Revised May 7, 2020
The terms and conditions of this Platform Agreement are binding as of the date you submit an application to open a Brex Account. When you submit your application you are consenting to receive all Notices and communications electronically. We may update this Platform Agreement and any terms, agreements, or policies incorporated by reference by providing Notice through posting updated versions to our legal page. We may also give you additional Notice of any changes we believe are material. Your continued use of the Services will serve as your acceptance of any changes to this Platform Agreement and incorporated terms, agreements, and policies referenced.
You may only apply for and maintain a Brex Account and use the Services if you agree to this Platform Agreement, so read it carefully. Please contact us if you don’t understand any of the terms of this Platform Agreement.
Section 3 of this Platform Agreement includes an agreement to resolve any Disputes through binding arbitration and a waiver of any consolidated or class actions, along with important disclaimers and limitations of liability.
1. Opening a Brex Account
Only companies organized and registered in the United States (such as C-corps, S-corps, LLCs, or LLPs) may apply for a Brex Account and use the Services. Individual consumers, sole proprietors, unincorporated partnerships, and companies organized and registered outside the United States are not permitted to use or attempt to open or use a Brex Account or the Services.
Representations of Company
By submitting an application for a Brex Account, the natural person submitting the application represents and warrants in an individual capacity and as an authorized representative of Company that:
- Company is a business entity that is organized, registered, and located in the United States
- Company has a valid U.S. Employer Identification Number (EIN)
- Company is validly existing and in good standing in its jurisdiction of organization
- Company is not engaged in any Prohibited Activities
- The natural person who applies for a Brex Account on Company’s behalf is authorized to provide information about Company, submit the application on behalf of Company, enter into binding agreements on behalf of Company, and manage Company’s Brex Account
- The natural person who applies for a Brex Account on Company’s behalf is not and is not affiliated with a Prohibited Person
- All information you provide to us is and will be current, accurate, and complete
- Company will use its Brex Account exclusively for business purposes and not for any personal, family, or household use
- You have reviewed this Platform Agreement and the terms, agreements, or policies incorporated by reference
You must provide Company Data to apply for and maintain a Brex Account and any Services. Company Data may include registered business name, business address, ownership details, contact information including email and phone number, tax identification number, the nature of the business, financial information, details for your Linked Accounts, and other business information that we may require or request from time to time.
You must also provide certain Personal Data including the names, contact information, personal addresses, social security numbers, and dates of birth of Administrators, Users, Beneficial Owners, and Control Persons. We may also require that you provide certain documentary information used to verify Company Data and Personal Data including corporate registration certificate, proof of address, or personal identification.
You must connect at least one Linked Account. You authorize us to verify that the account details you provided for your Linked Account are correct and the Linked Account belongs to you by making a microdeposit to and corresponding debit from the Linked Account via ACH or by other similar means.
To help the government fight the funding of terrorism and money laundering activities, U.S. federal law requires that financial institutions obtain, verify, and record Company Data and Personal Data identifying companies and their Beneficial Owners and Control Persons. You agree to provide the required information to open and maintain your Brex Account and agree to keep such information current. This information may be shared with Program Partners and Third-Party Service Providers for these purposes. You may be required to verify information previously provided or provide additional information in the course of applying for or receiving certain Services.
You acknowledge that you have obtained or will obtain appropriate consent and authorization of any person whose Personal Data you provide before sharing such data with Brex.
Verification and validation of information
We may approve or deny your application or grant you provisional access to the Services or your Brex Account while your application is pending additional review. We may deny your application, interrupt provision of the Services to you, or suspend or close your Brex Account where the information you provided is incomplete, inaccurate, or out of date.
Consent to electronic signature and communications
You agree that submitting your application for a Brex Account and indicaticating consent to this Platform Agreement constitutes your electronic signature. You also agree that your electronic consent has and will have the same legal effect as a physical signature. You consent to us providing Notices and account statements to you electronically, and understand that this consent has the same legal effect as would a physical signature.
In certain circumstances, including where we deem Company to present a high risk to Brex or where we are required by a Program Partner, we may require supplemental agreements between Brex and Company or parties affiliated with Company. The availability of specific Services to Company may be subject to these supplemental agreements. We may add or change the applicability of these requirements and the supplemental agreements at any time. Company or parties affiliated with Company (including affiliates or Control Persons) may be required to enter into such supplemental agreements in order to access or continue use of the Services. We may require Company to enter into a security agreement or provide a security interest in Company assets for certain Programs. Required supplemental agreements are provided separately from this Platform Agreement.
