PEX Services Agreement - Archive
This is an archived version of our Services Agreement. View the current version.
This Services Agreement is effective as of March 3, 2014 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 Card ("PEX Card") opening and maintaining an Account ("PEX Account") for the business entity ("Customer") listed in the accompanying Customer Enrollment, upon the acceptance of the Customer Enrollment by PEX Card in its sole discretion, Customer agrees to the terms and conditions set forth in this Services Agreement ("Agreement"), as amended from time to time.
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 with PEX Card. PEX Card 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 Card 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 Card shall include its agents and representatives and any such third party service providers. PEX Card, 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.
IF CUSTOMER IS A NEW CUSTOMER, 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 WITH THE LEGAL POWER AND AUTHORITY TO BIND CUSTOMER ("REPRESENTATIVE") WILL CALL PEX CARD 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 CARD, WITH REVISED TERMS POSTED ON THE PEX CARD WEB SITE. PEX CARD WILL NOTIFY CUSTOMER OF CHANGES TO THE AGREEMENT. CUSTOMER UNDERSTANDS THAT BY CONTINUING TO MAINTAIN AN ACTIVE PEX CARD ACCOUNT WITHOUT PROMPTLY OBJECTING TO SUCH REVISED TERMS OF THIS AGREEMENT IN WRITING, CUSTOMER IS ACCEPTING THE TERMS OF THE REVISED AGREEMENT AND CUSTOMER WILL BE LEGALLY BOUND BY THE TERMS AND CONDITIONS AS SO REVISED.
IMPORTANT INFORMATION FOR OPENING AN ACCOUNT
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 Card 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 that will allow PEX Card to confirm identity. PEX Card may also ask for details about the business owner's or Representative's' driver's license number or other identifying information. Except with respect to the use by PEX Card 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.
2.0 SCOPE OF AGREEMENT
2.1 Subscription for Services
PEX Card offers its customers a suite of online services and programs related to the PEX Visa® Prepaid Card authorized by Customer to be issued to designated Customer personnel (each, a "Card") for the purpose of authorizing such personnel to spend predetermined amounts of Customer corporate funds for business-related purchases and expenses. For the avoidance of doubt, neither the PEX Card Services nor the Card shall be used by Customer or any Customer personnel to pay employment wages, consultant or advisory fees or commissions to any types of persons including companies and natural persons. Customer and Customer personnel are prohibited from using the PEX Card Services and Card for any payments to natural persons for labor. In addition, the PEX Card Services and program is not a gift card service or any other type of consumer prepaid card solution where personally-owned funds are or may be stored. A separate PEX Account is maintained by PEX Card for each Customer, all as hereinafter more fully described in this Agreement (the "Services").
During the Term (as hereinafter defined in Section 4.10) of this Agreement, PEX Card will provide, and Customer, on behalf of itself and its Representatives, employees and agents, hereby subscribes to receive, the Services, all in accordance with the terms and conditions of this Agreement.
This Agreement applies to all use of the Customer's PEX Account, PEX Card Accounts (as hereinafter defined in Section 3.3.5) and the Services, whether by Customer, Representative, or any PEX Card Account user authorized by Customer, and Customer will be responsible for all such use. By using PEX Card's Services or permitting PEX Card Account holders to access and use the Services on Customer's behalf, each such PEX Card Account holder shall agree 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 actions taken by such PEX Card Account user.
3.0 ACCOUNT PROVISIONS
3.1 True and Accurate Information; Ownership
The information provided on Customer's Account Enrollment form is current, accurate, truthful and complete as of the date submitted. Unless otherwise permitted by this Agreement, Customer and its Representatives agree to notify PEX Card of any change to the information provided on the Customer Enrollment form promptly, but in any event within thirty (30) days of such change. Customer agrees to indemnify and hold PEX Card and its 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 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 granted any right, title or interest in its PEX Account.
3.2 Fees; Payment
Customer agrees to pay PEX Card for the Services at the rates set forth on the Rate and Fee Schedule. PEX Card 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 Card will debit fees for the Services rendered or to be rendered by PEX Card 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.
PEX Card will provide Customer with online documentation and support (via phone and email) free of charge for the Services, including any new software releases and updated functionality, as the same becomes available.
