PEX Services Agreement
Last modified: 15 December 2017 (view archived versions)
This Services Agreement (“Agreement”) for the PEX Account (defined in the Services section below) is effective as of December 15, 2017 and replaces any previous versions of the Agreement.
In consideration for Prepaid Expense Card Solutions, Inc. d/b/a PEX ("PEX") providing Services (defined in the Services Section below) for the business entity appearing in the Customer Application Form ("Customer") during the Term (defined in the Term and Termination section below) of this Agreement, upon acceptance of the Customer Application Form by PEX in its sole discretion, Customer, any personnel authorized by Customer to exercise the legal power and authority to bind Customer (“Agent”) or any other person authorized to manage spending on behalf of the Customer or to access and use Services on Customer’s behalf (“Administrative User”, collectively with any Agent or PEX Card Account Holder, “User(s)”) agrees to the terms and conditions of this Agreement, as amended from time to time as if an original party hereto. Notwithstanding the foregoing, Customer shall remain primarily responsible for any and all actions taken by any User. Customer shall be responsible for notifying Users of the relevant terms applicable to use of the Services and for ensuring that each User complies with the terms and conditions set forth in this Agreement and that any PEX Card Account Holder complies with any other written instructions provided by PEX and directed to such holders.
PEX offers a suite of online services and programs that allow the Customer to create and administer PEX prepaid card accounts (each, a "PEXCard Account", as more fully described below) for business-related purchases and expenses (collectively, the “Services”). Administrative Users may be assigned to perform tasks associated with administering and/or using Services. PEX Card Accounts may be created and administered through the PEX Administration Web Portal to store funds and facilitate corporate purchasing.
For the avoidance of doubt, Services, including the PEX Card Account, shall not be used by Customer to pay employment or labor wages, consultant or advisory fees or commissions to any person, including companies and natural persons. In addition, Services are not a gift card or any other type of consumer prepaid card where personally-owned funds are or may be stored.
TYPES of ACCOUNTS. The following business-purpose accounts (collectively “PEX Commercial Accounts”) may be established as part of Services and used to enable Services:
PEX Account. Each eligible Customer will be assigned one or more master funding account(s) (“PEX Account”) that serves as a holding account for the Customer to store funds on deposit with PEX’s partner bank (“the Bank”). A separate PEX Account will be established and maintained by the Bank for each Customer. Information about the Bank can be found on the Administration Web Portal, the back of a card and the Card Use Guide. (Fifth Third Visa PEX Use Guide)
PEX Card Account. Using the Administration Web Portal, Customer can create related subaccounts that are associated with a 16-digit card number and linked prepaid account issued by the Bank. Agent or Administrative User shall assign PEX Card Accounts to designated individuals who are authorized by Customer to spend funds transferred by the Administrative User from the PEX Account to each such PEX Card Account (“PEX Card Account Holders”).
All actions taken by PEX in connection with the establishment of any PEX Account or related PEX Card Accounts, together with any associated funds transfers requested by Customer using the Services, shall be done as a service provider for the Bank.
ESTABLISHING ACCOUNTS AND SERVICES
In order for Services and PEX Commercial Accounts to be established, the prospective Customer must complete, and PEX and the Bank must validate and accept the details of the Customer Application Form.
Once the Customer Application Form is validated and accepted, the Customer will advance to the next stage of registration and be asked to: (a) establish an initial balance in the PEX Account via an ACH or wire transfer as described below, and (b) create PEX Card Accounts to initiate card issuance.
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 Agents. When applying for a PEX Account, PEX will ask for information about the Customer and about the business owner and/or Agent, 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 the Agent’s driver's license number or other identifying information. Except with respect to the use by PEX of such information in connection with establishing a PEX Commercial 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 Card Accounts may only be created for individuals whose identity has been validated by Customer through the use of commercially acceptable screening methods such as employment screening and background checks and from whom Customer retains acceptable documentation on file validating the identity of those individuals. Acceptable documentation includes a copy of a Social Security card, state issued driver’s license, and birth certificate. PEX and the Bank reserve the right to request information and/or documentation to validate any PEX Card Account Holder’s identity if necessary and to refuse to open or to close any PEX Account or PEX Card Account if the Account Holder’s 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.