1.3 Prohibited and Restricted Activities
Your Brex Account and the Services may not be (a) used for any purpose that is unlawful or prohibited by this Platform Agreement, (b) used for any personal, family, or household use, (c) used for any transaction involving any Prohibited Activities, (d) provided to or used for any transaction involving an individual, organization, country, or jurisdiction that is blocked or sanctioned by the United States, including those identified on any lists maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) or the U.S. Department of State, (e) used by third parties unaffiliated with Company, or (f) used for any purpose not related to the business of Company.
We will not approve and may terminate Brex Accounts that we know or believe are engaged in any Prohibited Activities or otherwise do not comply with these restrictions. Brex may limit Company’s use of certain Services or require that you provide additional information to open or maintain your Brex Account where Company is engaged Restricted Activities.
We may update the lists of Prohibited Activities or Restricted Activities at any time, and your continued use of the Services constitutes your acknowledgement of and agreement to abide by those updated lists. You agree to review these lists regularly and contact us with any questions you have about how these lists may apply to Company's business. You agree to pay all Fines assessed against Brex for your violation of the restrictions and requirements of this section or any use of the Services in connection with any Prohibited Activities or Restricted Activities.
1.4 Data and Privacy
2. Managing and Using Your Brex Account
2.1 Authorized Users
You must specify at least one Administrator to manage your Brex Account when submitting your application. Administrators must have, and Company represents that any individual designated as an Administrator has, the requisite organizational power and authority to conduct business and manage Company’s Brex Account. In the event that an individual designated as an Administrator no longer has such requisite organizational power and authority, Company must notify us promptly and designate another Administrator for the Brex Account.
Administrators may: add, remove, or manage additional Administrators and Users; view transactions; view and run reports and download statements; provide or update Company Data; connect Linked Accounts, Third-Party Services, and other accounts to your Brex Account; consent to any new or updated terms or conditions contained in this Platform Agreement or other agreements or policies incorporated in this Platform Agreement, consent to supplemental agreements, or consent to any Additional Terms; and take actions specified in the Program Terms and perform other tasks on Company’s behalf. Administrators must not authorize the use of Company’s Brex Account or the Services by any Prohibited Person.
Administrators must monitor Company’s Brex Account activity and statements as required by applicable Program Terms. Certain Services include additional permission levels and authorizations. If you use these Services, Administrators on your Brex Account will be able to authorize and assign Users these permission levels and authorizations.
You may authorize individuals to have read-only "bookkeeper access" to certain information about Company’s use of the Services on Company’s Brex Account. These individuals may view and run reports and download statements.
Users may use Company’s Brex Account, transact, and use the Services only for valid, lawful, bona fide business purposes on Company’s behalf. Users may not use the Services for personal, family, or household purposes. Users must accept and comply with the User Terms.
2.2 Responsibility for Use
Company is responsible and liable for any actions or failure to act on the part of Administrators, Users, and those using Credentials issued to Users to access Company’s Brex Account.
Company is responsible for:
- Ensuring that Users are aware of and agree to abide by the terms of this Platform Agreement, the applicable Program Terms and all applicable law and Card Network rules in connection with their use of the Services
- Ensuring that Users are aware of, accept, and comply with the User Terms
- Ensuring that Users use the Services only for valid, lawful business purposes and not for any personal, family, or household use
Company is liable for any breach or violation by its Users of this Platform Agreement or any of the agreements, terms, and policies incorporated by reference.
Company is responsible for ensuring that Administrators, Users, and any other persons affiliated with Company communicate respectfully and will refrain from using any form of disrespectful, harassing, abusive, or hate speech with Brex team members. If Brex receives reports of any such behavior by representatives of your Company towards our team, we may contact your Administrator, suspend access to Company’s Brex Account and the Services, or close your Brex Account.
Safeguards and Credentials
You will keep your Brex Account secure and only provide access to individuals that you have authorized to use the Services on your behalf. You will take all reasonable steps to safeguard the privacy, confidentiality, and security of User Credentials. You will closely and regularly monitor the activities of Users who access the Services, and you will use all reasonable means to protect Cards, checks, mobile devices, web browsers, and anything else used to access or utilize the Services.
You will ensure that each User has their own unique set of Credentials, keeps those Credentials secure, does not share those Credentials with any other person or third party, and does not reuse Credentials for other services.
