Sutton Bank Card Terms
These Sutton Bank Card Terms and Conditions (these “Terms”) represent an agreement between each Account Owner and any Authorized User and Bank that governs the Brex Card Program (each term as defined below). Account Owner shall be responsible for notifying the Business Administrator and Authorized Users of their authority and obligations under these Terms and for ensuring that the Business Administrator and each Authorized User complies with these Terms. Each Authorized User must accept these Terms in order to receive and use the Card Account.
“Access Information” means collectively a PIN, online user name, password, challenge questions, and any other security information used to access the Card Account.
“Account Owner” or “you” or “your” means the entity that has qualified for and established a Card Account (See Section 5.2 – Qualifying For and Establishing Card Accounts).
“Authorized User” means any designated person authorized by the Business Administrator to use the Card Account on Account Owner’s behalf.
“Bank” means Sutton Bank, member Federal Deposit Insurance Corporation (“FDIC”).
“Business Administrator” means any designated person authorized by the Account Owner to administer the Card Account and associated Cards and/or act on Account Owner’s behalf in connection with these Terms, including without limitation designating Authorized Users, funding the Card Account, and setting Card Account limitations (See Section 5.2 – Qualifying for and Establishing Card Accounts).
“Card” means the Visa branded Brex Prepaid Card issued by Bank through which you or one of your Authorized Users can obtain access to their Brex Funds. Each reference to “Card” also shall include “Cards.” A Card may be a virtual card represented by a 16-digit account number and a physical card embossed with the same 16-digit number.
“Card Account” means the records maintained by Bank for each Card.
“Payment Card” means Account Owner’s credit or debit card.
“Principal Owner” means (1) each individual, if any, who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, owns 25 percent or more of the equity interests of the legal entity and (2) one individual with significant responsibility for managing the legal entity listed above, such as an executive officer or senior manager (e.g., Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Managing Member, General Partner, President, Vice President, Treasurer); or any other individual who regularly performs similar functions
“We,” “us,” and “our” mean Bank and its successors, affiliates, and assignees.
2. Activating the Card
3. Important Information About Procedures for Opening a Card Account
TO HELP THE GOVERNMENT FIGHT THE FUNDING OF TERRORISM AND MONEY LAUNDERING ACTIVITIES, FEDERAL LAW REQUIRES ALL FINANCIAL INSTITUTIONS TO OBTAIN, VERIFY, AND RECORD INFORMATION THAT IDENTIFIES EACH PERSON WHO OPENS AN ACCOUNT. WHAT THESE MEANS FOR YOU: WHEN YOU OPEN AN ACCOUNT, WE WILL ASK FOR THE NAME, ADDRESS, EMPLOYER IDENTIFICATION NUMBER AND ORGANIZATIONAL DOCUMENTS OF THE ACCOUNT OWNER AND THE NAMES, ADDRESSES, DATES OF BIRTH, AND OTHER INFORMATION CONCERNING EACH PRINCIPAL OWNER THAT WILL ALLOW US TO IDENTIFY THE ACCOUNT OWNER AND ITS PRINCIPAL OWNERS. WE MAY ALSO ASK TO SEE A COPY OF EACH PRICIPAL OWNERS’ DRIVER’S LICENSES OR OTHER IDENTIFICATION DOCUMENTS.
4. CONSENT TO USE ELECTRONIC SIGNATURES AND COMMUNICATIONS
4.1. Account Owner Consent
To the extent permitted by applicable law, Account Owner consents to use electronic signatures and to electronically receive all records, notices, statements, communications, and other items for all services provided to Account Owner and Authorized Users under these Terms and in connection with Account Owner’s relationship with us (collectively, “Communications”) that we may otherwise be required to send or provide Account Owner in paper form (e.g., by mail). By accepting and agreeing to these Terms electronically, Account Owner represents that: (1) Account Owner has read and understands this consent to use electronic signatures and to receive Communications electronically; (2) Account Owner satisfies the minimum hardware and software requirements specified below; and (3) Account Owner’s consent will remain in effect until Account Owner withdraws their consent as specified below.
