Pay by Bank Payment Initiation Service (USA)

Last Modified: 27 July 2023

These Terms of Use apply to residents of the United States. If you reside in another jurisdiction, please see https://banked.com/terms-and-conditions/pay-by-bank for applicable terms.

These terms of use are entered into by and between you and Banked, Inc. (“Banked,” “we,” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, “Terms of Use”), govern your access to and use of the payment initiation service offered by us enabling the direct payment and transfer of funds to merchants from consumer bank accounts[, typically offered by us during merchant check-out with the “Pay by Bank” button] (the “Service”).

Please read the Terms of Use carefully before you start to use the Service. By using the Service, you accept and agree to be bound and abide by these Terms of Use and acknowledge that you have read and understand our privacy policy, found at https://banked.com/en-us/privacy (the “Privacy Policy”). If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the Service.

UNLESS YOU OPT-OUT, PLEASE NOTE THE SECTION BELOW TITLED “ARBITRATION” CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS.

1. Eligible Users

You hereby represent and warrant (a) you are at least 18 years of age or older, (b) you are a resident of the United States, and (c) you have not been identified as a Specially Designated National or placed on any sanctions list by the U.S. Treasury Department’s Office of Foreign Assets Control, the U.S. Commerce Department, or the U.S. Department of State.

2. Your Authorization

By using the Service, you authorize Banked to access and retrieve your data from one or more third parties designated by you through the Service (each, a “Financial Institution”). You authorize Banked to arrange and initiate payments to a merchant (“Merchant”) by electronically (1) debiting your account with the applicable Financial Institution (“Bank Account”) to pay for your purchases of goods and/or services from Merchants and initiate transfer of funds from your Bank Account to the relevant Merchant’s account (including for any recurring payments that you have set up when completing a purchase), (2) processing any returns, reversals, refunds, corrections or other adjustments, if necessary, by electronically crediting your Bank Account, as applicable, and (3) processing any other information or data maintained by us in order to provide the Service (such as using information relating to your Bank Account that we obtain from Financial Institutions (“Account Information”), and data to confirm whether you have sufficient funds in your Bank Account for a purchase). If an applicable payment fails to clear (whether or not it is due to insufficient funds), you authorize Banked to debit your Bank Account anytime thereafter to process and clear the payment balance due. Banked may refuse, suspend, or cancel any payments in its sole discretion. The authorization provided in this paragraph will remain in full force and effect for an indefinite period until you inform Banked at support@banked.com that you wish to revoke this authorization or you close your account for the Services. You understand that Banked requires at least five (5) business days prior notice in order to cancel this authorization.

All connection and payment requests are subject to authorization by your Financial Institution. You agree that all transactions that you authorize comply with all applicable laws and regulations, and you further agree to abide by any additional terms and conditions of your Financial Institutions that may be applicable to you.

We have engaged third party providers to gather your Account Information from Financial Institutions, including Akoya LLC (“Akoya”) (through the Akoya Data Access Network (“Akoya DAN”)) and MX Technologies, Inc. (“MX”).We also use third-party money transfer providers to transfer the funds from your Bank Account to the relevant Merchant’s account. By using the Service to do so, you grant us, Akoya and MX and other relevant third-party providers the right, power, and authority to act on your behalf to access your account, initiate transactions, and retrieve and transmit your personal and financial information from the relevant Financial Institution.

You agree to your personal and financial information being transferred, stored, and processed by Akoya in accordance with Akoya’s privacy policy at https://akoya.com/privacy-policy and applicable laws, and by MX in accordance with MX’s privacy policy at https://www.mx.com/privacy-policy/ and applicable laws.



In certain circumstances in order to use the payment functionality of the Service, you must open a “Dwolla Account” provided by Dwolla, Inc. and you must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in or transferred through your Dwolla Account are held or transferred by Dwolla’s financial institution partners. You must be at least 18 years old to create a Dwolla Account. You authorize us to collect and share with Dwolla your personal information including full name, email address and financial information, and you are responsible for the accuracy and completeness of that data. You understand that your Dwolla account is controlled by your use of the Service and Dwolla account notifications will be sent by us, not Dwolla. We will provide customer support for your Dwolla Account activity, and can be reached at support@banked.com.