3.3 Types of Accounts
The PEX Card Service includes several types of accounts used to facilitate the Service. User accounts are assigned to perform certain tasks associated with administering the Service and financial accounts that are used to store funds and facilitate corporate purchasing. For the avoidance of doubt, each user account and financial account type is defined as follows:
3.3.1 Principal Account. A principal user account shall allow full and complete access to the PEX Card web site or its mobile application, including initiating bank transfers, card deployment to assigned PEX Card Account users, adding funds to PEX Card accounts, and reports (each, a "Principal Account").
3.3.2 Administrator Account. An administrator user account shall be created by a Principal account holder or another administrator user and assigned certain duties as represented by access controls established when the Administrator account is created (each, an "Administrator Account").
3.3.3 Customer Bank Account. If initiating an ACH transfer through PEX Card's ACH service located in the Transfers section of the Administrator Account, the Customer shall register Customer's business checking account on the PEX Card platform as a source in order to fund the Customer's PEX Account (each, a "Register Bank Account"). For purposes of clarification, any and all funding of the Customer's PEX Account must come from a checking or operating account held in the name of the Customer. PEX Card will not accept payments or deposits originating from vendors, customers or other non-Customer owned bank accounts.
3.3.4 PEX Account. Customer shall have a PEX Account whose function will be to serve as a holding account used by Customer to store funds on deposit, with a minimum balance of $50 on account unallocated to PEX Card Accounts at all times during the Term.
3.3.5 PEX Card Account. Customer shall issue PEX Visa Prepaid Cards to PEX Card Account holders authorized to spend corporate funds as needed (each Visa Prepaid Card individually referred to as a "PEX Card Account"). Funds allocated to PEX Card accounts originated from the Customer's PEX Account and funds reversed from PEX Card Accounts will be placed in the Customer's PEX Account.
3.3.6 PEX Cardholder User Account. A cardholder user account shall be created by a PEX Card Account holder for review access either on the PEX Card web site or its mobile application to its card balance and transaction information, as well as spend rule details assigned to it by Customer's Administrator Account holder.
3.4 Types of Transfers and Limitations
Due to the nature of prepaid card programs, funds must actually be available on the PEX Card system prior to PEX Account and PEX Card Account loading and spending. No credit or loans are being extended by PEX Card to Customer.
3.4.1 Account Sign up and Bank Account Registration. Before complete access to site functionality is provided, PEX Card will validate the details of the Customer Enrollment form. The Customer then 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, (b) create PEX Card Accounts to initiate card issuance and determine delivery method (standard USPS vs Expedited shipping), and (c) pay the Set-up fee once the first program funds transfer to the PEX Account is complete. Funds transfers can be managed through the methods described in Section 3.4.2 below.
3.4.2 Types of Transfers from Customer Bank Account to PEX Account. PEX Card requires completed program funding transfers prior to any card spending. Customer to transfer funds to the PEX Account through the following methods:
188.8.131.52 PEX Card ACH Transfer Service. The PEX Card Administrator Account offers 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 Card Service versus initiating the transfer request through their business banker or banking website. To use the PEX Card ACH Transfer Service, the Customer must register their Customer Bank Account with PEX Card for validation and verification purposes. Registration requires that the Customer provide relevant bank routing and account information to PEX Card.
By submitting the relevant bank routing and account information to PEX Card, Customer hereby authorizes PEX Card to initiate debit entries and adjustments as necessary to the Customer Bank Account registered with PEX Card by Customer from time to time, as and when funds are requested by Customer for loading one or more of PEX Card 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 Card make any voluntary debits or credits to the Customer Bank Account. All transfers will be made resulting from action or instruction initiated by Customer.
To register a Customer Bank Account with PEX Card, PEX Card 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 Card 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 Card 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 Card ACH Transfer Service take four (4) business days to post to the PEX Account.
PEX Card reserves the right to reject or delay posting funds to a PEX Account due to suspicious behavior. Requests for ACH reversals made by Customer banking institutions due to suspicious activity, as determined in the such bank's sole discretion, will be honored and will impact the PEX Account and PEX Card Account balances and/or card use at merchants.
184.108.40.206 Bank ACH Service. PEX Card will accept ACH transfers initiated by the Customer from such customer's bank account. Transfer requests must be made through a banker or such Customer's bank account website. PEX Card will assign a designated account number and provide a routing number (ABA number) to each PEX Account.
