PEX Master Services Agreement - General Terms 

 

Last Modified June 8, 2023

IMPORTANT NOTE: These terms are effective for new PEX customers as of July 8, 2023. Existing PEX customers will continue under the current terms, which can be found here, until July 8, 2023, at which time, these terms will replace the existing terms. 

This Master Services Agreement (the “Agreement”) is a legal agreement between Customer and PEX and governs your use of the Platform and Services. In this Agreement, “Customer” or “you” means the Customer that is applying for or has opened a PEX Account to use the Services, and “PEX” or “we” means Prepaid Expense Card Solutions, Inc, d/b/a as PEX, a Delaware corporation and its past, present, or future affiliates, successors and assigns, unless stated otherwise. References to “ Agreement” mean this document that you’re reading and any terms, agreements, and policies incorporated by reference, including but not limited to Service Terms and Cardholder Agreements that are applicable to the specific Services you use, and the PEX Privacy Policy.  You will only be approved for and maintain a PEX Account and use the PEX Services if you agree to this Agreement. Defined terms used in this Agreement can be found here.

The terms and conditions of this Agreement are binding as of the date you agree to its terms. By clicking the “I ACCEPT” button and using the Services, Customer acknowledges that you have read and understand this Agreement and agree to be bound by each of the terms and conditions of the Services provided by PEX and used by Customer, and obligations of this Agreement. In exchange for opening a PEX Account and gaining access to the Services, you are consenting to receive all notices and communications electronically, as explained in the Electronic Communications Agreement. This Agreement governs your relationship with PEX. Your access to particular Services may also be subject to specific Service Terms of the PEX product you applied for and were approved for.

PEX grants Customer a non-exclusive, non-transferable, limited license to use the solely and exclusively for use in connection with the delivery of the Services under this Agreement. This license does not grant the Customer or any other party any right to copy, modify, enhance or transfer the Platform or otherwise disclose confidential information about the Platform to any third party (See Section 5.8 for additional information).

From time to time, PEX may notify Customer of material changes to the Services or this Agreement and your continued use of the Services after the effective date of any such material change will constitute your acceptance of such change(s). If you do not accept these terms, you are not authorized to use the Services or Platform (See Section 5.5 for additional information).

1. Applying and Opening a PEX Account

1.1 Eligibility Requirements

Only entities organized and registered in the United States may apply for a PEX Account and use the Services provided by PEX. Sole proprietors may be eligible for a PEX Account. Individual consumers, and companies organized and/or registered outside the United States, are not permitted to use a PEX Account or the Services, and any such application will be denied. Customer must be duly organized and remain in good standing under the laws of its jurisdiction of organization at all times during the Term.

Customer acknowledges and agrees that a PEX Account is a commercial account, and is not covered under certain consumer protection laws (e.g., the Electronic Funds Transfer Act or Regulation E) or card network rules.

1.2 Application Process

The Customer begins its application for a PEX Account and/or Credit Line with the Customer’s certification, via an electronic signature, that Customer has read, understands, and agrees to the terms and conditions of this Agreement, subject to PEX completing the approval process and accepting the Customer’s application. PEX will not be bound to the terms and conditions of this Agreement until all of the following have been completed:

1. the Customer has submitted a completed Prepaid Expense Program, Prepaid Disburse Program, and/or Credit Expense Program Customer Application Form;
2. the Customer Application Form and its contents have been reviewed and evaluated by PEX; and
3. PEX has notified Customer that it has been approved for the Program and Services that Customer applied for.

Only then will PEX and the Customer have formed a customer relationship that binds both parties to the terms and conditions of this Agreement (the “Effective Date”).

1.2(a) Customer and Administrator Representations

By submitting an application for a PEX Account, the individual submitting the application on behalf of Customer represents and warrants, in an individual capacity and as an authorized representative of Customer, as to the truth, accuracy, and completeness of the information provided, to permit each of PEX and Customer to comply with certain legal and regulatory eligibility requirements for applicants.  For additional information on the PEX Customer Application process, please see our representations FAQs. 

1.2(b) Required Customer and Personal Business Information

You must provide the requested Customer information to apply for and maintain a PEX Account. Customer data may include, among others, the Customer’s legal business name, principal office address, equity ownership details, contact information (e.g., email and phone number), tax identification number, the nature of the business, financial information, account information for your Linked External Accounts, and such other business or individual information that we may require or request from time to time to permit PEX to comply with applicable laws, regulations, rules, and policies. You have a duty to promptly update Customer data should the information change after the PEX application was submitted.

You must also provide certain personal data (e.g., name, residential address, social security number, date of birth, and similar) of Control Persons and Beneficial Owners (defined as owning 25% or more of the equity of a business entity). Additionally, you must provide contact information (i.e., phone number and email address) for Administrators and Control Persons. We will require that you provide certain documentary information to permit PEX to verify submitted Customer and personal data, such as proof of address and a copy of an original government issued identification card or passport. We may also require that you provide supplemental documentary information to permit PEX to verify submitted Customer and personal data (e.g., charter, IRS documents, copy of social security card).

IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW CARD ACCOUNT:  To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions, such as those partnered with PEX, to obtain, verify, and record information that identifies each person who opens a Card Account.  What this means for you: When you open a Card Account, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see a copy of your driver’s license or other identifying documents.

You are required to keep all Customer and personal data current and accurate in your PEX Account at all times, including without limitation, if the nature of your business changes, if you change your business name, if there is a change in the Beneficial Owners or Control Persons or the control or ownership of Customer, if you change the authority of an Administrator User or Authorized User, if you are subject to bankruptcy or insolvency or similar proceedings, if you are party to any dispute or proceeding which reasonably would be expected to have a material adverse impact on your financial condition or prospects, or you begin engaging in one or more Prohibited Activities.  To update or inform PEX about any of these types of changes to your business or information, please contact us by emailing [email protected].

You also agree to provide such additional information as PEX may request from time to time, to permit PEX to comply with changes in applicable laws or regulations, to assess Customer’s initial or continuing Program eligibility, to verify identities of your Authorized Users (e.g., anti-fraud, new user), and as otherwise required to provide the Services.

Except with respect to the use by PEX or the Bank of such information in connection with opening a PEX Account and providing the Services pursuant to this Agreement, such information shall be treated as confidential information of Customer and Natural Person Applicant, and PEX and the Bank, as applicable, shall maintain the confidentiality and privacy of the Personally Identifiable Information in compliance with all applicable federal and state privacy laws and regulations, as detailed below. We may share certain Customer and Natural Person Applicant information with Third-Party Service Providers for the purposes of meeting legal, regulatory or contractual obligations, as detailed in our Privacy Policy.

1.2(c) Protection of Personally Identifiable Information

PEX takes reasonable steps to protect all Personally Identifiable Information.  PEX maintains strict administrative, technical, and physical procedures to protect information stored on PEX servers, all of which are located in the United States.  Access to such Personally Identifiable Information is limited (through user name/password credentials and software systems) to employees who require it to perform their job functions.  PEX uses industry-standard Transport Layer Socket (TLS) encryption technology to safeguard the account registration process and sign-up information. Other security safeguards include but are not limited to data encryption, firewalls, and physical access controls to offices and files.

1.2(d) Application and Account Decisions Based on Customer Information

While your application for a PEX Account or a particular Service is pending, we may grant you or anyone authorized by you to access your account with provisional, limited access. Even if you have been granted provisional, limited access, we may nevertheless deny your application upon our completion of our review of your application. We reserve the right to suspend the Services to you or any User, or suspend or close your PEX Account, if we determine that the information you provided is incomplete, inaccurate, or out of date, or if providing Services to you or the User may be a violation of applicable federal, state, or local, law, regulation, order, or directive.

We reserve the right to close any issued PEX Card for any individual should the name of the individual appear on the OFAC, OFSI, and/or FINTRAC lists, or any other international sanctions lists, or other local, state, or federal lists of individuals being pursued by law enforcement agencies, or other similar legal or risk-related reasons as solely determined by us.

1.2(e) Consent to Electronic Signature and Communications

Consent to electronic signature and communications  is also obtained during your acceptance of terms and conditions in PEX’s Electronic Communications Agreement.

1.3 Bank Terms

PEX Cards are issued by the Bank (i.e., The Bancorp Bank, N.A., Fifth Third Bank, N.A., or other bank identified on the back of physical PEX Cards issued to your Cardholders, on your Account page on our website, or in relevant program materials provided to you). This Agreement, the applicable Service Schedules, and the applicable Cardholder Use Guide together govern your use of the PEX Cards. You may only use the cards if you consent to the applicable Cardholder Use Guide. Please be aware that the Cardholder Use Guide may state that (1) the Bank may update the Cardholder Use Guide at any time by providing notice to you, and (2) your continued use of the cards constitutes your acceptance of such updated Cardholder Use Guide.

