Terms of Use Agreement

This Agreement governs the use of the online banking platform supported by Alkami Technology, Inc., a Delaware corporation (“Alkami”) together with American AgCredit, FLCA and American AgCredit, PCA (together “AAC”).

Platform Use

A. Each use of the Alkami online banking platform (the “Platform”) constitutes your continuing agreement to use the Platform according to this Agreement and to be legally bound by all of its terms and conditions, including any amendments or supplements to this Agreement and any changes to the terms and conditions that may occur from time to time. You agree to:

  • Use the Platform only for those accounts for which you have authorized access and use;
  • Use the Platform only in accord with this Agreement and applicable laws;
  • Comply with any user requirements as they may be promulgated from time to time;
  • Promptly pay all fees and charges that may apply to your use of the Platform either now or in the future; and
  • Remain bound by the terms and conditions of your loan documents with AAC, which will always govern and control and may not be amended or otherwise modified by this Agreement or any Platform transaction without the express written consent of AAC.

B. You agree with AAC and Alkami that Alkami may consider you to be its customer solely for purposes of the service(s) that AAC provides to you under this Agreement and for which Alkami offers or provides services to AAC, using accounts in AAC’s name and/or in your name. You also agree with AAC and Alkami that you will not bring any claims, disputes, demands, actions, suits, or other litigation, arbitration, or other dispute resolution or administrative proceeding (collectively, “Claims”) against Alkami, and any Claims relating to the Alkami’s acts or omissions will be brought directly against AAC to the same extent as if the AAC had performed that portion of the services itself.

C. The Platform is provided as a privilege and convenience to AAC customers. AAC reserves the right to terminate or modify the Platform, in whole or in part, or access to any account at any time and without prior notice. AAC also reserves the right to terminate the Platform access privileges in the event AAC determines, in its sole discretion, that: (i) you are in default under any of your loan documents with AAC; (ii) your access to the Platform is in violation of applicable laws or this Agreement; and/or (iii) the Platform with regard to your account (including any Business Account or Consumer Account) represents a risk to AAC. AAC will make a reasonable attempt to notify you if your access to the Platform access is terminated for any reason but is under no obligation to do so.

Proprietary Rights

AAC and third parties are the absolute owners of all intellectual property and rights applicable to AAC’s website and to the Platform, as applicable. You agree that the website contains proprietary trademarks, data, text, information, programs, and materials (collectively referred to as “Information”) protected by copyright, trademark, and other forms of ownership protection under the laws of the United States of America and/or may be protected under applicable state law.  Except as specifically authorized in this Agreement, you do not have permission to copy, use, or republish, in any form, any Information found on the website. You are authorized to view the Information available on the website for your activities with AAC and for informational purposes only and you may create an electronic copy of the Information for your use. No part of the Information may be otherwise copied, reproduced, or redistributed in any form without prior written consent from AAC. You also agree that your right to use the website is derived solely from, and is expressly limited by, this Agreement. You agree not to assert any claim of ownership over, or any rights to, the Information, including any software or data, based on your use or otherwise.

Disclaimer of Warranties

THE PLATFORM AND INFORMATION RELATED THERETO ARE PROVIDED ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS FOR PARTICULAR PURPOSE, WARRANTIES OF TITLE OR NON-INFRINGEMENT, AND WARRANTIES ARISING BY VIRTUE OF COURSE OF DEALING OR CUSTOM OF TRADE. AAC DOES NOT WARRANT THAT THE PLATFORM WILL BE ACCURATE, COMPLETE, OR TIMELY OR FREE FROM ERRORS OR INTERRUPTIONS IN SERVICE OR THAT DATA OR INFORMATION WILL BE ERROR-FREE. AAC ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE INFORMATION ON ITS WEBSITE AND SPECIFICALLY DISCLAIMS ANY DUTY TO UPDATE THE INFORMATION ON ITS WEBSITE.

IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT, EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED.