The Service is not endorsed or sponsored by any Financial Institutions. You agree that Banked assumes no responsibility and shall incur no liability with respect to the acts, omissions, or determinations of any Financial Institutions. You acknowledge and agree that Banked may maintain your data, Account Information, on separate systems than those of the Financial Institutions.

3. Merchant Terms and Conditions

Your purchases of goods and/or services from a Merchant through the Service are governed by the terms and conditions and/or agreement entered into between you and the applicable Merchant, and for clarity, not these Terms of Use. The Service is not endorsed or sponsored by any Merchant, and Banked does not endorse or sponsor any of the goods or services from any Merchant that are purchased through the Service. You agree that Banked assumes no responsibility for any warranties of the goods and/or services you purchase from a Merchant. For any disputes and issues relating to any goods or services you have purchased or ordered from a Merchant (including, but not limited to, shipping and delivery, returns, refunds, exchanges, and/or delays), you agree that Banked assumes no responsibility for any such issues.

4. Prohibited Uses

You may use the Service only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Service:

• In any way that violates any applicable international law or regulation.

• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by us, may harm Banked or users of the Service, or expose them to liability.

• Use the Service in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Service, including their ability to engage in real time activities through the Service.

• Use any robot, spider, or other automatic device, process, or means to access the Service for any purpose, including monitoring or copying any of the material on the Service.

• Use any manual process to monitor or copy any of the material on the Service, or for any other purpose not expressly authorized in these Terms of Use, without our prior written consent.

• Use any device, software, or routine that interferes with the proper working of the Service.

• Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.

• Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Service, the server on which the Service is stored, or any server, computer, or database connected to the Service.

• Attack the Service via a denial-of-service attack or a distributed denial-of-service attack.

• Otherwise attempt to interfere with the proper working of the Service.

5. Intellectual Property Rights

We retain all right, title, and interest (including all copyright, trademark, patent, trade secrets, and all other intellectual property rights) related to the provision of the Service and all content thereon, including our trademarks, service marks, designs, logos, URLs, and trade names that are displayed on Banked’s Service (collectively, the “Banked Materials”). We hereby grant you a limited, nonexclusive, and non-sublicensable license to access and use the Banked Materials for your personal or internal business use. Such license is subject to these Terms of Use and does not permit any resale of the Banked Materials; the distribution, public performance or public display of any Banked Materials; modifying or otherwise making any derivative uses of the Banked Materials, or any portion thereof; or any use of the Banked Materials other than for their intended purposes. The license granted under this Section will automatically terminate if we suspend or terminate your access to the Service. You agree that Banked may use any feedback, suggestions, ideas or other information or materials regarding the Service that you provide, whether by email or otherwise (“Feedback”). Any Feedback you submit is non-confidential and you hereby grant Banked a perpetual, non-exclusive, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use the Feedback in any way. We will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You may not, and you may not allow others to: (i) decompile, reverse engineer, convert or otherwise extract or disclose the underlying script, code (whether binary, assembly, source, object, HTML or otherwise) or structure of any Banked Materials, or (ii) remove or alter authorship attribution or copyright notices or similar information on the Service or any products or materials embodying or containing any Banked Materials. Any violation of the provisions of the Terms of Use regarding Banked’s intellectual property may subject you to compensatory and punitive damages, and shall specifically also entitle Banked to equitable relief (including an injunction), in addition to (and not in substitution or replacement for) any other available remedies at law or in equity, without the need for the posting of a bond or any other requirement.

6. Your Comments and Concerns

The Service is operated by Banked, Inc. 228 Hamilton Ave, 3rd Floor, Suite 300, Palo Alto, CA 94301, United States.