You will not allow any unauthorized person to use the Services. You will immediately disable User access to the Services or limit permissions where you know or suspect your Brex Account has been compromised or may be misused or where you know or believe a User’s Credentials are compromised or lost; and you will promptly notify us of any unauthorized access or use of your Brex Account or the Services.
You are responsible for assessing the security requirements of your business and selecting and implementing Security Procedures appropriate to mitigate your exposure to potential security incidents. This responsibility includes selecting appropriate administrative, procedural, and technical controls that are appropriate to protect Company’s financial accounts.
Brex may provide or suggest that you implement certain Security Procedures in connection with your use of the Services. You understand that your responsibility for the security of your business is not diminished by any Security Procedures that we provide or suggest. You agree to review all of the Security Procedures we suggest and choose those that are appropriate to protect Company against unauthorized transactions. If you believe that the Security Procedures we suggest are insufficient for Company then it is your sole responsibility to independently implement additional controls that meet Company’s needs.
We may update the Security Procedures at any time, and your continued use of the Services constitutes your agreement to the updated Security Procedures. You agree to review the Security Procedures regularly and contact us with any questions about the Security Procedures.
By using the Services, you represent that you have reviewed the Security Procedures and that those you have chosen are commercially reasonable for you to protect against unauthorized transactions. You assume all liability arising from disabling, opting out of, or failing to properly use Security Procedures made available to you or implemented at your discretion.
2.4 Transactions and Activities
Though we may provide Security Procedures, we cannot guarantee that you will not become a victim of fraud. You are solely responsible for all transactions initiated through the Services using Credentials and for all transactions initiated in your name that are authenticated using the Security Procedures you choose.
You will be bound by any transaction (including any transfer, instruction, or payment order we receive related to the Services), even if it is not authorized, if the transaction is initiated under your Credentials or processed in accordance with your instructions.
We may help you resolve unauthorized transactions, but you acknowledge and understand that you are responsible for any financial loss caused by Administrators, Users, or other persons given access to the Services or your Brex Account, and any financial for loss due to compromised Credentials or due to any unauthorized use or modification of your Brex Account or the Services. Brex is not liable or responsible to you, and you waive any right to bring a claim against us, for any such losses.
We may suspend access to your Brex Account or the Services at any time and for any reason, in our sole and absolute discretion, without prior Notice. Some of the reasons we may suspend access to your Brex Account include: if we believe your Brex Account has been compromised; if we believe that not doing so may pose a risk to you, Brex, or any third parties; if Company Data or Personal Data is incomplete, inaccurate, or out of date; if we believe you have violated this Platform Agreement or the law; or if we are required to do so by a Program Partner or by law.
Company’s Brex Account is commercial in nature, and you acknowledge and understand that certain consumer protection laws (including the Electronic Funds Transfer Act or Regulation E) and consumer-specific rules (including NACHA rules specific to consumers) do not apply to transactions on your Brex Account or your use of the Services.
2.5 Fees and Disclosures
We may assess Fees for some Programs or Services, including periodic fees, usage fees, service fees, and fees applicable to certain transactions. We may also assess Fees for late or failed payments, or misuse of your Brex Account or the Services. We will disclose Fees to you when opening your Brex Account, when you start using a new Service, or through our website. We may update, add, or change Fees upon 30 days' Notice to you.
Any accrued or incurred Fees will be reflected on your statements for the applicable Program and included in the amounts you owe Brex under such Program.
Disclosures about the Services
Some Programs or Services provided by Brex may require use of other Programs or Services. We do this because some of our Services serve as a way to access other Services. For example, when you sign up for a Brex Cash Account, we will issue you Cards as a way to access funds in your Brex Cash Account. We will disclose any such required additional Programs or Services to you before you use such Programs or Services.
We may report Company payment history and performance to one or more credit reporting agencies.
Brex may determine when, how, and under what conditions you may qualify for, accrue, redeem and retain rewards, and Brex may modify these conditions with or without Notice to you. Certain Programs or Services may not be eligible for rewards. Rewards may be subject to caps, revocation, or forfeiture as set forth in the Rewards Terms. All rewards offered are subject to the Rewards Terms.
2.7 Changes to the Services
We may add Programs or Services or modify existing Programs or Services at any time. Some of these Services will be subject to Additional Terms. You acknowledge and understand that in order to use certain Services, you must agree to the Additional Terms that we will provide separately from this Platform Agreement, and which will be incorporated by reference and form a part of this Platform Agreement.
