Last modified: 6 July 2015 (view archived versions)
This Services Agreement is effective as of July 6, 2015 and replaces any previous versions of the Services Agreement for the PEX Account.
In consideration for Prepaid Expense Card Solutions, Inc. d/b/a PEX ("PEX") providing the Services (as defined below) for the business entity listed in the accompanying Customer Enrollment form ("Customer") during the Term (as hereinafter defined in the Term and Termination section below) of this Agreement, upon the acceptance of the Customer Enrollment form by PEX in its sole discretion, Customer and any authorized representative or person of Customer with the legal power and authority to bind Customer ("Representative") agrees to the terms and conditions set forth in this Services Agreement, as amended from time to time ("Agreement").
This Agreement applies to the use of all Services including the Customer's PEX Account and PEX Accounts (as hereinafter defined in Types of Accounts section below) whether by Customer or any Representative. By using PEX's Services or permitting authorized Customer agents or Representatives to access and use the Services on Customer's behalf, each such authorized user agrees to be bound by the terms and conditions stated in this Agreement as if an original party hereto, provided that Customer shall remain primarily responsible for any and all actions taken by such user.
PEX offers its customers a suite of online services and programs that allow the Customer to issue and administer PEX Visa® Prepaid Cards (each, a "Card") to designated Customer agents for the purpose of allowing such agents to spend prefunded amounts of Customer corporate funds for business-related purchases and expenses (collectively, the "Services"). The PEX Services include several types of accounts used to facilitate the Services. User accounts are assigned to perform certain tasks associated with administering the Services. Financial accounts are assigned which are used to store funds and facilitate corporate purchasing. Such accounts are described in more detail below.
For the avoidance of doubt, the PEX Services, including the Card, shall not be used by Customer or any Customer agents to pay employment or labor wages, consultant or advisory fees or commissions to any types of persons including companies and natural persons. In addition, the PEX Services is not a gift card service or any other type of consumer prepaid card solution where personally-owned funds are or may be stored.
TYPES of ACCOUNTS. The User and Financial accounts that are supplied as part of PEX Services and used to enable PEX Services are defined below:
Principal User Account. A principal user account is created for the representative of the Customer whose personal information is submitted in the "Information About You" section of the enrollment form. The Principal User has full and complete access to the PEX Administrative System, including the ability to initiate bank transfers, issue cards to assigned PEX Account users, add funds to PEX accounts, generate reports detailing program activity and create Administrative User Accounts (including Administrative User accounts with the same full and complete access as the Principal Account).
Administrator User Account. An administrator user account shall be created by the Principal User or by an Administrator User, if such Administrator User has been assigned authority by a Principal User to do so. Administrator User access to PEX Services and system features can be controlled by use of access controls established when the Administrator User account is created or it can be modified after such account has been established. Administrative User Account authorities are set at the complete discretion of the Customer and PEX will allow the Administrative User to use any or all services such User is authorized to access including transferring funds and creating cards.
PEX Account. Each Customer shall be assigned a PEX Account whose function will be to serve as a holding account for the Customer to store funds on deposit with PEX prior to assigning these funds to PEX Accounts. A minimum PEX Account balance of $50 must be maintained by the Customer at all times during the Term. PEX maintains a separate PEX Account for each Customer.
PEX Card Account. Customer Principal or Administrator User shall create PEX Accounts by issuing PEX Visa Prepaid Cards to designated Customer agents via interface(s) provided by the PEX System. PEX Account holders are authorized to spend corporate funds based on amounts loaded to such accounts and spending controls applied to such accounts. Funds allocated to PEX Accounts originate from the Customer's PEX Account and funds reversed from PEX Accounts will be placed in the Customer's PEX Account.
PEX Cardholder User Account. A cardholder user account can be created by a PEX Account holder by accessing the PEX System via interface(s) provided by PEX. The PEX Cardholder User Account allows for access to the PEX website and the PEX mobile application. The PEX Cardholder User can review their PEX Account balance and transaction information, as well as spend rule details assigned to it by Customer's Administrator User.
ESTABLISHING THE ACCOUNTS AND SERVICES
In order for the Services and accounts to be established and access to site functionality provided, the Customer must complete, and PEX, in its sole discretion, must accept and validate the details of, the Customer Enrollment form.
Once the Customer Enrollment form is validated and accepted, the Customer will advance to the next stage of registration and be asked to: (a) establish an initial program balance in the PEX Account via electronic funds transfer and (b) create PEX Accounts to initiate card issuance and determine delivery method (standard USPS vs Expedited shipping).
IMPORTANT INFORMATION FOR OPENING AN ACCOUNT AND ESTABLISHING THE SERVICES
To help the government fight the funding of terrorism and money laundering activities, the USA PATRIOT Act, a Federal law, requires all financial institutions to obtain, verify, and record information that identifies each business that opens an account and the personal information of its owners and/or Representatives. When applying for a PEX Account, PEX will ask for information about the Customer and personally identifiable information about the business owner and/or Representatives, such as: name, address, date of birth, Social Security Number, and other information (the "Personally Identifiable Information") that will allow PEX to confirm identity. PEX may also ask for details about the business owner's or Representative's' driver's license numbers or other identifying information. Except with respect to the use by PEX of such information in connection with establishing a PEX Account and providing the Services pursuant to this Agreement, such information shall be treated as the confidential information of Customer and PEX shall maintain the confidentiality and privacy of the Personally Identifiably Information in compliance with all applicable federal and state privacy laws and regulations.