4.2 Account Owner’s Right to Withdraw Account Owner’s Consent
Account Owner’s consent to receive Communications electronically will remain in effect until Account Owner withdraws it. Account Owner may withdraw their consent to receive further Communications electronically at any time by contacting us at 1-833-228-2044. If Account Owner withdraws their consent to receive Communications electronically, we reserve the right to close your Card Account and return your remaining Card Account balance as set forth in this Agreement (in which case Authorized Users will no longer be able to use a Card Account or participate in the Program, except as expressly provided in this Agreement) or charge you a fee for paper copies of Communications. Any withdrawal of Account Owner’s consent to receive Communications electronically will be effective only after we have a reasonable period of time to process Account Owner’s withdrawal. Please note that Account Owner’s withdrawal of consent to receive Communications electronically will not apply to Communications electronically provided by us to Account Owner before the withdrawal of Account Owner’s consent becomes effective.
4.3 Account Owner Must Keep Contact Information Current with Us
In order to ensure that we are able to provide Communications to Account Owner electronically, Account Owner must notify us of any change in their e-mail address by updating Account Owner’s profile on the Website.
4.4 Copies of Communications
Account Owner should print and save or electronically store a copy of all Communications that we send to you electronically. We reserve the right to assess a fee for any such paper copy.
4.5 Hardware and Software Requirements
In order to access and retain Communications provided to Account Owner electronically, Account Owner must maintain a valid email address and a Current Version of a commercially available internet browser and a Current Version of a program that accurately reads and displays PDF files. “Current Version” means a version of the software that is currently being supported by its publisher.
We reserve the right, in our sole discretion, to communicate with Account Owner in paper form. In addition, we reserve the right, in our sole discretion, to discontinue the provision of electronic Communications or to terminate or change the terms and conditions on which we provide electronic Communications. Except as otherwise required by applicable law, we will notify Account Owner of any such termination or change by updating this Agreement on the Website or delivering notice of such termination or change electronically.
5. CARD ACCOUNT TERMS
5.1 Business Administrators
By designating any individual as a “Business Administrator,” Account Owner acknowledges and agrees that the actions or omissions of any Business Administrator shall be taken on Account Owner’s behalf and Account Owner shall be fully responsible and liable for such actions or omissions as if they were the actions or omissions of Account Owner. Business Administrator’s obligations in these Terms shall be deemed to be obligations of Account Owner.
5.2 Qualifying for and Establishing Card Accounts
5.2.1 Eligibility. In order to establish a Card Account, an Account Owner must:
5.2.2 Account Owner’s Representation and Warranties. By requesting, activating or using a Card or by retaining, using or authorizing the use of the Card, Account Owner represents and warrants to us that:
(i) Account Owner has received a copy of these Terms and agrees to be bound by and to comply with them and understands that they are subject to change in accordance with applicable law; (ii) Account Owner is duly organized, validly existing and in good standing under the laws of the state in the United States of its formation; (iii) Account Owner is duly qualified and in good standing to do business in all jurisdictions where Account Owner conducts its business; (iv) Account Owner has all necessary organizational power and authority to establish the Card Account, enter into these Terms, and to perform all of the obligations to be performed by it under these Terms; (v) the personal and business information that Account Owner provides to us in connection with the Card Account is true, correct and complete; (vi) the individual accepting and agreeing to these Terms for Account Owner has the requisite corporate authority to accept and agree to the Terms on the Account Owner’s behalf; (vii) The Business Administrator designated by Account Owner is a citizen or permanent resident of the United States and is at least 18 years of age (or older if residing in a state where the majority age is older); (viii) Account Owner authorized the Business Administrator to authorize each Authorized User to accept and use the Card Account; (ix) Account Owner has provided Business Administrator and each Authorized User with a copy of these Terms and Business Administrator and each Authorized User accepts and agrees to be bound by and to comply with them; and (x) The Card Account will only be used for business purposes and not be used for personal, family or household purposes.
5.3 Funding of the Card Account
Subject to the limitations set forth in this Agreement, Business Administrator may only add funds to the Card Account as described in this Section 5.3. Business Administrator may not add funds to the Card Account by sending personal checks, cashier’s checks, or money orders to the Bank. The Bank will return all checks and money orders unless the Card Account has a negative balance, in which case the Bank may, in its sole discretion, apply the proceeds of the check or money order towards the negative balance of the Card Account.