We do not guarantee that each of the Services will always be offered to you, that they will be available to you, or that you will qualify or be able to utilize any particular Service. Services will change from time to time, and certain Services may be discontinued or others may be added.
2.8 Notices and Communication
We will provide Notices regarding certain activity and alerts to your Brex Account electronically through your Brex Account, email, push notification, or via text or SMS to the contact information provided to us by Administrators and Users.
Notices regarding payments, legal terms, and any other important Notices related to your Company’s Brex Account will be sent to certain Administrators through your Brex Account or email and are considered received 24 hours after they are sent. You understand that you may not use the Services unless you consent to receive Notices electronically. You may only withdraw consent to receive Notices electronically by closing your Brex Account.
We may send Notices to Users’ mobile phones through push notifications, text or SMS messages to the mobile phone numbers provided to us by Administrators or Users. These Notices may include alerts about Services or transactions, and may allow Administrators and Users to respond with information about transactions or Company’s Brex Account. You authorize Users to take any available actions, subject to limitations based on permissions and authorization. Users may elect to not receive certain Notices via text or SMS, but this will limit the use of certain Services and may increase the financial risks to Company including losses caused by lost or stolen Credentials.
We may send text or SMS messages to Users in connection with use of Credentials (such as through multi-factor authorization), to allow us to verify their identity, to provide other information about your Brex Account or in connection with Programs, and for other purposes that we identify and that are available through your Brex Account.
Administrators and Users are required to maintain updated web browsers, computers, and mobile device operating systems to receive Notices correctly. Administrators and Users are responsible for all costs imposed by their respective Internet or mobile service providers for sending or receiving Notices electronically.
Contact us immediately if you are or believe you are having problems receiving Notices.
2.9 Updates to Company Information
You will keep Company Data and each User’s Personal Data current, complete, and accurate in your Brex Account at all times whether we provide you with full or provisional access.
At any time during the term of this Platform Agreement and your use of the Services, we may require additional information from you, including Company Data (such as copies of government-issued identification, business licenses, or other information related to your business) and Personal Data (such as copies of government-issued personal identification and proof of address) to verify Beneficial Owners or Control Persons, validate information you provided, verify the identity of Administrators or Users, and assess Company’s financial condition and business risks.
Notification of corporate and business changes
Company must be duly organized and in good standing under the laws of its jurisdiction of organization throughout the term of this Platform Agreement.
You will promptly notify us in writing if any of the following occur:
- The nature of your business changes significantly
- There is any change of Beneficial Owners or Control Persons
- There is any material change in the control or ownership of your business (whether direct or indirect) or you transfer or sell 25% or more of your total assets
- There is any planned or anticipated liquidation, or voluntary bankruptcy or insolvency proceeding
- You are the subject of an inquiry, proceeding, investigation, or enforcement action promulgated by any regulatory authority
- You are party to a litigation in which claims are asserted that would, if sustained in a legal proceeding or alternative dispute resolution forum, result in a material impact to Company’s financial condition
- You receive a judgment, writ or warrant of attachment or execution, lien, or levy against 25% or more of your total assets
- You begin engaging in any of the Prohibited Activities or Restricted Activities
2.10 Brex Property and Licenses
Brex and licensors own all Brex Property. Company, Administrators, and Users may use Brex Property only as and for the purposes provided in this Platform Agreement and the Program Terms. You may not modify, reverse engineer, create derivative works from, or disassemble Brex Property or register, attempt to register, or claim ownership in Brex Property or portions of Brex Property.
Brex grants you a nonexclusive and nontransferable license to use Brex Property as provided through the Services and as permitted by this Platform Agreement. This license terminates upon termination of this Platform Agreement unless terminated earlier by us.
We will not share any Company Data with third parties for marketing unaffiliated products without your consent, but may use Company Data to identify Services, Third-Party Services, and programs that we believe may be of interest to you, including as part of a rewards or benefits program. Brex may include De-Identified Data in both public and private reports.
You grant Brex a worldwide, irrevocable license to use, modify, distribute, copy, and create derivative works from Company Data for the purposes identified in this Platform Agreement.
2.11 Identification as Customer
We may publicly reference you as a Brex customer on our website or in other communications during the term of this Platform Agreement. We will not express any false endorsement or partnerships. You grant Brex a limited license to use Company trademarks or service marks for this purpose. Please notify us if you prefer that we not identify you as a Brex customer, and we will remove references to you on our website or in other communications.