1.4 Linked Accounts

We may use financial data from Linked External Accounts to verify account balances and account information, identify spending patterns and potential fraud, determine and review spending limits, analyze and report transactions, and provide Services. You may change or update Linked External Accounts by contacting [email protected].

Use of specific Services or features may also require PEX to access Customer data through Third-Party Services.

 

2. PEX Platform

2.1 PEX Services

Following the acceptance of the Customer Application Form by PEX, Customer, together with any personnel authorized by Customer to exercise the legal power and authority to bind Customer (each, a “Control Person”) or any other person authorized to manage spending on behalf of the Customer or to access and use Services on Customer’s behalf (each, an “Administrator User”), will have the right to use the Services via the Platform, in accordance with the terms and conditions of this Agreement and the Service Schedule for the Program the Customer applied for (each, a “Service Schedule”). During the Term of this Agreement, which begins once a customer relationship between PEX and Customer has been established, PEX will perform the Services, each described in a Service Schedule to this Agreement, which are incorporated into this Agreement by reference, and in accordance with all of the terms and conditions of this Agreement. Customer understands that the Services outlined in this Agreement are conditioned upon approval of Customer’s completed, Program-specific, Customer Application Form. PEX is not obligated to perform any of the Services outlined herein even if Customer has electronically signed this Agreement, until and unless the Customer’s PEX Customer Application Form has not been approved by PEX.

The Service Schedules outline the terms and conditions pertaining to the specific Programs offered by PEX. Customers may apply for one or more PEX Program(s) at any time. PEX’s approval of one of Customer’s applications will only bind PEX to the General Terms and Conditions and to the Service Schedule of the Program for which the Customer applied and was approved (i.e., Prepaid Expense, Prepaid Disburse, and/or Credit Expense).

To the extent there are any conflicts or inconsistencies between the terms or conditions of this Agreement and any Service Schedule, the provisions of the Service Schedule will govern and control solely with respect to such Service Schedule.

2.2 PEX Platform Access

You must accept the terms of this Agreement in order to gain access to and use of the PEX Platform.  Your use of the Platform is also subject to the Privacy Policy.

PEX Platform Access IDs consisting of a unique user name (each, an “Access ID”), passwords, and API Credentials (collectively, “Credentials”) will only be issued to Administrator Users. Your Administrator Users will ensure that each of your Authorized Users has their own unique set of Credentials, keeps those Credentials secure, does not share those Credentials with any other person or third party, and does not reuse Credentials for other services. It is Customer’s responsibility to safeguard its Access ID, passwords, API Credentials, and physical access to its Access Device and personal data. Customer agrees that the use of the its Access ID, password, and API Credentials authenticates the identity of Authorized Users of Customer’s PEX Account and verifies the instructions entered for any transaction, and that PEX is entitled to rely on and act on transaction instructions received when Customer’s Access ID, password, or API Credentials is used. Customer agrees, therefore, that by an Administrator User entering his or her Access ID, password, or API Credentials, Customer is authorizing PEX to accept such online login as Customer’s personal signature. If Customer authorizes other persons to use its Access ID, password, or API Credentials in any manner, Customer’s authorization will be considered unlimited in amount and manner until Customer has notified PEX in writing that it has revoked the authorization and changed its password. Upon request, a PEX representative can assist Customer’s authorized representatives in changing a password if the Administrator or authorized representative is unable to.

Customer agrees to adopt reasonable policies and procedures and take reasonable steps to safeguard the confidentiality and security of such Access IDs, passwords, and API Credentials, PEX Cards, mobile devices, web browsers, and anything else used to access or utilize the Services. You will keep your PEX Account secure and only provide access to individuals that you have authorized to use the Services on your behalf.  PEX is not obligated to detect unauthorized access to the Services or errors by Customer or others.  PEX will not have any liability to the Customer for any unauthorized transactions made by anyone using a valid Access ID, password, and/or API Credentials.

The Dashboard mobile app allows Customer, and Administrator User(s), to set up biometric authentication instead of entering an Access ID and password if this feature is available on the Access Device.  By enabling biometric authentication, Customer is allowing anyone who has this type of access to the Access Device to access and use the Services.  For clarity, PEX does not have access to any biometric information stored on an Access Device.

2.3 Customer’s Ongoing Obligations

2.3 (a) Responsibility for Use

Customer is responsible for notifying Administrator Users of the relevant terms applicable to use of the Services and for ensuring that each Administrator User complies with the terms and conditions set forth in the Agreement, including the applicable Service Schedule(s), all applicable laws and regulations, and that all PEX Cardholders comply with any other written instructions provided by PEX and directed to such holders. Customer represents and warrants that it has obtained all required consents and authorizations from Administrator Users, Authorized Users, and Cardholders to provide PEX with personal information, and in doing so has directed such individuals to review the Privacy Policy to understand how PEX processes, uses, and stores their personal information. Customer is responsible for any and all actions taken or omissions by any Administrator User or Authorized User, or for the failure to act on the part of Administrators and Authorized Users, and for ensuring that the Services are used solely for valid, lawful business purposes in accordance with the terms and conditions of the applicable Service Schedule(s).

2.3(b) Account Safeguarding Responsibilities

Customer agrees to secure, and ensure all PEX Cardholders secure, all PEX Card plastic cards and PEX Card Data.  For purposes of this Section, “PEX Card Data” means the 16-digit card number, cardholder name, the card expiration date, card CVV, and PIN (if created).  PEX Card Data should not be recorded or stored by Customer or any Administrator User in an unencrypted or unmasked format.  PEX Card plastic cards and PEX Card Data are bearer instruments, meaning that any person(s) in possession of the PEX Card plastic cards or PEX Card Data may be able to successfully complete transactions, whether or not authorized by Customer or Administrator User.  Customer will assume full liability for any unauthorized transactions caused by Customer’s failure to secure PEX Card plastic cards or PEX Card Data.

In addition to the responsibility to secure all PEX Card physical cards and PEX Card Data, if Customer maintains a plastic card inventory for immediate issue (i.e., instant issue cards), Customer agrees to develop and maintain an inventory management process so that Customer can account for all issued and unissued PEX Card plastic card inventory at any time.  The inventory management process will include a receipt and issuance log, to be updated by Customer each time a PEX Card plastic card is received and/or provided to a PEX Cardholder.

You will take all reasonable steps to safeguard the privacy, confidentiality, and security of User Credentials, as specified in Section 2.2. 

You will not allow any unauthorized person to use the Services. You will immediately disable the access of any departing Administrator User or Authorized user on their last day of employment or other business relationship with Customer. In addition, you will immediately disable access to the Services or limit permissions where you know or suspect your PEX Account has been compromised or may be misused or where you know or believe Credentials have been compromised or lost; and you will promptly notify us in reasonable detail promptly following your discovery of any unauthorized access or use of your PEX Account or the Services. You understand that Customer is solely responsible for any spending, or associated fees or fines or other costs, that arise from any such unauthorized use of valid Credentials, and PEX bears no responsibility to reimburse Customer for any such amounts.

2.3(c) Material Business Changes

Customer acknowledges and agrees that PEX will be entitled to rely on any and all direction received from any Administrator User regarding (1) manually adding or removing Administrator Users; (2) changes to Customer information; (3) changes to Customer’s use of the Services; and (4) termination of all or a portion of the Services.

In the event that Customer decides to replace the Customer’s Control Person, Customer must submit a request in writing to PEX on Customer letterhead and signed by an authorized representative of Customer who is authorized to exercise the legal power and authority to bind Customer.  PEX will request Personally Identifiable Information for the replacement Control Person in order to complete identity validation and other due diligence as required by applicable laws and regulations.  By submitting a replacement Control Person for approval, Customer certifies that the individual has the authority required to direct Customer funds, manage Customer payments, and bind Customer to agreements with third parties.

Depending on the type of the Customer business change PEX is informed of by an Administrator User, a KYC review may be triggered for which Customer may need to provide updated business, Control Person, and Beneficial Owner information and documentation. Upon receipt of updated information, PEX will need to validate all new business, Control Person, and Beneficial Owner information.

2.4 Third Party Providers

PEX may establish relationships with one or more of Customer’s third-party service providers in order to integrate systems data generated through the Services into such third-party service providers’ applications or services, in order to provide a more seamless experience for Customer.  In order to enable this type of service integration, Customer’s third-party service provider may ask Customer to provide API Credentials or other Credentials so the authorized third-party service provider can access the Services on Customer’s behalf.  PEX evaluates and monitors all such third-party integrations carefully, but expressly does not assume any liability for access by the third-party service provider in this manner and will grant access to any such third-party service provider providing valid Credentials, unless and until Customer has notified PEX in writing that it has revoked the authorization.

PEX only supports and authorizes third party integrations through the use of PEX's published API. Integrating through any other means places the security of Customer's PEX Account at risk and PEX may implement controls to prohibit an integration and/or suspend a Customer's PEX Account upon determining an unauthorized integration is being used.

