, as "Websites"), you represent to Finicity that you have read, understood, and expressly consent and agree to be bound by this Finicity Corporation End User License Agreement with Terms and Conditions, and the terms, conditions, and notices contained or referenced herein ("Agreement") whether you are a "Visitor" (which means that you simply browse or access a Website), or an "End User" (which means that you are hereby authorizing Finicity to access, use and share information and Provider Account Data in the manner set forth herein).
IF YOU DO NOT AGREE WITH ANY OF THESE TERMS OR CONDITIONS, DO NOT USE, ACCESS OR ORDER ANY SERVICE OR ACCESS OR USE THE WEBSITES.
Permissible Purpose and Consent. You understand and agree that, by accessing any Services (either directly or through a third-party), you have provided "written instructions" in accordance with the Fair Credit Reporting Act, as amended ("FCRA"), for Finicity to access, use and share your Provider Account Data in accordance with the terms of this Agreement. In addition, you are authorizing Finicity to, among other things, (i) collect your Consumer Credentials, (ii) instruct Provider on your behalf to provide your Provider Account Data to Finicity in order to provide Services to you (either using your Consumer Credentials or through other means with your Provider); (iii) retain and use, at least two times for no less than a sixty (60) day period, your Consumer Credentials for the provision of the Services; (iv) access, retain, and use your Provider Account Data in providing you Services, at least two times for no less than a sixty (60) day period; and/or (v) disclose and share your Provider Account Data to service providers and/or resellers to use in accordance with applicable law and for research and development. You hereby authorize Finicity to use your Consumer Credentials to access your Provider of Provider Services and/or otherwise access the same, to collect and aggregate your Provider Account Data and to deliver the Provider Account Data to third parties selected by you and to other third parties authorized to receive such information and reports in accordance with your written instructions and applicable law, rules and regulations.
General. In connection with your use of the Services and as part of the functionality of the Services, you may have access to certain online services or information that may be made available by your Provider(s) ("Providers" include, without limitation, online banking providers, online payment providers, online investment account providers, online bill pay providers, online trading providers, and other account information provider(s)). The services, information and Provider Account Data provided to you by your Provider(s) are collectively referred to herein as "Provider Services". The Services are designed to allow you to access Provider Services (if and to the extent provided by your Provider(s)) to set up banking and other information, schedule the Services to access your account(s), download transactions into the Services and otherwise aggregate information from your account(s) with your Provider(s). You acknowledge and agree that we have no control over the provision of Provider Services or provision of access to the Provider Services by your Provider(s), do not guarantee that you will be able to use the Services with the Provider Services, and will have no liability whatsoever for any actions or inactions on the part of the Provider(s) resulting in your inability to use the Services to access your accounts, obtain data, download transactions, or otherwise use or access the Provider Services.
Collection of Provider Account Information. You acknowledge that in accessing your data and information through the Services, your Provider account access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, and the actual data in your account(s) with such Provider(s) such as bank and other account balances, credit card charges, debits and deposits (collectively, "Provider Account Data"), may be collected and stored in the Services. You authorize us and our third party affiliates, in conjunction with the operation and hosting of the Services, to use certain Provider Account Data to (a) collect your Provider Account Data, (b) reformat and manipulate such Provider Account Data, (c) create and provide hypertext links to your Provider(s), (d) access the Providers’ websites using your Provider Account Data, (e) update and maintain your account information, (f) address errors or service interruptions, (g) enhance the type of data and services we can provide to you in the future, and (h) take such other actions as are reasonably necessary to perform the actions described in (a) through (g) above. You hereby represent that you are the legal owner of your Provider Account Data and that you have the authority to appoint, and hereby expressly do appoint, us or our third-party affiliates as your agent with a limited power of attorney, and appoint us or our third-party affiliates as your attorney-in-fact and agent, to access third-party sites and/or retrieve and use your Provider Account Data through whatever lawful means with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person, including, without limitation, accepting any new and/or updated terms and conditions from your Provider on your behalf, in providing Services to you. You also expressly authorize Provider to share and disclose your Provider Account Data to us on your behalf to facilitate your use of your Provider Account Data for products and services agreed to by you. You further acknowledge that we do not, nor does our third-party affiliate review your Provider Account Data and agree that we are not responsible for its completeness or accuracy. Any transactions or informational activities performed at any Provider’s website are not made through the Services and we assume no responsibility for such transactions or activities. You are solely responsible for any charges associated with your Provider(s). The permissions, uses and access rights granted to our third-party affiliates hereunder shall continue until such parties are notified by us or you that the Services have been terminated.