Customer also acknowledges that PEX Accounts may only be created for individuals that Customer has validated the identity of using commercially acceptable screening methods such as employment screening and background checks and from whom Customer has acceptable documentation on file validating their identity. Acceptable documentation includes a copy of a social security card, state issued driver's license and birth certificate. PEX reserves the right to request information and/or documentation to validate any PEX Accountholders identity if necessary and to close any PEX Account if the Accountholders identity cannot be validated and/or if issuing an account to any individual may be a violation of the USA Patriot Act or any other Federal, State or Local law, regulation, order or directive.
AUTHORIZED CUSTOMER REPRESENTATIVE
Unless otherwise permitted by this Agreement, Customer through its Representative (the Principal User) agrees to notify PEX of any change to 1) the information provided on the Customer Enrollment form or 2) any changes relating to individuals authorized to use the Services (that cannot be incorporated utilizing the Administration Web Portal) in writing within thirty (30) days of such change.
In addition, PEX will rely on any and all direction received from Principal User only regarding 1) manually adding or removing Administrative Users, 2) manual funds transfer requests 3) changes to Customer information and 4) termination of the Services.
To change the Representative of the Customer who is designated as Principal User, Customer must submit to PEX a request in writing, on Customer letterhead which is signed by a Customer Representative who has the authority required to direct Customer funds, manage Customer payments, and bind the Customer to business service agreements with third parties. PEX may request personal information for the new Principal User in order to complete identity validation and other due diligence. Customer certifies that any Principal User so designated has the authority required to direct Company funds, manage Company payments, and bind the Customer to business service agreements with third parties.
Customer agrees to indemnify and hold PEX and its employees, agents, representatives and third party service providers harmless from and against any and all loss, liability, cost, judgment, arbitration award, settlement, tax, penalty, action, damage, charge, expense or fee (including reasonable attorneys' fees and costs of collection) of any nature whatsoever, and claims therefore (collectively, "Losses") arising out of or relating to Customer's failure to provide true and accurate information on its Account Enrollment form or to update such information as required hereby. Customer further represents and warrants that no third party, whether by verbal or written agreement or otherwise, has been or will be granted any right, title or interest in its PEX Account.
FUNDING THE PEX ACCOUNT
PEX requires completed program funding transfers prior to any card spending. Due to the nature of prepaid card programs, funds must actually be available on the PEX system prior to PEX Account and PEX Account loading and spending. No credit or loans are being extended by PEX to Customer. The Customer is required to transfer funds to the PEX Account through any of the following methods:
PEX ACH Transfer Service. The PEX Administration Web Portal provides Customer Administrative Users with access to an ACH (ACH is an acronym for Automated Clearing House, a common electronic funds transfer method used by banks) service whereby Customer can initiate an ACH transfer through the PEX Services versus initiating the transfer request through their business banker or banking website. To use the PEX ACH Transfer Service, the Customer must register their Customer business bank or checking account with PEX for validation and verification purposes. Registration requires that the Customer provide relevant bank routing and account information to PEX.
By submitting the relevant bank routing and account information to PEX, Customer hereby authorizes PEX to initiate debit entries and adjustments as necessary to the Customer's bank account registered with PEX by Customer from time to time, as and when funds are requested by Customer for loading to the PEX Account and then to one or more of PEX Accounts, and such authorization will remain in full force and effect until the expiration or termination of this Agreement by its terms. At no time will PEX make any voluntary debits or credits to the Customer bank account. All transfers will be made upon an action or instruction initiated by Customer to PEX.
To register a Customer bank account with PEX, PEX will verify that the Customer's bank account information was submitted correctly and that the Customer is authorized to access the Customer bank account. During the bank account registration process, PEX will initiate two credits to the Customer bank account. Customer will retrieve the deposit values from their bank and submit the values on a PEX web page to verify the amounts, at which point the PEX Account will be live and Customer's ACH credit and debit authorization will be active for the Customer bank account.
Requests made through the PEX ACH Transfer Service take four (4) business days to post to the PEX Account.
Bank ACH Service. PEX will accept ACH transfers initiated by the Customer from such Customer's bank account. Transfer requests must be made through Customer's bank. PEX will assign a designated account number and provide a routing number to each PEX Account for purposes of receiving ACH transfers.
Requests made through the Customer's Bank ACH Service are limited to $250,000 and may have additional limits as set forth by Customer's bank. Generally, Customers can expect that it will take one (1) business day for a Bank ACH service transfer to complete and post to the PEX Account; provided that the Customer meets its bank's cut-off deadline for transferring funds. Unless Customer notifies PEX Administrative Support, PEX will have no knowledge of Customer's transfer request made to a Customer Bank until funds arrive at PEX.