5.3.1 Bank Account Transfer. Business Administrator may authorize us to electronically debit Account Owner’s designated deposit account at Account Owner’s designated U.S. depository financial institution (“Bank Account”) via the Automated Clearinghouse Network (“ACH”) for a specified amount on a one-time or recurring basis and add such amount to the Card Account. Business Administrator may provide such authorization and Account Owner’s Bank Account information via the Website. Amounts debited from the Bank Account will be added to the Card Account generally within three business days of when we receive the authorization and all required consents and information.
5.3.2 Credit and Debit Card Charges. Business Administrator may authorize us to charge Account Owner’s Payment Card, directly or through our authorized service providers, for a specified amount on a one-time or recurring basis and add such amount to the Card Account. Business Administrator may provide such authorization and Account Owner’s Payment Card information via the Website. Amounts charged to the Payment Card will be added to the Card Account and available for transactions generally within one business day of when we receive Business Administrator’s and all required consents and information. In order to add funds to the Card Account by charging the Payment Card, the Payment Card must be issued in Account Owner’s name by a U.S. financial institution.
5.4 Transaction Requirements.
Transactions approved and processed with the Card may only be used to purchase goods and services for business purposes only and not for personal, family or household purposes.
5.5 Authorized User Eligibility and Consents.
5.6 Revocation of Authorized User Privileges.
A Business Administrator must modify the settings on the Website or notify Customer Service to revoke permission for an Authorized User to use the Card Account. Any revocation of such permission will be effective only after we have a reasonable period of time to process Account Owner’s withdrawal.
5.7 Revocation of Business Administrator Privileges.
Account Owner must notify us at 1-833-228-2044, or via e-mail at firstname.lastname@example.org to revoke permission for any Business Administrator to administer the Card Account. Any revocation of such permission will be effective only after we have a reasonable period of time to process Account Owner’s withdrawal.
The Card is a prepaid debit card issued by the Bank. The Card is not a credit card. The Card is not a gift card. The Card remains the property of the Bank and must be returned upon our request. To the extent permitted by applicable law, Bank may cancel, repossess, or revoke the Card at any time without prior notice. The Card cannot be redeemed for cash. The Card is not for resale and may not be transferred or assigned. You acknowledge and agree that when you have both a virtual Card and a physical Card that both Cards access the same Card Account.
5.9 Card Account.
You acknowledge and agree that the value available in your Card Account is limited to the funds that have been added to your Card Account as described by the funding process as described in Section 5.3 (Funding of your Card Account). You will not receive any interest on the funds in your Card Account.
5.10 Activating Your Card.
Business Administrator must activate each Card before it can be used. In the case of a physical Card, the Business Administrator must both activate the Card and set a PIN before it can be used (See Section 5.12 – Card & PIN Security). Business Administrator may activate a virtual Card and a physical Card on the Website.
There are no fees associated with the use of your Card.
5.12 Card and PIN Security.
When selecting a PIN for a physical Card, Business Administrator should not use numbers or words that appear in their wallets (e.g., your date of birth, address, or social security number). Business Administrator and Authorized Users must memorize PINS and not share them with anyone. Do not write the PIN on a Card or keep it in the same location as the Card. Business Administrator and your Authorized Users should treat the Card with the same care as cash. Always protect the Card and keep it in a safe place. Do not send a Card number in an email or text message. Make sure Card and Access Information is secured with encryption when used to perform transactions over the Internet or wireless networks.
5.13 Lost or Stolen Card or Compromised PIN.
The Card Account is a commercial Card Account and does not provide consumer protections for lost or stolen Card Accounts or unauthorized transactions. Treat the Card Account like cash. Until a Business Administrator or Authorized User reports a Card as lost or stolen or reports an unauthorized transaction on a Card Account, Account Owner is fully responsible for all transactions, even if the Card is lost, stolen or used for unauthorized transactions. Contact Customer Service IMMEDIATELY if a Business Administrator or Authorized User believes: (a) a Card has been lost or stolen, (b) someone has gained unauthorized access to any Access Information, or (c) someone has transferred or may transfer funds from the Card Account without a Business Administrator’s or Authorized User’s permission. Reporting a lost/stolen Card or unauthorized transactions by calling 1-855-637-2227 or by logging into the Website to deactivate the Card Account is the best way to minimize possible losses. If you have both a virtual and a physical Card and you report one of your Cards lost or stolen, both Cards will be canceled and new Cards will be issued. Unless we have authorized a transaction after a Card Account is blocked (See Section 5.27 – Our Liability to Account Owner), Account Owner and Authorized User are responsible for all unauthorized transactions initiated and fees incurred from the unauthorized use of a Card Account. Failure to promptly notify us could result in the Account Owner losing ALL of the money in the Card Account.