Information from Providers’ Websites. You acknowledge and agree that (a) some Providers may not allow the Services to access the Provider Services, (b) Providers may make changes to their websites, with or without notice to us, that may prevent or delay aggregation of information from such websites, and (c) the Services may "refresh" the Provider Account Data by collecting the Provider Account Data nightly, so your most recent transactions may not be reflected in any account balances or other account information presented to you in the Services. If you see a discrepancy in the Provider Account Data, and in any case before making any transactions or decisions based on such account information presented in the Services, you should check the last refresh date for the account and confirm Provider Account Data is correct by following the link back to the applicable Provider or otherwise confirm that Provider Account Data is up to date and accurate.
Specific Written Consent to Use Shared Medical Information. You understand and agree that the Provider Account Data that we obtain in connection with the Services may include "medical information" as defined by applicable law (such as payment information related to the provision of health care service). You understand and agree that by accepting these Terms and Conditions you are acknowledging that such information is relevant for purposes agreed upon by you in any applicable consent and/or for any permissible purposes allowed by law and you are providing specific written consent to the use and sharing of such medical information by us and our third-party clients, service providers and/or resellers for any legal purpose, including, without limitation, in the determination to extend credit, issue insurance and other decisions which include a review of your credit status.
You acknowledge that certain third-party applications that use consumer data to generate scores or other reports or that otherwise will be utilized by users of such certain third-party application in connection with making a decision as to whether to enter into the following types of transactions or on what terms the transaction will be offered ("Financial Apps") may be subject to the provisions of the Federal Fair Credit Reporting Act ("FCRA") and equivalent state laws:
Extending credit to an applicant.
Issuing an insurance policy to an applicant.
Employing a job applicant.
Renting an apartment to a prospective tenant.
Selling a product to, provide a service to or otherwise enter into a transaction initiated by a prospective customer.
Accepting a check or credit card as payment for a sale.
Other activities set forth in Section 604 of the FCRA (15 U.S.C. §1681b) and in interpretations of Section 604 by the Federal Trade Commission and the Bureau of Consumer Financial Protection.
You acknowledge and agree that we are providing the service of data delivery to the ultimate end-user, only as requested and authorized by you, the owner of such information. You acknowledge that we are not resellers of data (except as described in Section 3.5 relating to anonymized data) but simply provide the service of transferring and aggregating data as requested by you from one party to the party directed and authorized by you to receive the data. You also acknowledge that in providing our Services to you and delivering your Provider Account Data to the ultimate end-user, those end-users may use your Provider Account Data for purposes agreed upon by you in any applicable consent and/or for any permissible purposes allowed by law.
You acknowledge that we make certain consumer report information services from our consumer reporting database available to our customers who have a permissible purpose for receiving such information in accordance with the FCRA. Subject to the terms and conditions set forth herein, Finicity uses commercially reasonable efforts to ensure the reliability of the information that appears in the Services. The FCRA allows you to obtain a copy of all of the information in your consumer credit file disclosure from any consumer credit reporting company for a reasonable charge. The FCRA also states that individuals are entitled to receive a disclosure directly from the consumer credit reporting company free of charge under the following circumstances:
You have been denied credit, insurance or employment in the past 60 days as a result of your report
You certify in writing that you are unemployed and intend to apply for employment in the 60-day period
Beginning on the day you make the certification You are a recipient of public welfare assistance
You have reason to believe that your file at the agency contains inaccurate information due to fraud
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS. SUMMARY:
MOST CONSUMER CONCERNS CAN BE RESOLVED QUICKLY AND TO THE CONSUMER’S SATISFACTION BY CALLING FINICITY’S CONSUMER CARE DEPARTMENT AT 1 (855) 263-3072. IN THE UNLIKELY EVENT THAT FINICITY’S CONSUMER CARE DEPARTMENT IS UNABLE TO RESOLVE A COMPLAINT YOU MAY HAVE REGARDING A SERVICE OR WEBSITE TO YOUR SATISFACTION (OR IF FINICITY HAS NOT BEEN ABLE TO RESOLVE A DISPUTE IT HAS WITH YOU AFTER ATTEMPTING TO DO SO INFORMALLY), WE EACH AGREE TO RESOLVE THOSE DISPUTES THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT INSTEAD OF IN COURTS OF GENERAL JURISDICTION TO THE FULLEST EXTENT PERMITTED BY LAW. ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT. ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. ARBITRATORS CAN AWARD THE SAME DAMAGES AND RELIEF THAT A COURT CAN AWARD. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. FINICITY WILL PAY THE FEES OF THE ARBITRATOR, NO MATTER WHO WINS, SO LONG AS YOUR CLAIM IS NOT FRIVOLOUS. HOWEVER, IN ARBITRATION, BOTH YOU AND FINICITY WILL BE ENTITLED TO RECOVER ATTORNEYS’ FEES FROM THE OTHER PARTY TO THE SAME EXTENT AS YOU WOULD BE IN COURT.