DISCLOSURES REGARDING ELECTRONIC "WHOLESALE CREDIT" TRANSACTIONS SUBJECT TO UNIFORM COMMERCIAL CODE ARTICLE 4A
Provisional Payment Relating to ACH Transfers. Credit given by PEX to Customer with respect to an ACH credit entry is provisional until PEX receives final settlement for such entry through a Federal Reserve Bank. If we do not receive such final settlement, Customer is hereby notified and agrees that PEX is entitled to a refund of the amount credited to Customer in connection with such entry, and the Customer shall not be deemed to have made a deposit to its PEX Account in the amount of such entry.
Notice of Receipt of Entry. Under the operating rules of the National Automated Clearing House Association (NACHA), which are applicable to ACH transactions involving Customer's account, PEX is not required to give next day notice to Customer of receipt of an ACH item and PEX will not do so. However, PEX will continue to notify Customer of the receipt of payments in the periodic statements PEX provides to Customer.
Choice of Law. PEX may accept on Customer's behalf payments to Customer's account which have been transmitted through one or more ACH and which are not subject to the Electronic Fund Transfer Act (EFT) and Customer's rights and obligations with respect to such payments shall be construed in accordance with and governed by the laws of the state of New York as provided by the operating rules of the NACHA, which are applicable to ACH transactions involving Customer's account.
PEX will accept wire transfers originating exclusively from domestic US Customer Bank Accounts. Wire transfer requests must be made through Customer's bank. PEX will provide an account and routing number (ABA number) for receiving wire transfers. Wire transfer instructions can be found in the PEX Administrator Account website. If the Customer meets its bank's cut-off for wire transfers, the funds will be posted upon receipt which generally occurs within several hours after a Customer initiates a wire transfer.
With respect to all transfers of funds to PEX Accounts by Customers (whether through ACH transfers or wire transfers), PEX has the right to refuse any deposit and any funds transferred to any PEX Account. PEX does not and will not accept any transfers of funds from any checking or operating accounts which are not held in the name of the Customer (i.e, PEX will not accept funds transferred from Customer vendors, clients or any other agent on behalf of Customer). Transfers from third-parties to a Customer's PEX Account are not accepted by PEX. PEX does not accept deposits in foreign funds or funds drawn on banks located outside of the United States. PEX may return or refuse to accept all or any part of a transfer of funds to a PEX Account at any time and for any reason, and will not be liable to the Customer for doing so. Refused transfers of funds will be returned to the Customer or bank account from where such wires or transfers, as applicable, where initiated. PEX reserves the right, in its sole discretion, but has no such obligation to do so, to suspend any activity with respect to any PEX Account or PEX User Account in the event that PEX suspects any kind of suspicious or unauthorized activity. PEX shall have no liability to Customer for losses and damages incurred by Customer as a result of such suspension. Notwithstanding the foregoing, PEX shall have no obligation to do so even if it takes certain actions from time to time.
OWNERSHIP OF FUNDS
PEX claims no property interest in any funds Customer chooses to place into its PEX Account or PEX Cardholder Accounts, which shall be the sole and exclusive property of Customer until such time as such amounts are due and payable to PEX hereunder. All funds placed into a PEX Account or PEX Cardholder Accounts are FDIC insured through The Bancorp Bank, Member FDIC.
PEX Accounts that are inactive for a period of time may be considered to be dormant and may be subject to escheat. Each state has varying laws as to when an account is subject to escheat and PEX may be required to send the funds to the state of the last known address of the Customer. PEX will make all reasonable efforts to contact Customer before transferring PEX Account(s) balances to an applicable state.
After the close of each statement cycle (generally defined as a calendar month), PEX will make available to Customer a PEX Account Statement via online interface(s) to the PEX system. The Account Statement will show transactions that have been posted to each PEX account in connection with any Card since the last Account Statement, deposits received to the PEX Account, transfers in and out of the PEX Account and PEX Cardholder Account and any fees charged to account or any PEX Cardholder Account or PEX Account.
Customer agrees to promptly review each Account Statement as it is made available to Customer and report any discrepancies, errors or conflicts with Customer record within 60 days per the process detailed in Liability for Transactions section below.
FUNDS TRANSFERS BETWEEN PEX ACCOUNT AND PEX CARDHOLDER ACCOUNTS
After funds are transferred to a Customer's PEX Account and made available per the terms described above, funds can then be transferred to PEX Cardholder Accounts by Principal User or any authorized Administrative User via various interfaces to the PEX system that are made available to such User. Funds may be allocated to and from the PEX Account to PEX Cardholder Accounts, provided funds are on deposit and available to do so. However, no direct card-to-card transfers will be permitted. If funds are to be removed from a specific PEX Cardholder Account to another, such funds must first be transferred back to the PEX Account, then to such other PEX Cardholder Account.
PEX limits the dollar amount of funds that can be made available on any PEX Cardholder Account at any time to $25,000. This limit can be increased upon request of the Customer based on a legitimate business need at the discretion of PEX. Notwithstanding, there are no limits on the number of times per day, per week or per month that a Customer may load a Card nor are there any limits on the amount of funds that a Customer may keep in its PEX Account, except for the $50 monthly minimum balance described below in the section entitled FEES.