Unless otherwise permitted by this Agreement, Customer through its Agent agrees to notify PEX of any change to 1) the information provided on the Customer Application Form or 2) the authority of any User. The notice shall be made in writing within thirty (30) days of such change, if the change cannot be made through the Administration Web Portal.
In addition, PEX will rely on any and all direction received from Agent regarding 1) manually adding or removing Administrative Users; 2) changes to Customer information; and 3) termination of Services.
To change the Agent, Customer must submit to PEX a request in writing, on Customer letterhead which is signed by personnel authorized by Customer to exercise the legal power and authority to bind Customer. PEX may request Personally Identifiable Information for the new Agent in order to complete identity validation and other due diligence. Customer certifies that any Agent 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, the Bank and their respective 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 Customer Application Form or to update such information as required. 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 Commercial Accounts.
FUND TRANSFERS TO AND FROM THE PEX ACCOUNT
Due to the nature of prepaid card programs, funds must be available and transferred from the Customer’s PEX Account to a PEX Card Account before the PEX Card Account may be used to complete purchase transactions. No credit or loans are being extended by PEX or the Bank to Customer and PEX Card Account Holders will not be permitted to spend more than the available balance associated with their PEX Card Account. The Customer’s Administrative User may transfer funds to the PEX Account from the Customer's U.S. bank account (“External Account”), or vice versa, through any of the following methods. Funds transfers to the PEX Account are subject to the Deposit Policy appearing below. For security and fraud reasons, we may impose certain limitations on the number or dollar amount of transactions Customer can make to and from Customer’s PEX Account and the maximum balance Customer may maintain in Customer’s PEX Account. We may increase or decrease these limits from time to time in our sole discretion and, to the extent permitted by applicable law, without prior notice to you. These limits can be increased upon request of the Customer based on a legitimate business need at the discretion of PEX and the Bank.
A. ACH TRANSFERS
1. External Bank ACH Transfer. Customer may initiate ACH transfers (ACH is the acronym for Automated Clearing House, a common electronic funds transfer method used by banks) from the Customer's External Account to the Customer’s PEX Account. Transfer requests must be made through the bank where Customer’s External Account is maintained. PEX will provide the Customer the Bank’s ABA bank routing and PEX Account numbers for the purpose of enabling Customer to initiate ACH transfers from Customer’s External Account.
External Bank ACH Transfers may be subject to limits established by the PEX’s partner Bank and the bank where Customer's External Account is maintained. Generally, Customers can expect it to take one (1) business day for an External Bank ACH Transfer to complete and post to the Customer’s PEX Account; provided that the Customer meets its other bank's cut-off deadline for outgoing fund transfers. PEX will have no knowledge of the Customer’s External Bank ACH Transfer request until the funds are posted to Customer’s PEX Account.
Provisional Payment Relating to ACH Transfers. An ACH credit entry is provisional until the Bank receives final settlement for such entry through a Federal Reserve Bank. If final settlement is not received, Customer is hereby notified and agrees to provide a refund of the amount credited to Customer in connection with such entry, and the Customer shall be deemed not to have made a deposit to its PEX Account in the amount of such entry.
Notice of Receipt of Entry. Under National Automated Clearing House Association (NACHA) operating rules, which are applicable to ACH transactions involving Customer's PEX Account, the Bank is not required to give next day notice to Customer of receipt of an ACH item and neither PEX nor the Bank will do so. However, PEX will continue to notify Customer of the receipt of funds transfers in the periodic statements PEX provides to Customer.
2. PEX ACH Transfer Service. The PEX Administration Web Portal provides Users with access to an ACH service whereby Customer may request PEX to instruct the Bank to initiate ACH debit and credit transfers between Customer’s External Account and Customer’s PEX Account through Services versus initiating an External Bank ACH Transfer through the bank where Customer’s External Account is maintained. To use the PEX ACH Transfer Service, the Customer must register its External Account(s) with PEX for validation and verification purposes. Registration requires that the Customer provide relevant ABA bank routing and account number information to PEX.