From time to time, we may provide information on our website or in other communications to you regarding third-party content, sites, services, or applications that may be of interest to you, and we will use commercially reasonable efforts to identify such third-party content as such.  For clarity, we do not own or control any such third-party content, sites, services, or applications, and we expressly disclaim any liability for any damages or losses related to or arising from such third-party content or services.

2.5 PEX API

Customer has the option to request access to the PEX application programming interface (“PEX API”) for the Services, which can be used to integrate Customer systems with the functionality of Platform and available Services.  If Customer is approved, in the sole discretion of PEX, PEX will provide Customer with a unique, confidential identification code (“API Credentials”) to access the Services for integration testing and production use.  PEX may immediately terminate or revoke Customer’s API Credentials for any reason in the sole discretion of PEX. Customer may not sell, transfer, or sublicense its API Credentials or PEX API access.

PEX may provide Customer with support or modifications for the PEX API in its sole discretion.  Due to the nature of Services, we will update the PEX APIs and documentation from time to time, and may add or remove functionality at our sole discretion.  We will use commercially reasonable efforts to provide prior notice to Customer if PEX changes, deprecates, or removes functionality from the PEX API so that Customer may continue using the Services with minimal disruption.  PEX may release subsequent versions of the PEX API, and Customer will be required to use those subsequent versions to access and use the relevant functionality.  PEX may, in its sole discretion, elect to impose limits on certain features and services, or restrict Customer’s access to some or all of the PEX API, or charge a fee for certain features or services, upon reasonable prior notice where reasonably practicable.

2.6 Expenses and Fees

In consideration for the Services provided during the Term of this Agreement, Customer will pay PEX the fees in the amounts, at the times, and in the manner provided in the standard pricing plan selected by Customer, as set forth in the pricing schedule located at https://www.pexcard.com/spend-expense-pricing/ or https://www.pexcard.com/spend-expense-pricing/complete-pricing-details/, which may be updated by PEX from time to time, and/or as the same may be modified or supplemented in a Service Schedule or by mutual written agreement by PEX and Customer (collectively, the “Applicable Fees”).  The Applicable Fees are earned in full at the time Services are provided and are not subject to refunds or credits

3. Authorized and Prohibited Use; Data Security, Confidentiality, and Privacy Considerations

3.1 Authorized PEX Card Use

Each PEX Card is linked to a corresponding 16-digit card number.  PEX Cards can be used to complete point of sale (“POS”) and card not present purchase transactions through the following card networks: Visa, Mastercard, and STAR (each, a “Card Network”; and collectively, the “Card Networks”).  There is no cash access, including using ATMs, bank tellers, or merchants.

A copy of the relevant Cardholder Use Guide will accompany each PEX Card and is available on the Dashboard.  Terms governing use of the PEX Card will be included in the Cardholder Use Guide. Any fees imposed on the PEX Cardholder will be disclosed in the Cardholder Use Guide and are also disclosed in the applicable Service Schedule.

A PEX Card may be added to and removed from a supported digital wallet or other payment service managed or owned by a third party (each, a “digital wallet”), either by following the instructions of the digital wallet provider, or as may be posted by PEX to the Dashboard from time to time.  We may, in our sole discretion, establish eligibility criteria for whether a PEX Card may be added to a digital wallet, provided that all terms, conditions, use restrictions applicable to the PEX Card will continue to apply regardless of whether it is added to a digital wallet.  We reserve the right, in our sole discretion, to terminate our participation or support of any digital wallet at any time, and we make no representation or warranty that we will continue to support or enable participation with any digital wallet even if we may elect to do so now or in the future.  Customer acknowledges and agrees that we are not the provider of any digital wallet, and any and all restrictions, obligations, data disclosures, privacy, liability, and other applicable terms or conditions for the use of any digital wallet are strictly between Customer and the provider of the digital wallet.

3.2 Prohibited Use

For a complete list of PEX’s prohibited industries, activities or account use purposes (“Prohibited Activities”), please review PEX’s Prohibited Activities FAQs. If we know or believe you are engaging in Prohibited Activities or activity that does not comply with the restrictions in this Agreement may result in: (a) suspension of your ability to spend card funds or make charges; (b) canceling or suspending any relevant feature of your PEX Account; and/or (c) notifying merchants that your PEX Account has been canceled or suspended. If we do any of the aforementioned in response to your engaging in Prohibited Activities, you are still responsible to pay PEX for all fees under the terms of this Agreement.

If we know or believe you are engaging in Prohibited Activities or activity that does not comply with the restrictions in this Agreement, it may result in the termination of PEX Accounts, as determined in our sole discretion.

We may update the list of  Prohibited Activities and/or aforementioned restrictions in this section at any time without prior notice to you in order to comply with applicable laws, regulations, or Bank or Card Network policies. You agree to review these lists regularly and contact us with any questions you have about how these lists may apply to your business.

You understand and agree that PEX, Bank, Card Networks, or other intermediary third-party service providers (including merchant acquirers) may deny or reverse charges for any reason, including but not limited to the prohibited activities and restrictions described in this section. Such parties are not responsible for any losses, damages, or harm caused by any charges that are denied or reversed for any reason.

3.3 Data Use and Security

PEX will provide Customer with access to Customer’s account and transaction data and PEX Account controls. Customer agrees: (a) to comply with PEX security and privacy requirements as outlined in this Agreement, Service Schedules, and written PEX policies that have been provided to Customer by PEX from time to time, and (b) for uses otherwise approved by PEX in advance.  PEX may limit or remove Customer’s access to data and/or the Platform at any time without notice if in PEX’s discretion continuing to allow access poses a threat to the integrity or security of the Platform and/or if required to do so by the Bank and/or Network.

3.4 Confidentiality

The terms of this Agreement and any non-public information and/or materials provided by either party in connection with the performance of this Agreement are the confidential and proprietary information of the disclosing party.  The receiving party will maintain the non-public information in strict confidence and not disclose the same to any third party or use the same for any purpose other than the receiving party may disclose the information to an employee, consultant, or agent of such receiving party who is on a “need to know” basis necessary for the performance of the receiving party’s obligations under this Agreement (each, a “Recipient”), provided that (a) the receiving party will require each such Recipient to be subject to this Agreement or confidentiality obligations at least as stringent as the terms of this Agreement, and (b) the receiving party will remain primarily responsible for any breach of this Agreement by any such Recipient.  Such restrictions will not apply to information that is required to be disclosed by the receiving party to comply with applicable laws or governmental regulations, provided that the receiving party provides prior written notice of such disclosure to the disclosing party and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure and takes reasonable and lawful actions to obtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed information.  To the extent PEX must provide any confidential information to any third parties (excluding any governmental, regulatory or other such agencies), PEX will require such parties to agree to substantially similar restrictions set forth in this Agreement.

3.5 Data and Privacy

The importance of maintaining confidentiality and privacy of the non-public information provided by Customer, Administrator, and on behalf of Control Person, any Beneficial Owners, and cardholders, is one of the highest priorities for PEX. You acknowledge, understand, and agree that we will collect, process, and share Customer data and Personal Information to provide the Services, comply with our regulatory obligations, or as otherwise described in this Agreement and the Privacy Policy.

In addition to the terms and conditions of the Privacy Policy and the obligations of confidentiality otherwise specified in this Agreement, and the rights granted to PEX thereunder, Customer acknowledges and agrees that, to the extent necessary to perform the Services, PEX may disclose information about your account(s) to third parties for one or more of the following reasons: (a) when it is necessary for completing funds transfers; (b) in order to comply with laws, government agency rules or orders, court orders, subpoenas, or other legal process, or in order to provide information to any government agency or official with legal authority to request such information; (c) to protect and enforce PEX’s or the Bank’s rights; (d) to our partner banks for servicing the products; (e) to detect, prevent, or address issues relating to fraud, security breaches, site integrity, or other technical issues; (f) to investigate and defend ourselves against third-party claims or allegations; (g) to protect against liability or imminent harm to the rights, property, or safety of PEX or other parties as may be required or permitted by applicable laws or regulations; (h)  to PEX or Bank employees, auditors, service providers, attorneys, or collection agents in the course of performing their duties; and/or (i) to enforce any term in the Privacy Policy.

Customer understands and agrees that PEX may monitor and record any calls between you and us. Customer may opt-in to sharing their information with PEX partners who have an integration with PEX.

Credit Reporting

PEX does not report Customer payment history and performance to one or more credit reporting agencies.

3.6 Identity Theft

Identity theft is defined as fraud committed or attempted using the identifying information of another person without authority. PEX implements generally accepted industry procedures and internal controls to detect and deter identity theft to the extent reasonably possible.