Requests made through the Customer's Bank ACH Service are not limited or restricted by PEX Card, but may have 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 you notify PEX Card Administrative Support, PEX Card will have no knowledge of your transfer request made to a Customer Bank until funds arrive at PEX Card.
220.127.116.11 Wire Transfer. PEX Card will accept Wire Transfers originating exclusively from domestic US Customer Bank Accounts. Wire transfer requests must be made through a banker or Customer bank account website. PEX Card will provide an account and routing number (ABA number) for 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.
Wire transfers originating from foreign bank accounts and in currencies other than US dollar will not be posted to the PEX Account and will be returned to sender. Wires received from accounts other than a Customer bank account will not be accepted (i.e. payments received from Customer vendors or clients of Customer).
3.4.3. DISCLOSURES REGARDING ELECTRONIC "WHOLESALE CREDIT" TRANSACTIONS SUBJECT TO UNIFORM COMMERCIAL CODE ARTICLE 4A
18.104.22.168 Provisional Payment. Credit given by PEX Card to Customer with respect to an ACH credit entry is provisional until PEX Card 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 Card is entitled to a refund of the amount credited to Customer in connection with such entry, and the party making the payment to Customer via such entry (i.e. the originator of the entry) shall not be deemed to have paid the Customer in the amount of such entry.
22.214.171.124 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 Card is not required to give next day notice to Customer of receipt of an ACH item and PEX Card will not do so. However, PEX Card will continue to notify Customer of the receipt of payments in the periodic statements PEX Card provides to Customer.
126.96.36.199 Choice of Law. PEX Card 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.
3.4.4 Deposit Policy. With respect to all transfers of funds to PEX Accounts by Customers, PEX Card has the right to refuse any deposit. PEX Card 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. Transfers from third-parties are not accepted by PEX Card. PEX Card does not accept deposits in foreign funds or funds drawn on banks located outside of the United States. PEX Card may return or refuse to accept all or any part of a transfer of funds to a PEX Account at any time, 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 where initiated. PEX Card 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, PEX Card Account or PEX Card User Account in the event that PEX Card suspects any kind of suspicious or unauthorized activity. Notwithstanding the foregoing, PEX Card shall have no obligation to do so even if it takes certain actions from time to time.
3.4.5 Loads Between PEX Account and PEX Card Accounts. After a program balance is established, card loading will be managed by Customer and/or Representatives at their discretion. Funds may be allocated to and from the PEX Account to PEX Card Accounts, provided funds are on deposit to do so. However, no direct card-to-card transfers will be permitted.
PEX Card allows the following load types between PEX Account and PEX Card Accounts:
- Load at will by Customer or Administrator(s) ("Quick Fund")
- Pre-authorized PEX Card Account load by predetermined amount at a predetermined time specified by Customer or Administrator(s) ("Scheduled Automatic Fund")
- Pre-authorized PEX Card Account load of predetermined amount when card balance has been spent down to an amount specified by Customer or Administrator(s) ("Triggered Automatic Fund")
Loads from the PEX Account to the PEX Card Account, and any reversals, will take place in real time.
3.5 Ownership of Funds
PEX Card claims no property interest in any funds Customer chooses to place into its PEX Account or PEX Card Accounts, which shall be the sole and exclusive property of Customer until such time as such amounts are due and payable to PEX Card hereunder.
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 Card may be required to send the funds to the state of the last known address of the Customer. PEX Card will make all reasonable efforts to contact Customer before transferring PEX Account(s) balances to an applicable state.
3.6 PEX Card Account Spending
Each PEX Card Account is linked to a corresponding Card. Customer authorizes PEX Card 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. PEX Card is not responsible for any unauthorized spending or unauthorized Card transactions by Customer, Customer personnel, any Card holder or other person and PEX Card shall have no obligation to refund to Customer any funds as a result of any such unauthorized spending.
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 Card Account. Certain information concerning charges applicable to these services is contained in the Rate and Fee Schedule.
Cards can be used at POS terminals that are part of the networks in which PEX Card participates. PEX Card currently participates in the Visa ® network.