All other feedback, comments, requests for technical support, and other communications relating to the Service should be directed to: support@banked.com

7. Accessing the Service

We reserve the right to withdraw or amend the Service, and any service or material we provide in relation to the Service, in our sole discretion without notice. We will not be liable if, for any reason, all or any part of the Service is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Service, or the entire Service, to users, including registered users.

You are responsible for both:

• Making all arrangements necessary for you to have access to the Service.

• Ensuring that all persons who access the Service through your internet connection are aware of these Terms of Use and comply with them.

To access the Service or some of the resources it offers, you may be asked to provide certain identity or other information. It is a condition of your use of the Service that all the information you provide on the Service is correct, current, and complete. You agree that all information you provide to or through the Service is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

We have the right to disable your access to the Service at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

8. Privacy and Data

All information we collect on the Service is subject to our Privacy Policy. We use the information we collect on the Service for many business purposes, such as to: (i) process and fulfill your orders and transactions, process payments and refunds, and provide customer service with respect to such orders and transactions; (ii) verify our customers’ information; (iii) to protect against and prosecute those responsible for malicious, deceptive, fraudulent, or illegal activity; (iv) investigate and defend against claims and/or legal actions, violations of law or agreements, and compliance with relevant applicable laws and legal process; (v) comply with law, or based on our good faith belief that it is necessary to conform or comply with the law, or otherwise to disclose information to prevent fraud, to cooperate with police and other governmental authorities, or to protect the rights, property or safety of visitors to the Service, or the public; and, (vi) process or engage in a sale of all or part of our business, or if we go through a reorganization or merger. By using the Service, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

9. Monitoring and Enforcement; Term and Termination

The Terms of Use will remain in full force and effect for so long as you use the Services and each time you use the Services terminated in accordance with the terms set forth herein. You may terminate these Terms of Use at any time and for any reason by discontinuing any and all access to and/or use of the Service. All of these terms that, by their nature or purpose, are intended to survive termination shall survive any such termination.

We have the right to:

• Discontinue or refuse to provide the Service for any or no reason in our sole discretion, including without limitation, any violation of these Terms of Use.

• Take any action with respect to any use of the Service by you that we deem necessary or appropriate in our sole discretion, including if we believe that such use violates the Terms of Use, infringes any applicable law, interferes with the rights of any person or entity, or could create liability for Banked.

• Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Service.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone using the Service. YOU WAIVE AND HOLD HARMLESS BANKED AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY BANKED DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER BANKED OR LAW ENFORCEMENT AUTHORITIES.

10. Changes to the Terms of Use

We reserve the right to make changes to these Terms of Use at any time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Service thereafter. However, any changes to the dispute resolution provisions will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Service.

It is your responsibility to review the Terms of Use to see if modifications have been made. Your continued use of the Service following the effective date of such changes will constitute your acceptance of such changes. If you do not agree to any amended Terms of Use, you must discontinue your use of the Service. Notwithstanding the above, we will seek your consent to future modifications to the Terms by other means to the extent we are required to do so by law.

11. Disclaimer of Warranties

YOUR USE OF THE SERVICE, RELATED CONTENT, AND ANY OTHER SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE (INCLUDING WITHOUT LIMITATION, THE AKOYA DAN) IS AT YOUR OWN RISK. THE SERVICE, RELATED CONTENT, AND ANY RELATED SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER BANKED NOR ITS SERVICE PROVIDERS NOR ANY PERSON ASSOCIATED WITH BANKED MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, RELIABILITY, QUALITY, OR TIMELINESS OF ANY INFORMATION, PRODUCTS, OR MATERIALS AVAILABLE ON OR THROUGH THE SERVICE. NEITHER BANKED NOR ITS SERVICE PROVIDERS NOR ANY PERSON ASSOCIATED WITH BANKED IS RESPONSIBLE FOR ANY INVESTMENT OR OTHER DECISION MADE USING INFORMATION, PRODUCTS, OR MATERIALS ON OR OBTAINED THROUGH THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER BANKED NOR ANYONE ASSOCIATED WITH BANKED REPRESENTS OR WARRANTS THAT THE SERVICE, ITS CONTENT, OR ANY SERVICE OR ITEMS OBTAINED THROUGH THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, BANKED HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

12. Governing Law

All matters relating to the Service and these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice of law provision or rule that would apply the substantive law of any other jurisdiction.