PEX will monitor Customer’s PEX Account at account opening and on an ongoing basis for the presence of an event or incident that indicates the potential risk of identity theft. If PEX determines that Customer has been a victim of identity theft and/or that a PEX Account was opened due to identity theft, PEX may take action on your account which may include account restriction, account suspension and/or account closure. If PEX mistakenly concludes that identity theft has taken place, PEX may agree to reinstate Customer’s PEX Account, including reinstatement of any PEX Cards.

4. Cardholders

4.1 Cardholder Use

You understand and agree that all cardholder charges and transactions reflected on your PEX Account will be treated as business transactions made solely for business purposes.

For Prepaid Expense Program and Credit Expense Program Only:  The Customer’s and any PEX Cardholder’s use of any PEX Cards for personal, family, or household purposes may result in account closure.

4.2 Liability for Cardholder Use

You are responsible for selecting the individuals in your organization who are authorized to use PEX Cards, and you are responsible for all PEX Card transactions and activities. You are solely responsible for implementing any necessary policies and procedures required to properly authenticate Administrator Users for all purposes in connection with the provision of PEX Services. You agree to establish and maintain controls designed to ensure that the PEX Cards are only used by Authorized Users, for bona fide Customer business purposes and in compliance with this Agreement, PEX Card Program, Service Schedules, Cardholder Use Guide, and applicable state and federal laws. You are solely responsible for charges and transactions made by any person given access to a PEX Card, even if they are not the person associated with or named on the PEX Card. In the event of a dispute regarding who is authorized to act on behalf of the Customer or any Entity in connection with Customer’s PEX Account, you agree that PEX is not obligated to adjudicate any such dispute and may continue to honor instructions from any designated Administrator User or Authorized User, or suspend Customer’s PEX Account or limit use of the Services unless and until the dispute is resolved, in PEX’s sole discretion. Neither PEX nor the Bank have any obligation to refund you any funds as a result of such unauthorized spending.

4.3 Cardholder Use Guides

A copy of the Cardholder Use Guide for the Program Customer has applied and been approved for will accompany each PEX Card issued to every Cardholder and will be available on the Dashboard. Terms governing use of the PEX Card associated with the Program Customer has been approved for will be included in the Cardholder Use Guides.

For the Prepaid Expense Program, see the PEX Prepaid Card Use Guide.

For the Disburse Expense Program, see the PEX Disburse Card Use Guide.

For the Credit Expense Program, see the PEX Credit Expense Card Use Guide.

5. Using Your PEX Account

5.1 Authorized Users

Administrator Users

You must specify one Administrator User to manage your PEX Account when submitting your Customer Application Form. By submitting your Customer Application Form with a named Administrator User, you represent that such individual has the authority to conduct business and manage Customer’s PEX Account, including the authorization of debits from Linked Accounts. In the event that an individual designated as an Administrator User no longer has such requisite power and authority, Customer must notify us promptly and designate another Administrator User for the PEX Account.

Administrator Users may: (a) add, remove, or manage additional Administrators and Users; (b) authorize debits from current and new Linked External Accounts; (c) consent to any new or updated terms or conditions contained in this Agreement or other agreements, terms, Service-Specific Schedules, or policies incorporated in this Agreement; (d) take any actions specified in this Agreement or any Service-Specific Schedule; and (e) perform any other reasonable task to manage Customer’s PEX Account on Customer’s behalf. Customer may designate more than one employee as an Administrator User with full or partial individually specified PEX Account permission levels. No Administrator User, regardless of the extent of their authority, can authorize the use of Customer’s PEX Account, PEX Cards, or the Services by any unauthorized person.

Administrator Users must monitor Customer’s PEX Account activity and the periodic statements available to Customer at the end of each statement period and promptly report any suspicious activity or errors to PEX.

Other Authorized Users

Customer may select Authorized Users other than Administrators and limit their account and dashboard access and function, at Customer’s sole discretion. Authorized Users other than Administrators may perform a variety of more limited activities on the PEX Account, depending on the role assigned to each Authorized User.

All Authorized Users, including Administrator Users, may use Customer’s PEX Account, transact, and use the Services only for valid, lawful, bona fide business purposes on Customer’s behalf.

For Prepaid Expense Program and Credit Expense Program Only: Authorized Users may not use the Services for personal, family, or household purposes.

5.2 Rebates

Qualifying customers will receive a statement credit (“Rebate”) on all qualifying purchases at the end of each statement period. The applicable Rebate rate will be set forth in the pricing schedule located at https://www.pexcard.com/spend-expense-pricing/ or by mutual written agreement by PEX and Customer.  The Rebate for a calendar month will be posted to the Customer's Account within thirty (30) days after the end of the calendar month.

Purchases made outside of the US and non-Visa network transactions do not qualify when calculating a Rebate. The following transactions are not purchases and will not be eligible when calculating a Rebate: chargebacks and reversals, items returned for credit, disputed or unauthorized purchases, fraudulent transactions, any cash or cash-like transactions, fees and charges. PEX may determine that a transaction is excluded from eligibility for earning a Rebate in its sole discretion at any time. In addition to any other rights of recovery PEX may have, PEX will have the right to offset any Rebate amount paid for an ineligible transaction against future Rebate payments.

If Customer’s PEX Account is closed for any reason or is not in good standing with PEX, Customer will not earn a Rebate. If PEX sees evidence of fraud, misuse, abuse, or suspicious activity, as determined by us in our sole discretion, PEX reserves the right to take action. This may include, without limitation and without prior notice, any or all of the following: canceling any accrued but unpaid Rebate; reversing any prior Rebate credit made; taking legal action to recover any Rebate made in connection with such activity, including without limitation to recover its monetary losses, any litigation costs and fees, and damages.

PEX reserves the right to change the criteria or terminate the Rebate program, with or without written notice, at any time in its sole discretion, provided that any previously earned Rebate will be honored and paid, subject to the above terms.

 

5.3 PEX Communications with Customer

PEX provides notices and other communications to Customer via one or more of texts, emails, business or mobile phone, first-class mail, overnight courier, your PEX Account, or other available communication channels, using the contact information provided by you in the Customer Application Form or otherwise from time to time, to the Administrator Users and Authorized Users, as applicable, to provide status updates on any submitted Customer Application Form, your PEX Account, or other activity in connection with your PEX Account. You agree that we may use autodialing or automated voice messaging technology now or in the future. By providing such contact information to us, you consent to us using these communications methods,and acknowledge that we are not responsible or liable for any charges or costs incurred by you, Administrator Users, Control Person, or Authorized Users in connection with such communications.

You agree that PEX may monitor or record the interactions or activities of Administrator Users, Authorized Users, or persons given access to the Services or your PEX Account when using any of PEX websites or mobile applications or otherwise accessing the Services.  We may also monitor or record any communications when communicating with you for quality assurance or other reasonable business purposes.

Notices regarding payments, adverse actions, legal terms, and any other important notices related to your Customer’s PEX Account will be sent to the applicant Administrator User using one or more of the communication channels, and are considered received 24 hours after they are sent. You understand that you may not use the Services unless you consent to receive notices electronically. You may only withdraw consent to receive notices electronically by closing your PEX Account.

We may send text messages to Administrator Users, Control Person or Authorized Users, as applicable, including in connection with verifying authorized use of Credentials (such as in the case of multi-factor authentication challenges) to allow us to verify their identity.  The applicant Administrator Users, Control Person, or Authorized Users may elect not to receive texts or other messages, but this will limit the use of certain Services and may delay the ability of PEX to communicate with you and increase the financial risks to Customer that certain text other messages are designed to mitigate, including losses caused by compromised Credentials and/or fraud. 

Email us immediately at [email protected] if you are or believe you are having problems receiving notices.

5.4 PEX Property and Licenses

During the Term, PEX grants Customer a non-exclusive, non-assignable, non-transferable, limited license to access and use the Platform by Administrator Users and Authorized Users solely and exclusively for use in connection with the delivery of the Services under this Agreement, any Service Schedule, any other applicable agreements signed between you and PEX, and any other applicable documentation in the Territory.  This license does not grant to Customer or any other party any right to copy, modify, enhance or transfer the Platform or otherwise disclose confidential information about the Platform to any third party. To the extent that your affiliates access the PEX Platform, you will be responsible for your affiliates’ compliance with all obligations under this Agreement and will be directly liable to PEX for any acts or omissions of such affiliates and any fines or costs related to the violation of any terms and conditions. This license terminates upon termination of this Agreement unless terminated earlier by us.

PEX owns all PEX Property. The content, organization, graphics, design, compilation, magnetic translation, digital conversion (“Materials”) and other matters related to PEX’s website, the Platform, the Services, and PEX are protected under applicable copyrights, trademarks, and other intellectual property and proprietary rights, whether or not registered or applied for under applicable law.  The copying, redistribution, use, or publication by Customer of any part of PEX’s Materials, except as allowed by this Agreement, is strictly prohibited.  Customer acknowledges and agrees that it does not acquire any ownership rights to any content, documentation or other materials accessed through PEX’s website, the Platform, the Services, or PEX, and as between the parties to this Agreement, Customer acknowledges and agrees that PEX owns and will retain all of its right, title and interest in and to all intellectual property rights, content, marks and promotional or marketing materials and Customer will not make any claim to the contrary.