The following load types between the PEX Account and PEX Cardholder Accounts are supported (but subject to load limits described above):
- Load (or funds removal) at will by Customer Principal or authorized Administrator(s) Users via interface(s) to the PEX System ("Quick Fund")
- Pre-authorized PEX Cardholder Account load by predetermined amount at a predetermined time as specified by Customer Principal or authorized Administrator(s) Users via interface(s) to the PEX System ("Scheduled Automatic Fund")
- Pre-authorized PEX Cardholder Account load of predetermined amount when card balance has been spent down to an amount specified by Customer Principal or Administrator(s) Users via interface(s) to the PEX System ("Triggered Automatic Fund")
Loads from the PEX Account to the PEX Cardholder Account, and any reversals, will take place in real time (immediate availability).
USE OF THE PEX ACCOUNT
This section contains terms, conditions and disclosures applicable to all point-of-sale terminal services ("POS"), and the use of Cards to allow Customer to access the funds in each PEX Account. Certain information concerning charges applicable to these services is contained in the Rate and Fee Schedule.
PEX PREPAID VISA CARD
- Each PEX Account is linked to a corresponding PEX Visa Prepaid Card. PEX Visa Prepaid Cards can be used at POS terminals that are part of the networks in which PEX participates. PEX currently participates in the Visa and STAR networks. Cards cannot be used to transfer money into or out of the PEX Account or the PEX Cardholder Account. There is NO CASH ACCESS from ATMs, bank tellers or retailers offering "debit" transactions, also known as PIN-based transactions.
Cards may not be used for transactions on Internet gambling sites or for any purpose which is prohibited by applicable federal, state or local law, statute, ordinance or regulation. PEX reserves the right to block or cancel any PEX Visa Prepaid Card and associated PEX Account that it deems is being used for a prohibited purpose.
PEX Account holders may be asked to sign a sales slip or provide identification for most Card transactions at the merchant's discretion. At some merchants, such as gas stations, the PEX Account holder may not be required to physically sign to authorize a Card purchase.
When using Cards to pay for goods and services, Customer agrees that PEX, without prior notice to Customer, may debit a PEX Cardholder Account, or if there are insufficient funds, the PEX Account, to pay amounts that have been charged to a PEX Cardholder Account linked to Customer's PEX Account whether such charges have been signed for manually or by legally acceptable form of electronic signature.
Cash refunds will not be made to PEX Account holders or Customer for purchases made with Cards. If a merchant provides a credit for merchandise returns or adjustments, it will do so by processing a credit adjustment, which PEX will show as a credit to the PEX Account and the Card.
Certain merchants may ask PEX to authorize the transaction in advance and may estimate its final value. When PEX authorizes the transaction, PEX commits to make the requested funds available when the transaction finally settles and may place a temporary hold on Card funds for the amount indicated by the merchant. PEX also may add an amount for certain merchants to ensure that sufficient funds will be available to cover the ultimate transaction. Until the transaction finally settles or PEX determines that it is unlikely to be processed, the funds subject to the hold will not be available to the PEX Account holder for other purposes. PEX will only actually charge the Card for the correct amount of the final transaction, however, and PEX will release any excess hold amount when the transaction finally settles.
To facilitate certain electronic transactions PEX may place temporary holds on funds in Customer accounts. These holds are used to protect PEX. PEX can neither control the parties with whom Customer does business nor regulate the processing of transactions through the commercial networks used to facilitate Customer transactions. Therefore, transactions may be processed after the expiration of any such temporary holds, and it is Customer's obligation to ensure that sufficient funds are on deposit at all times to cover all Customer transactions.
If Customer makes a purchase in a currency other than the currency in which the Card was issued, the amount deducted from Customer's funds will be converted by Visa U.S.A. Inc. into an amount in the currency of the Card. The exchange rate between the transaction currency and the billing currency used for processing international transactions is a rate selected by Visa U.S.A. Inc. from the range of rates available in wholesale currency markets for the applicable central processing date, which may vary from the rate Visa U.S.A. Inc. itself receives, or the government-mandated rate in effect for the applicable central processing date. If Customer makes a purchase in a currency other than the currency in which the Card was issued, the issuer may assess a foreign currency conversion fee of 1.5 % of the transaction amount and will retain this amount as compensation for its services.
LIABILITY FOR TRANSACTIONS
Customer assumes full responsibility for monitoring the use of PEX Account, PEX Cardholder Accounts and Cards and detecting unauthorized or improper use including maintaining the accuracy of its records. Customer will check and balance the daily and periodic reporting provided by PEX. If Customer believes that an unauthorized transaction has been or may be made from its PEX or PEX Cardholder Account, it shall alert PEX immediately by calling PEX Administrator Support at 1-866-685-1898. PEX will initiate an attempt to recover funds on behalf of the Customer and Customer agrees to cooperate with PEX in such event including providing affidavits or other proof that the transaction(s) were not authorized by a Customer PEX Account holder. PEX reserves the right to block or cancel any Card and/or refuse to authorize any transaction at its discretion to mitigate the risk of loss from fraud or unauthorized activity.