Cards cannot be used to transfer money into or out of the PEX Account. No personal identification numbers ("PIN") will be issued and there is NO CASH ACCESS from ATMs, bank tellers or retailers offering "debit" transactions, also known as PIN-based transactions. If Customer/Representative decides to cancel a Card, please claim the Card from the PEX Card Account holder and either: (a) return the Card to us, or (b) manually destroy the Card at once by cutting it in half and notify us by using the "Terminate Card" feature of the PEX Card web site. As an alternative, Customer or Representative may call Customer Service at 1-866-685-1898 to complete the action via telephone. PEX Card Account holders may be asked to sign a sales slip or provide identification for most Card transactions. At some merchants, such as gas stations, the PEX Card Account holder may not be required to physically sign to authorize a Card purchase.
3.6.1 Card Purchases. Certain merchants may ask PEX Card to authorize the transaction in advance and may estimate its final value. When PEX Card authorizes the transaction, PEX Card 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 Card 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 Card determines that it is unlikely to be processed, the funds subject to the hold will not be available to the PEX Card Account holder for other purposes. PEX Card will only actually charge the Card for the correct amount of the final transaction, however, and PEX Card will release any excess hold amount when the transaction finally settles.
3.6.2 Card Security. Customer agrees not to disclose or otherwise make any confidential or proprietary Card account details, including the terms of this Agreement, available to third parties without the prior written consent of PEX Card, provided that Customer may share such information with Customer's employees, consultants, attorneys, accountants and other professional advisors on a need-to-know basis so long as such parties are bound by a substantially similar nondisclosure obligation. Cards must be returned to PEX Card upon request.
3.6.3 Refunds on Purchases. Cash refunds will not be made to PEX Card Account holder 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 Card will show as a credit to the Card.
3.6.4 Foreign 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.
3.6.5 POS Limitations. 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. Customer does not have a right to stop payment on any Card sales draft originated by the proper use of Cards.
3.6.6 Limits on Card. PEX Card limits the dollar amount of funds which each Customer may load on individual Cards. Such limit is set at $25,000 but can be increased upon request of the Customer. Notwithstanding, there are no limits on the number of times per day, per week or per month that a Customer may load a Card (so long as each $25,000 load is spent down to $0) nor are there any limits on the amount of funds that a Customer may keep in its PEX Account.
3.7 Overdrafts; Order of Payments; Disputes and Negative Balances
It is Customer's sole responsibility to ensure that enough money is available in each PEX Account and PEX Card Account from which Customer instructs PEX Card to make a payment or transfer. If the PEX Account or PEX Card Account contains insufficient funds to enable all payments and transfers, the payment and transfers will be made in the order determined by PEX Card, in its sole discretion. Customer is fully obligated to PEX Card to provide sufficient funds for any payments or transfers Customer makes or authorizes to be made. If PEX Card completes a payment or transfer that Customer makes or authorizes and PEX Card subsequently determines that Customer has insufficient funds for the transaction or if Customer has a negative balance in its PEX Account or any PEX Card Accounts for any reason including unauthorized spending, Customer agrees to reimburse PEX Card for the difference upon demand, and Customer further agrees that PEX Card may reverse the transaction or offset the shortage with funds from any other account(s) Customer has with PEX Card to the extent permitted by applicable law and the terms of any other relevant agreements between the parties.
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 Card Accounts, Customer is fully obligated to fund the negative balance during the dispute process. PEX Card does not offer, and it 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 Card will place such disputed funds back into its PEX Account upon resolution of the dispute. If Customer is not successful with respect to such dispute, then PEX Card shall have no obligation to refund any disputed amounts and Customer shall bear the loss.
3.8 Online Access
3.8.1 Account Balance and Transaction Information. Customer can use its computer to access the Services, PEX Account balance, PEX Card Account balance and transaction information, and receive help information electronically any time of the day, seven days a week, except when the PEX Card system is unavailable for maintenance or other reasons beyond the reasonable control of PEX Card.
3.8.2 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.
3.9 Access Code and Security
Access IDs and passwords will only be issued to Representatives who have been authorized to access Customer's PEX Account.
Customer or Representative may voluntarily change its password at any time. Customer is responsible for keeping its password and all relevant PEX Account data confidential.