By submitting the relevant ABA bank routing and account number information to PEX, Customer authorizes PEX and the Bank to initiate debit and credit entries as necessary to the Customer’s External Account(s) registered with PEX by Customer from time to time, as and when ACH transfers are requested by Customer to or from the PEX Account using the Services, and such authorization will remain in full force and effect until the Customer has revoked such authorization.
- Debit Transfers. Debit requests made through the PEX ACH Transfer Service take four (4) business days to post to the PEX Account. Neither PEX nor the Bank shall be responsible for fees charged by Customer’s other bank for non-sufficient funds or stop-payments with respect to such transfers.
- Credit Transfers. Credit requests made through the PEX ACH Transfer Service take two (2) business days to post to the External Account. Information concerning fees applicable to this service is contained in the Rate and Fee Schedule.
B. WIRE TRANSFERS
Customer may initiate wire transfers originating exclusively from a Customer’s External Account to the Customer’s PEX Account. Wire transfer requests must be made through the bank where Customer’s External Account is maintained. PEX will provide the Bank’s ABA routing and PEX Account numbers for receiving wire transfers. Wire transfer instructions can be found at the PEX Administrator website.
External Bank ACH Transfers may be subject to limits established by the PEX’s partner Bank and the bank where Customer's External Account is maintained. If the Customer meets its other bank's cut-off time for outgoing wire transfers, the funds will be posted upon receipt which generally occurs within several hours after a Customer initiates a wire transfer. PEX will have no knowledge of the Customer’s External Bank Wire Transfer request until the funds are posted to Customer’s PEX Account.
Customer may request PEX to initiate a wire from the Customer’s PEX Account to the Customer’s External Account. The Customer must call Client Services to receive the request form. The process may take up to two (2) business days.
With respect to all transfers of funds to PEX Accounts by Customers (whether through ACH transfer or wire transfer), PEX and the Bank have the right to refuse any deposit and any funds transferred to any PEX Account. Transfers of funds from any checking or operating accounts which are not held in the name of the Customer will not be accepted, i.e., funds transferred from Customer vendors, clients, or any other agent on behalf of Customer will not be accepted. PEX or the Bank 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 the bank account from which such transfer or wire, as applicable, was initiated. PEX and the Bank reserve the right, but have no obligation, to suspend any activity with respect to any PEX Account or PEX Card Account in the event PEX or the Bank suspects any kind of suspicious or unauthorized activity. Neither PEX nor the Bank shall have any liability to Customer for losses and damages incurred by Customer as a result of such suspension. Notwithstanding the foregoing, neither PEX nor the Bank has any obligation to take such actions even if it may take such 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 Card Accounts, and such funds shall be the sole and exclusive property of Customer until such time as such amounts are due and payable in order to fund settlement, pay fees or meet any other obligations of Customer under this Agreement. Funds placed into a PEX Account and PEX Card Accounts collectively are FDIC insured through the Bank up to the maximum coverage available under applicable law.
A PEX Account that is inactive for a period of time may be considered dormant and may be subject to escheatment. Each state has varying laws as to when an account is subject to escheatment and the Bank 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 PEX Account(s) balances are transferred 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 on the Administration Web Portal. The PEX Account Statement will show transactions that posted to Customer’s PEX Account and each PEX Card Account since the last Account Statement; deposits received to the PEX Account; transfers in and out of the PEX Account and PEX Card Accounts; and any fees charged to any PEX Account or the PEX Card Account(s).
Customer agrees to promptly review each PEX Account Statement as it is made available to Customer and report any discrepancies or errors within 60 days per the process detailed in the Liability for Transactions section below.
FUNDS TRANSFERS BETWEEN PEX ACCOUNT AND PEX CARD 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 linked PEX Accounts or PEX Card Accounts by the Agent or Administrative User via various interfaces to the Administration Web Portal that are made available to Customer. Funds may be allocated to and from the PEX Accounts or to PEX Card Accounts, provided funds are on deposit and available.
The dollar amount of funds that can be made available on any single PEX Card Account at any time is limited to $5,000. This limit can be increased upon request of the Customer based on a legitimate business need at the discretion of PEX and the Bank. The minimum PEX Account balance is $50.00. The minimum can be increased by PEX based on Customer usage.
