Cardholder Terms (Commercial)


Last updated: 3rd February 2022

UNITED STATES

IMPORTANT – PLEASE READ CAREFULLY. THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION (“ARBITRATION CLAUSE”) REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION AND WAIVING A RIGHT TO TRIAL BY JURY AND TO PARTICIPATE IN CLASS ACTIONS. YOU MAY REJECT THE ARBITRATION PROVISION BY SENDING US WRITTEN NOTICE WITHIN 45 DAYS AFTER YOUR FIRST CARD PURCHASE.

  1. INTRODUCTION

1.1) These Cardholder Terms (Commercial) (as may be amended by Bank (as defined herein) in its sole discretion from time to time, these “Cardholder Terms”) are between you (“you” or “Customer”) and Community Federal Savings Bank, a federal savings bank having its principal office at 5 Penn Plaza, 14th Floor, New York, NY 10001 (“us”, “we” or “Bank”, and together with Customer, the “Parties”). Your obligations under these Cardholder Terms are supplemental to the terms and conditions at, or referenced at, http://www.airwallex.com/us/terms, and any other terms and conditions between you and Airwallex US, LLC (“Airwallex”), its affiliates, and/or their respective bank sponsors or partners, including without limitation pricing terms set forth therein (collectively, the “Airwallex Platform Agreement”). Airwallex is the program manager for this commercial Card program and will perform certain services on behalf of the Bank. These Cardholder Terms together with the Airwallex Platform Agreement govern the use of Cards by Customer and Customer’s Authorized Cardholders and Payee Cardholders. For the avoidance of doubt, Bank is not a party to the Airwallex Platform Agreement, and any issues that may arise in connection therewith are between you and Airwallex. Read this Agreement and keep it for your records. Keep record of your account number in case your Card is lost, stolen or destroyed. Our business days are Monday through Friday, excluding federal holidays, even if we are open. Any references to “days” found in this Agreement are calendar days unless indicated otherwise.

Important Information

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 requests or accesses an account.

What this means for you: When you open an account, we will ask for your name, address, tax identification number, and other information that will allow us to identify you and your beneficial owners. We may also ask to see identifying documents for you and your beneficial owners.

1.2) Any Card issued hereunder is issued by the Bank.

1.3) Customer and any Authorized Users may request that a Card be issued to Customer or one or more Authorized Cardholders or Payee Cardholders in accordance with these Cardholder Terms. If Bank agrees to such request, these Cardholder Terms shall apply to the use of any Cards that Bank issues to Customer or such Authorized Cardholders or Payee Cardholders. By applying for, or using, a Card, Customer confirms that Customer accepts and agrees to these Cardholder Terms on behalf of itself and each Authorized Cardholder and Payee Cardholder and is liable for the breach of the terms of this Agreement by an Authorized Cardholder or a Payee Cardholder.

1.4) The most current version of these Cardholder Terms (as well as the Airwallex Platform Agreement) is available on Airwallex’s website at www.airwallex.com/us/terms.

  1. DEFINITIONS. In these Cardholder Terms, the following definitions apply:

Authorized Cardholder” means a person or entity (a) that has been authorized by Customer to be issued a Card or otherwise provided a Card by Bank in connection with the Card account of Customer, and (b) (i) for natural persons that are Customer’s employees or subject to conditions set forth by Airwallex and/or Bank from time to time, contingent workers, and (ii) for non-natural persons or entities (including without limitation sole proprietorships), with which Customer has an agreement to provide access to a portion of funds in Customer’s Airwallex Wallet for the business purposes of the Customer (as defined below).

Authorized User” means a person or entity granted authority (whether actual, implied, apparent or otherwise) by Customer to use a Card, access a Card account or engage in Card account activity (including without limitation cancelling existing Cards and requesting Cards for Authorized Cardholders), for which Customer (and not such Authorized User) is liable to Bank.

Card” means a card, or other device or number, that is issued by Bank as a product of Bank in connection with any Card Program implemented pursuant to this Agreement and under authority from a Payment Network (including a Virtual Card or Physical Card).