5.14 Using Your Card.
The Card Account may not be used for ATM cash withdrawals or cash back at the point-of-sale and may not be used for business payroll payments. An Authorized User may use your Card to make purchases at any merchant that accepts Visa debit cards or debit cards of other networks in which the Bank participates, subject to the available Card Account balance, the transaction limits and transaction restrictions outlined below, and the other terms and condition of this Agreement. If an Authorized User uses your Card number without presenting the Card (such as for a mail order, telephone, or Internet purchase), the legal effect will be the same as if the Authorized User used the Card itself. Each time an Authorized Users uses the Card, you and the Authorized User authorize us to reduce the value available in your Card Account by the amount of the transaction and any applicable fees. An Authorized User is not allowed to exceed the amount of the available funds in your Card Account through an individual transaction or a series of transactions. Nevertheless, if a transaction exceeds the amount of available funds in your Card Account, you will be fully liable to us for the full amount of the transaction and any applicable fees. We may refuse to process a transaction, or temporarily “freeze” a Card Account and attempt to contact a Business Administrator if we notice transactions that are unusual or appear suspicious, or use of the Card Account that are not consistent with its intended use.
5.15 Merchant Holds on Available Funds.
When an Authorized User uses the Card or Card number to initiate a transaction at certain merchant locations, websites, or mobile applications such as hotels, restaurants, gas stations, and rental car companies, where the final purchase amount is unknown at the time of authorization, a hold may be placed on the available funds in the Card Account for an amount equal to or in excess of the final transaction amount. The funds subject to the hold will not be available to the Account Owner or Authorized User for any other purpose until the merchant sends us the final transaction amount. Once we receive the final transaction amount, it may take up to seven days for the hold to be removed. During that period, the Account Owner and Authorized User will not have access to the funds subject to the hold. Please be advised that an Authorized User may experience difficulties using your physical Card at unattended vending machines, kiosks, and gas station pumps. If the physical Card is declined at a “pay at the pump” gas station even though you have sufficient funds available, the Authorized User should pay for your purchase inside with the cashier. An Authorized User may not use your virtual Card for making purchases at any vending machines, kiosks or gas station pumps.
5.16 Transaction Limits.
The maximum amount that can be spent using your Card Account limited to lower of: (a) the limits set by the Business Administrator and (b) limits set forth by the Bank. The Bank’s limits are: (1) maximum amount that can be spent using your Card Account is $10,000 per day, (2) the maximum amount that can be spent using your Card Account in any thirty-day period is $150,000, (3) the maximum amount that can be loaded to your Card Account is $10,000 per day, and (4) the maximum amount that can be loaded to your Card Account in any thirty-day period is $150,000. In order to protect your Card Account, we may temporarily impose limits on the dollar amount, number, and type of transactions performed using your Card and your Card Account. To the extent permitted by applicable law, we reserve the right to: (a) change the transaction limits; (b) limit, block, or place a hold on certain types of transfers or transactions: and (c) limit, suspend, or block transfers from particular persons, entities, or Card Accounts.
5.17 Transaction Restrictions.
You may not use your Card for online gambling or illegal transactions. A Business Administrator may restrict transactions based on Merchant Category Code or Merchant ID. We may refuse to process any transaction we believe violates the terms of this Agreement.
5.18 Responsibility for Authorized Transactions.
Account Owner is responsible for all transactions initiated and fees incurred by use of a Card Account. If a Business Administrator or an Authorized User permit another person to have access to a Card Account Card number, we will treat this as if the Business Administrator has authorized such person to use the Card Account, and Account Owner will be liable for all transactions and fees incurred by such person, even if they exceed the authorization granted. Account Owner will further be responsible for any transactions made and any fees incurred by the Authorized User even if the Authorized User exceeds the scope of the authority granted to such Authorized User by Account Owner. If a Business Administrator wants to withdraw permission for an Authorized User to use a Card, then transactions made with the Card will be considered unauthorized only after a Business Administrator notifies us that the person is no longer authorized to use the Card Account.