Title  to the design and ownership of the Platform including all code, data, documents and information embodied in the Platform is and will remain vested in PEX or PEX’s licensors.  PEX will own all rights, title, and interest, including all intellectual property rights, in and to any improvements to the Platform or the Services, or any new programs, upgrades, modifications or enhancements developed by or on behalf of PEX in connection with the Platform or the Services (collectively “Modifications”), even when such Modifications directly or indirectly result from or are related to Customer’s request.

5.5 Publicity

During the Term, PEX may reference Customer and its use of the Services in publicity, general marketing, and business development activities, including, but not limited to, inclusion on the PEX website, in logo walls, case studies, and other similar marketing materials to promote the Services, unless otherwise requested by Customer in writing.

5.6 Receipt Capture

PEX offers Customer an optional feature by which Administrator User(s) or PEX Cardholder(s) can upload receipt image files to the Platform using the Dashboard.  If Customer chooses to use the feature, PEX is not responsible for the content, completeness, or accuracy of receipts displayed.  Receipts can be viewed by the PEX Cardholder and all Administrator Users and Authorized Users.

Except as otherwise provided below, receipts will be stored upon the earlier of: (a) twenty five (25) months after the date of the PEX Card transaction displayed on the receipt; or (b) the date that the PEX Account is closed.  Notwithstanding anything to the contrary in the foregoing, PEX may delete or purge receipts for any reason in its sole discretion, with or without notice.  For example, PEX may remove receipts or otherwise delete information if it: (a) is found to contain viruses or other potentially damaging computer code; (b) contains illegal, copyrighted, or objectionable content; (c) contains content other than receipts; or (d) exceeds storage capacity established for the Service or for any specific account.  PEX may modify this feature for any reason at any time, in its sole discretion, with or without providing prior notice.  PEX strongly recommends that Customer regularly download receipts that are uploaded to the Platform and store them on Customer’s systems, as the receipt capture feature is provided as a convenience for Administrator Users and PEX Cardholders, and is not intended to be a storage repository for such Customer data.

Customer and its Administrator Users agree that PEX may collect information contained in or regarding their uploaded receipts, and that PEX’s use of this information will be governed by the terms and conditions set forth in the PEX Privacy Policy.

5.7 Lost or Stolen Card

Customer assumes full responsibility for monitoring use of PEX Cards and detecting any unauthorized or improper use, including but not limited to maintaining the accuracy of its records. Customer will be solely responsible for monitoring, reviewing, and balancing the daily and periodic reporting provided through the Dashboard.  If Customer believes an unauthorized transaction has been or potentially will be made from a PEX Card, you agree to alert us immediately in writing by emailing us at [email protected].

5.8 Account Holds, Suspensions, Terminations, and Other Actions We May Take

In the event that PEX or the Bank determines, in its sole discretion, that you, an Administrator User or Authorized User, have committed a material breach of terms or conditions of this Agreement, engaged in one or more Prohibited Activities, become insolvent or bankrupt, violated any applicable law or regulation, engaged in fraudulent activities, or have otherwise engaged in activities that created an undue risk of harm for us or others, we reserve the right to take appropriate action at any time, in our sole discretion and with or without notice to you. We will have the right, but not the obligation, to take one or more of the following steps, including without limitation, suspending the Services, terminating this Agreement or a Program, suspending access in whole or in part to one or more Administrator Users or Authorized Users, putting a hold on or otherwise restricting your PEX Account in connection with suspicious transactions or Prohibited Activities, debit your PEX Account or any Linked External Account for amounts owed if PEX determines it is insecure (even if not currently due), return or reverse transactions or take other action permitted by applicable rules governing payments in the event of suspected fraud or Prohibited Activities, contact third parties (e.g., merchants, financial institutions, law enforcement, regulators, and similar) regarding suspected fraud or Prohibited Activities, update your required information specified in this Agreement if it is inaccurate or outdated, or take action against you to enforce or preserve our rights under this Agreement or otherwise at law or in equity.   

In the event that you commit a material breach of the terms or conditions of this Agreement, or a Service Schedule, and fail to cure such material breach within thirty (30) days after you receives notice from PEX specifying the nature of the material breach and remedy sought, then PEX will give you written notice of its intention to terminate this Agreement, or the relevant Service Schedule, as applicable, at any time within thirty (30) days after the 30-day cure period has expired without cure.

We reserve the right to put a hold or restriction on funds in your PEX Account in connection with any outstanding obligations at the time we terminate this Agreement or close your PEX Account for any reason; a reserve for any reversals, chargebacks, claims, fees, fines, penalties, negative balance, and any other associated liability; and including a reasonable reserve for expenses or losses we may incur in connection therewith, whether incurred before, during, or after such termination.  In the event that there is a positive balance after the full and final resolution of all such pending matters, we will remit such funds to an account specified by you or grant you access to withdraw such funds.

We note that determinations made by PEX utilize a combination of proprietary methodologies which necessarily must remain confidential so as to preserve their effectiveness in preserving the integrity of the Services for all PEX customers, against “bad actors”, and similar.  In addition, PEX may be limited in its communications to you regarding actions that it is required or permitted to take under applicable laws or regulations, whether or not at the direction of law enforcement or other judicial, regulatory, or governmental authority.  As such, you acknowledge and agree that PEX will treat its security framework and risk management methodologies as highly confidential information of PEX.

The foregoing is expressly intended to be in furtherance of, and not in limitation, each of our other rights under this Agreement and under applicable laws or regulations.

5.9 PEX Card Closure - Continuing Obligations

Customer acknowledges and agrees that it will remain fully responsible and liable for all transactions that have been made prior to such time as the PEX Card has been confirmed to have been closed by PEX, even after such PEX Card has been closed. Customer will be solely responsible for notifying the relevant PEX Cardholder of such closure and taking all other necessary actions in connection with such closure, including without limitation the return and destruction of the associated PEX Card.  For clarity, we reserve all rights that have accrued prior to closure, for PEX, the Bank, and any other applicable third party, under applicable law, regulation, or third-party requirement in connection with any closed PEX Card.

 

5.10 Complaints

PEX takes Customer complaints very seriously and will respond to each complaint promptly. All written complaints will be directed to the Head of Compliance.

All Customer complaints will be documented, investigated, and resolved, and PEX will communicate all complaint resolutions to Customer in a timely manner. Customer may submit complaints through multiple channels including directly to PEX via phone, email, letter, or in-person. PEX will strive to complete an investigation and determine resolution within thirty (30) days of receiving a complaint.

5.11 Service Term and Termination

This Agreement is effective when you accept its terms when applying for a PEX Account and continues until terminated by either you or us, in accordance with the Service Schedule or as set forth in this Agreement.

You may ask us to terminate this Agreement by ceasing to use the Services and providing notice to us at (833) 225-2706 or [email protected].

The termination, non-renewal, or expiration of any single Service Schedule issued under this Agreement will not have the effect of terminating this Agreement or any other Service Schedule applicable to Customer’s relationship with PEX.  In the event that this Agreement expires, is terminated, is not renewed, or expires pursuant to its terms, and any Service Schedule(s) issued under this Agreement are intended to continue after the effective date of such termination or expiration of this Agreement, then each such Service Schedule will be deemed to incorporate the terms of this Agreement for the duration of the applicable Service Schedule term, without the requirement of any further notice or action by either party.

Termination of this Agreement will not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve Customer of its obligation to pay all fees that have accrued, have been paid, or have become payable by Customer prior to the effective date of termination, or which are assessed or arise after such termination, including without limitation any costs incurred by PEX in connection with the full and final resolution of any such outstanding amounts.

If your PEX Account is canceled due to termination of this Agreement, you must destroy your PEX Cards to ensure that you do not incur any further obligations.

If you decide to close your PEX Account and later reapply or ask us to reopen your PEX Account, or you attempt to use any of the Services, you are consenting to the Agreement in effect at that time. If your account is closed by PEX because you have violated the terms of this Agreement, engaged in any Prohibited Activities, commit a material breach of terms or conditions described in this Agreement, becomes insolvent or bankrupt, violated applicable law or rules, engaged in fraudulent or unfair activities, have otherwise engaged in activities that violate our or others’ rights, or created an undue risk of harm for us or others, and you reapply for a new PEX Account, your new application may be denied for the reason your prior PEX Account was closed.