3.10 Reporting Unauthorized Transaction or Theft
Customer will remain primarily responsible for the accuracy of its records and will check and balance the daily and periodic reporting provided by PEX Card, and Customer will notify PEX Card promptly of any discrepancies in its PEX Card or PEX Card Account balances. If Customer believes that an unauthorized transaction has been or may be made from its PEX Card or PEX Card Account, it shall alert PEX Card immediately by calling PEX Card Administrator Support at 1-866-685-1898. If Customer does not notify PEX Card within sixty (60) days after becoming aware of the transaction and/or after the statement was made available, Customer may not be entitled to a credit for any value lost if and to the extent that such notice would have mitigated such loss or if Customer is grossly negligent or fraudulent in the handling of Cards. If a Card has been lost or stolen, PEX Card will close the PEX Card Account to minimize loss to Customer.
3.11 No Signature Required
When using Cards to pay for goods and services, Customer agrees that PEX Card, without prior notice to Customer, may debit a PEX Card Account, or if there are insufficient funds, the PEX Account, to pay amounts that have been charged to a PEX Card Account linked to Customer's PEX Account whether such charges have been signed for manually or by legally acceptable form of electronic signature.
4.0 RESPONSIBILITY OF PARTIES
4.1 Privacy and Confidentiality
4.2 Customer Responsibilities
Customer is responsible for keeping its password and Access ID confidential. Customer agrees that the use of its password authenticates Customer's identity and verifies the instructions entered for any transaction, and that PEX Card 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 Card 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 Card in writing that it has revoked the authorization and changed its password. Note that a PEX Card representative can assist Customer in changing its password if Customer has forgotten it.
Customer is solely responsible for the set-up, maintenance, and security of the Computer and online service used for accessing the Services. 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. It is Customer's responsibility to safeguard its password, Access ID and the physical access to its Computer and personal data, as PEX Card 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.
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 Card Account on Customer's behalf, and PEX Card 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 Card is not obligated to detect unauthorized access to the Services or the PEX Card Accounts or errors by Customer or others. PEX Card will have no liability to the Customer for any unauthorized transactions made by anyone using a valid password, Access ID and/ or Card.
To facilitate certain electronic transactions PEX Card may place temporary holds on funds in Customer accounts. These holds are used to protect PEX Card. PEX Card 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.
Customer may not use the Services for any activity that violates any applicable federal, state or local law, statute, ordinance or regulation.
4.3 PEX Responsibilities
If PEX Card does not complete a transfer from Customer's PEX Account to PEX Card Account(s) or cancel a transfer as properly requested on time or in the correct amount according to PEX Card's agreement with Customer, PEX Card shall be liable for actual Customer losses or damages arising from such failure to transfer or cancel transfer. PEX Card'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 Card's liability for processing transactions on Customer account(s). PEX Card will not be liable, for instance:
(a) If, through no fault of PEX Card, Customer and PEX Card 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 Card 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 Card 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 Card'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 Card has taken;
(i) In the presence of internet service outages or denial of service attacks on servers or systems supporting PEX Card service communications with the internet;
(j) If Customer or Representative(s) or any Card holder have not properly followed PEX Card'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 Card be liable to Customer for losses or damages arising out of the use, misuse or inability to use PEX Card Services, or for any loss of any data, even if PEX Card has been informed of the possibility of such damages.
PEX Card 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. Except as specifically provided in this Agreement, or otherwise required by law, Customer agrees that PEX Card officers, directors, employees, agents or contractors are not liable for any indirect, incidental, special or consequential damages under or by reason of any services or products provided under this Agreement or by reason of Customer's use of or access to the Services, including loss of profits, revenue, data or use by Customer or any third party, whether in an action in contract or tort or based on a warranty.
4.4 Disclosure of Account Information to Others
To the extent necessary to carry out the Services, PEX Card 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 Card's rights;
(d) if Customer gives PEX Card Customer's written permission (which may be by electronic or telecommunications transmission as well as on paper); and
(e) to PEX Card employees, auditors, service providers, attorneys or collection agents in the course of their duties.
4.5 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.
4.6 General Limitation on Liability
In no event shall PEX Card be liable for special, indirect, punitive, incidental or consequential loss or damage of any kind including lost profits whether or not PEX Card has advised customer of the possibility of such loss or damage arising or related to Customer's use of the services. In states which do not allow the exclusion or limitation, PEX Card'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 (except for amounts payable hereunder) shall exceed the total fees actually paid by Customer to PEX Card during the six (6) months immediately preceding any claim for damages.