5.19 Card Account Balance.
It is important to know the amount of available funds in the Card Account before performing a transaction with a Card Account. If there are not sufficient funds in the Card Account to cover the transaction amount, the transaction will be declined. If Authorized User does not have sufficient funds in the Card Account, Authorized User can request that the merchant charge a part of the purchase to the Card Account and pay the remaining amount with cash or another Card Account. These are called “split transactions.” Some merchants do not allow cardholders to conduct split transactions. Account Owner and Authorized User acknowledge and agree that the funds available to perform transactions are limited to the available funds that have been added to the Card Account that are not subject to a hold. Authorized User is not authorized to use any funds added to the Card Account in error. Any transaction that could create a negative balance for the Card Account is not permitted, but may occur in limited circumstances. Adjustments may be made to the Card Account to reverse an error, reflect a merchant adjustment, or resolve a dispute regarding a transaction posted to the Card Account. These processing and adjustment entries could cause your Card Account to have a negative balance. If a Card Account has a negative balance, Account Owner and Authorized User agree: (a) that the balance of Card Account can be adjusted to reflect that amount; (b) that we may automatically apply any subsequent deposits to the Card Account to satisfy the negative balance and (c) to pay us on demand by a personal check, money order, or other payment method authorized by us for the amount of the negative balance. If no future funds are added to the Card Account, we may send Account Owner a notice explaining the reason for the adjustment and requesting payment by a personal check, money order, or other payment method to satisfy the negative balance. Payments should be mailed to us at the address provided below or the address stated in the applicable notice.
5.20 Transaction History.
A Business Administrator may obtain information about the available funds in the Card Account and a 60-day history of the Card Account transactions on the Website.
5.21 Account Alerts.
If a Business Administrator and Authorized User provide email addresses to us, we will send the Business Administrator and Authorized User important notices via email about the Card Account. In addition, if a Business Administrator and Authorized User provide mobile phone number or other text message addresses to us, the Business Administrator and Authorized User expressly consent to receive text messages relating to the Card Account at that number or address. The Business Administrator and Authorized User may change the frequency of notifications at any time by updating their notification setting on the Website. Third-party data and message fees may apply.
5.22 Transactions in Foreign Currencies.
If an Authorized User makes a purchase using your Card in a currency other than in U.S. dollars, the amount deducted from the available funds in the Card Account will be converted by Visa into U.S. dollars. The applicable exchange rate will be selected Visa from the range of rates available in wholesale currency markets for the applicable central processing date, which may vary from the rate Visa itself receives or the government-mandated rate. The exchange rate used on the central processing date may be different than the rate that was in effect on the date you performed the transaction.
An Authorized User should get a receipt for each Card transaction. Authorized User agrees to retain, verify, and reconcile your Card transactions and receipts.
5.24 Refunds and Disputes.
An Authorized User will not receive cash refunds for Card transactions. If a merchant gives an Authorized User a credit for merchandise returns or adjustments, the merchant may do so by processing a credit adjustment, which we will credit to the available funds in your Card Account. We are not responsible for the delivery, quality, safety, legality, or any other aspects of goods or services that you purchase with your Card. All such disputes must be addressed and handled directly with the merchant from whom those goods or services were purchased.
5.26 Replacement Cards.
The expiration date of your virtual Card is identified on the front of the Card. The expiration date of your physical Card is identified on the front of the Card. If there is a positive balance of funds in your Card Account upon expiration of your Card and your Card Account is in good standing, we may issue you a new Card. We may also issue you a new Card when the Card expires even if you have no funds in your Card Account. If you need to replace your Card for any reason, please contact a Business Administrator, who in turn should contact Customer Service. Account Owner, Business Administrator, and Authorized Users will need to provide certain User Information so we can verify your identity.