Payee Cardholder” means an entity that (a) has been authorized by Customer to receive a Card or otherwise provided a Card by Bank and for which Card activity is limited to (i) receiving funds only from Customer from time to time (i.e., no self-reloading) in limited amounts (“Payee Funds”), which funds may not be converted to foreign currencies, (ii) spending Payee Funds, and (iii) transferring Payee Funds to one or more bank accounts for which such cardholder is an authorized signatory, and (b) is the beneficiary of one or more payment obligations by Customer the satisfaction of which are by the issuance and funding of one or more Cards.

Payment Network” means Visa U.S.A. Inc. (and/or its affiliates) and any other similar scheme.

Payment Network Currency” means a currency supported by the Payment Network in which payments may be made using a Card that is not a Supported Currency.

PIN” is the personal identification number issued for a Physical Card (if applicable).

Primary Currency” means, with respect to a Card, the Supported Currency that Airwallex permits Customer to nominate from time to time or that Airwallex nominates for Customer.

Supported Currency” means, with respect to a Card, a currency that is permitted by Airwallex to hold in the corresponding Airwallex Wallet and supported by Airwallex and its bank partners to settle to the Payment Network. A current list of Supported Currencies is available at https://help.airwallex.com/hc/en-gb/articles/900001755826-What-currencies-are-supported-by-the-Airwallex-Borderless-Card-.

Third-Party Platform“ means an online platform operated by a Third-Party Platform Provider for which Airwallex provides financial services through the Airwallex Platform and Customer has entered into a Third-Party Platform Agreement.

Third-Party Platform Agreement” means one or more separate agreements Customer has entered into with a Third-Party Platform Provider for the provision of the Third-Party Platform Services, including services involving the issuance of one or more Cards to Customer, Authorized Cardholders and/or Payee Cardholders.

Third-Party Platform Provider“ means the entity that operates the Third-Party Platform in connection with which Customer is agreeing to these Cardholder Terms.

Third-Party Platform Services” means the products and services Third-Party Platform Provider provides to Customer, including without limitation to enable Customer to receive payment for goods or services it sells through the Third-Party Platform.

  1. USING THE CARD

3.1) Applying for a Card. When Customer or an Authorized User requests a Card, it will be issued in the form of a digital Card (“Virtual Card”).

3.2) A Virtual Card shall consist of a 16-digit primary account number (or its tokenized equivalent), expiration date and a customer verification value (“CVV”) code (collectively, the “Card Details”), each of which will be made available to Customer, Authorized Cardholders and Payee Cardholders via the Airwallex platform (the “Airwallex Platform”). We may provide functionality for physical Cards (“Physical Cards”). Physical Cards will be sent in the mail upon approval by Bank.

3.3) Cards are linked to Customer’s Airwallex wallet (“Airwallex Wallet”) and can be used to pay for goods and services for commercial purposes using the Airwallex Wallet’s balance. Customer acknowledges that each Airwallex Wallet is provided, serviced, maintained and hosted by Airwallex via the Airwallex Platform and not by Bank or on Bank’s servers. Bank will not set up a separate account in connection with Cards. Customer should ensure that it has a sufficient balance for each Card transaction. Cards should not be considered or relied upon as charge cards or revolving credit cards; Customer acknowledges that the amount of each transaction is immediately deducted from the corresponding Airwallex Wallet’s balance, and cannot be paid over time. Cards are not for resale. Notwithstanding anything herein to the contrary, Cards remain the property of Bank and must be surrendered to Bank upon demand. Cards are non-transferable and may be canceled, repossessed or revoked at any time without prior notice (subject to applicable law).

3.4) Customers, Authorized Cardholders and Payee Cardholders must only use Cards for lawful purposes and only for the Payment Network merchant category codes (“MCCs”) enabled by Bank from time to time. All Cards remain Bank’s property and Customer, Authorized Cardholders and Payee Cardholders must return all Cards to Bank upon request.

3.5) Card Use. You represent and agree that each Card will be used exclusively for purchases made for business, commercial, agricultural, or organizational purposes. The Cards may not be used for personal, family or household purposes. You also represent and agree that the Cards will not be used for internet gambling, any illegal transaction or any other transaction prohibited by applicable law or the Airwallex Platform Agreement.

