Max Client Account Agreement
Last Revised: January 1, 2023
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You (the “Client”) and Six Trees Capital LLC, a Delaware limited liability company (“Max”), agree to enter into this Max Client Account Agreement (the “Agreement”) by which you instruct Max to send, on your behalf, your cash transfer instructions to third-party financial institutions where you maintain accounts, so that these institutions can move funds among your accounts held at various third-party financial institutions, and provide other services as described further below. This Agreement is effective as of the date that you first accept this Agreement (the “Effective Date”). As used in this Agreement, Client’s “Account” refers to the MaxMyInterest.com (the “Site”) membership account created by Client when Client registered as a user of the Site. In consideration of the mutual covenants herein, Client and Max agree as follows:
Client retains Max to (i) access Client’s depository accounts held at those third-party financial institutions (“Program Banks”) to which Client has explicitly provided Max access (“Linked Accounts”; Client’s checking Linked Account shall be referred to as the “Linked Checking Account” and each savings Linked Account is referred to as a “Linked Savings Account”), (ii) analyze the account balances of Linked Accounts to propose a reallocation of cash across such Linked Accounts by employing a proprietary algorithm (“Algorithm”) (U.S. Patent Nos. 10,268,995, 10,510,082, 10,657,504, 11,315,090, 11,531,972, and other patents pending) that takes into account prevailing interest rates as reported by the Program Banks or such other third-party data sources upon which Max may rely and other limitations imposed by Client and supported by Max, (iii) receive Client’s instructions to reallocate cash across the Linked Accounts; (iv) send, on Client’s behalf, Client’s funds transfer instructions to Program Banks in order to enable Client to transfer cash among the Linked Accounts (an “Optimization”) and (v) perform any other service made available by the Site that is requested by Client (clauses (i) - (v), collectively, the “Services”).
Max alone shall own all right, title and interest, including all related intellectual property rights, in and or related to the Services, the Algorithm, the software and source code used by the Services, and the Site. Subject to Client’s compliance with the terms and conditions of this Agreement, Max grants Client a limited, revocable, non-exclusive, non-transferable license to access and use the Services for Client’s personal, non-commercial use via a web browser for the term of this Agreement.
A more detailed description of method by which Max provides the Services is provided in the “Max Optimization Procedures” attached hereto, and by entering into the Max Client Account Agreement, you are explicitly acknowledging and consenting to the procedures and other terms contained therein.
The Algorithm is a tool and it does not take into account Client’s personal investment or other objectives in arriving at its proposed allocation of cash across Linked Accounts. The Algorithm also does not take into account the deposit objectives of the Program Banks. Max is not a financial planner, registered investment adviser or broker-dealer. Client’s personal financial situation is unique, and any information and advice obtained through the Services may not be appropriate for Client’s situation. Accordingly, before making any final cash allocation decisions, linking any Linked Accounts, or implementing any financial strategy, Client should consider obtaining additional information and advice from Client’s accountant or other financial advisers who are fully aware of Client’s individual circumstances. Notwithstanding anything in this Agreement to the contrary, Max shall have no fiduciary duties to Client, and a proposal for allocating cash shall not be deemed to be a recommendation of appropriateness or financial suitability for Client.
2. Power of Attorney.
To enable Max to exercise fully its authority to perform the Services, Client hereby constitutes and appoints Max as Client’s agent and attorney-in-fact with full power and authority for Client and on Client’s behalf to (i) receive, store, and send Client’s account number and/or financial account login information for each Linked Account (inclusive of any second-level authentication security questions and corresponding responses), (ii) access Client’s Linked Accounts (including by responding to second-level authentication security procedures), (iii) retrieve, store, consolidate and display account balances and related account information (including account statements and tax documents), (iv) add, update, alter or remove contact email addresses and telephone numbers used by third-party financial institutions to authenticate access to Client’s Linked Accounts, (v) receive Client’s instructions to reallocate cash across the Linked Accounts; (vi) send, on Client’s behalf, Client’s funds transfer instructions to Program Banks in order to enable Client to send or receive funds from one of Client’s Linked Accounts to another one of Client’s Linked Accounts; and (vii) engage third parties to do any of the foregoing (i) through (iv) as Client’s agent and attorney-in-fact with full power and authority for Client. Client further grants to Max as Client’s agent and attorney-in-fact full power and authority to do and perform every act necessary and proper to be done in the exercise of the foregoing powers as fully as Client might or could do if personally present; except that Max shall not directly or indirectly have any agent or attorney-in-fact or other power or authority to (i) close Client’s Linked Account(s); (ii) move funds to or from Client’s Linked Account(s); or (iii) be involved in negotiating or setting rates, fees, terms, or conditions for Client’s Linked Account(s). This power of attorney is coupled with an interest and shall terminate only on termination of this Agreement or on receipt by Max of written notice of the death, incapacity or dissolution of Client. CLIENT ACKNOWLEDGES AND AGREES THAT WHEN Max (OR A THIRD PARTY ACTING ON MAX’S BEHALF) IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY SITES, Max (OR SUCH THIRD PARTY) IS ACTING AS CLIENT’S AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF SUCH THIRD PARTY.