Security

You agree to: (a) satisfy any and all security measures and requirements, including any legal or other requirements, applicable to your use; (b) establish a password; and (c) maintain the security of that password at all times. You understand, acknowledge, and agree that AAC: (a) shall be entitled to act on all instructions provided through the Platform, which are authorized using the correct password for that account; (b) is not liable for any unauthorized transaction or access to your account or for any damages resulting from such use; and (c) requires you to periodically change your password.

Disclaimer of Liability and Limitations on Damages

By using the Platform, you understand, acknowledge, and agree that AAC SHALL NOT BE: (a) RESPONSIBLE FOR ANY LIABILITY, CLAIM, LOSS, EXPENSE, COSTS, OR DAMAGES, INCLUDING PROPERTY DAMAGE OR BODILY INJURY, ARISING FROM OR IN CONNECTION WITH THE USE OF THE PLATFORM, REGARDLESS OF CAUSE; (b) RESPONSIBLE FOR ACCESS FAILURES OR ERRORS IN TRANSMISSION OF INFORMATION; (c) RESPONSIBLE FOR ANY LOST PROFITS OR FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR ECONOMIC DAMAGES, OR DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY LOST DATA, LOST BUSINESS OPPORTUNITIES, LOST PROFITS, LOST SAVINGS, OR LOST RESERVES ARISING OUT OF OR RELATED TO THE USE OF THE PLATFORM, OR ARISING FROM ANY COMPUTER VIRUS, SYSTEM, OR NETWORK FAILURE OR INTERNET FAILURE, AND REGARDLESS OF WHETHER AAC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; and (d) LIABLE FOR DAMAGES, UNDER ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF AAC’S WEBSITE, OR THE INFORMATION OR SERVICES PROVIDED HERE OR THEREUNDER, OR THE INABILITY TO USE THE INFORMATION OR MATERIALS PROVIDED HERE OR THEREUNDER.

You understand, acknowledge, and agree that:  (a) ANY AAC LIABILITY UNDER THIS AGREEMENT OR ARISING FROM THE USE OF THE PLATFORM SHALL BE LIMITED TO THE REASONABLE COST OF TAKING CORRECTIVE ACTION REGARDING THE CIRCUMSTANCE GIVING RISE TO THE LIABILITY BEING CLAIMED; and (b) SUCH LIMITATION SHALL BE THE MAXIMUM EXTENT OF AAC’S LIABILITY, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT AGAINST AAC, AND THIS SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY FOR ANY SUCH LIABILITY.

Binding Arbitration of Disputes

You and AAC mutually agree that any and all disputes not satisfactorily resolved between the parties arising out of or related to this Agreement or arising out of or related to the Platform or any of the Services provided thereunder or through this Agreement, including all actions and transactions made by or through the Platform, shall be submitted to final and binding arbitration in the State of California to the extent permitted by law unless you and AAC mutually agree to another location in writing or unless otherwise provided by law. Arbitration shall be conducted in accordance with the Optional Expedited Arbitration Procedures of the Judicial Arbitration and Mediation Services (JAMS) before a single arbitrator unless the parties shall mutually agree in writing to different rules or procedures.  Each party shall bear its own costs, fees, and expenses in connection with any arbitration regarding the Platform prior to the issuance of any award, and the parties shall comply promptly with any award or ruling of the arbitrator; provided, any final award may include costs, fees, and expenses awarded in favor of the prevailing party.  The prevailing party in arbitration shall have the right to enter, without contest by the other party, an order reflecting the arbitrator’s decision in any court of competent jurisdiction.  The binding arbitration provisions apply to any and all claims that you have against AAC or its affiliates, successors, or assigns and all of their respective directors, employees, agents, or assigns, or that the AAC has against you, including any and all claims regarding the applicability of this arbitration clause or the validity of the Agreement in whole or in part.  In the event of a conflict between this agreement to arbitrate provision and the terms and conditions of any loan document relating to the handling of disputes, the terms and conditions of this provision shall govern with regard to the Platform and shall survive termination of the Platform or related Services.

Governing Laws

This Agreement is governed by and will be interpreted under the laws of the United States of America, including applicable federal laws, and the laws of the State of California, applicable to contracts executed and performed entirely in, and by residents of, that state.

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