3.6) Virtual Card. A Virtual Card may be used to make purchases over the phone, the internet or for other transactions where a Card is not present by entering Card Details where the Payment Network is accepted as a means of payment. A Virtual Card cannot, without a digital wallet, such as Apple Pay and Android Pay, be used to make a payment in person or in any transaction that requires the use of a Physical Card. Virtual Cards may be issued for one-time use or for repeated use until the expiry date.

3.7) Physical Cards. Physical Cards may generally be used the same way as Virtual Cards and may also be used for in store and transactions (with or without a digital wallet where such functionality is permitted) where a card is present and where the Payment Network is accepted electronically. Bank may deny Card transactions that are unable to be timely authorized electronically, as may occur when a merchant’s systems are not then communicating with a payment network.

3.8) Card Activation. Upon receipt of a Physical Card, it must be activated prior to use.

3.9) Pre-Authorization. Certain merchants may pre-authorize the estimated amount (or a certain percentage) of the final amount owed. Where a merchant seeks a pre-authorization, the amount of the pre-authorization may be reflected in the balance of the corresponding Airwallex Wallet and may be made unavailable for subsequent purchases. Any portion of such pre-authorized amount that is not applied towards the payment of goods or services will be returned or refunded to such Airwallex Wallet.

3.10) Currency Conversion. Cards may be used to make purchases in certain Supported Currencies and Payment Network Currencies.

If a transaction is in a Supported Currency, the amount of such transaction shall be deducted from the balance of the corresponding Airwallex Wallet in such currency. If there is insufficient balance in the relevant Supported Currency and automatic FX Exchange Rate (as defined in the Airwallex Platform Agreement) conversions are enabled for a Card, Airwallex will (a) automatically convert the transaction currency to the Primary Currency at the prevailing FX Exchange Rate, which may be different than the exchange rate for the original transaction, and (b) deduct the transaction amount from the Airwallex Wallet balance of Customer’s Primary Currency. If a transaction is in a Payment Network Currency, the amount of such transaction will be converted from the balance of your Airwallex Wallet maintained in the Primary Currency using the prevailing foreign exchange rates determined by the Payment Network for such transaction. Customer acknowledges and agrees that Bank has no control over the rates selected by Airwallex or the Payment Network.

Customer acknowledges that (a) Airwallex and the Payment Network may perform multiple currency conversions in order to settle a particular transaction, (b) foreign exchange services are provided by Airwallex via the Airwallex Platform and not by Bank, and (c) foreign exchange services are governed by the Airwallex Platform Agreement.

3.11) Refunds. If a refund is received on a Card transaction in a Supported Currency, Airwallex will credit the corresponding Airwallex Wallet in such currency. If a refund is received in anything other than a Supported Currency, Airwallex will (a) automatically convert the transaction currency to the Primary Currency at the then-prevailing FX Exchange Rate, or other foreign exchange rate determined by the relevant payment network, which may be different than the exchange rate for the original transaction, and (b) credit the transaction amount to the Airwallex Wallet balance of Customer’s Primary Currency. Refunds of transactions made with a Card will only be made to the corresponding Airwallex Wallet. Upon receipt of a transaction refund by Bank, Bank will timely provide the refunded amount to Airwallex for posting to the corresponding Airwallex Wallet, and Airwallex shall post such refunding amount (or such other amount due to foreign currency fluctuations) to the Airwallex Wallet. Customer acknowledges that Bank is not responsible for merchant delays in refunding transactions.

3.12) Authorization and Suspension. Transactions on Cards may require authorization. Bank may in its discretion deny authorization and/or suspend the use of one or more Cards, including, without limitation, (a) if the balance of the corresponding Airwallex Wallet is insufficient, (b) if a transaction exceeds the applicable limits from time to time, (c) if Bank suspects that there is fraud or a security concern, (d) if Bank suspects that such Cards are being used for illegal purposes; or (e) for any other reason, unless prohibited by law. Before a transaction is authorized, Bank may validate the Card user’s identity by following certain steps specified by Bank. Customer acknowledges and agrees that Bank is liable to Customer, Authorized Users, Authorized Cardholders, Payee Cardholders or any other third-party for any loss suffered as a result of an authorization not being granted.

3.13) Expiration Date. Bank may, but need not, automatically issue a new Card prior to the expiration date of a then-existing Card. No Card may be used after its expiration date.