If Customer does not notify PEX within sixty (60) days of becoming aware of the transaction and/or after any monthly or other periodic statement was made available, PEX may lose its ability to recover funds on behalf of the Customer and Customer may not be entitled to a credit for any value lost. If a Card has been lost or stolen, PEX will close the PEX Account to minimize loss to Customer.
In the event of any dispute with respect to the transfer of any funds which could result in a negative balance in Customer's PEX Account or PEX Cardholder Accounts, Customer is fully obligated to fund the negative balance during the dispute process. PEX does not offer, and is not required to offer, any provisional credit (or any temporary redeposit of funds) during any dispute process. If Customer is successful with respect to any such dispute, PEX will place such disputed funds back into its PEX Account upon final resolution of the dispute. If Customer is not successful with respect to such dispute, then PEX shall have no obligation to refund any disputed amounts and Customer shall bear the loss.
Customer acknowledges that factors beyond PEX's control may on rare occasions result in transactions being processed without spending controls being applied. PEX will make its reasonable effort to assure that spending controls designated by Customer are applied to each transaction, but PEX is not responsible for any unauthorized spending or unauthorized Card transactions by Customer, Customer agents, any Cardholder, employee of Customer or other person as a result of factors beyond its control including but not limited to network, merchant and internet issues. PEX shall have no obligation to refund to Customer any funds as a result of any such unauthorized spending.
Customer authorizes PEX to debit the PEX Account to satisfy all Card transactions. Customer understands that it is responsible for all Card use to the maximum extent permitted by law.
If Customer/Representative decides to cancel a Card, please claim the Card from the PEX Account holder and destroy the Card at once by cutting it in half and notify us by using the "Terminate Card" feature of the PEX website. As an alternative, Customer or Representative may call Customer Service at 1-866-685-1898 to complete the action via telephone. Failure by Customer to retrieve cards may result in unauthorized transactions and losses to Customer.
Customer agrees to secure all PEX Prepaid Visa Cards and PEX Prepaid Visa Card data. "Card Data" means card number, expiration date, cardholder name, expiration date and PIN if created. Card Data should not be recorded or stored by Customer in an unencrypted or unmasked format. Cards and Card Data should be considered to be a bearer instrument, meaning that any person(s) in possession of the Cards or Card Data may be able to successfully complete transactions, whether authorized by the Customer or not. Customer will assume liability for any unauthorized transactions caused by Customer's failure to secure Cards or Card Data.
In addition to the responsibility to secure all Cards and Card Data, if Customer creates PEX Prepaid Visa Cards in order to maintain a card inventory for immediate issue at some future point in time (instant issue cards), Customer shall develop and maintain an inventory management process so that Customer can account for all Card inventory at any given time. This should include a Card receipt and issuance log updated by Customer each time Cards are received and/or provided to authorized Customer agents.
OVERDRAFTS, ORDER OF PAYMENTS, NEGATIVE BALANCES
It is Customer's sole responsibility to ensure that enough funds are available in each PEX Account and PEX Account from which Customer instructs PEX to make a payment or transfer. If the PEX Account or PEX Cardholder Account contains insufficient funds to enable all payments and transfers, the payment and transfers will be made in the order determined by PEX, in its sole discretion. Customer is fully obligated to PEX to provide sufficient funds for any payments or transfers Customer makes or authorizes to be made. If PEX completes a payment or transfer that Customer makes or authorizes and PEX subsequently determines that Customer has insufficient funds for the transaction or if Customer has a negative balance in its PEX Account or any PEX Cardholder Accounts for any reason including unauthorized spending, Customer agrees to reimburse PEX for the difference upon demand, and Customer further agrees that PEX may reverse the transaction or offset the shortage with funds from any other account(s) Customer (or any entity reasonably known by PEX to be affiliated with such Customer) has with PEX to the extent permitted by applicable law and the terms of any other relevant agreements between the parties.
MANAGING ACCOUNTS AND ACCESSING ACCOUNT INFORMATION
Customer can use its computer to access the Services, PEX Account information including balance and transaction information, and receive help information electronically any time of the day, seven days a week, except when the PEX system is unavailable for maintenance or other reasons beyond the control of PEX. PEX also provides an IVR for PEX Cardholder Account balance inquiries. Live operators are available for lost/stolen card reporting, unauthorized transaction reporting, to accept requests to replace a lost/ stolen card from Principal Users, Administrative Users or PEX Account holders and to answer all card or transaction related questions.
ADMINISTRATIVE SYSTEM ACCESS
Computer Requirements. In order to use the Services, Customer must provide, at its own cost and expense, its own Internet Service Provider subscription and the necessary computer hardware and other equipment required by the browser that Customer selects. In this Agreement, Customer's computer and the related hardware and other equipment are referred to together as Customer's "Computer." Customer acknowledges that it is solely responsible for the purchase, installation, maintenance, and operation of its Computer and all required software to operate its Computer and browser. Customer understands that frequent, regular software updates for internet browsers, antivirus, operating systems, media players, and other communication software are essential to the security of Customer's connection to the Services. In no event will Customer's inability to connect to the Services be construed as relieving Customer of any payment obligation or membership responsibility under this Agreement. Customer also understands that when accessing the Services, anyone in close proximity to the Customer might be able to view Customer's personal account information and, in Customer's absence, make or modify transaction instructions. PEX is not responsible for any computer virus or related problems that may be associated with using the internet to access the Services. PEX is not responsible for any errors or failures resulting from defects in or malfunctions of Customer's Computer.