6. General Provisions

6.1 Limitations of Liability

General

Our liability is only to you, PEX’s Customer, in connection with your PEX Account and your use of the Services. In states which do not allow the exclusion or limitation, PEX’s and the Bank’s aggregate liability each are limited to the maximum extent permitted by applicable law. Each of the parties agree that these limitations of liability are agreed allocations of risk and are reflected in the fees agreed upon by the parties. Our maximum aggregate liability to you under this Agreement, any Service Schedule, terms, policies, or any future agreements entered into by PEX and you, incorporated by reference in this Agreement, will in no event exceed the total fees actually paid by the Customer during the six (6) months immediately preceding the date of notice of any claim for damages or $50,000, whichever is less. These limitations apply regardless of the legal theory on which your claim is based, unless prohibited by applicable law or rules.

Neither PEX nor any current or future PEX parents, subsidiaries, or affiliates, or any of their respective directors, officers, employees, agents, contractors, or representatives, is liable to you for consequential, indirect, special, exemplary, or punitive damages, or lost profits or revenue, reputational harm, or property damage arising from or related to the performance of the Services by PEX, your use of or inability to use the Services, or otherwise under this Agreement, whether or not we were advised of the their possibility of such loss by you or third parties, unless such limitation is expressly prohibited by applicable law or regulations.

To the extent it is determined that applicable law or regulations prohibit or restrict any of the limitations of liability set forth in this Agreement, this Agreement is intended to be interpreted to limit the liability of PEX to the greatest extent permitted.

Liability for Transactions

If PEX does not complete a transfer from Customer’s PEX Account to PEX Card(s) or cancel a transfer as properly requested on time or in the correct amount according to PEX’s agreement with Customer, PEX will be liable for actual Customer losses or damages arising from such failure to transfer or to cancel a transfer, subject to the limitations described below. Notwithstanding the foregoing, PEX’s sole responsibility for an error in a transfer will be to correct the error.

There are some exceptions for PEX’s or Bank’s liability for processing transactions on Customer account(s), and Customer acknowledges and agrees that PEX will not be liable in the event that:

1. If, through no fault of PEX or the Bank, Customer and PEX Cardholders do not have enough money in the PEX Account to make the requested transfer/payment;
2. The system or merchant POS terminal was not working properly and Customer and/or PEX Cardholders were aware of the problem when they commenced the transaction;
3. The relevant Card Network or other partners’ services are experiencing outages;
4. If there is a hold or Customer funds are subject to legal or administrative process or other encumbrance restricting their use;
5. The information supplied by Customer or Control Person is incorrect, incomplete, ambiguous, or no longer valid;
6. PEX or the Bank has reason to believe the transaction may not be authorized by Customer;
7. The transaction cannot be completed because the physical card associated with a PEX Card is damaged;
8. If circumstances beyond control such as interruption of telephone service or telecommunication facilities, act of war, act of terrorism, natural disaster (such as fire or flood) or other similar event prevent the transfer, despite reasonable precautions that have been taken (further discussed in Section 6.13);
9. In the presence of internet service outages or denial-of-service attacks on servers or systems supporting PEX or Bank service communications with the internet;
10. If Customer or Administrator User have not properly followed our instructions for using the Services;
11. For any failure to provide access or for interruptions in access to the Services due to a system failure or due to unforeseen acts or circumstances or due to acts of God (further discussed in Section 6.13);
12. For any errors or failures from any malfunction of Access Device or any virus or other problems related to the Access Device and its related equipment used to access the Services; or
13. For any error, damages or other loss Customer may suffer due to malfunction or misapplication of any Access Device Customer uses, including its browser, ISP, personal financial management or other software, or any other equipment Customer may use (including its telecommunications facilities, computer hardware and modem) to access or communicate with the Services.

In no event will PEX be liable to Customer for losses or damages arising out of the use, misuse, or inability to use the Services, or for any loss of any data, even if PEX has been informed of the possibility of such damages. PEX does not warrant that Services will operate without errors, or that any or all of the Services will be available and operational at all times.

6.2 Warranties and Representations

EACH PARTY TO THIS AGREEMENT WARRANTS AND REPRESENTS TO THE OTHER THAT: (A) IT HAS THE FULL POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND THE RIGHTS GRANTED HEREIN;  (B) THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT BY SUCH PARTY WILL NOT VIOLATE OR CONFLICT WITH THE PROVISIONS OF THE CHARTER DOCUMENTS OR BY-LAWS OF SUCH PARTY OR ANY AGREEMENT WITH ANY THIRD PARTY WHICH WOULD PREVENT SUCH PARTY FROM ENTERING INTO THIS AGREEMENT; AND (C) THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT BY SUCH PARTY WILL NOT CAUSE SUCH PARTY TO BE IN BREACH OR DEFAULT UNDER ANY AGREEMENT WITH ANY THIRD PARTY.  EACH PARTY WILL COMPLY IN ALL MATERIAL RESPECTS WITH ALL APPLICABLE FEDERAL, STATE AND LOCAL LAWS AND REGULATIONS IN THE PERFORMANCE OF THEIR RESPECTIVE OBLIGATIONS UNDER THIS AGREEMENT AND WILL NOT BE IN BREACH OF ANY THIRD PARTY RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS.

THE SERVICES ARE PROVIDED AS IS, WHERE IS AND AS AVAILABLE. PEX AND THE BANK DISCLAIM ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES OF NON-INFRINGEMENT, AND NOTHING IN THIS AGREEMENT IS INTENDED TO OR WILL BE INTERPRETED TO CREATE OR IMPLY ANY SUCH WARRANTY.  PEX DOES NOT GUARANTEE THAT THE SERVICES ARE ERROR-FREE OR WILL BE UNINTERRUPTED, SECURE, OR FREE FROM THIRD PARTY “BAD ACTOR” ACTIVITY. 

PEX AND THE BANK EXPRESSLY DISCLAIM ALL WARRANTIES THAT ARE NOT OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT.  AND DO NOT GUARANTEE THAT (A) THE SERVICES ARE ACCURATE OR ERROR-FREE; (B) THE SERVICES WILL MEET YOUR SPECIFIC NEEDS OR REQUIREMENTS; (C) THE SERVICES WILL BE USABLE BY CUSTOMER, ADMINISTRATORS, OR AUTHORIZED USERS AT ANY PARTICULAR TIME OR LOCATION; (D) SPECIFIC MERCHANTS WILL PERMIT PURCHASES USING CARDS; AND (E) SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE FROM HACKING, VIRUSES, OR MALICIOUS CODE.

PEX IS NOT LIABLE FOR AND DISCLAIMS LIABILITY FOR ANY DAMAGES, HARM OR LOSSES TO YOU, ANY USER, OR ANY ENTITY ARISING FROM UNAUTHORIZED ACCESS OR USE OF YOUR PEX ACCOUNT OR THE SERVICES.

THIRD-PARTY SERVICES, WHETHER PROVIDED BY CUSTOMER’S INTEGRATED THIRD-PARTY SERVICE PROVIDER OR ANY OTHER THIRD PARTY ENGAGED DIRECTLY BY CUSTOMER, ARE NOT PROVIDED OR CONTROLLED BY PEX. PEX DOES NOT PROVIDE SUPPORT FOR AND EXPRESSLY DISCLAIMS ALL LIABILITY ARISING FROM FAILURES OR LOSSES CAUSED BY ANY THIRD-PARTY SERVICES.

6.3 Indemnification

You agree to indemnify, defend, and hold harmless PEX, the Bank, and Third-Party Service Providers (including our respective affiliates, subsidiaries, directors, officers, employees, agents, and representatives), from and against any and all losses, liabilities, claims, demands, or expenses, including reasonable attorney’s fees and costs, arising out of or otherwise related to any third party claim alleging or involving: (1) acts or omissions or failure to act of any Administrator Users, Authorized Users, or other Customer employees or agents or representatives; (2) Customer’s violation of applicable laws or regulations; (3) Customer’s failure to provide true and accurate information on your Customer Application Form or to update such information as required in this Agreement; and/or (4) Customer’s gross negligence, willful misconduct, or intentional breach.

PEX (the “Indemnitee”) must notify the Customer (the “Indemnitor”) in writing, with reasonable promptness, of any Claim.  However, failure to satisfy this condition precedent relieves the Indemnitor of its obligations to indemnify for a Claim only to the extent that the Indemnitor has been actually prejudiced by the Indemnitee’s failure to give notice as required.  The Indemnitee will reasonably cooperate with the Indemnitor, at the Indemnitor’s expense, in the Indemnitor’s defense or settlement of any Claim.  The Indemnitee may participate in the defense of any claim at its expense and through counsel of its own choosing.  Any entry of any judgment or administrative order or entry into any settlement by the Indemnitor will require the prior written consent of the Indemnitee, such consent not to be unreasonably withheld or delayed. However, the Indemnitor may affect a settlement of an action without the Indemnitee’s consent if the following conditions are met: (A) there is no admission of guilt or liability by the Indemnitee; (B) the sole relief provided is monetary damages that are paid in full by the Indemnitor; (C) the settlement and all discussions surrounding the settlement are kept confidential in accordance with a written confidentiality agreement and no press releases or other public statements are made about the settlement without the prior written consent of the Indemnitee; and (D) the Indemnitee is made aware of the proposed settlement as reasonably early as practicable, and the proposed settlement includes the claimant’s or the plaintiff’s unconditional written release of the Indemnitee from all liability in respect of the Claim.