FUNDING THE PEX CARD ACCOUNT
The following load types between the PEX Account and PEX Card Accounts are supported (but subject to transaction limits described above):
- Quick Fund: Transfer or remove funds at will by Agent or Administrative User via interface to the Administration Web Portal.
- Scheduled Automatic Fund: Schedule pre-authorized PEX Card Account transfers in a predetermined amount at a predetermined time as specified by Agent or Administrative User via interface to the Administration Web Portal.
- Triggered Automatic Fund: Schedule pre-authorized PEX Card Account transfers of a predetermined amount via interface to the Administration Web Portal when balance has been spent down to an amount specified by Agent or Administrative User.
Transfers from the PEX Account to the PEX Card Account, and any reversals, will take place in real time (immediate availability) unless otherwise specified by Customer. The automatic funding features are designed to help the Customer better manage its payment processes but can increase the Customer’s losses from unauthorized spending.
CUSTOMER PEX ACCOUNT TRANSFERS
The following transfer types between linked PEX Accounts are supported:
- Make a Transfer: One-time transfer at will by Agent or Administrative User via interface to the Administration Web Portal.
- Scheduled Transfer: Schedule a pre-authorized transfer of a predetermined amount at a predetermined time as specified by Agent or Administrative User via interface to the Administration Web Portal.
Transfers between linked PEX Accounts will take place in real time (immediate availability) unless otherwise specified by Customer.
USE OF THE PEX CARD ACCOUNT FOR SPENDING
This section contains terms, conditions and disclosures applicable to all transactions initiated using a PEX Card Account. Information concerning fees applicable to these services is contained in the Rate and Fee Schedule.
THE PEX CARD ACCOUNT
Each PEX Card Account is linked to a corresponding 16-digit card number. PEX Card Accounts can be used to complete POS and card not present purchase transactions through the following card networks: Visa, Mastercard and STAR (“Card Network”). There is NO CASH ACCESS from ATMs, bank tellers or merchants.
PEX Card Accounts may not be used for transactions on illegal 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 Card Account that it deems is being used for a prohibited purpose.
PEX Card Account holders may be asked to sign a sales slip or provide identification for transactions at the merchant’s discretion. At some merchants, such as gas stations, the PEX Card Account holder may not be required to physically sign to authorize a purchase but may have to provide other card account identifying information such as the ZIP Code associated with the profile of the PEX Card Account.
When a PEX Card Account is used to pay for goods and services, Customer agrees that PEX, without prior notice to Customer, will first debit the PEX Card Account and, if insufficient funds are available, may debit the Customer’s PEX Account or any other sub PEX Card Accounts whether such charges have been signed for manually or by legally acceptable form of electronic signature. If a merchant provides a credit for merchandise returns or adjustments, the merchant may do so by processing a credit adjustment, which PEX will show as a credit to the PEX Card Account.
Issuance of cards with EMV chip are subject to eligibility.
Personal Identification Number
A PIN is a four-digit code that may be used to make purchase transactions instead of signing for a transaction. Some merchants may require PEX Card Account Holders to make purchases using a PIN rather than a signature. PEX Card Account Holders will not receive a PIN with the PEX Card Account. However, the Administrative User may provide a PIN if one is needed to complete transactions authorized by Customer.
Certain merchants (e.g. Pay at the Pump fuel purchasers) may ask the Bank to authorize the transaction in advance and may estimate its final value. When the Bank authorizes such a transaction, the Bank commits to make the requested funds available when the transaction finally settles and may place a temporary hold on Customer’s funds for the amount indicated by the merchant. The Bank 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 the Bank determines that it is unlikely to be processed, the funds subject to the hold will not be available to the Customer or PEX Card Account Holder for other purposes. PEX will only actually charge the PEX Card Account for the correct amount of the final transaction, however, and the Bank will release any excess hold amount when the transaction finally settles.