Systems Access. PEX System Access IDs and passwords will only be issued to Representatives who have been authorized to access Customer's PEX Account. It is Customer's responsibility to safeguard its password, Access ID and the physical access to its Computer and personal data, as PEX is unable in such circumstances to distinguish between Customer or Representative(s), as the authorized account users on the one hand, and an unauthorized user, on the other.
Customer is responsible for keeping its password and Access ID confidential and maintaining their security. Customer agrees that the use of its password and Access ID authenticates Customer's identity and verifies the instructions entered for any transaction, and that PEX is entitled to act on transaction instructions received when Customer's password and Access ID is used. Customer agrees, therefore, that by entering its Access ID and password, Customer is authorizing PEX to accept such online login as Customer's personal signature. If Customer authorizes other persons to use Customer password and Access ID 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. Note that a PEX representative can assist Customer in changing its password if Customer has forgotten it.
Any person who accesses the Services using a valid password and Access ID will be deemed to be authorized by Customer to access the Services and the PEX Account on Customer's behalf, and PEX shall be entitled to rely on such authority. Customer agrees to adopt reasonable policies and take reasonable steps to safeguard the confidentiality and security of such passwords and Access IDs. PEX is not obligated to detect unauthorized access to the Services or the PEX Accounts or errors by Customer or others. PEX will have no liability to the Customer for any unauthorized transactions made by anyone using a valid password, Access ID and/ or Card.
Third Party Providers. PEX may develop relationships with third party providers in order to integrate PEX Systems data into third party applications to provide more seamless user experience for mutual Customers. In order to enable this type of service, the third party provider may ask Customer to provide an Access ID and valid password so that they can access your PEX services on Customer's behalf. PEX evaluates and monitors all third party integrations carefully but cannot assume liability for access in this manner and will allow access to any third party provider that provides a valid Access ID and password. If Customer uses a third party provider that is integrated with PEX, PEX recommends that Customer create a separate Administrative User for this purpose and provide the third party provider with these credentials.
Customer agrees to pay PEX for the Services at the rates set forth on the Rate and Fee Schedule. PEX will have the right to adjust its fees upon at least thirty (30) days' prior written notice (including via email) of any such increase.
PEX will debit fees for the Services rendered or to be rendered by PEX directly from the PEX Account as they are incurred, using funds on deposit. Customer agrees to maintain a monthly minimum balance in the PEX Account of Fifty Dollars ($50) to ensure the timely payment of all amounts incurred by Customer.
Privacy, Confidentiality and Liability
To the extent necessary to carry out the Services, PEX may disclose information about Customer accounts to third parties in the following instances:
(a) When it is necessary for completing transfers;
(b) in order to comply with laws, government agency rules or orders, court orders, subpoenas or other legal process, or in order to give information to any government agency or official having legal authority to request such information;
(c) to protect and enforce PEX's rights;
(d) if Customer gives PEX Customer's written permission (which may be by electronic or telecommunications transmission as well as on paper); and
(e) to PEX employees, auditors, service providers, attorneys or collection agents in the course of their duties.
Except in the circumstances described below in which case PEX will have no liability, if PEX does not complete a transfer from Customer's PEX Account to PEX Cardholder Account(s) or cancel a transfer as properly requested on time or in the correct amount according to PEX's agreement with Customer, PEX shall be liable for actual Customer losses or damages arising from such failure to transfer or cancel transfer subject to the limitations described below under "General Limitation on Liability". Notwithstanding the foregoing, PEX's sole responsibility for an error in a transfer will be to correct the error.
Notwithstanding anything to the contrary in the foregoing, there are some exceptions for PEX's liability for processing transactions on Customer account(s). PEX will not be liable, for instance:
(a) If, through no fault of PEX, Customer and PEX Account holders do not have enough money in their PEX Account to make the requested transfer/payment;
(b) The system or merchant POS terminal was not working properly and Customer and/or PEX Account holders were aware of the problem when they commenced the transaction;
(c) The Visa network or other partners' services are experiencing outages; or
(d) The funds in Customer account(s) are subject to legal process, an uncollected funds hold or are otherwise not available for withdrawal;
(e) The information supplied by Customer or Representative is incorrect, incomplete, ambiguous or untimely;
(f) PEX has reason to believe the transaction may not be authorized by Customer;
(g) The transaction cannot be completed because a Card is damaged;
(h) If circumstances beyond PEX's 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 PEX has taken;
(i) In the presence of internet service outages or denial of service attacks on servers or systems supporting PEX service communications with the internet;
(j) If Customer or Representative(s) or any Card Account holder have not properly followed PEX's instructions for using the Services;
(k) 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;
(l) For any errors or failures from any malfunction of Customer Computer or any Computer virus or other problems related to Customer Computer equipment used to access the Services; or
(m) For any error, damages or other loss Customer may suffer due to malfunction or misapplication of any Computer 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 PEX Services, or for any loss of any data, even if PEX has been informed of the possibility of such damages.