3. Representations and Warranties.
(a) Client represents and warrants to Max and agrees with Max as follows:
i. Client has the requisite legal capacity, authority and power to execute, deliver and perform his or her obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by Client and is the legal, valid and binding agreement of Client, enforceable against Client in accordance with its terms. Client’s execution of this Agreement, use of the Services and the performance of his or her obligations hereunder do not conflict with or violate any obligations by which Client is bound, whether arising by contract, operation of law or otherwise. If the Client is an entity, the trustee, agent, representative or nominee (the “Client Representative”) executing this Agreement on behalf of Client has the requisite legal capacity, authority and power to execute, deliver and perform such execution and the obligations under this Agreement as applicable. Specifically, if the Client is a corporation, limited liability company or partnership, the individual signing this Agreement has been authorized to execute this Agreement by appropriate corporate, limited liability company or partnership action, and if this Agreement is entered into by a trustee or fiduciary, the trustee or fiduciary has authority to enter into this Agreement and that the Services described herein are authorized under the applicable plan, trust or law. Such Client will deliver to Max evidence of Client’s and Client Representative’s authority on Max’s request and will promptly notify Max of any change in such authority, including but not limited to an amendment to Client’s organizational, delegation or formation documents that changes the information Client provides to Max on opening the Account; provided that Max shall have no obligation to request or verify any such authority, and unless otherwise notified in writing, Max shall be entitled to rely on Client’s and Client Representative’s instructions without any further inquiry.
ii. For Entity Clients: If Client Representative is entering into this Agreement, Client and Client Representative understand and agree that the representations, warranties and agreements made herein are made by Client both: (a) with respect to Client; and (b) with respect to the Client Representative.
iii. For Agents: If Client is entering into this Agreement as agent or on behalf of any third party, Client understands and agrees that the representations, warranties and agreements made herein are made jointly and severally by Client and the principal.
iv. Client is the owner or co-owner of all cash in the Linked Accounts, and there are no restrictions on the transfer of such cash.
v. If any Linked Account is not owned solely and exclusively by Client (for example, a joint account), (i) Client is authorized to transfer cash into and out of such Linked Account without the consent of or notice to any other person, (ii) Client has obtained the prior consent of all other persons with an interest in such Linked Account to enter into this Agreement and treat the account as a Linked Account, (iii) Client and each person with an interest in such Linked Account have agreed to be bound, jointly and severally, by the terms of this Agreement and (iv) Client will execute and deliver, and cause each other person with an interest in such Linked Account to execute and deliver, such further documents and agreements as Max may reasonably request to support the foregoing representations, warranties and obligations.
vi. Client will provide Max with accurate information about Client’s identity, contact information, and any changes to account status, usernames, passwords or answers to challenge questions for each of Client’s Linked Accounts, and will promptly update that information via the Site whenever such information changes.
vii. If Client explicitly provides information to Max for public display, then Client hereby grants permission to Max to use such information, in a commercially reasonable manner on the Site, any related and/or affiliated sites, and in marketing materials now and in the future, until such time as this Agreement is terminated by either party. Client waives any and all rights to compensation as a result of such use of Client’s explicitly provided information.
viii. As of the Effective Date, and at all times during the term of this Agreement, none of any Linked Account’s assets are or will be assets of “employee benefit plans” within the meaning of the Federal Employee Retirement Income Security Act of 1974, as amended.
(b) Client understands and agrees that:
i. Max does not guarantee the performance of the funds held within Linked Accounts.
ii. Max does not guarantee that the Algorithm will result in an allocation that yields the highest possible interest earnings from the cash in the Linked Accounts.
iii. Client assumes all risk when using the Max Solution, and Max is not responsible to Client for any losses of funds from Linked Accounts.
iv. Max is not responsible for any fees charged to the owner(s) of any Linked Accounts, including without limitation account maintenance fees, service fees, ACH fees, wire transfer fees, fees for exceeding a pre-specified number of transfers in a one month period, or otherwise.
v. Max is not responsible for any income or other taxes payable by Client as a result of the performance of the Services.
