Last Updated: October 30, 2023
Fluz Commercial Prepaid Card Agreement
These Fluz Commercial Prepaid Card Agreement (these “Terms”) set forth and govern the terms and conditions of the relationship between Account Owner and Community Federal Savings Bank, Member FDIC, (“CFSB”) with respect to the Fluz Commercial Prepaid Visa Card (each term as defined below). Bank has retained Highnote Platform, Inc. (“Highnote”) as a third-party service provider (the “Program Manager”) to provide certain services associated with the Card on the Bank’s behalf. The Card is issued in conjunction with the technology platform and associated services provided by Fluz Fluz LLC (“Fluz”).
NOTE: These Terms only govern your use of the Card, not your use of the services provided by Fluz. We are not a party to any separate agreements between you and Fluz, and have no obligations related to such agreements. Such agreements may be found on the Website (defined below).
Account Owner hereby acknowledges that nothing in these Terms establishes a customer relationship between Bank and any person besides the Account Owner, including, without limitation, the Business Administrator or any Authorized User. Account Owner further acknowledges that Authorized Users are its agents and accepts sole responsibility for ensuring that Authorized Users comply with these Terms or any terms or conditions governing Card use established by Account Owner.
“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,” “you,” or “yours” means the entity that has qualified for and established a Card Account (See Section 5.2 – Establishing the Card Account).
“Authorized User” means any person designated by the Administrator as authorized to receive a Card and use the Card Account on Account Owner’s behalf.
“Bank” means Community Federal Savings Bank, member Federal Deposit Insurance Corporation (“FDIC”).
“Administrator” means the person Account Owner designates on the Website to administer the Card Account and act on Account Owner’s behalf in connection with these Terms, including, without limitation, for purposes of designating Authorized Users(See Section 5.2 – Establishing an Account).
“Card” means the Visa branded Fluz commercial prepaid Card issued by Bank that allows Authorized Users to access funds loaded to the Card Account. 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 account between Account Owner and Bank established and governed by these Terms.
“Payment Card” means Account Owner’s credit or debit card issued in Account Owner’s name by a U.S. financial institution.
“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 Account Owner and (2) one individual with significant responsibility for managing the Account Owner, 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.
“Website” means: fluz.app, the Fluz mobile application, or other platforms through which you may manage use of the Card.
ACTIVATING THE CARD.
No Authorized User may use a Card until the Administrator has activated that Card pursuant to these Terms.
2. 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 ACCOUNT OWNER: WHEN ACCOUNT OWNER 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 PRINCIPAL OWNER’S DRIVER’S LICENSES OR OTHER IDENTIFICATION DOCUMENTS.
3. CONSENT TO USE ELECTRONIC SIGNATURES AND COMMUNICATIONS.
- 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). Account Owner’s consent will remain in effect until Account Owner withdraws its consent as specified below.
- Account Owner’s Right to Withdraw Consent. Account Owner’s consent to receive Communications electronically will remain in effect until Account Owner withdraws it. Account Owner may withdraw its consent to receive further Communications electronically at any time by contacting us at +1 929-357-2780. If Account Owner revokes its consent to receive Communications electronically, we reserve the right to close the Card Account and return the remaining Card Account balance as set forth in these Terms. Such revocation will be effective after we have a reasonable period of time to act on Account Owner’s withdrawal request. Please note that such revocation of consent to receive Communications electronically will not apply to any Communications that were sent before Account Owner’s request to withdraw consent becomes effective. After such revocation is effective, Authorized Users will no longer be able to use a Card Account, except as expressly provided in these Terms. In addition, we may charge Account Owner a reasonable fee for providing paper copies of Communications.
- Changes. 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 these Terms on the Website or delivering notice of such termination or change electronically.
The following fees are assessed on your use of the Card.
|Virtual Card Generation||$0.00||Fee charged for generation of the Fluz Virtual Card.|
|Secondary Card Purchase Fee||$0.00||Fee charged for generation of secondary Fluz Virtual Card.|
|Mobile Wallet Enrollment||$0.00||Enrollment of your Fluz Card in an ApplePay or GooglePay mobile wallet.|
|Monthly Fee||$0.00||Fluz does not charge fees for maintaining active accounts.|
|Funding from a Bank Account||$0.00||Funding a transaction from a linked bank account.|
|Funding from a Digital Wallet||$0.00||Funding a transaction from your Fluz Digital Wallet.|
|Cash Back at Point of Sale||$0.00||This is our fee. Retailers may charge additional fees.|
|Automated & Live Agent Phone Calls||$0.00||No fee for each customer service contact with a live agent.|
|Email and Text Message Alerts||$0.00||Standard text messaging rates may apply.|
|Mobile Application||$0.00||Standard data rates and service carrier fees may apply.|
|Mailed Periodic Statement Fee||N/A||Fluz does not offer mailed statements for your Card activity.|
|Using your card outside the U.S.|
|Foreign Transaction Fee||3%||This is our fee. You may also be charged a fee by any retailers or financial institutions involved in your transaction.|
|Inactivity Fee||$0.00||Fluz does not charge fees for maintaining inactive accounts.|
This card is FDIC Insured. This card does not have overdraft or credit features. Contact Fluz by calling 1 929-357-2780, or via e-mail at [email protected], or visit https://fluz.app. For general information about prepaid accounts, visit cfpb.gov/prepaid. If you have a complaint about a prepaid account, call the Consumer Financial Protection Bureau at 1-855-411-2372 or visit cfpb.gov/complaint.