3.14) Goods and Services. Bank is not responsible for (a) the quality, safety, legality or any other aspect of any goods or services purchased with a Card, or (b) any loss arising from any merchant refusing to accept a Card. Complaints about any goods or services purchased with a Card must be resolved directly with the corresponding merchant.

3.15) Transaction and Card Limits. Bank may from time to time implement transaction limits on Cards that may be on a per day or per transaction basis. Other third-party organizations may impose additional restrictions on the amount of Card transactions. We may also place limits on the number of Cards that can be requested or that may be active at any one time.

3.16) No Cash Access. Customer acknowledges that Cards may not be used to obtain cash from ATMs, at the point of sale or otherwise.

3.17) REPRESENTATIONS, WARRANTIES, AND COVENANTS: Each time the Card is used, you are deemed to represent, warrant, and covenant that: (i) Customer is duly organized and is validly existing under the laws of its state of organization, is in good standing under the laws of the state of its organization and is duly qualified to do business or conduct its affairs in each jurisdiction where it does business or conducts its affairs and has the full power and authority to carry on its business or affairs as presently conducted; (ii) you have full power, capacity, and authority to enter into and perform all obligations under this Agreement; (iii) entering into and performing all obligations under this Agreement are not inconsistent with any of the Customer’s governing documents, and do not and will not contravene any provision of or constitute a default under any indenture, mortgage, contract, or other instrument to which you are a party or by which you are bound; (iv) all information that you have provided and will provide at any time in the future to us is and will be accurate, and upon request, an appropriate officer of the Customer will certify the accuracy of all such information regarding the Customer; and (v) at our request you will deliver in a form acceptable to us any legal documents, financial statements, or other information we may reasonably require to verify the representations and warranties contained in this paragraph. You agree to notify us promptly of any significant change in your business or affairs that has or may have a material adverse effect on your ability to perform your obligations hereunder.

  1. CARD MANAGEMENT; ADDITIONAL CARDHOLDERS; PAYEE CARDHOLDERS

4.1) Customer and each Authorized User may request that one or more Cards be issued to Customer, Authorized Cardholders and Payee Cardholders.

4.2) Customer must provide Bank with the following details of each Authorized Cardholder and Payee Cardholder: (a) full legal name and, for a person other than an individual, any fictitious names, (b) date of birth for individuals, (c) for a person other than an individual (such as a corporation, partnership, or trust), country and/or state of registration, and (d) for an individual, city, state and country of residence or business, and an optional residential or business street address, and any other contact or identifying information that Bank may reasonably require. Customer must inform us promptly if any details then-previously provided changes or is incorrect. Customer will cause each Authorized Cardholder, Authorized User and Payee Cardholder to comply with these Cardholder Terms and shall be liable for all actions and omissions of Authorized Cardholders, Authorized Users and Payee Cardholders. References herein to “Card” shall (where applicable) include Cards issued to Authorized Cardholders and Payee Cardholders.

4.3) Bank may in its discretion refuse to issue a Card to any Authorized Cardholder or Payee Cardholder (for example, where Bank or Airwallex, as applicable, has not received requested information), or limit the number of Authorized Cardholders or Payee Cardholders connected to an Airwallex Wallet.

4.4) Card Cancellation. Customer agrees and acknowledges that Customer and Authorized Users can view details of Cards and request that Cards be cancelled or temporarily suspended at any time.

4.5) Bank may cancel or temporarily suspend a Card for any reason, unless prohibited by law, or if there are reasonable grounds for suspecting that the security of such Card is compromised or Customer has (directly or indirectly) breached these Cardholder Terms.

4.6) Customer will remain liable for all transactions made with each Card and for all transactions posted to Customer’s Airwallex Wallet prior to such Card’s cancellation.

4.7) Card Restrictions.

a) Customer may request Bank via the Airwallex Platform to place restrictions on:

  1. the maximum amount for a transaction that may be conducted using a Card; and

  2. the place at which, or merchant with which, a Card may be used.

b) Bank cannot guarantee that all restrictions placed on a Card will be effective at all times, particularly when a restriction implementation relies on properly functioning and/or third-party networks.

c) It is Customer’s obligation to notify each Authorized Cardholder and Payee Cardholder of any restrictions that apply to Cards, any data access rights of Customer and Authorized Users such as those set forth in Section 11, and the rules regarding the use of Cards.