vi. a Linked Account is only insured against loss to the extent provided by the applicable Program Bank (which in some cases may be less than the value of the Linked Account), and Max provides no insurance against any such loss. NOTWITHSTANDING ANY WARNINGS OR OTHER NOTICES THAT MAY BE PROVIDED BY MAX, CLIENT IS SOLELY RESPONSIBLE FOR MONITORING AND ENSURING THAT CLIENT’S LINKED ACCOUNT BALANCES ARE WITHIN APPLICABLE DEPOSIT INSURANCE LIMITS. IF CLIENT PERMITS ANY LINKED ACCOUNT BALANCE TO EXCEED ANY SUCH INSURANCE LIMITS, CLIENT DOES SO AT ITS OWN RISK AND PERIL. IN NO EVENT DOES MAX INSURE ANY DEPOSITS OR TAKE ANY RESPONSIBILITY FOR ENSURING THAT CLIENT IS COVERED BY FDIC OR ANY OTHER DEPOSIT INSURANCE.
vii. Max runs its optimization algorithm based upon the instructions and account information Client provides, and subject to the limits Client sets.
viii. Max does not take into account the balances in any financial accounts to which Client has not provided Max access.
ix. Max’s sole obligation hereunder or otherwise is to perform the Services, and Client has not engaged Max to provide any individual financial planning services or investment advice. Max is not an investment adviser or broker-dealer; it does not provide investment advice, it is not a fiduciary of Client’s funds and it does not make any recommendation as to whether use of the Max Solution is suitable for Client.
x. Client is solely responsible for determining appropriate constraints and choice of Linked Accounts for the Algorithm, and understands and agrees that in certain circumstances the Algorithm may propose allocating funds to Linked Accounts in excess of applicable deposit insurance limits based upon those constraints provided by Client.
xi. Client is solely responsible for all Client instructions sent to Max related to Client’s reallocation of Client’s funds to and from the Linked Accounts.
xii. Max does not recommend or endorse, and Max is not responsible for and does not provide advice on the financial strength of, any of the financial institutions where Client maintains Linked Accounts, nor does it monitor such accounts for other matters that may be important to Client.
xiii. Max does not take into account the deposit objectives of the Program Banks.
xiv. Max is not a bank and is not affiliated with any Program Bank or other financial institution.
xv. The use of third party logos on the Site does not constitute an endorsement of Max by any such third party. All trademarks are the property of their respective owners.
xvi. Funds transfers between the Linked Accounts are processed by the financial institutions where such Linked Accounts are maintained, based on Client’s instructions sent to such financial institutions by Max; at no time is Max in possession of, or responsible for the timely or accurate delivery of, any of your funds contained in or being transferred between any Linked Accounts.
xvii. Max is not responsible to Client for any failures, delays and/or interruptions in the timely or proper execution of Client’s fund transfer instructions sent to financial institutions by Max on behalf of Client due to any or all of the following, which are likely to happen from time to time:
- (A) any kind of interruption in access to the internet and/or Program Banks which serve as portals into the Linked Accounts;
- (B) failure of Client to provide timely updates to Max regarding changes in Client’s account status, login user name, password, challenge questions and corresponding responses or other personally identifying information used to access Linked Accounts;
- (C) failure of Client to provide timely instructions to Max regarding reallocation of cash across Linked Accounts;
- (D) hardware or software malfunction, failure or unavailability;
- (E) Max system outages;
- (F) internet service failure or unavailability;
- (G) the actions of any governmental, judicial or regulatory body; and/or
- (H) force majeure.
xvi. Each funds transfer executed by Program Banks will typically take 2- 3 business days to take effect, during which the funds subject to transfer may not be available to Client.
xvii. If Client grants access to its Account or Linked Accounts to any third party, including any financial adviser, financial planner or other agent, Client shall be solely responsible for any consequences arising from such access.
xviii. Max is intended for use by natural persons with respect to their personal, consumer accounts. Businesses and other persons that use the Max Solution other than for personal, consumer accounts may be subject to different laws and regulations that limit the rights available to them under applicable law.
xix. Max provides access to Linked Savings Account tax documents as a convenience to Client. The applicable Program Banks are solely responsible for, and Max disclaims any liability for, delivering such tax documents to Client in a timely and accurate manner. If Client tax documents are not accessible from a Program Bank for any reason at the time that Max seeks to retrieve such tax documents, Max may not present to Client a complete set of Linked Savings Account tax documents. Max does not report taxable income to any taxing authority, nor does Max provide tax advice.
xxi. With respect to Client’s use of Max’s Common Application Service:
- (A) Client is solely responsible for determining to which Program Bank(s) to submit account applications;
- (B) Client is solely responsible for completing each Program Bank’s account application, including reviewing and accepting the terms and conditions applicable to each such account;
- (C) Client represents to Max that Client is authorized to open the requested Program Bank accounts based upon the information supplied to Max;
- (D) Max shall have no liability for any errors or omissions in the transmission of any information supplied on Client’s behalf to any Program Bank;
- (E) Client is solely responsible for closing a Program Bank account; and
- (F) Client acknowledges that Max is not responsible for moving Client’s funds to or from Client’s Linked Accounts.