5.27 Our Liability to Account Owner.
If we do not complete an electronic fund transfer to or from a Card Account on time or in the correct amount according to these Terms, we may be liable to Account Owner for the losses or damages. However, there are some exceptions. We will not be liable if: (a) through no fault of ours, Authorized User does not have enough available funds in the Card Account to perform the transaction; (b) circumstances beyond our reasonable control (such as fire, flood, water damage, power failure, strike, labor dispute, computer breakdown, telephone line disruption, or natural disaster) prevent or delay the transfer despite reasonable precautions taken by us; (c) the system, or point-of-sale terminal was not working properly and a Business Administrator or Authorized User knew about the problem when Authorized User initiated the transaction; (d) the funds in the Card Account are subject to legal process or are otherwise not available for transactions; (e) the merchant refuses to accept a Card Account; (f) if access to a Card Account has been blocked after a Business Administrator or Authorized User reported a Card lost or stolen; or (g) if we have reason to believe the transaction is unauthorized.
5.28 Errors or Questions About Your Card Account Transactions.
Call Customer Service at 1-833-228-2044, or email us at email@example.com as soon as Account Owner can if Account Owner thinks an error has occurred involving your Card Account. We must hear from Account Owner no later than 60 days after the earlier of the date Account Owner electronically accesses your Card Account, if the error could be viewed in your electronic transaction history, or the date we sent the FIRST written transaction history on which the error appeared. When Account Owner sends notification of an error involving your Card Account, Account Owner will need to tell us: (a) Account Owner’s name, your name and Card number; (b) why Account Owner believes there is an error and the dollar amount involved; and (c) approximately when the error took place. We will review the information submitted in a commercially reasonable manner, but given that the Brex Card Program implements a commercial product, Account Owner is not entitled to and we are not obligated to follow the requirements or obligations of the Electronic Funds Transfer Act and Regulation E promulgated thereunder, which only apply to consumer transfers. If you need more information about our error resolution process, contact Customer Service at 1-833-228-2044.
To the extent permitted by applicable law, we may assign these Terms without obtaining Account Owner’s or Authorized Users’ consent. Neither Account Owner, nor Business Administrator, nor any Authorized User may assign or transfer your Card, your Card Account, or these Terms without our prior written consent.
5.30 Severability and Waiver.
If any provision of this Agreement is held to be invalid or unenforceable, such provision will be deemed to be modified to the minimum extent necessary to make it valid and enforceable and the rest of this Agreement will not be affected. We do not waive our rights by delaying or failing to exercise them at any time.
We may add to, delete, or amend this Agreement at any time in our sole discretion without providing notice to Account Owner, a Business Administrator, or Authorized User subject to applicable law. We reserve the right, subject to applicable law, to deliver to Account Owner any notice of changes to existing terms or the addition of new terms by posting an updated version of this Agreement on the Website or delivering notice of changes to Account Owner electronically. By continuing to participate in the Program, Account Owner, Business Administrator, and Authorized User consent to be bound by the updated Terms.
5.32 Entire Terms.
These Terms constitutes the entire and sole agreement between Account Owner, Business Administrator, Authorized Users and us with respect to the Program and supersedes all prior understandings, arrangements, or agreements, whether written or oral, regarding the Program.
5.33 Cancellation and Suspension.
To the extent permitted by applicable law, we may cancel or suspend your Card, your Card Account, or this Agreement immediately, for any reason, and without notice to Account Owner, Business Administrator, or any Authorized User. Account Owner may cancel your Card, your Card Account, or this Agreement at any time by notifying Customer Service at the number or address provided below. Cancellation or suspension of this Agreement will not affect any of our rights or Account Owner’s, Business Administrator’s, or any Authorized User’s obligations arising under this Agreement prior to such cancellation or suspension. In the event that your Card Account is cancelled, closed, or terminated for any reason, Account Owner may request the unused balance to be returned to Account Owner via a check to the mailing address we have in our records.
5.34 Governing Law.
This Agreement will be governed by and construed in accordance with the laws of the State of Ohio, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
At our request, Account Owner agrees to defend, indemnify, and hold harmless us and our parents, subsidiaries, and other affiliated companies, and our and their employees, contractors, officers, and directors against any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, and expenses (including, without limitation, reasonable attorneys’ fees) that arise from Account Owner’s, Business Administrator’s, or any Authorized Users’ violation of these Terms, applicable law, or any third-party rights or Account Owner’s, Business Administrator’s, or any Authorized Users’ fraud or willful misconduct. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by Account Owner, in which event Account Owner will cooperate in asserting any available defenses.