  1. SAFETY AND SECURITY

5.1) Customer must:

a) allow only Authorized Users to use Cards for which they are authorized;

b) allow only Authorized Cardholders and Payee Cardholders to use Cards that have been issued to them;

c) not give its PIN to any third party (if applicable);

d) not use easily guessable PINs (if applicable);

e) regularly monitor its account to make sure no unauthorized transactions have occurred;

f) not record PINs on anything carried with Cards or on anything subject to loss or theft simultaneously such Card, unless reasonable attempts to protect the security of the PIN are made (if applicable); and

g) if one or more Cards are lost or stolen and Customer, the Authorized Cardholder or Payee Cardholder, as applicable, suspects that a third party knows the corresponding PIN (if applicable) or Card Details, or if such person or entity believes that one or more Cards, Card Details or PINs (if applicable) may have been misused, such user shall stop using such Cards and contact Bank via the Airwallex Platform immediately.

5.2) Customer, Authorized Cardholders, Authorized Users and Payee Cardholders must also comply with any additional security requirements that Bank or Airwallex notifies Customer of from time to time.

5.3) Bank and Airwallex may disclose any information to law enforcement agencies if Bank or Airwallex suspects unlawful use in connection with one or more Cards.

  1. HOW TO REPORT A LOST OR STOLEN CARD OR UNAUTHORIZED USE

6.1) Customer must report lost or stolen Cards and unauthorized Card use by calling Airwallex at (855) 932-3331, by emailing [email protected], or by submitting a ticket at https://help.airwallex.com/hc/en-gb/requests/new.

6.2) Bank and Airwallex may request additional information in connection with any actual or suspected misuse of a Card, including without limitation dates and amounts of transactions, details of the merchant and any other details that may assist the Bank or Airwallex in investigating each claim. Customer agrees, and agrees to cause Authorized Cardholders and Payee Cardholders, to cooperate in investigating any claims in connection with Card misuse.

  1. LIABILITY

7.1) To the maximum extent permitted by law, Customer acknowledges and agrees that it is liable for all Card and Card account activity, including, without limitation, activity conducted by Authorized Users, Authorized Cardholders and Payee Cardholders, and requests made by an Authorized User to issue a Card to Authorized Cardholders or Payee Cardholders.

7.2) Without limiting the Airwallex Platform Agreement, Customer is liable for all unauthorized transactions where Customer, the Authorized Cardholder or Payee Cardholder, as applicable, contributes to the loss by, for example (a) breaching or compromising the security of a Card or PIN (if applicable), Card Details, or Airwallex Wallet, including by breaching clause 4 above, or (b) delaying the reporting of the loss, theft or misuse of a Card or PIN (if applicable), Card Details, or Airwallex Wallet, in which case Customer is liable for all losses until such time as you notify Airwallex of such loss, theft or misuse.

7.3) Bank is not responsible for any decision by a merchant to accept or reject the use of a Card or, except to the extent required by applicable law, for any unauthorized Card transactions.

7.4) You are liable for all obligations resulting from the use of the Card and Card account and all monies owing and charged to the Card Account or Account. You assume full and complete responsibility to Bank for performance by you of any and all obligations under this Agreement and all actions or omissions in connection with Cards, Card accounts and these Cardholder Terms, including any failure (whether by you, Authorized Users, Authorized Cardholders or Payee Cardholders) to comply with the terms of these Cardholder Terms.

7.5) You shall be obligated to reimburse all costs (including legal costs) and expenses on a full indemnity basis incurred by the Bank in connection with the collection of overdue claims or monies owing under these Cardholder Terms.

7.6) You are fully liable for damages resulting from services, information enquiries, subscriptions or various contracts carried out over the Internet, particularly if such damages are caused by lack of the necessary authority, insufficient knowledge of the system or misuse of the Card.

  1. CHARGEBACKS

8.1) Bank may charge back disputed Card transactions when, for example, the corresponding merchant has not provided Customer, the Authorized Cardholder or Payee Cardholder, as applicable, with the goods or services paid for and attempts to obtain a refund directly from the merchant are unsuccessful.