(c) Client’s use of the Services is at its sole discretion and risk. The Services, and all materials, information, products and services included therein, are provided on an AS IS and AS AVAILABLE basis without warranties of any kind from Max. Max AND ITS AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, EQUITYHOLDERS, REPRESENTATIVES AND AGENTS (COLLECTIVELY, THE “MAX PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING AND COURSE OF PERFORMANCE. THE MAX PARTIES DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED: (I) REGARDING THE AVAILABILITY, SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SERVICES; (II) THAT THE SERVICES WILL BE ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED; OR (III) REGARDING THE PERFORMANCE OF OR ACCURACY, QUALITY, CURRENCY, COMPLETENESS OR USEFULNESS OF THE SERVICES. MAX MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITE OR SERVICES. CLIENT’S SOLE REMEDY AGAINST THE MAX PARTIES FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES. No information, whether oral or written, obtained by you from the Max Parties shall create any warranty not expressly stated in this Agreement. If you choose to rely on such information, you do so solely at your own risk. Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you.
5. Membership Fee.
(a) In exchange for the Services, Client agrees to pay Max a quarterly service fee (“Membership Fee”), calculated as the product of (a) the aggregate balances contained in Client’s Linked Savings Accounts on the date such Membership Fee is calculated, multiplied by (b) sixteen basis points (0.16%), or such other rate as may be in effect from time to time in accordance with this Agreement (the “Membership Fee Rate”), multiplied by (c) one quarter (¼). Notwithstanding the foregoing, the minimum Membership Fee payable on any payment date will be $20.00, or such other minimum Membership Fee as may be in effect for Client from time to time in accordance with this Agreement, regardless of the aggregate balances contained in Client’s Linked Savings Accounts on the date such Membership Fee is calculated. The Membership Fee shall become payable and notified to Client (i) fifteen (15) days after Client first instructs Max to send Client’s instructions to a Program Bank to reallocate cash across the Linked Accounts, and (ii) thereafter, on each three month anniversary of such date. The Membership Fee shall be paid via recurring ACH debit and shall be due ten (10) days after Client is notified of the amount of the quarterly Membership Fee by posting on the Client’s Billing History page on the Site. In the event that Max is not able to access Client’s Linked Savings Account balances at the time it seeks to calculate the Membership Fee, Max may rely upon the most recently retrieved balance information preceding such date.
(b) Max posts the applicable Membership Fee Rate and Membership Fee on Client’s Billing History page on the Site. The Membership Fee Rate (including any minimum Membership Fee) may be adjusted by the Company from time to time in its sole discretion. Max will promptly notify Client in writing of any increase or decrease in the Membership Fee Rate (including any change to the minimum Membership Fee) by (i) email in accordance with Section 18 or (ii) message or posting to Client’s Max Client Account or Billing History page. An increase in the Membership Fee Rate or minimum Membership Fee will be effective for the Account starting in the next three month period that begins at least 30 days after Max sends or posts such notice. A reduction in the Membership Fee Rate or minimum Membership Fee will be effective for the Account starting in the next three month period following its reduction.
(c) If Client terminates its membership in Max or otherwise terminates this Agreement, no future Membership Fees will be due. However, all Membership Fees previously due or paid shall be considered fully earned by Max and no credit or refund shall be given to Client for any partial period of Services.
(d) Max reserves the right, in its sole discretion, to reduce or waive the Membership Fee Rate (including any minimum Membership Fee) for certain Client Accounts for any period of time or for any reason determined by Max. No such reduction or waiver will be deemed to be a continuing reduction or waiver by Max. In addition, Client agrees that Max may waive its fees for the Accounts of clients other than Client, without notice to Client and without waiving its fees for Client.
6. Responsibility for Expenses.
The only fee Max charges its clients is its Membership Fee. Client is responsible for any fees charged by Program Banks in respect of the Linked Accounts, including without limitation account maintenance fees, service fees, ACH fees, wire transfer fees, fees for exceeding a pre-specified number of transfers in a one month period, or otherwise.
7. Payment of Fees.
Notification to Client of the Membership Fees due and the calculation thereof will be through Client’s Billing History page on the Site. The Membership Fee will be deducted by ACH debit from the Client’s Linked Checking Account on the applicable due date specified in Section 5(a). By entering into this Agreement, Client agrees that the Membership Fee may be automatically deducted by ACH debit from the Linked Checking Account on or after the due date without any further notice to or approval of Client. If for any reason there is insufficient cash available in the Linked Checking Account to cover Max’s fees at the time they are charged and deducted from the Account, Max, in its sole discretion, may seek to recover its fees in any other lawful manner (including, without limitation, by deducting such fees by ACH debit from one of Client’s Linked Savings Accounts).