If a purchase is made in a currency other than the currency in which the PEX Card Account was issued, the amount deducted from Customer's funds will be converted by the Card Network into an amount in the currency of the PEX Card Account. The exchange rate between the transaction currency and the billing currency used for processing international transactions is a rate selected by the Card Network from the range of rates available in wholesale currency markets for the applicable central processing date, which may vary from the rate the Card Network itself receives, or the government-mandated rate in effect for the applicable central processing date. If a purchase is made in a currency other than the currency in which the PEX Card Account was issued, PEX may assess the PEX Card Account an International Service Assessment (“ISA Fee”) of up to 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 use of the PEX Account and PEX Card Accounts and detecting unauthorized or improper use including but not limited to maintaining the accuracy of its records. Customer will check and balance the daily and periodic reporting provided through the Web Administration Portal. If Customer believes an unauthorized transaction has been or may be made from a PEX Card Account, it shall alert PEX immediately by calling PEX Client Services 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 an affidavit signed by the PEX Card Account holder that the transaction(s) were not authorized by them. PEX and the Bank reserve the right to block or cancel any PEX Card Account 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 reported lost or stolen, PEX will close the PEX Card 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 Card 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 reasonable efforts to assure that spending controls designated by Customer are applied to each transaction, but neither PEX nor the Bank is responsible for any unauthorized spending or unauthorized PEX Card Account transactions by Customer or Users as a result of factors beyond its control including but not limited to Card Network, merchant and internet issues. Neither PEX nor the Bank shall have any obligation to refund to Customer any funds as a result of any such unauthorized spending.
If Customer decides to cancel a PEX Card Account, please retrieve the card plastic (if issued) from the PEX Card Account holder and destroy it at once by cutting it in half and use the "Close Card" feature of the PEX Administrator website. As an alternative, Customer, Agent or Administrative User may call Client Services at 1-866-685-1898 to complete the action by telephone. Failure by Customer to retrieve card plastics (if issued) may result in unauthorized transactions and losses to Customer.
Customer agrees to secure, and ensure all PEX Card Account Holders secure, all PEX Card Account plastic cards and PEX Card Account Data. “PEX Card Account Data” means the 16-digit card number, cardholder name, the card expiration date, card CVV, and PIN if created. PEX Card Account Data should not be recorded or stored by Customer or any User in an unencrypted or unmasked format. PEX Card Account plastic cards and PEX Card Account Data are bearer instruments, meaning that any person(s) in possession of the PEX Card Account plastic cards or PEX Card Account Data may be able to successfully complete transactions, whether or not authorized by the Customer or User. Customer will assume full liability for any unauthorized transactions caused by Customer’s failure to secure PEX Card Account plastic cards or PEX Card Account Data.
In addition to the responsibility to secure all PEX Card Account plastic cards and PEX Card Account Data, if Customer maintains a plastic card inventory for immediate issue at some future point in time, i.e., instant issue cards, Customer shall and agrees to develop and maintain an inventory management process so that Customer can account for all PEX Card Account plastic card inventory at any time. This should include a receipt and issuance log updated by Customer each time PEX Card Account plastic cards are received and/or provided to PEX Card Account holders.
OVERDRAFTS, ORDER OF PAYMENTS, NEGATIVE BALANCES
It is the responsibility of Customer to ensure that enough funds are available in each PEX Account and/or PEX Card Account from which Customer or one of its Users instructs PEX 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, in its sole discretion. Customer is fully obligated to PEX to provide sufficient funds for any payments or transfers Customer or User makes or authorizes. If PEX completes a payment or transfer that Customer or User makes or authorizes and PEX subsequently determines there are insufficient funds for the transaction or there is a negative balance in the PEX Account or any PEX Card Accounts for any reason including unauthorized spending, Customer agrees to reimburse PEX for the difference upon demand.
PEX offers Customer a feature by which User(s) can upload receipt image files to the System using the Administration Web Portal or PEX Mobile app. If Customer chooses to use the feature, PEX is not responsible for the content, completeness, or accuracy of receipts displayed. Receipts can be viewed by the PEX Card Account holder and all Agents and Administrative Users.