2.12 Beta Services and Feedback
We sometimes release Beta Services in order to test new products, features, and programs, and we may make these Beta Services available to you to get your Feedback. We may change or discontinue Beta Services at any time. Beta Services are confidential until we publicly announce the products, features, or programs, and if you use Beta Services, you agree to keep information about the Beta Services confidential. Any Beta Services are provided to you AS IS and without warranty. We may use any Feedback about the Services or Beta Services freely and without restriction. Except where specifically notified by us, we will not compensate or credit you for Feedback you provide to us.
Information provided on our website and in other communications from us is for information purposes only. We believe it to be reliable, but it may not always be entirely accurate, complete or current. We may change or update information from time to time without Notice. You should verify all information on our website and in other communications from us before relying on it. You are solely responsible for all of your decisions based on information provided on our website and in other communications from us, and we have no liability for such decisions.
Information we provide on our website and in other communications to you may contain third-party content or links to third-party sites and applications. We do not control any such third-party content, sites, or applications, and we are not responsible or liable for the availability, accuracy, completeness, or reliability of third-party content or for damages, losses, failures, or problems caused by, related to, or arising from such third-party content or the products or practices of third parties.
You may not transfer or assign (by operation of law or otherwise) this Platform Agreement or any of your rights or obligations hereunder, or operation of your Brex Account, without Brex's prior express written consent. If you wish to make such a transfer or assignment, or the ownership of Company is changing, you must give us prior written notice. If we consent to such a transfer or assignment, the assignee or successor must assume all of Company’s rights, obligations, and liabilities under this Platform Agreement and your relationship with Brex, and will be bound by all the terms of this Platform Agreement. Brex may assign, pledge, or otherwise transfer this Platform Agreement or any of its rights and powers under this Platform Agreement without restriction and without providing Notice to you. Any such assignee or successor will have all rights as though originally named in this Platform Agreement instead of Brex.
2.15 Term and Termination
This Platform Agreement is effective when you start an application for a Brex Account and continues until terminated by either you or us, in accordance with the Program Terms or as set forth in this Platform Agreement.
You may terminate this Platform Agreement by ceasing to use the Services, paying all amounts owed, and providing notice to us. We may decline to close your Brex Account if you have a negative balance in respect of any Service, if any funds that we are holding on your behalf are subject to a hold, lien or other restriction, or if we believe that the Brex Account is being closed to evade any legal or regulatory requirement or investigation.
Brex may terminate this Platform Agreement and terminate access to your Brex Account or the Services at any time and for any reason by providing you Notice. If we believe you violated this Platform Agreement or the applicable Program Terms, or if required by one of our Program Partners or by law, we may terminate access to your Brex Account without prior Notice.
You are responsible for all Charges, Fees, Fines, and other losses caused by your action or inaction prior to termination, and for any costs we may incur in the process of closing your Brex Account upon termination by you or us.
In the event that this Platform Agreement is terminated, except as expressly provided herein, the applicable Program Terms will immediately terminate (other than sections that survive termination).
If you reapply or reopen your Brex Account or use or attempt to use any of the Services, you are consenting to the Platform Agreement in effect at that time.
Sections 1.4 (Data and Privacy), 2.2 (Responsibility for Use), 2.3 (Access), 2.4 (Transactions and Activities), 2.8 (Notices and Communication), 2.12 (Beta Services and Feedback), 2.14 (Assignment), 2.15 (Term and Termination), 3.1 (Limitation of Liability), 3.2 (Disclaimer of Warranties by Brex), 3.3 (Indemnification), 3.4 (Governing Law and Venue), 3.5 (Binding Arbitration), and 3.6 (Legal Process) together with the provisions of the Program Terms that identify continuing obligations, and all other provisions of this Platform Agreement or the agreements, terms, and policies incorporated herein giving rise to continuing obligations of the parties, will survive termination of this Platform Agreement.
3. General Provisions
3.1 Limitation of Liability
Brex is not liable to you for consequential, indirect, special, exemplary, or punitive damages, lost profits, or lost revenue arising from or related to your use of or inability to use Services or Cards, lost profits or reputational harm, physical injury or property damage, or any other losses or harm arising from or related to this Platform Agreement or any terms, agreements, or policies incorporated by reference, whether or not we were advised of their possibility by you or third parties.
Our maximum liability to you under this Platform Agreement and any terms, agreements, or policies incorporated by reference, is limited to the greater of the total amount of Fees actually paid by you to Brex in the three months preceding the event that is the basis of your claim or $5,000. These limitations apply regardless of the legal theory on which your claim is based.