8. Account Losses.
Funds transfers between the Linked Accounts are managed by the Program Banks where such Linked Accounts are held, and at no time is Max in possession of, or responsible for the timely or accurate delivery of, any of Client’s funds contained in or being transferred between any Linked Accounts. To the fullest extent permitted under applicable law, Client understands and agrees that Max will not be liable to Client for any losses incurred by Client that arise out of or are in any way connected with any act or failure to act of Max under this Agreement, including, but not limited to, any tax liability asserted against Client by any federal, state or local authority with respect to the Linked Accounts. Client (and in addition, for entity accounts, Client Representative) shall indemnify and defend the Max Parties and hold them harmless from and against any and all claims, losses, damages, liabilities and expenses, as they are incurred, by reason of any act or omission of Client or any third party financial institution selected by Client. In addition to the above indemnities, for entity Clients, the Client Representative shall further indemnify and defend Max and Max’s directors, officers, shareholders, employees, representatives, agents and affiliates and hold them harmless from and against any and all claims, losses, damages, liabilities and expenses, as they are incurred, resulting from or in connection with Client’s assertion of Client Representative’s lack of proper authorization from Client to enter into this Agreement. Anything in this Section 8 or otherwise in this Agreement to the contrary notwithstanding, however, nothing herein shall constitute a waiver or limitation of any rights that Client may have under any federal or state laws.
9. Termination; Withdrawals.
This Agreement may be terminated at any time by either party, with or without cause, by notice to the other party, which notice shall be provided by Client to Max through the Site and by Max to Client through the primary email address in Client’s Account application as Client shall update from time to time. Max shall have no liability for terminating Client’s Account, the Services or this Agreement for any reason. Client may withdraw all or part of the assets held in Linked Accounts at any time. Client’s withdrawal of all funds held by Linked Accounts, or Client’s de-linking of all Linked Savings Accounts, may be deemed a termination of this Agreement; provided that if Client subsequently re-links any Linked Savings Accounts or otherwise continues to use the Services after any such deemed termination, Client agrees that it shall be deemed to have entered into a new Client Account Agreement in such form as the Client Account Agreement is then available on the Site. Sections 3, 4, 5, 6, 7 (only as to fees accruing prior to termination), 8, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 shall survive any termination of this Agreement. Client understands and agrees that Max may determine to terminate the Services at any time for any reason, without notice or liability to Client.
10. Account Statements.
Client will receive account statements from the third party financial institutions in which Client has deposited funds. Max shall be under no obligation to provide account statements or tax reporting forms. However, if Max elects to provide, as a service to Client, any account statements and/or tax reporting forms across some or all of the Program Banks, Client hereby consents to Max accessing Client’s accounts for such purpose and agrees that Max shall have no continuing obligation to provide such statements or forms nor any liability for the accuracy, timeliness or availability of such statements or forms.
11. Independent Contractor.
Max is and will hereafter act as an independent contractor and not as an employee of Client, and nothing in this Agreement may be interpreted or construed to create any employment, partnership, joint venture or other similar relationship between Max and Client.
Client may not assign this Agreement without the prior written consent of Max. Max may assign this Agreement or any rights hereunder without Client’s consent. This Agreement shall bind and inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
13. Limitation of Liability.
Client agrees to defend and indemnify the Max Parties and to hold them harmless from and against any and all claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, arising out of or in any way connected with (i) Client’s access to or use of the Services; (ii) Client’s violation of any of the terms of this Agreement, including breach of any of Client’s representations and warranties contained in this Agreement; or (iii) Client’s violation of any third-party right, including without limitation any intellectual property right, property, or privacy right. Max reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Client, in which event Client will assist and cooperate with Max in asserting any available defenses. Client agrees not to settle any such matter without the prior written consent of Max. Max will use reasonable efforts in writing to notify Client of any such claim, action or proceeding upon becoming aware of it by (i) email in accordance with Section 18 or (ii) message or posting to Client’s Max Client Account. Each of the Max Parties is an express third party beneficiary of this Section 14 with full rights to enforce its terms.
15. Governing Law.
This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York.