Each party shall indemnify, defend and hold harmless the other party 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. The party seeking indemnification hereunder shall give prompt written notice, cooperation and assistance to the indemnifying party relative to any such claim, action, or suit and the indemnifying party 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.
4.8 Term and Termination
The initial term of this Agreement shall begin on the Effective Date and shall continue until the first anniversary of the Effective 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 Card. In the event that Customer elects to terminate this Agreement, Customer agrees to notify PEX Card of such termination in accordance with Section 5.3 hereof.
PEX Card may immediately terminate this Agreement with respect to Customer with or without cause and upon notice to Customer in PEX Card'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 Card site and destroy all materials obtained from the PEX Card site and all copies thereof, whether made under this Agreement or otherwise.
4.9 Effects of Termination
Upon termination of this Agreement by either party, PEX Card reserves the right to collect any outstanding charges 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, 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 Card shall return the balance of amounts deposited in Customer's PEX Card Account (or other accounts maintained by Customer with PEX) which have not been applied by PEX Card to settle transactions on Customer's PEX Card Account(s).
5.1 Periodic Statements
Customer's PEX Card payments and transfers will be indicated on monthly statements which PEX Card will make available online. PEX Card may also provide or make accessible to Customer statement information by some other means. Customer agrees to notify PEX Card promptly if Customer changes its address or if Customer believes there are errors or unauthorized transactions in any statement or state information.
5.2 Business Days and Hours of Operation
PEX Card will provide support to Customer and its PEX Card Account holders during PEX Card's normal business hours (currently Monday through Friday, 8 am to 8 pm, Eastern Time, excepting state and federal holidays), and at all times for emergency issue resolution. PEX Card will use commercially reasonable efforts to respond to emergency support calls within one hour, and non-emergency support calls within one business day. PEX Card reserves the right to charge reasonable time and materials rates to Customer for support and research services that are not due to any defect in the Services.
5.3 Notices and Communications
Except as otherwise provided in this Agreement, all notices required to be sent to Customer will be effective when PEX Card mails or delivers them to the current address that PEX Card has for Customer in PEX Card's records. Notices from Customer will be effective when received by mail at the address specified herein.
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 Card at: PEX Card 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 Card to Customer, by PEX System Alerts to Customer's account page or by electronic mail to Customer's registered e-mail address.
5.4 E-mail Communications
In general, communications sent over the public Internet are not necessarily secure. Therefore, PEX Card will not send and PEX Card strongly suggests that Customer does not send any confidential account information over the Internet. Customer agrees that PEX Card may take a reasonable time to act on any e-mail.
5.5 Copyright and Trademarks
The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to PEX Card'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 Card'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 Card's Site or the PEX Card, and as between the parties hereto, Customer acknowledges and agrees that PEX Card 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 Card site during the Term hereof, and Customer will not make any claim to the contrary. The posting of information or materials on the PEX Card website does not constitute a waiver by PEX Card of any proprietary or other right PEX Card has in such information or materials. Nothing contained in this Agreement shall be deemed to prohibit PEX Card from making use, in aggregated form, of non-personally identifiable data collected during operation of the Client Mall 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.
5.6 Other Agreements
5.7 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, you covenant and agree that you will be solely responsible for implementing any necessary policies and procedures required to properly authenticate your authorized users for all purposes in connection with the provision of the Services hereunder.
5.8 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 you) 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.
5.9 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.
This Agreement, including the exhibits, schedules and attachments hereto, sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the subject matter hereof.
PEX Card 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 Card will notify Customer of any such change or amendment electronically by posting such notice on the PEX Card 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 Card and/or send notice to Customer's e-mail address as provided to PEX Card.
Customer is bound by any such change if it uses the Services after the effective date of the notice, unless Customer notifies PEX Card 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 Card.
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 Card may assign its rights and delegate its duties under this Agreement to any other party without any required notice to or approval from Customer.
PEX Card shall not be deemed to have waived any of its rights or remedies unless such waiver is in writing and signed by PEX Card. No delay or omission on the part of PEX Card 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.
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.
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 "Submit", Customer acknowledges and agrees it will be legally bound to the terms and conditions of this Agreement.