8.2) Applicable law and the operating rules of the Payment Networks impose time limits for raising and investigating disputes. Card transaction history should be reviewed carefully. Neither Bank nor Airwallex is responsible for any loss to Customer, Authorized Cardholders, Payee Cardholders or any other third party if Card transactions are not timely disputed.

8.3) To avoid losing any rights to dispute a Card transaction, each Customer, on its, its Authorized Cardholders’ or its Payee Cardholders’ behalf, should (a) inform Bank via the Airwallex Platform as soon as possible after the date of the disputed transaction, and (b) provide Airwallex with any information requested to support such request.

8.4) If Airwallex is satisfied after investigation that a disputed transaction should be reversed, the amount initially debited for the transaction will be credited by Airwallex to the corresponding Airwallex Wallet in the original currency of the transaction if such currency is a Supported Currency. If the same currency is not a Supported Currency at the time of such reversal, the amount will be credited in U.S. dollars using the then-prevailing exchange rates determined by Airwallex. If the currency of the original transaction is a Payment Network Currency, such reversed amount will be converted by the Payment Network into U.S. dollars. Changes in exchange rates may result in the amount credited due to a reversal being different than the amount of the original transaction.

8.5) Card transactions can only be investigated after they have settled. Settlement occurs when a post date is recorded in the corresponding Airwallex Wallet.

  1. THIRD-PARTY BENEFICIARIES. These Cardholder Terms are solely for the benefit of the parties hereto and should not be deemed to confer upon third parties any remedy, claim, liability, reimbursement, claim of action or other right in excess of those existing without reference to these Cardholder Terms. Notwithstanding the prior sentence, Airwallex and its affiliates shall constitute third-party beneficiaries for purposes of these Cardholder Terms.

  2. AMENDING THIS AGREEMENT. For the avoidance of doubt, these Cardholder Terms may be amended by Bank from time to time.

  3. PRIVACY; DATA SHARING. Airwallex, Bank and your Third-Party Platform Provider (if applicable) may access, obtain, store, transmit, use, disclose, maintain, process or dispose of (collectively, “Process”) Customer, Authorized Cardholder, Authorized User and Payee Cardholder information, and other information related to the Services (as defined in the Airwallex Platform Agreement) (collectively, “Customer Data”) in order to provide or support the Services, as permitted in the Airwallex Platform Agreement, these Cardholder Terms and your Third-Party Platform Agreement (if applicable), and as set forth in their respective privacy policies, including without limitation, sharing Customer Data with and among Bank, Airwallex, Third-Party Platform Providers (if applicable) and other third parties (and their respective affiliates).

Customer is solely responsible for the accuracy, completeness, content and legality of all Customer Data, and agrees to comply with all applicable local, state, federal and international laws, regulations and conventions (“Laws”) related to the Processing, privacy and security of Customer Data, including without limitation to the extent applicable, the Gramm-Leach-Bliley Act, state financial privacy laws and laws providing access, deletion and other data subject rights, in each case as applicable.

Customer represents, agrees and warrants that it has provided all necessary and appropriate notices and obtained all necessary consents, rights and permissions (including without limitation those required by applicable Laws): (i) to share or make available any Customer Data (including without limitation personally identifiable information) with Bank, Third-Party Platform Providers and other third parties (and their respective affiliates), and (ii) for Bank, Third-Party Platform Providers and other third parties (and their respective affiliates) to process Customer Data as contemplated, necessary or reasonable under this Agreement.

  1. RELATIONSHIP OF THE PARTIES. Customer acknowledges that Airwallex acts as a program manager on behalf of Bank, providing customer service, Airwallex Platform access, technology and software services, among other functions. All banking, card issuance, and network settlement are provided by Bank and its service providers. Notwithstanding anything herein to the contrary, Bank is not a party to the Airwallex Platform Agreement or your Third-Party Platform Agreement (if any), and any disputes, issues or concerns that may arise therewith shall be resolved between you and Airwallex or your Third-Party Platform Provider, as applicable.

  2. GOVERNING LAW. You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of New York, without regard to principles of conflict or choice of laws, will govern these Cardholder Terms and any claim or dispute that has arisen or may arise hereunder.