The parties waive their rights to seek remedies in court, including any right to a jury trial. Subject to Section 17 in the case of ACH disputes, the parties agree that any dispute between or among any of the parties arising out of, relating to or in connection with this Agreement, the Services or the Account, shall be resolved exclusively through binding arbitration conducted under the auspices of JAMS pursuant to its Arbitration Rules and Procedures. Any such dispute shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration hearing shall be held in the City and County of New York, State of New York. Disputes shall not be resolved in any other forum or venue. The arbitration shall be conducted by a retired judge who is experienced in resolving disputes regarding financial technology matters. The parties agree that the arbitrator shall apply the substantive law of New York to all state law claims, and that limited discovery shall be conducted in accordance with JAMS’ Arbitration Rules and Procedures. In accordance with JAMS’ Arbitration Rules and Procedures, the arbitrator’s award shall consist of a written statement as to the disposition of each claim and the relief, if any, awarded on each claim. The prevailing party in such dispute shall be entitled to recover from the non-prevailing party all reasonable fees, costs and expenses including, without limitation, attorneys’ fees, costs and expenses, which amounts shall be awarded by the arbitrator as part of the disposition of each claim. The award shall not include or be accompanied by any findings of fact, conclusions of law or other written explanation of the reasons for the award. The parties understand that the right to appeal or to seek modification of any ruling or award by the arbitrator is severely limited under state and federal law. Any award rendered by the arbitrator shall be final and binding, and judgment may be entered on it in any court of competent jurisdiction as provided by law. EACH OF CLIENT AND MAX HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
17. ACH Disputes.
If Client believes that any ACH transfer was made to or from any Linked Account in error or without authorization, Client must notify each of (i) Max and (ii) the applicable Program Banks, as promptly as possible and no later than two (2) business days after the erroneous or unauthorized transfer is discovered by Client. If any such dispute is submitted for resolution pursuant to the rules of the National Automated Clearing House Association (“NACHA”) and the applicable automated clearing house (collectively, the (“ACH Network”) by Client or any Program Bank, Max shall have the right (but not the obligation) to participate in such resolution process. Prompt reporting of erroneous or unauthorized transfers is the best way to minimize potential losses, and Client’s maximum liability for any erroneous or unauthorized transfer will be determined based on applicable law (including the Electronic Fund Transfer Act and Regulation E), ACH Network rules, and the terms of Client’s agreements with the applicable Program Banks. Client agrees that Max shall not be responsible for any loss or liability resulting from any such erroneous or unauthorized transfer and/or the failure to timely report it, and Client acknowledges that there is no guarantee any such erroneous or unauthorized transfer amounts may be recovered.
All notices and communications under this Agreement must be made through the Site (which may include communication by message or posting to Client’s Max Client Account) or by email. Max’s contact information for this purpose is firstname.lastname@example.org, and Client’s contact information for this purpose is contained in Client’s user account on the Site and the primary email address(es) in Client’s Account application as Client shall update from time to time.
19. Further Assurances.
Client will, at the request Max, use all reasonable endeavors to do or cause to be done all such further acts and execute or procure the valid execution of all such documents, as may from time to time be necessary in Max’s reasonable opinion to give full effect to this Agreement.
20. Severability and Amendment.
The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any and all other provisions hereof. Client acknowledges that Max may amend this Agreement from time to time by notifying Client by (i) email in accordance with Section 18 or (ii) message or posting to Client’s Max Client Account. All such amendments will be effective immediately upon notice to Client, unless there is a material amendment (determined in the good faith, reasonable discretion of Max), which will be effective when Max provides thirty (30) calendar days notice to Client, unless a longer notice period is required by applicable law; provided that an amendment to the Membership Fees will be effective as provided in Section 5(b). If any amendments are not acceptable to Client, Client’s sole remedy is to cease using the Services and terminate this Agreement. By continuing to access or use the Services after Max makes any such revision (or after expiration of the notice period, if applicable), Client agrees to be bound by the amended Agreement.
21. Waiver or Modification.
Max’s waiver or modification of any condition or obligation hereunder shall not be construed as a waiver or modification of any other condition or obligation, nor shall Max’s waiver or modification granted on one occasion be construed as applying to any other occasion.
22. Entire Agreement.
23. No Third-Party Beneficiaries.
Except for the Max Parties, who are intended beneficiaries with full rights to enforce Section 14 (Indemnity), neither party intends for this Agreement to benefit any third party not expressly named in this Agreement.
Max Optimization Procedures
Revised March 4, 2021
Max System Overview
Max provides a cash management system (“System”) for Clients who desire to increase the interest they earn on their savings deposits by assisting Clients to periodically reallocate their funds between their own bank accounts so that they can continue to earn among the highest interest rates available on their cash balances. Max assists Clients with their reallocation by sending Clients’ funds transfer instructions on behalf of Clients to their banks. Max also seeks to simplify the process of managing multiple online savings accounts by providing aggregated account balance information and Intelligent Funds Transfer℠ instruction services. Capitalized terms used but not defined in these Max Optimization Procedures have the meanings set forth in the Max Client Account Agreement.