13. Arbitration

Except if you opt-out and except for certain types of disputes described below, in order to expedite and control the cost of disputes, Banked and you agree that any legal or equitable claim, dispute, action, or proceeding arising from or related to the Service or this Agreement (each, a “Dispute”) will be resolved by single arbitration if the Parties are unable to reach an agreement through negotiation of the dispute. This applies to all Disputes, whether based on contract, tort, statute, fraud, misrepresentation, or any other legal theory, even if the Dispute arises after the termination of this Agreement.

Despite this arbitration agreement, both you and Banked will still be able to: (a) bring an individual action in small claims court; (b) bring an individual action seeking injunctive relief in a court of law; (c) bring suit regarding intellectual property infringement; and (d) bring issues to the attention of federal, state, or local agencies, which may result in legal action. Otherwise, to the fullest extent permitted under law, any arbitration between you and Banked will be settled under the Federal Arbitration Act, and will be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules in effect at the time the Dispute is filed (the “AAA Rules”), as modified by this Agreement. Information about AAA and the AAA Rules and filing process is available at http://www.adr.org/ or by contacting Banked. ALL DISPUTES WILL BE RESOLVED BEFORE A NEUTRAL ARBITRATOR, WHOSE DECISION WILL BE FINAL EXCEPT FOR THE LIMITED RIGHT OF APPEAL UNDER THE FEDERAL ARBITRATION ACT. The arbitration will take place in New York, and be conducted in English by one arbitrator; provided, however, that proceedings may be conducted by teleconference or videoconference to the extent consistent with the AAA Rules.

You agree that any such arbitration shall be limited to the Dispute between us and you individually. To the fullest extent permitted by law: (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. [You may choose to opt out of this agreement to arbitrate. To opt-out, you must notify Banked in writing within sixty (60) days of the date that you first became subject to this arbitration provision. You must use the following address below to opt out: 229 Forest Avenue, Palo Alto, CA, United States.

14. Limitation on Time to File Claims

TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE UNDER THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR. The one-year period begins when the events giving rise to the Dispute first occur. If a claim is not submitted within one year, it is permanently barred. This period can only be extended with the written consent of both parties. No statutes or provisions of law that would toll or otherwise affect the time in which a party may bring a claim shall operate to extend the period limited in this Section, and any such statutes and provisions are hereby waived, to the fullest extent permitted by law.

15. Limitation on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL BANKED, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, ANY SERVICES LINKED TO IT, ANY CONTENT ON THE SERVICE OR SUCH OTHER SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA), AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

16. Indemnification

You agree to defend, indemnify, and hold harmless Banked, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any and all penalties, liabilities, damages, judgments, awards, losses, costs, expenses, or fees, (including reasonable attorneys’ fees and expenses and any amount paid in settlement to a third party) arising from or in connection with any and all suits, actions, claims, or demands brought by any third party (including any government agency or body) due to, in connection with, or arising out of (i) your use of the Service, (ii) any breach or alleged or claimed breach by you of the Terms of Use or the materials it incorporates by reference, including the Privacy Policy, (iii) your violation of any law, regulation, order or other legal mandate, or the rights of a third party, or (iv) any act or omission by your agent, representative or third-party service provider while using the Service, regardless of whether the specific use was expressly authorized by you.

17. Waiver and Severability

No waiver by Banked of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Banked to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

18. Links from the Service

If the Service contains links to other sites, services, or resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites, services, or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites, services, or resources linked to in the Service, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

19. Assignment; Entire Agreement

Banked may assign these Terms of Use to its affiliate or subsidiary, or in connection with a merger, consolidation, or sale or other disposition of all or substantially all of its assets. These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent (in our sole discretion). Any assignment attempted to be made in violation of the foregoing restriction shall be null and void.

The Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and Banked regarding the Service and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Service.