Except as otherwise provided below, receipts will be stored until the earlier of: (1) 25 months from the date of the PEX Card Account transaction displayed on the receipt, or (2) the date that your PEX Account is closed. Notwithstanding the foregoing, PEX may delete or purge receipts for any reason in its sole discretion, with or without notice. For example, we may remove receipts or otherwise delete information if it (a) is found to contain viruses or other potentially damaging computer code; (b) contains illegal, copyrighted or objectionable contents, (c) contains content other than receipts or (d) exceeds storage capacity established for this service or any specific account. PEX may modify this feature for any reason at any time, in its sole discretion, with or without notice.
MANAGING ACCOUNTS AND ACCESSING ACCOUNT INFORMATION
Customer’s Users can use a compatible Access Device (defined in the Administrative System Access section below) to use the Services. PEX provides an Interactive Voice Response (“IVR“) option for PEX Card Account balance inquiries. Telephone agents are available for lost/stolen card reporting, unauthorized transaction reporting and to answer all PEX Card Account or transaction related questions. PEX may provide access to an Application Programming Interface (“API”) to allow Customer’s Administrative User(s) to perform account maintenance including card creation, card balance adjustments, access to transaction data, and other features.
Customer has the option to request access to the PEX API which can be used to integrate Customer systems with the PEX System. If Customer is approved, PEX will provide Customer with a unique, confidential identification code (“API Credentials”) to access Services for testing and production. PEX may immediately terminate or revoke API Credentials for any reason in PEX’s sole discretion. Customer may not sell, transfer, or sublicense PEX API access.
PEX may provide Customer with support or modifications for the PEX API in its sole discretion. Due to the nature of Services, PEX will update the APIs and documentation from time to time, and may add or remove functionality. PEX will use best efforts to provide notice to Customer if PEX changes, deprecates, or removes functionality from the API so that Customer may continue using Services with minimal disruption. PEX may release subsequent versions of APIs, and the Customer may be required to use those subsequent versions. PEX may, in its sole discretion, also impose limits on certain features and services or restrict Customer’s access to parts of or all of the PEX API with reasonable notice.
ADMINISTRATIVE SYSTEM ACCESS
Access Device Requirements. In order to use Services, Customer must provide, at its own cost and expense, its own Internet Service Provider subscription and necessary compatible mobile device(s) or computer hardware and other equipment required by the device(s) that Customer selects (“Access Device”). In no event will Customer's inability to connect to Services be construed as relieving Customer of any payment obligation or responsibility under this Agreement. Customer also understands that when accessing Services, anyone in close proximity to the Customer may be able to view Customer's personal account information and, in Customer's absence, make or modify transaction instructions.
System Access. PEX System Access IDs (“Access ID”), passwords, and API Credentials will only be issued to Agents, Administrative Users or PEX Card Account holders. It is Customer's responsibility to safeguard its Access ID, passwords, API Credentials, and physical access to its Access Device and personal data. Customer agrees that the use of its Access ID, password, and API Credentials 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 Access ID, password, or API Credentials is used. Customer agrees, therefore, that by a User entering his or her Access ID, password, or API Credentials, Customer is authorizing PEX to accept such online login as Customer's personal signature. If Customer authorizes other persons to use its Access ID, password, or API Credentials in any manner, Customer's authorization will be considered unlimited in amount and manner until Customer has notified PEX in writing that it has revoked the authorization and changed its password. Note that a PEX representative can assist Customer in changing its password if Customer has forgotten it.
Any person who accesses Services using a valid Access ID, password, or API Credentials will be deemed to be authorized by Customer to access Services and the PEX Card 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 Access IDS, passwords, and API Credentials. PEX is not obligated to detect unauthorized access to Services or the PEX Card Accounts or errors by Customer or others. Neither PEX nor the Bank will have any liability to the Customer for any unauthorized transactions made by anyone using a valid Access ID, password, or API Credentials.
PEX Mobile allows Customer, Agent, Administrative User, and PEX Card Account holder to setup fingerprint authentication instead of entering an Access ID and password. By enabling fingerprint authentication, Customer is allowing anyone who has a fingerprint stored on the Access Device to access the PEX System. PEX does not have access to fingerprint information.