In order to use the System, Clients grant Max electronic access to their checking and savings accounts at various third-party financial institutions (a “Linked Checking Account” or “Linked Savings Account”, and together “Linked Accounts”) by i) providing online login credentials (including challenge passwords and other personally identifying information) (together, “Login Credentials”) along with a limited power of attorney for Max to access these Linked Accounts on Client’s behalf and upon Client’s instruction as if Client were accessing such Linked Accounts directly through the online websites of each of these third-party financial institutions (“Program Banks”) and/or ii) authorizing Max to communicate with such third-party financial institutions on Client’s behalf via API. For purposes of these Max Optimization Procedures, any action that is described as being taken by Max may be taken by one or more third parties acting on behalf of Max.
Selection of Accounts
Clients must select, from the list of Program Banks, one checking account and at least one online savings account to become Linked Accounts. These can be pre-existing accounts, or Clients can open one or more new accounts at Program Banks. To the extent Client’s Linked Savings Accounts are pre-existing, these accounts must be configured (if accessed via the Program Bank’s website) in such a manner that Client is authorized to transfer funds to and from the Linked Checking Account. Such configuration and authorization is typically completed via acknowledging and confirming a series of trial deposits to confirm a proper and secure linkage. Such linkages occur outside the Max system, and it is the sole responsibility of Client to ensure that such linkages are accurate and in good working order, and to update such linkages to the extent that Client’s account information or banking relationships change.
Relationship between Max and Program Banks
Max is not affiliated with any of the Program Banks. The list of Program Banks may change over time in the sole discretion of Max. Max is not making any endorsement of any of these third-party Program Banks, nor has Max evaluated the suitability of any of such institutions for any particular Client. Max does not require that Clients maintain accounts at every Program Bank. Clients should choose only those Program Banks which they, in their sole discretion, determine to be suitable for their banking needs.
NEITHER MAX NOR THE SYSTEM IS INTENDED TO PROVIDE LEGAL, TAX OR FINANCIAL ADVICE. MAX IS NOT A FINANCIAL PLANNER, INVESTMENT ADVISER, BROKER-DEALER OR TAX ADVISOR. The Service is intended only as tool for Client to use in its decision-making and management of cash balances. Each Client’s personal financial situation is unique, and any information, advice and services obtained through the System may not be appropriate for Client’s situation. Accordingly, before making any final decisions, linking any accounts, or otherwise implementing any financial strategy, Client should consider obtaining additional information and advice from Client’s accountant or other financial advisers who are fully aware of Client’s individual circumstances.
Program Bank Account Access
Max uses proprietary methods to access account balance information and send Client’s funds transfer instructions to financial institutions on Client’s behalf. By submitting Login Credentials to Max through the System, you are authorizing Max to use such Login Credentials for the purpose of providing the Service. Max will use and store the Login Credentials in order to provide the Service to you. By submitting this content to Max, you represent that you are entitled to submit it to Max for use for this purpose, without any obligation by Max to pay any fees or other limitations.
By using the System, you expressly authorize Max to access your Account Information maintained by Program Banks, on your behalf as your agent. When you link to the Max system accounts at Program Banks, you are authorizing Max to directly connect, on your behalf, to the website for the third party Program Bank you have identified.
Each time Client logs into the Site, or such other times as Max may require, such as for the purpose of calculating the Membership Fee, Max accesses Client’s Linked Accounts and obtains account balance information for each account. Unless otherwise instructed by Client, on a monthly basis Max accesses Client’s Linked Accounts, obtains account balance information for each account, sums the total amount of cash balances across all Linked Accounts, and then runs an optimization algorithm (“Algorithm”) (U.S. Patent Nos. 10,268,995, 10,510,082, 10,657,504, 11,315,090, 11,531,972, and other patents pending) which calculates the optimal allocation of these funds across all Linked Accounts in a manner which would be expected to optimize the interest income Client would earn assuming the prevailing interest rates remain unchanged, subject to Client’s imposed limitations. (Please be aware that Program Banks may impose their own terms and conditions on Linked Accounts.) Max then compares the optimal allocation as determined by the Algorithm to the then-current cash balances held in the Linked Accounts, and proposes to Client a series of funds transfers (“Transfers”) which would need to occur in order to achieve the optimal allocation of funds across Linked Accounts as determined by the Algorithm. Max does not guarantee that the Transfers will result in the highest possible amount of interest that could be earned from the Linked Accounts at any time. Client may then review these proposed Transfers and modify system settings to alter, adjust, postpone, or cancel any or all of such proposed Transfers. If Client does not make any modification to a proposed Transfer within three (3) days, Max will send Client’s instructions to the relevant financial institutions.