  3. OTHER TERMS. You may not assign or transfer your Card and your obligations under this Agreement. Bank may assign or transfer our rights under this Agreement. Use of Cards is subject to Applicable Law. Use of Cards is subject to all applicable rules and customs of any clearinghouse or other association involved in transactions. Bank does not waive its rights by delaying or failing to exercise them at any time. Notwithstanding the foregoing, these Cardholder Terms shall be binding on Customer, Authorized Cardholders, Payee Cardholders, and their respective heirs, executors, administrators, guardians, personal representatives or trustees.

You agree to pay all Card Transactions and all amounts posted to the Card account, including all charges, fees, other indebtedness and other amounts payable hereunder or otherwise in connection with any Card account or Card, and to perform when due all other obligations hereunder. You have full primary liability for all such Card Transactions and all amounts posted to the Card account and other obligations. You waive any defenses based upon any (i) exercise, delay or waiver of any right, power or remedy Bank may have hereunder or under applicable laws, (ii) bankruptcy or similar proceedings, or any discharge, affecting a Card user or others, (iii) settlement with or release of any Card user, (iv) invalidity or unenforceability of any Card user’s liability, and/or (v) action, inaction or circumstance (with or without your notice, knowledge or consent) that varies your risks or might otherwise legally or equitably discharge a surety or guarantor.

  1. SEVERABILITY. If a court or regulatory authority finds any provision of these Cardholder Terms invalid or unenforceable, such finding shall not make the rest of these Cardholder Terms invalid or unenforceable. To the fullest extent possible, any such provision shall be deemed to be modified so as to be rendered enforceable or valid; however, if such provision cannot be so modified, it shall be stricken and all other provisions of these Cardholder Terms in all other respects shall remain valid and enforceable.

  2. INDEMNIFICATION. You agree to indemnify, defend and hold harmless the Bank against all claims, demands, action, proceedings, losses, damages, costs and expenses of any nature (including reasonable attorneys’ fees) incurred, suffered or sustained by the Bank, directly or indirectly, by reason or in connection with these Cardholder Terms, including but not limited to: (a) breach of any provision of these Cardholder Terms; (b) use of the Card accounts or any Cards issued hereunder; (c) the enforcement or protection of the Bank’s rights and remedies under these Cardholder Terms, or in obtaining or seeking to obtain payment of all or any part of the monies hereby agreed to be paid by you; (d) any actions or omissions hereunder; and (e) any violation of any applicable law, rule or regulation.

  3. LIMITATION OF LIABILITY; DISCLAIMERS

17.1) Bank shall not be liable to you, for any action taken or omitted, to be taken in connection with these Cardholder Terms except for direct damages arising from Bank's gross negligence or intentional misconduct. Without limiting the foregoing, the Bank is not liable in any way:

a) in the event that a merchant, bank or other third party refuses, for whatever reason, to accept the Card; or that the Card may not be used owing to a technical defect or because it has been blocked, cancelled, recalled or terminated. Bank accepts no responsibility for full contractual performance or for any damages due to poor performance or non-performance of the secondary or supplementary services provided in conjunction with the Card;

b) for any damage to or loss or inability to retrieve any data or information that may be stored in the Card or any microchip or circuit or device in the Card or the corruption of any such data or information, howsoever caused;

c) (i) for any loss, theft, use or misuse of the Card and/or any breach of these Cardholder Terms; (ii) for any fraud and/or forgery perpetrated on the Bank or any merchant; or (iii) for any injury to your and/or the Cardholder’s credit, character and reputation in relation to the Bank’s repossession or the Bank’s request for the return of the Card or the use of the Card;

d) for the interception by or disclosure to any person (whether unlawful or otherwise) of any data or information relating to a Card, any user of a Card, any Card transaction or the Card account transmitted through or stored in any electronic system or medium, howsoever caused; or

e) for any delay, inability or failure by the Bank to perform any of the Bank’s obligations under or pursuant to these Cardholder Terms caused or contributed in any way by any one or more of the events or occurrences set out in this Section.

17.2) ALL SERVICES, EQUIPMENT, SOFTWARE AND OTHER PRODUCTS FURNISHED BY BANK ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. BANK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN LAW OR IN FACT, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND OF MERCHANTABILITY, EITHER TO YOU OR ANY OTHER PERSON OR THIRD PARTY, WITH RESPECT TO THE CARD, CARD ACCOUNT OR ANY OTHER SERVICE CONTEMPLATED BY THESE CARDHOLDER TERMS PROVIDED BY BANK OR ITS REPRESENTATIVES.