3.2 Disclaimer of Warranties by Brex
THE SERVICES, BREX PROPERTY, AND BETA SERVICES ARE PROVIDED TO YOU AS IS AND AS AVAILABLE. BREX DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES OF NON-INFRINGEMENT OF THE SERVICES, BREX PROPERTY, AND BETA SERVICES. NOTHING IN THIS PLATFORM AGREEMENT WILL BE INTERPRETED TO CREATE OR IMPLY ANY SUCH WARRANTY TO YOU.
THIRD-PARTY SERVICES ARE NOT PROVIDED OR CONTROLLED BY BREX. BREX DOES NOT PROVIDE SUPPORT FOR AND DISCLAIMS ALL LIABILITY ARISING FROM FAILURES OR LOSSES CAUSED BY THIRD-PARTY SERVICES.
BREX DISCLAIMS ALL WARRANTIES AND DOES NOT GUARANTEE THAT (A) SERVICES AND DATA PROVIDED UNDER THIS PLATFORM AGREEMENT ARE ACCURATE OR ERROR-FREE; (B) THE SERVICES WILL MEET YOUR SPECIFIC NEEDS OR REQUIREMENTS; (C) THE SERVICES WILL BE USABLE BY COMPANY, ADMINISTRATORS, OR USERS AT ANY PARTICULAR TIME OR LOCATION; (D) SPECIFIC MERCHANTS WILL PERMIT PURCHASES USING CARDS ISSUED BY AN ISSUER; (E) SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE FROM HACKING, VIRUSES, OR MALICIOUS CODE; AND (F) ANY DEFECTS IN THE SERVICES WILL BE CORRECTED, EVEN WHEN WE ARE ADVISED OF SUCH DEFECTS.
BREX IS NOT LIABLE FOR AND DISCLAIMS LIABILITY FOR ANY DAMAGES, HARM OR LOSSES TO YOU ARISING FROM UNAUTHORIZED ACCESS OR USE OF YOUR BREX ACCOUNT OR THE SERVICES OR YOUR FAILURE TO IMPLEMENT APPROPRIATE SECURITY PROCEDURES.
You agree to indemnify, defend, and hold harmless Brex and Third-Party Service Providers (including our respective affiliates, directors, employees, agents, and representatives), from and against all losses, liabilities, claims, demands, or expenses, including reasonable attorney’s fees, arising out of or related to: proceedings, suits, or actions brought by or initiated against Brex by any third party due to your breach or alleged breach of this Platform Agreement, any terms, agreements, or policies incorporated by reference, or any other agreements with Brex; acts or omissions of Administrators, Users, or other Company employees or agents; Company’s actual or alleged infringement of a third party’s intellectual property rights; Company's use of Third-Party Services; or disputes over Charges between Company and merchants.
3.4 Governing Law and Venue
This Platform Agreement will be construed, applied, and governed by the laws of the State of California exclusive of its conflict or choice of law rules except to the extent that U.S. federal law controls. Subject to the good faith binding arbitration requirement provisions contained in Section 3.5, all litigation will be brought in the state or federal courts located in San Francisco, California.
3.5 Binding Arbitration
You and Brex agree to resolve all Disputes arising under or in connection with this Platform Agreement as provided in this section. Make sure that you have read and understand the below. Any arbitration or other legal proceeding under this Platform Agreement will only be on an individual basis. Neither party may join with other parties to form a Consolidated Action. Each party waives its rights to file a lawsuit in court, to have its case decided by a jury, and to participate in a Consolidated Action against the other party.
If you do not want to arbitrate all claims as provided in this Platform Agreement, then you have the right to reject such arbitration provisions by delivering a written notice to us at 405 Howard Street, 2nd Floor, San Francisco, CA 94105, Attention: Legal Department within thirty (30) days of the date you have entered into this Platform Agreement. Your rejection of any arbitration provisions does not affect any independent arbitration agreements with third parties, and you remain subject to any arbitration, class action or jury trial waiver or dispute resolution processes set out in those separate agreements.
Company and Brex agree to first attempt to resolve Disputes in good faith and in a timely manner. Where no resolution can be found, Disputes will be resolved by arbitration in San Francisco, California before a single arbitrator, as provided in this section, except that Disputes principally arising from protection of intellectual property rights or breach of confidential information will be resolved through litigation in accordance with Section 3.4.