Third Party Providers. PEX may develop relationships with third-party providers in order to integrate systems data into third party applications to provide a more seamless user experience for mutual Customers. In order to enable this type of service, the third-party provider may ask Customer to provide a valid Access ID and password so they can access 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 providing 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 Access ID and password for this purpose and provide the third-party provider with those credentials.
Customer agrees to pay PEX for 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 notice via email) of any such increase.
PEX will debit fees for Services rendered or to be rendered by PEX directly from the PEX Account or the PEX Card Account, in the case of ISA Fee, as they are incurred, using funds on deposit. Customer agrees to maintain a monthly minimum balance in the PEX Account of fifty dollars ($50.00) to ensure the timely payment of all amounts incurred by Customer.
Privacy and Confidentiality
To the extent necessary to carry out Services, PEX and/or the Bank 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 or the Bank’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 or Bank employees, auditors, service providers, attorneys or collection agents in the course of their duties.
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.
Liability; Limitation on Liability
Except in the circumstances described below in which case neither PEX nor the Bank will have any liability, if PEX 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'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. 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). Neither PEX nor the Bank will be liable:
(a) If, through no fault of PEX or the Bank, Customer and PEX Card Account holders do not have enough money in the 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 Card Network or other partners' services are experiencing outages; or
(d) If there is a hold or Customer funds are subject to legal or administrative process or other encumbrance restricting their use;
(e) The information supplied by Customer or Agent is incorrect, incomplete, ambiguous or untimely;
(f) PEX or the Bank has reason to believe the transaction may not be authorized by Customer;
(g) The transaction cannot be completed because a PEX Card Account plastic card is damaged;
(h) If circumstances beyond control such as interruption of telephone service or telecommunication facilities, act of war, act of terrorism, natural disaster (such as fire or flood) or other similar event prevent the transfer, despite reasonable precautions that have been taken;
(i) In the presence of internet service outages or denial of service attacks on servers or systems supporting PEX or Bank service communications with the internet;
(j) If Customer or Agent or any PEX Card Account holder have not properly followed PEX's instructions for using Services;
(k) For any failure to provide access or for interruptions in access to 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 Access Device or any virus or other problems related to the Access Device and its related equipment used to access Services; or
(m) For any error, damages or other loss Customer may suffer due to malfunction or misapplication of any Access Device Customer uses, including its browser, ISP, personal financial management or other software, or any other equipment Customer may use (including its telecommunications facilities, computer hardware and modem) to access or communicate with Services.
In no event will PEX or the Bank be liable to Customer for losses or damages arising out of the use, misuse or inability to use Services, or for any loss of any data, even if PEX and the Bank have been informed of the possibility of such damages. PEX and the Bank do not and cannot warrant that Services will operate without errors, or that any or all Services will be available and operational at all times.
In no event shall PEX, the Bank or their respective officers, directors, employees, agents, or contractors, including its partner bank, 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 or the Bank has advised Customer of the possibility of such loss or damage arising out of or related to Customer's use of Services. In states which do not allow the exclusion or limitation, PEX's and the Bank’s aggregate 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.
Each party shall indemnify, defend and hold harmless the other party and its parents, subsidiaries, affiliates and their directors, officers, employees, agents and contractors, including the Bank, 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 relating to Services provided hereunder, or (c) any other claim relating to the transactions contemplated hereby. The indemnified party 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.
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 one year anniversary of such date (the "InitialTerm"). This Agreement shall be renewed for additional successive one-year periods after the Initial Term until terminated by either Customer or PEX (each one-year period after the Initial Term, the “Term”). In the event 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 website and destroy all materials obtained from the PEX website 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.
Copyright and Trademarks. The content, organization, graphics, design, compilation, magnetic translation, digital conversion (“Materials”) and other matters related to PEX's website and PEX 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 website or PEX, 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 website 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 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 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 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. Customer agrees to consult the PEX website regularly for up-to-date information about the 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.
Third Party Beneficiary. Customer acknowledges and agrees that the Bank shall be a third party beneficiary of this Agreement and entitled to enforce the rights of PEX under this Agreement.
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. Customer agrees and consents 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 SHOULD 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 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.
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 under this Agreement hereby are authorized by Customer to perform the services contemplated by this Agreement.