6.4 Governing Law and Venue

This Agreement will be construed, applied, and governed by the laws of the State of New York, without regard to choice or conflict of law principles, and by the laws of the United States.  Customer agrees and consents to the exclusive jurisdiction of the state and federal courts located in the Borough of Manhattan in New York City, New York in connection with any action or proceeding.

6.5 Binding Arbitration

Any claim, controversy, or dispute arising under or related to this Agreement (each, a “Dispute”) will be governed by and construed in accordance with the laws of the State of New York, without giving effect to the choice or conflict of law principles thereof.  Either you or we may commence arbitration of any Dispute by providing a written demand for arbitration to the American Arbitration Association (“AAA”) and the other party detailing the nature of the Dispute and the relief requested, and you agree that any and all Disputes will be resolved exclusively by final and binding arbitration, and not in a court.  Any controversy or claim arising out of or in any way connected with this Agreement or the alleged breach of this Agreement by a party will be resolved by one (1) arbitrator who is reasonably experienced in the subject matter of the dispute, in accordance with the Expedited Commercial Arbitration Rules of the American Arbitration Association then in effect in New York, NY, and the arbitration will be held in New York, NY. Judgment upon the award rendered by the arbitrator may be entered and enforced in any state or federal court of competent jurisdiction. Costs of arbitration will be shared equally by both parties.

The arbitrator will take steps to cause all parties and witnesses in the arbitration proceedings to protect confidential information, including without limitation with respect to the existence of the arbitration proceedings, the nature and details of the Dispute, documents and materials produced by either party, testimony of any witnesses, and the decision and any award of the arbitrator, and all of the foregoing will be strictly confidential for the benefit of the parties. Customer and PEX, and each of their respective witnesses and advisors, will share information on a “need to know” basis as may be necessary to prepare for or participate in the arbitration proceedings, or any subsequent legal proceedings to enforce the decision of the arbitrator, unless disclosure is required by applicable law or regulations.

Any Dispute will be arbitrated on an individual basis, and you expressly agree that you are waiving the right to a trial by jury or to participate in a class action.  For clarity, there will be no right or authority for any Dispute to be arbitrated on a class action basis or in a purported representative capacity on behalf of the general public or other persons or entities similarly situated.  The arbitrator's authority to resolve Disputes and to make awards is limited to any Dispute between the parties to this Agreement alone and is subject to the Limitations of Liability set forth in this Agreement.  Furthermore, any Dispute brought by either party against the other may not be joined or consolidated in arbitration with any other dispute brought by or against any third-party, unless agreed to in writing by all parties.  No arbitration award or decision on any Dispute shall be given preclusive effect as to issues or claims in any dispute with anyone who is not a party to the arbitration.

Each party will bear the expense of its own attorneys’ fees and its out-of-pocket costs incurred in connection with the arbitration, provided that the parties will be responsible for paying their respective shares of the arbitration fees (including filing, administrative, hearing and/or other fees) as provided by AAA rules.

Future Amendments to this Binding Arbitration Section. Notwithstanding any provision in this Agreement to the contrary, you and we agree that if we make any amendment to this Binding Arbitration section (other than an amendment to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by this Binding Arbitration section that have arisen or may arise between you and us. We will notify you of amendments to this Binding Arbitration section by posting the amended terms on www.pexcard.com/legal/services-agreement at least 30 days before the effective date of the amendments and by providing notice through email to one or more designated administrators of your PEX Account. If you do not agree to these amended terms, you may close your PEX Account within the 30-day period and you will not be bound by the amended terms.

6.6 Compliance with Court Orders and Other Legal Process or Requests and Applicable Law

If we are notified of or become aware of a court order or other legal process or request (e.g., subpoenas, garnishments, levies, warrants) or if we otherwise believe we are required to do so in order to comply with applicable law or regulatory requirements, we may take certain actions, including without limitation providing information in our possession, custody, or control; holding payments to/from your PEX Account or holding or otherwise restricting funds in your PEX Account; or suspending, terminating, closing, or limiting access to your PEX Account. We are not responsible to you for any losses or consequences you sustain due to actions we may take to comply with a legal order, legal process or request, or applicable law.  We may, but are not required to, provide you with notice of any court order, legal process or requests, or actions we may take in conjunction with them.

6.7 Changes to this Agreement and Service Terms

We reserve the right to amend this Agreement and any term(s) in any Service-Specific Schedule, including by deleting, modifying, or adding provisions, at any time by posting the amended version of this Agreement or Service-Specific Schedules to the PEX website. The amended version will be effective at the time we post it, unless otherwise noted in this Agreement and/or at the time of such amendment. If any amendments materially reduce your rights or increase your responsibilities, we will provide you with at least 30 days’ advance email notice of the amended Agreement or Service-Specific Terms before the amended agreement/terms becomes effective as to you. Your continued use of or access to your PEX Account or any Services, through the actions of any Administrator or Authorized User, after any amended Agreement or Service-Specific Terms becomes effective as to you, constitutes acceptance of the amended agreement/terms. If you do not agree with any amended Agreement or Service-Specific Schedule terms, you may close your PEX Account in a manner consistent with this Agreement.

You are responsible for notifying all Authorized Users of any applicable updates to the Agreement, any Service-Specific Terms, and all terms, additional agreements, and policies incorporated by reference, and for ensuring Users comply with such updates. We may or may not provide notice of updates directly to Users.

Outside of amendments made consistent with the terms of this Agreement and any Service-Specific Schedules, the only other way this Agreement or Service-Specific Schedules may be amended or otherwise modified is through an agreement in writing that is duly signed by an authorized representative of PEX and an authorized representative of Customer.

Any waiver, modification, or indulgence that we provide to Customer, of any kind or at any time, applies only to the specific instance involved and will not act as a general waiver or a waiver, modification, or indulgence under this Agreement or Service-Specific Schedules for any other or future acts, events, or conditions. Further, any delay by PEX in enforcing our rights under this Agreement or Service-Specific Schedule does not constitute forfeiture or waiver of such rights.

6.8 Assigning the Agreement

You may not transfer or assign (by operation of law or otherwise) this Agreement, in whole or in part, without PEX’s prior express written consent, and any approved assignee must enter into a written agreement with PEX assuming all of the rights and obligations of Customer under the Agreement, and agreeing to be bound by its terms; and any such assignment will be expressly subject to such assignee submitting all information to PEX required to complete all legal and regulatory compliance prior to the effectiveness of such assignment. PEX and the Bank may assign, pledge, or otherwise transfer this Agreement or any of its rights and powers under this Agreement without restriction and without providing notice to you. Any such assignee or successor will have all rights as though originally named in this Agreement instead of PEX.

6.9 Assigning Claims

If you dispute a charge with a merchant, we may credit your PEX Account for all or part of the disputed charge. If we do so, you assign and transfer to us all rights and claims (excluding tort claims) against the merchant. You agree that you will not pursue any claim against the merchant for the credited amount. You must cooperate with us if we decide to do so.

6.10 Entire Agreement

This Agreement, any Service Schedules that may apply to you, and any terms, agreements, or policies that are referenced and hereby are made a part of this Agreement as if fully incorporated herein, constitute the entire understanding of the parties with respect to the subject matter described, supersede all other prior agreements or understandings, whether written or verbal, and are binding upon each of the parties and their respective successors and permitted assigns. Any amendment or modification to the terms of this Agreement or any Service Schedule or other incorporated terms, agreements, or policies must be made in writing and signed by an authorized representative of each of Customer and PEX.

6.11 Agreement Content

From time to time, we may provide information to you on our website or other communication strictly for information or marketing purposes only, and such information does not and is not intended to modify or amend this Agreement, any Service Schedule, or any other terms, agreements, or policies that are incorporated by reference in this Agreement.

6.12 Compliance with Law

Each party agrees that it will perform its obligations in this Agreement in accordance with all applicable international, federal, state, and local laws, rules, and regulations now or in effect at a future time. 

6.13 Force Majeure

Neither party will be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement  as a result of any causes or conditions which are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence, including without limitation any act of God, natural disaster, strikes, riot, general unavailability of the internet, acts of terrorism, war, civil commotion, insurrection, epidemic, pandemic, shortages or rationing of necessary goods or services, government action, or other similar events; provided, however, that the party so affected will resume its performance when such event has terminated or otherwise been resolved.

6.14 Severability

Unless provided otherwise in this Agreement, if any provision of this Agreement is held by a court or arbitrator to be invalid or unenforceable, such provision shall be deemed to be modified in order to reflect the original intentions of the parties as closely as possible to comply with applicable law or regulations, and the remaining provisions of this Agreement will continue in full force and effect.