Arbitration will be administered by JAMS according to the rules and procedures in effect at the time the arbitration is commenced. Disputes with amounts claimed greater than $250,000 will apply the JAMS Comprehensive Arbitration Rules and Procedures, and Disputes with amounts claimed less than or equal to $250,000 will apply the JAMS Streamlined Arbitration Rules. The arbitrator will apply the substantive law as described in Section 3.4. If JAMS cannot administer the Dispute, either party may petition the US District Court for the Northern District of California to appoint an arbitrator. The parties acknowledge that transactions under this Platform Agreement may involve matters of interstate commerce and, notwithstanding the provisions in this paragraph referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern any arbitration conducted pursuant to the terms of this Platform Agreement.
Either party may commence arbitration by providing a written demand for arbitration to JAMS and the other party detailing the subject of the Dispute and the relief requested. Each party will continue to perform its obligations under this Platform Agreement unless that obligation or the amount (to the extent in Dispute) is itself the subject of the Dispute. Nothing in this Platform Agreement affects the right of a party to seek urgent injunctive or declaratory relief from a court of appropriate jurisdiction in respect of a Dispute or any matter arising under this Platform Agreement.
The prevailing party is entitled to recover its reasonable attorneys' fees, expert witness fees, and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
Proceedings and information related to them will be maintained as confidential, including the nature and details of the Dispute, evidence produced, testimony given, and the outcome of the Dispute, unless such information was already in the public domain or was independently obtained. Company and Brex, and all witnesses, advisors, and arbitrators will only share such information as necessary to prepare for or conduct arbitration or other legal proceeding, or enforcement of the outcome, unless additional disclosure is required by law.
3.6 Legal Process
We may respond to and comply with any legal order we receive related to your use of the Services, including subpoenas, warrants, or liens. We are not responsible to you for any losses you incur due to our response to such legal order. We may take any actions we believe are required of us under legal orders including holding funds or providing information as required by the issuer of the legal order. Where permitted, we will provide you reasonable Notice that we have received such an order.
3.7 Headings and Interpretation
Headings in this Platform Agreement are for reference only. Except where otherwise specified, all references to sections or provisions refer to this Platform Agreement or the applicable incorporated terms. The phrases including, for example, or such as do not limit the generality of the preceding provision; the word or will be read to mean either… or… or any combination of the proceeding items; words in the singular include the plural and words in the plural include the singular; and provisions listing items and using and require all listed items.
If any provision of this Platform Agreement is found by a court of competent jurisdiction or arbitrator to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Platform Agreement will otherwise remain in full force and effect.
3.8 Changes to this Platform Agreement
We may modify this Platform Agreement or provide other agreements governing use of the Services or any portion of them by providing you Notice. Any Administrator’s or User’s continued use of the Services or Cards constitutes your consent to the revised Platform Agreement.
Any waiver, modification, or indulgence that we provide to Company, of any kind or at any time, applies only to the specific instance involved and will not act as a general waiver or a waiver, modification, or indulgence under this Platform Agreement for any other or future acts, events, or conditions. Further, any delay by Brex in enforcing our rights under this Platform Agreement does not constitute forfeiture of such rights.
3.9 Entire Agreement
This Platform Agreement, including any terms, agreements or policies incorporated by reference, constitutes the entire understanding of the parties with respect to the subject matter described and supersedes all other proposals or previous understandings, written or oral, between the parties. No other agreements, representations, or warranties other than those provided in this Platform Agreement and the applicable Program Terms will be binding unless in writing and signed by Company and Brex.
4. Defined Terms
Capitalized terms in this Platform Agreement are defined as follows:
Additional Terms means additional terms or policies to which we may require you to agree in the event that we release new products, features, integrations, promotions, or rewards, or otherwise to enhance and improve the scope and quality of the Services.
Administrator means an individual with the requisite organizational power and authority to conduct business and manage Company’s Brex Account and act on behalf of Company, including consenting to this Platform Agreement.
Beneficial Owner means any individual who, directly or indirectly, owns 25% or more of the equity interests of Company.
Beta Services means beta or pre-release products or services, which may contain features and functionality that are incomplete or subject to substantial change or discontinuation.
Brex Account means your Company’s account with Brex that is used to access the Services, including your Brex Cash Account, if applicable.
Brex Cash means the cash management, payment and other Services offered by Brex Treasury.
Brex Cash Account means any self-directed account managed by Brex Treasury on your behalf for the purchase, sale, or carrying of securities.