  1. ARBITRATION

18.1) ​​For any and all controversies, disputes, demands, claims or causes of action between you and us (including the interpretation and scope of this section and the arbitrability of the controversy, dispute, demand, claim or cause of action) relating to Cards, Card accounts or these Cardholder Terms, you and we agree to resolve any such controversy, dispute, demand, claim, or cause of action exclusively through binding and confidential arbitration. The arbitration will take place in New York, New York, or may be conducted telephonically upon Bank’s approval. 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” include any third party providing any product, service or benefit in connection with the Cards, the Card Accounts, or these Cardholder Terms 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.

18.2) 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 Cardholder Terms, and unless otherwise agreed upon by the Parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules. Notwithstanding this agreement to arbitrate, either Party may seek emergency equitable relief in a federal or state court located in your federal judicial district or in New York, New York, 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 therein for such purpose. A request for interim measures will not be deemed a waiver of the obligation to arbitrate.

18.3) You agree to the following in connection with any arbitration: (i) no class or similar group arbitration will be permitted; (ii) the arbitration will be confidential, and neither you 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; (iii) subject to any limitations of liability in these Cardholder Terms, the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (iv) 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.

18.4) You understand and agree that, by agreeing to these Cardholder Terms, (i) YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; (ii) YOU ARE GIVING UP YOUR RIGHT TO HAVE A COURT RESOLVE ANY DISPUTE BETWEEN US; AND (iii) 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 OR AMONG US.

18.5) This arbitration provision will survive termination of these Cardholder Terms as well as any voluntary payment of any debt in full by you, or any bankruptcy by you or us. With the exception of the provision 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, 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 or illegal part was not contained herein.

  1. SURVIVAL. ​Notwithstanding anything herein to the contrary, the provisions of these Cardholder Terms shall survive termination to the extent necessary to effectuate their respective purposes.

  2. CONSENT FOR ELECTRONIC DISCLOSURES. To the extent permitted by applicable law, you consent to use electronic signatures and to electronically receive all records, notices, statements, communications, and other items for all services provided to you under this Agreement and in connection with your relationship with us (collectively, “Communications”) that we may otherwise be required to send or provide you in paper form (e.g., by mail). Your consent to receive electronic disclosures delivery applies to all of the documents we provide to you electronically in connection with the Card. If you choose to unsubscribe from marketing emails from us, that will not constitute withdrawing your consent to receive electronic communications related to your Card. By accepting and agreeing to this Agreement electronically, you represent that: (1) you have read and understand this consent to use electronic signatures and to receive Communications electronically; (2) you satisfy the minimum hardware and software requirements specified below; and (3) your consent will remain in effect until you withdraw your consent as specified below.

Your Right to Withdraw Your Consent. Your consent to receive Communications electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further Communications electronically at any time by calling +1-855-932-3331. If you withdraw your consent to receive Communications electronically, we will close your Card and Account and return your remaining Card Account balance as set forth in this Agreement, and you will no longer be able to use your Card or Account or participate in the commercial Card program governed by these Cardholder Terms, except as expressly provided in this Agreement. Any withdrawal of your consent to receive Communications electronically will be effective only after we have a reasonable period of time to process your withdrawal. Please note that your withdrawal of consent to receive Communications electronically will not apply to Communications electronically provided by us to you before the withdrawal of your consent becomes effective.

Hardware and Software Requirements. In order to access and retain Communications provided to you electronically, you must have: (1) a valid email address; (2) a computer or other mobile device (such as tablet or smart phone) that operates on a platform like Windows or a Mac environment; (3) a connection to the Internet; (4) a Current Version of Internet Explorer 8 (or higher), Mozilla Firefox 7.0, Safari 5, or Chrome 15; (5) a Current Version of a program that accurately reads and displays PDF files, such as Adobe Acrobat Reader version 7 or higher; (6) a computer or device and an operating system capable of supporting all of the above; and (7) a printer to print out and save Communications in paper form or electronic storage to retain Communications in an electronic form. “Current Version” means a version of the software that is currently being supported by its publisher.

Copies of Communications. You should print and save and/or electronically store a copy of all Communications that we send to you electronically.

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