The Transfers instructed by Client typically occur in two stages: first, from Client’s Linked Savings Accounts to Client’s Linked Checking Account, and second, from Client’s Linked Checking Account to Client’s Linked Savings Accounts. Each stage takes approximately 1–3 business days from the time Transfers are instructed by Client until the time Transfers are completed by the relevant financial institutions. In the event that a Linked Savings Account balance cannot be accessed by Max, the Algorithm excludes such account from the optimization algorithm, and will seek to include such Linked Savings Account again the next time that the Algorithm is run. In the event that the Linked Checking Account balance cannot be accessed by Max, Client will be notified and the Algorithm will not be run until Max’s access to such Linked Checking Account is restored.
Max and the Algorithm are not intended to anticipate Client’s cash flow needs. Client should take care to manage account balances and set limits on Linked Accounts accordingly in order to avoid overdraft and other situations where expected funds are unavailable. Setting a minimum account balance for the Linked Checking Account in excess of typical monthly cash needs is one way in which Client can help prevent overdrafts.
Intelligent Funds Transfers℠
Between optimizations, Max provides Clients the opportunity to instruct Max to send Client’s funds transfer instructions on behalf of Client to Program Banks to transfer funds between Client’s Linked Checking Account and Linked Savings Accounts on a one-time basis consistent with the System’s overall approach to optimization.
In the event of Intelligent Funds Transfers from a Linked Checking Account to a Linked Savings Account, Client instructs Max, subject to the pre-set account limits and funds transfer limits, to send to each Program Bank, as applicable, Client’s instructions to transfer the desired funds into the Linked Savings Account(s) with the highest then-prevailing interest rates. If the Linked Savings Account(s) offering the highest interest rate already has reached the Account Maximum (as defined below), Client instructs Max to send to each Program Bank, as applicable, Client’s instructions to transfer the desired funds into the next-highest yielding Linked Savings Account(s), and so on, until the full amount of the Client’s desired funds are transferred. If the effect of the Intelligent Funds Transfer is such that the Account Maximum would be exceeded in all Linked Savings Accounts, Max’s algorithm will automatically propose to Client a set of Transfers that either i) exceeds the pre-set Account Maximum in the Linked Savings Account offering the highest interest rate, or ii) suggests that excess cash remain in the Linked Checking Account. See FDIC INSURANCE below.
In the event of Intelligent Funds Transfers from a Linked Savings Account to a Linked Checking Account, Client instructs Max to send to each Program Bank, as applicable, Client’s instructions to transfer the desired funds from the Linked Savings Account with the lowest then-prevailing interest rate, up to any account minimum which had been previously set. If there are insufficient funds in this Linked Savings Account to complete the entire transfer, Client instructs Max to send to each Program Bank, as applicable, Client’s instructions to transfer the remaining amount required from the next-lowest-yielding Linked Savings Account(s), until the full amount of the transfer can be effected.
Such Transfers will be effected by the Program Banks based on the Client instructions sent by Max on behalf of the Client to the Program Bank and will typically take 1–3 business days to take effect, during which the funds subject to transfer may not be available to Client.
Max is not a depository institution and does not provide deposit insurance under FDIC or any other program. Each of the Program Banks currently offers FDIC insurance in an amount up to $250,000.00 per deposit maintained in the same right and capacity, or such other amount as the FDIC may specify from time to time. Deposits maintained in different rights and capacities may be subject to separate FDIC insurance limits. It is Client’s responsibility to understand these insurance limits, and to ensure that other balances which may be held at the Program Banks, but which may not be linked to the Max System, are taken into account when setting the maximum amount of cash which the Algorithm will allocate to any one account (“Account Maximum”) on the Site. Should Client set an Account Maximum or otherwise elect to exceed the FDIC coverage limits then in effect, Client does so taking full responsibility for such risk of loss and hereby acknowledges such risk.
By default, Max sets a per-Program Bank deposit limit of $248,500.00. Max may elect to change such default Account Maximum limits from time to time in response to changes in FDIC overage limits, or for any other reason, but is under no obligation to do so. Client may choose to over-ride such settings for each Program Bank individually via the Site. To the extent that Client maintains, within Client’s Linked Accounts, more cash than can be covered by the then-prevailing FDIC insurance limits, Client hereby acknowledges that full FDIC coverage may be unavailable as a result.
IN NO EVENT DOES MAX INSURE ANY DEPOSITS OR TAKE ANY RESPONSIBILITY FOR ENSURING THAT CLIENT IS COVERED BY FDIC OR ANY OTHER DEPOSIT INSURANCE.