5.36 NO WARRANTY OF AVAILABILITY OR UNINTERRUPTED USE.
From time to time, services related to the Program may be inoperative. When this happens, you may be unable to access the Website and Authorized Users may be unable to use the Card or obtain information about the Card. Please notify us if you have any problems using the Card or the Website. You agree that we will not be responsible for temporary interruptions in service due to maintenance, website changes, or failures, nor shall we be liable for extended interruptions due to failures beyond our control, including but not limited to the failure of interconnecting and operating systems, computer viruses, forces of nature, labor disputes and armed conflicts.
5.37 LIMITATION OF LIABILITY.
We shall have no liability to you if we are unable to complete a transaction for any reason beyond our control. Except as otherwise expressly provided in this Agreement or as otherwise required by applicable law, we, our affiliates, and the parties with whom we contract in order to offer the Cards, your Card Accounts, and related services are neither responsible nor liable for any indirect, incidental, consequential, special, exemplary, or punitive damages arising out of or relating in any way to the Cards, your Card Accounts, any products or services purchased using Card Accounts, or this Agreement (as well as any related or prior agreement that Account Owner, Business Administrator, or Authorized Users may have had with us).
5.38 NOTIFICATION OF CHANGES.
If your U.S. mail or postal address, or email address or telephone number changes, you must notify us immediately. Failure to do so may result in information regarding the Card or Card Account being delivered to the wrong person or your transactions being declined. In such event, we shall not be responsible for any resulting misuse of funds available in the Card Account. You must notify us immediately in the event of the insolvency, receivership, conservatorship, bankruptcy, reorganization or change in Principal Owners. Your Card Account may be terminated by us in the event a change of control, reorganization, restructuring, conversion, consolidation, division or merger of Principal Owner.
5.39 DISPUTE RESOLUTION BY BINDING ARBITRATION.
For any and all controversies, disputes, demands, claims, or causes of action between Account Owner (which includes for purposes of this provision any Business Administrator or Authorized User) and us (including the interpretation and scope of this Section 5.39 and the arbitrability of the controversy, dispute, demand, claim, or cause of action) relating to the Program, Card Accounts, or these Terms (as well as any related or prior agreement that Account Owner may have had with us), Account Owner and we agree to resolve any such controversy, dispute, demand, claim, or cause of action exclusively through binding and confidential arbitration and the terms of this Section 5.39. The arbitration will take place in the federal judicial district located in the borough of Manhattan, New York, New York, or in the alternative, may be conducted telephonically at your request. As used in this Section, “we” and “us” mean Bank and its subsidiaries, affiliates, predecessors, successors, and assigns and all of its and their respective employees, officers, directors, agents, and representatives. In addition, “we” and “us” includes any third party providing any product, service, or benefit in connection with the Card Accounts or these Terms (as well as any related or prior agreement that Account Owner may have had with us) if such third party is named as a co-party with us in any controversy, dispute, demand, claim, or cause of action subject to this Section.
Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving commercial contract disputes. As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). Notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of Account Owner’s principal place of business residence in order to maintain the status quo pending arbitration, and each party hereby agrees to submit to the exclusive personal jurisdiction of the courts located within the federal judicial district of Account Owner’s principal place of business for such purpose. A request for interim measures will not be deemed a waiver of the obligation to arbitrate.
Account Owner agrees to the following in connection with any arbitration: (a) no class or similar group arbitration will be permitted; (b) the arbitration will be confidential, and neither Account Owner nor we may disclose the existence, content, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (c) subject to Section 5.37 (Limitation of Liability), the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (d) each party will pay its own attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law.
Account Owner understands and agrees that, by agreeing to these Terms:
- YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY;
- YOU ARE GIVING UP YOUR RIGHT TO HAVE A COURT RESOLVE ANY DISPUTE BETWEEN US; and
- YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY ARBITRATION OR LAWSUIT INVOLVING ANY DISPUTE BETWEEN US.
This Section will survive termination of the Card Account or these Terms as well as any voluntary payment of any debt in full by Account Owner or bankruptcy by Account Owner, or any bankruptcy by us. With the exception of subparts (a) and (b) of this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein.
6. IMPORTANT CONTACT INFORMATION.
6.1 Contact Information for Customer Service.
Account Owner, a Business Administrator, and Authorized Users may contact Customer Service at 1-833-228-2044.