6.15 Conflict between Agreement and Service Schedules

In the event of a conflict between this Agreement and any terms in any Service Schedule, the Service Schedule(s)  will govern. Service Schedules are provided separately from this Agreement.

 

7. Defined Terms

Capitalized terms in this Agreement are defined as follows:The following terms will have the meanings ascribed to them in the Master Services Agreement, the applicable Service Schedule, Exhibit to the Master Services Agreement, or below, as the case may be.

1. “AAA” means the American Arbitration Association, a not-for-profit organization focused in the field of alternative dispute resolution.
2. “Access Device” has the meaning assigned in Section 9(a) (Access Device Requirements) of the General Terms and Conditions for Service Schedules.
3. “Access ID” has the meaning assigned in Section 9(b) (Platform Access) of the General Terms and Conditions for Service Schedules.
4. “ACH Transfer” means an automated clearing house electronic funds transfer from or to Customer’s External Account to Customer’s PEX Account.
5.   “Administrator User” means an individual(s) with the requisite power and authority to conduct business and manage Customer’s PEX Account, including Entity access and use of that Account, and act on behalf of Customer, including consenting or binding the Customer to this Agreement and binding Customer or Entity to any Service Schedules.
6. “Affiliate” means, with respect to a party, any person, firm, corporation, partnership, limited liability partnership, limited liability Customer, or other entity that now or in the future, directly controls, is controlled with or by or is under common control with a party.  For purposes of the foregoing, “control” will mean: (i) where applicable, ownership directly of fifty percent (50%) or more of the voting power to elect directors thereof; and/or (ii) the power to direct the management of such entity.
7. “Agreement” means this Master Services Agreement, together with the relevant Service Schedules and Exhibits attached thereto and incorporated by reference therein.
8. “Applicable Fees” has the meaning assigned in Section 3 (Compensation; Expenses and Fees) of the Agreement.
9. “Authorized User” means a person who may use the card, but is not responsible for the repayment of the PEX Account.
10. “Bank” means the partner bank that issues the PEX Account and associated PEX Card.
11. “Beneficial Owner” means each person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, owns 25% or more of the equity interests (or shares) of the Customer.
12. “Card Network” and “Card Networks” have the meanings assigned in Section 3 (PEX Card Use and Prohibited Use) of the General Terms and Conditions for Service Schedules.
13. “Card Spend Limit” means any spending limit set on an individual card. The PEX Cardholder will be prevented from making purchases in excess of this limit during a given Statement Period. The business administrator of the PEX program is responsible for setting the Card Spend Limit. PEX reserves the right to modify the Card Spend Limit for any reason, including suspected fraud.
14. “Cardholder Use Guide” means the document that contains instructions and other important information relating to the use of the Card provided to the PEX Cardholder in the Card package and on the Dashboard.
15. “Claims” has the meaning assigned in Section 12 (Indemnification) of the Agreement.
16. “Control Person” means a person authorized by Customer to exercise the legal power and authority to bind Customer.
17. “Credit Applicant” means a person (individual or entity) that requests credit from PEX, including any person that may become contractually liable for credit provided by PEX.
18.   “Credit Expense Account” means the account through which PEX tracks and reports (a) charges made against the Credit Line using Credit Expense Card(s), and (b) payments made from the Linked External Account, from time to time.
19. “Credit Expense Card” means a PEX Card issued in connection with the Credit Expense Program.
20. “Credit Expense Program” means the Services described on the Service Schedule – Credit Expense Program, if applicable.
21. “Credit Line” or “Credit Limit” means the amount of credit offered to a Customer during a Statement Period. The aggregate spend of all PEX Cardholders in a Customer’s Credit Expense Program cannot exceed this limit. The available credit can be increased by paying off balances owed over the course of, or at the end of, the Statement Period.
22. “Customer Application Form” means the PEX-approved application form (start.pexcard.com) required to be submitted by Customer to PEX in order to apply to receive Services under the Agreement.
23. “Customer” has the meaning assigned in the introductory paragraph of the Agreement.
24. “Dashboard” means the proprietary PEX application on a Customer’s, Administrator User’s, or PEX Cardholder’s computer or mobile device that is used to access the Services.
25. “Digital wallet” has the meaning assigned in Section 3 (PEX Card Use and Prohibited Use) of the General Terms and Conditions for Service Schedules.
26.  “Disburse Card” means a PEX Card issued to a Participant in connection with the Disburse Program.
27. “Dispute” means any error, controversy, disagreement, or discrepancy between PEX and a Customer in relation to a transaction, or a product or service offered by PEX.
28. “Dollars” or “$” means the currency of the United States of America, unless otherwise expressly stated in the Agreement.
29. “Effective Date” has the meaning assigned in the introductory paragraph of the Agreement.
30. “Excluded Claims” has the meaning assigned in Section 11 (Limitation of Liability) of the Agreement.
31. “External Account” means a U.S. bank account owned by Customer, which must be a business account and cannot be a consumer account. Customer authorizes us to verify that the account details Customer provides for its External Account are correct and that the External Account belongs to the Customer.
32. “Indemnitee” has the meaning assigned in Section 12 (Indemnification) of the Agreement.
33. “Indemnitor” has the meaning assigned in Section 12 (Indemnification) of the Agreement.
34. “Initial Term” has the meaning assigned in Section 4 (Term; Termination) of the Agreement.
35. “IVR” has the meaning assigned in Section 11 (PEX Customer Service) of the General Terms and Conditions for Service Schedules.
36. “Linked External Account” means an External Account that is linked to the PEX Account.
37. “Losses” has the meaning assigned in Section 2(a) (Notice of Changes) of the General Terms and Conditions for Service Schedules.
38. “Materials” has the meaning assigned in Section 6 (Copyright and Trademarks) of the Agreement.
39. “Modifications” has the meaning assigned in Section 5 (Platform Access) of the Agreement.
40. “Participant” means the recipient of a PEX Card issued by a Customer pursuant to the Disburse Program.
41. “Periodic Statement” means the record of recent transactions, activity, and applicable fees and charges for the relevant Statement Period.
42. “Personal Information” is information collected by PEX that can be used to identify an individual, which is more fully described in the Privacy Policy.
43. “Personally Identifiable Information” that PEX may collect includes, but is not limited to: Name, Address, Date of Birth, Phone Number, Email Address, Social Security Number, and Government ID.
44. “PEX Account” means one or more principal funding account(s) that serve as holding accounts for PEX Customers to store funds on deposit with the Bank.
45. “PEX API” means the application programming interface used to access the Services.
46. “PEX Card” means the applicable card product, including, whether in plastic or other electronic or digital payment mechanisms, electronic promises, numbers, cards or other payment codes or devices to be used in connection with the Services.
47. “PEX Card Data” has the meaning assigned in Section 5 (PEX Card Security) of the General Terms and Conditions for Service Schedules.
48. “PEX Cardholder” means an individual to whom a PEX Card has been assigned and who may have access to the Dashboard.
49. “PEX” has the meaning assigned in the introductory paragraph of the Agreement.
50. “Platform” means the proprietary software platform, web interface, mobile interface, and related documentation, and the relevant functionality for each specific application, as applicable, specified in a Service Schedule and included in the Services.
51. “Prepaid Disburse Program” means the Special Terms for Services described on the Service Schedule – Prepaid Disburse Program, if applicable.
52.   “Prepaid Expense Program” means the Special Terms for Services described in the Service Schedule – Prepaid Expense Program, if applicable.
53. “Program” means (a) for the Prepaid Disburse Program, a loyalty, award, or promotional program sponsored by Customer where individuals are awarded a PEX Card and where no money or other thing of value is given by the individual in exchange for the PEX Card; or (b) for the Prepaid Expense or Credit Expense Programs, both of which are bona fide corporate-funded expense management programs.
54. “Recipient” has the meaning assigned in Section 10 (Confidentiality) of the Agreement.
55. “Service Schedule” has the meaning assigned in Section 1 (Services) of the Agreement.
56. “Services” means all or the relevant portion of the services to be provided by PEX or its Affiliates to Customer pursuant to the Agreement, including as provided in each of the individual Service Schedules incorporated therein.
57. “Statement Period” means the period of time during which program transactions are recorded onto a given Periodic Statement provided to the Customer by PEX. For PEX Prepaid programs, the Statement Period is monthly. For PEX Credit Expense programs, the Statement Period length will be specified at the time of the Credit Expense Program Customer Application approval. The Credit Expense Program statement will reflect the invoice for funds owed to PEX, and the payment for this balance, and late fees (if applicable).
58. “Term” has the meaning assigned in Section 4 (Term; Termination) of the Agreement.
59. “Territory” means the United States, and any additional territories to be agreed to by the parties in writing from time to time.