Brex Data means all data developed or collected by Brex through the development or provision of Services, Cards, or Third-Party Services, or generated or recorded by the Brex platform, but which does not include Company Data.
Brex Property means the Services and related technology; Brex Data; and copyrights, patents, trade secrets, trade or service marks, brands, logos, and other intellectual property incorporated into each of the foregoing.
Brex Treasury means Brex Treasury LLC, a FINRA-registered broker-dealer.
Card Networks means the payment card networks including Visa or Mastercard.
Cards means physical or virtual payment cards issued by an Issuer and managed through your Brex Account.
Cash Agreement means the Brex Cash Customer Agreement, which is a supplement to the Platform Agreement and which is entered into between Company and Brex Treasury to govern terms related to your Brex Cash Account.
Charge means a payment for goods or services made using a Card to a merchant that accepts payments on the applicable Card Network.
Company Data means information or documentation provided by Company to Brex, and which includes Financial Data and any Personal Data provided by Company, Administrators, and Users.
Consolidated Action means class arbitrations, class actions, or other action brought between multiple parties based on the same or similar legal claims, or the same or similar facts.
Control Person means a single individual with significant responsibility to control, manage, or direct Company.
Credentials means usernames, passwords, and other identifiers or credentials used to assist Brex in identifying and authenticating you with regard to your use of the Services.
De-Identified Data means data derived from Company Data that has been anonymized or aggregated with other data and that can no longer be used to identify a specific company or individual.
Dispute means any dispute, claim, or controversy arising from or relating to this Platform Agreement, including any incorporated terms, agreements, and policies.
Feedback means all feedback, suggestions, ideas, or enhancement requests you submit to us.
Fees means charges we impose on you for use of Services or your Brex Account.
Financial Data means Company’s bank balance, transaction, and account information accessible to Brex through Linked Accounts or Third-Party Services.
Fines means all fines, penalties, or other charges imposed by a Program Partner, governmental agency or regulatory authority arising from your breaching of this Platform Agreement, any of the Program Terms, Card Network rules, or other agreements you have with Brex or a Program Partner.
Issuer means the bank that is a member of the Card Network indicated on Cards and is responsible for issuing the Cards to you.
Linked Account means any account that is held with a financial institution (including Brex Treasury) and is linked to or authorized for use or payment through your Brex Account.
Notice means any physical or electronic communication, or legal notices related to this Platform Agreement that are provided to you, Users, or Administrators through text or SMS, email, your Brex Account, or by other means.
Personal Data means data that identifies or could reasonably be used to identify a natural person.
Platform Agreement means this Platform Agreement as amended.
Program Partner means a bank, financial institution, or other partner that provides services directly related to one or more Programs.
Program Terms means the terms and agreements applicable to portions of the Services, including the Cash Agreement, the Brex Card Program Terms, the Card Terms, any Program Partner terms, and any other terms and conditions that govern access to and use of any Program.
Programs means the Brex Cash and Brex Card programs, and any other financial products or services offered or operated by Brex.
Prohibited Activities means the business types and activities posted on our website as updated from time to time that, where engaged in by Company, may render Company ineligible for a Brex Account.
Prohibited Person means any individual or organization that is subject to sanctions in the United States, identified on any lists maintained by OFAC or the U.S. Department of State, or is subject to any law, regulation, or other list of any government agency that prohibits or limits us from providing a Brex Account or Services to such person or from otherwise conducting business with the person.
Restricted Activities means the business types and activities posted on our website as updated from time to time that, where engaged in by Company, may limit Company’s use of certain Services or require additional information from Company to open or maintain a Brex Account.
Security Procedures means certain procedures and controls that are intended to help secure and protect your Brex Account and data from misuse, fraud, and theft.
Services means the financial products, technology, expense management, cash management, payment services, integrations with Third-Party Services, and all other services provided by Brex through your Brex Account.
Third-Party Services means services and data provided by third parties connected to or provided through the Services. Third-Party Services include accounting or expense management platforms (such as QuickBooks, Xero, and NetSuite), payment processors and e-commerce platforms (such as Shopify), and applications used to monitor Linked Accounts (such as Finicity).
Third-Party Service Provider means an affiliate or other third party that assists us in providing the Services to you, that supports our internal operations, or that provides other services related or connected to, or provided through the Services and a Brex Account.
Users means any employees, contractors, or agents authorized to use the Services on Company’s behalf, and includes Administrators.