PEX does not and cannot warrant that the Services will operate without errors, or that any or all Services will be available and operational at all times.
Procedures for Protecting Personally Identifiable Information
Although no data transmission can be guaranteed to be 100% secure, 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/password credentials and software systems) to those employees who require it to perform their job functions. PEX uses industry-standard Secure Socket Layer (SSL) 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 building and files.
Representations and Warranties of the Parties
Each party represents and warrants to the other that: (a) it has the full power and authority to enter into this Agreement and to grant 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.
General Limitation on Liability
In no event shall PEX and its officers, directors, employees, agents or contractors be liable for special, indirect, punitive, incidental or consequential loss or damage of any kind including lost profits, revenue, data or use by Customer or any third party, whether or not PEX has advised Customer of the possibility of such loss or damage arising out of or related to Customer's use of the Services. In states which do not allow the exclusion or limitation, PEX's liability is limited to the extent permitted by applicable law. Both parties agree that these limitations of liability are agreed allocations of risk and are reflected in the fees agreed upon by the parties. Further, neither party's aggregate liability arising with respect to this Agreement shall exceed the total fees actually paid by Customer to PEX during the six (6) months immediately preceding any claim for damages.
Customer shall indemnify, defend and hold harmless PEX and its parents, subsidiaries, affiliates and their directors, officers, employees, agents and subcontractors against all third party claims or actions, and any liabilities, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys' fees) related thereto, to the extent same arise out of (a) any breach of such party's representations, warranties or obligations contained in this Agreement; (b) any liability arising from any violation of applicable laws or regulations, or (c) any other claim relating to the transactions contemplated hereby. PEX shall give prompt written notice, cooperation and assistance to the Customer relative to any such claim, action, or suit and the Customer shall have the option to undertake and conduct the defense of such claim or suit (including, without limitation, selecting in its sole discretion, counsel therefore) and to engage in settlement thereof, subject to the indemnified party's reasonable approval right over any such settlement.
Term and Termination
The initial term of this Agreement shall begin on the date the PEX Account is opened and shall continue until the first anniversary of such date (the "Initial Term"). This Agreement shall be renewed for additional successive one-year periods after the Initial Term until terminated by either Customer or PEX. In the event that Customer elects to terminate this Agreement, Customer agrees to notify PEX of such termination.
PEX may immediately terminate this Agreement with respect to Customer with or without cause and upon notice to Customer in PEX's sole discretion. Immediately upon termination with cause, and within thirty (30) days following termination without cause, Customer must cease its use of the PEX site and destroy all materials obtained from the PEX site and all copies thereof, whether made under this Agreement or otherwise.
Upon termination of this Agreement by either party, PEX reserves the right to collect any outstanding merchant charges and fees on Customer account(s). The obligations of the parties under this Agreement that by their nature would continue beyond expiration, termination or cancellation of this Agreement (including, without limitation, the warranties, indemnification obligations, confidentiality requirements, privacy obligations, payment obligations with respect to periods prior to termination and ownership and property rights) shall survive any such expiration, termination or cancellation.
Within sixty (60) days after the expiration, termination or cancellation of this Agreement, PEX shall return the balance of amounts deposited in Customer's PEX Account (or other accounts maintained by Customer with PEX) which have not been applied by PEX to settle transactions on Customer's PEX Account(s).
Copyright and Trademarks. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to PEX's Site and the PEX Card are protected under applicable copyrights, trademarks and other proprietary rights. The copying, redistribution, use or publication by Customer of any part of PEX's website, except as allowed by this Agreement, is strictly prohibited. Customer expressly acknowledges and agree that it does not by virtue of this Agreement acquire any ownership rights to any content, documentation or other materials accessed through PEX's Site or the PEX Card, and as between the parties hereto, Customer acknowledges and agrees that PEX shall retain all of its right, title and interest in and to all intellectual property rights, content, marks and promotional or marketing materials, together with any user and other data collected on the PEX site during the Term hereof, and Customer will not make any claim to the contrary. The posting of information or materials on the PEX website does not constitute a waiver by PEX of any proprietary or other right PEX has in such information or materials. Nothing contained in this Agreement shall be deemed to prohibit PEX from making use, in aggregated form, of non-personally identifiable data collected during operation of the Customer Services. Each party shall have the sole right to commence, prosecute, defend and control any action relating to its Materials, and each party agrees to reasonably assist the other party in the prosecution of any infringement action or other action relating to the other party's Materials.
Notices. All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery (a) in person, (b) by an internationally recognized overnight courier service, (c) by registered or certified mail (postage prepaid, return receipt requested) to Customer at the address listed above, and to PEX at: PEX Customer Service, P.O. Box 549 Midtown Station, New York, NY 10018 (or at such other address for a party as shall be specified in a notice given in accordance with this Section), or (d) solely for communications by PEX to Customer, by PEX System Alerts to Customer's account page or by electronic mail to Customer's registered e-mail address. In general, communications sent over the public Internet are not necessarily secure. Therefore, PEX will not send and PEX strongly suggests that Customer does not send any confidential account information over the Internet. Customer agrees that PEX may take a reasonable time to act on any e-mail.