Finicity and you agree to arbitrate all disputes and claims between us arising out of this Agreement directly related to the Services or Websites, except any disputes or claims which under governing law are not subject to arbitration. This agreement to arbitrate is intended to be broadly interpreted and to make all disputes and claims between us directly relating to the provision of any Service and/or your use of any Website subject to arbitration to the fullest extent permitted by law. However, for the avoidance of doubt, any dispute you may have with us arising out of the Fair Credit Reporting Act (FCRA) relating to the information contained in your consumer disclosure or report, including but not limited to claims for alleged inaccuracies, shall not be governed by this agreement to arbitrate. The agreement to arbitrate otherwise includes, but is not limited to: (i) claims arising out of or relating to any aspect of the relationship between us arising out of any Service or Website, whether based in contract, tort, statute (including, without limitation, the Credit Repair Organizations Act) fraud, misrepresentation or any other legal theory; (ii)Claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising); claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and claims that may arise after the termination of this Agreement. For purposes of this arbitration provision, references to “Finicity,” “you,” and “us” shall include our respective parent entities, subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, websites of the foregoing, as well as all authorized or unauthorized users or beneficiaries of Services and/or Websites or information under this or prior Agreements between us relating to Services and/or Websites. Notwithstanding the foregoing, either party may bring an individual action in small claims court. You agree that, by entering into this Agreement, you and Finicity are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. This arbitration provision shall survive termination of this Agreement.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Finicity should be addressed to: General Counsel, Finicity Corporation, 434 W. Ascension Way, Suite 200, Salt Lake City, Utah 84123 ("Notice Address"). The Notice must describe the nature and basis of the claim or dispute and set forth the specific relief you seek from Finicity ("Demand"). If Finicity and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Finicity may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Finicity or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Finicity is entitled.
You may obtain more information about arbitration from www.adr.org.
After Finicity receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee. (The filing fee currently is $200 for claims under $10,000, but is subject to change by the arbitration provider. If you are unable to pay this fee, Finicity will pay it directly upon receiving a written request at the Notice Address.) The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. If the AAA is unavailable or refuses to arbitrate the parties’ dispute for any reason, the arbitration shall be administered and conducted by a widely-recognized arbitration organization that is mutually agreeable to the parties, but neither party shall unreasonably withhold their consent. If the parties cannot agree to a mutually agreeable arbitration organization, one shall be appointed pursuant to Section 5 of the Federal Arbitration Act. In all events, the AAA Rules shall govern the parties’ dispute. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address.
All issues are for the arbitrator to decide, including the scope and enforceability of this arbitration provision as well as the Agreement’s other terms and conditions, and the arbitrator shall have exclusive authority to resolve any such dispute relating to the scope and enforceability of this arbitration provision or any other term of this Agreement including, but not limited to any claim that all or any part of this arbitration provision or Agreement is void or voidable. The arbitrator shall be bound by the terms of this Agreement. Unless Finicity and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. 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. Except as otherwise provided for herein, Finicity will pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand 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 Finicity for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules.
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding or in the final award, pursuant to applicable law and the AAA Rules.
Discovery and/or the exchange of non-privileged information relevant to the dispute will be governed by the AAA Rules.
YOU AND FINICITY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Finicity agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award 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. If this specific subparagraph (f) is found to be unenforceable in its entirety, then the entirety of this arbitration provision shall be null and void.
Notwithstanding any provision in this Agreement to the contrary, we agree that if Finicity makes any change to this arbitration provision (other than a change to the Notice Address) during the term, or subsequent to your purchase of any Service, you may reject any such change and require Finicity to adhere to the language in this provision as written at the time of your enrollment or purchase if a dispute between us arises regarding such Service.
LIMITATION OF TIME TO FILE CLAIMS. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.