Compliance with Laws. Each party shall 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. In addition, Customer covenants and agrees that it will be solely responsible for implementing any necessary policies and procedures required to properly authenticate its authorized users for all purposes in connection with the provision of the Services hereunder.
Force Majeure. Neither party shall 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 (except for payment obligations by Customer) 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 natural disaster, strikes, riot, illness or death of critical employees, general unavailability of the internet, acts of terrorism or other similar events; provided, however, that the party so affected shall resume its performance when such event has terminated or otherwise been resolved.
Relationship of the Parties. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Except as expressly permitted by this Agreement, neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
Changes to Agreement. PEX may add, delete or amend terms, conditions and other provisions, fees, charges, or other terms described in this Agreement at any time upon at least thirty (30) days' notice to Customer prior to the effective date of any amendment or change. PEX will notify Customer of any such change or amendment electronically by posting such notice on the PEX home page and, when required by applicable law, will provide Customer with written notice of such amendment or change at the postal address provided by Customer to PEX and/or send notice to Customer's e-mail address as provided to PEX. Customer agrees to consult the PEX website regularly for up-to-date information about the PEX services and associated fees and charges.
Customer is bound by any such change if it uses the Services after the effective date of the notice, unless Customer notifies PEX in writing within ten (10) days of having received the notice that Customer rejects these changes and give written notice of its election to close its account(s) with PEX.
Binding Agreement. This Agreement shall be binding upon each of the parties and their respective successors and permitted assigns. Customer may not assign or transfer this Agreement, whether by operation of law or otherwise, PEX may assign its rights and delegate its duties under this Agreement to any other party without any required notice to or approval from Customer.
Waiver. PEX shall not be deemed to have waived any of its rights or remedies unless such waiver is in writing and signed by PEX. No delay or omission on the part of PEX in exercising its rights or remedies shall operate as a waiver of such rights or remedies or any other rights or remedies. A waiver on any one occasion shall not be construed as a bar or waiver of any rights or remedies on future occasions.
Captions. The captions of sections hereof are for convenience only and shall not control or affect the meaning or construction of any of the provisions of the Agreement.
Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of New York, without regard to choice of law principles, and by the laws of the United States. You agree and consent to the exclusive jurisdiction of the state and federal courts of the State of New York in connection with any action or proceeding.
Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law as nearly as possible to reflect the original intent of the Agreement, and the remaining portions shall remain in full force and effect.
By clicking "I agree", Customer acknowledges and agrees it will be legally bound to the terms and conditions of this Agreement.
CUSTOMER ACKNOWLEDGES AND AGREES THAT IT WILL CAREFULLY READ, UNDERSTAND AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE CLICKING "I AGREE" OR OTHER SIMILARLY WORDED BUTTON. IF CUSTOMER HAS ANY QUESTIONS ABOUT ANY OF THE PROVISIONS IN THIS AGREEMENT, AN AUTHORIZED REPRESENTATIVE OF CUSTOMER WILL CALL PEX AT 1-866-685-1898 PRIOR TO ACCEPTING SUCH TERMS. CUSTOMER UNDERSTANDS THAT CLICKING "I AGREE" IS THE LEGAL EQUIVALENT OF THE AUTHORIZED REPRESENTATIVE OF CUSTOMER MANUALLY SIGNING THIS AGREEMENT, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT UPON ANY SUCH ACCEPTANCE IT WILL BE LEGALLY BOUND BY THE TERMS AND CONDITIONS HEREOF. CUSTOMER UNDERSTANDS THAT THIS AGREEMENT MAY BE AMENDED FROM TIME TO TIME BY PEX, WITH REVISED TERMS POSTED ON THE PEX WEBSITE. PEX WILL NOTIFY CUSTOMER OF CHANGES TO THE AGREEMENT. CUSTOMER UNDERSTANDS THAT BY CONTINUING TO MAINTAIN AN ACTIVE PEX ACCOUNT WITHOUT OBJECTING TO SUCH REVISED TERMS OF THIS AGREEMENT IN WRITING WITHIN TEN (10) DAYS OF HAVING RECEIVED SUCH NOTICE, CUSTOMER IS ACCEPTING THE TERMS OF THE REVISED AGREEMENT AND CUSTOMER WILL BE LEGALLY BOUND BY THE TERMS AND CONDITIONS AS SO REVISED.
If Customer determines that it is unwilling to be bound by the terms and conditions of this Agreement, Customer agrees that it will not submit a Customer Enrollment form for a PEX Account. PEX reserves the right to decline any Customer Enrollment form, or to terminate any PEX Account at any time and for any reason in each case in its sole discretion.
Various features of Customer's account(s) with PEX may be offered or processed through a third party service provider, which may be an unaffiliated third party. Unless otherwise expressly noted, all authority granted to, limitations of liability of, or references in this Agreement to, PEX shall include its agents and representatives and any such third party service providers. PEX, its agents, representatives and third party service providers acting on behalf of Customer under this Agreement hereby are authorized by Customer to perform the services contemplated by this Agreement.