Your purchases may be subject to additional fees from individual merchants. These fees are not assessed or received by Fluz and Fluz is not responsible for them.
5 . CARD ACCOUNT TERMS.
- Administrator. By designating any individual as the Administrator, Account Owner acknowledges and agrees that we will and are entitled to assume that all actions or omissions of such individual were duly authorized actions or omissions, as applicable, taken or not taken on behalf of Account Owner.
- Establishing a Card Account.
- In order to establish the Card Account, Account Owner must:
- designate the Administrator;
- agree to these Terms;
- Provide the requested information regarding the identity of the Account Owner’s Principal Owner(s).
- Account Owner’s Representation and Warranties
Account Owner represents and warrants to us that:
- 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 as may be needed to comply with applicable law;
- Account Owner is duly organized, validly existing and in good standing under the laws of the applicable state its formation in the U.S.;
- Account Owner is duly qualified and in good standing to do business in all jurisdictions where Account Owner conducts its business;
- Account Owner has all necessary organizational power and authority to establish the Card Account, enter into these Terms, and perform all its obligations hereunder, and none of those actions will conflict with any other agreement to which Account Owner is a party;
- all personal and business information Account Owner may provide to us will be true, correct, and complete;
- the individual accepting and agreeing to these Terms on Account Owner behalf has the necessary corporate authority to so act;
- the Administrator has or will have all necessary corporate authority to act on Account Owner’s behalf;
- The Administrator has or will have necessary corporate authority to designate Authorized Users to use the Card Account; and
- The Card Account will only be used for the lawful business purposes of Account Owner.
5.3 Funding of the Card Account. Subject to the limitations set forth in these Terms, and any other agreements Account Holder has entered into with Fluz, only Fluz may add funds to the Card Account via the Automated Clearing House Network (“ACH”) for a specified amount on a one-time or recurring basis, as authorized by the Administrator. The Administrator may provide such authorization via the Website. Administrator may not add funds to the Card Account in any manner, including by sending personal checks, cashier’s checks, or money orders to us. We will return all checks and money orders unless the Card Account has a negative balance, in which case we may, in our sole discretion, apply the proceeds of the check or money order towards the negative balance of the Card Account. 5.4 Transaction Limits. The use of the Card is limited in dollar amount as follows: (1) maximum amount that can be spent using an individual Card is $250,000 per day, (2) the maximum amount that can be spent using an individual Card in any thirty-day period is $5,000,000, and (3) the maximum amount that can be loaded to any Card Account is $250,000 per day. In order to protect the Card Account, we may temporarily impose limits on the dollar amount, number, and type of transactions performed using a Card. 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, or entities.
5.5 Authorized User Eligibility. Prior to distributing any Card to an Authorized User, Account Owner shall ensure that each Authorized User is a United States citizen or permanent resident of at least 18 years of age (or older if residing in a state where the majority age is older); and provides or agrees that the Administrator may provide all requested information, such as the Authorized User’s name, email address, and such other information as we may request from time to time (collectively, “User Information”). Account Owner further represents and warrants that all User Information submitted to us will be truthful, accurate, current, and complete in all material respects. The Administrator must notify us promptly and in writing of changes to any User Information. When the Administrator requests that we revoke the permission of any Authorized User as described in Section 5.6, that Authorized User will no longer be able to use any Card in their possession once such request has been acted on.
5.6 Revocation of Authorized User Privileges. The Administrator must modify the settings on the Website or notify Customer Service to request that the use privileges granted to any existing Authorized User be revoked. Such revocation will be effective once we have processed the request, which may take a reasonable amount of time.
5.7 Revocation of Administrator Privileges or Change in Administrator. Account Owner must notify us at 1 929-357-2780, or via e-mail at [email protected] to revoke any permission(s) of the Administrator or designate a different Administrator. Any revocation of such permission(s) or designation will be effective only after we have a reasonable period of time to process Account Owner request.
5.8 Card. The Card is a transaction debit card issued by the Bank. The Card is not a credit card. The Card is not a gift card. The Card remains our property and must be returned to us upon our request. To the extent permitted by applicable law, we 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. Account Owner acknowledge and agree that when any its Authorized Users have both a virtual Card and a physical Card, both Cards will access the same Card Account.
5.9 FDIC Deposit Insurance and Funds in the Card Account.
Your funds are eligible for FDIC deposit insurance up to the applicable limits provided by law (the current FDIC deposit insurance limit is $250,000 for each account ownership category).
In the event of Bank’s failure, your funds, aggregated with any other funds you have on deposit at Bank, would be eligible to be insured by the FDIC up to $250,000 for each account ownership category. You are responsible for monitoring the total amount of deposits (including non-Fluz Commercial Prepaid Visa Card accounts) held by you at Bank for purposes of determining the amount of your deposits that may be eligible for FDIC deposit insurance.
Any amount of your deposits at Bank that exceeds the $250,000 insurance limit may be uninsured.
The funds associated with your Card Account are held in a pooled deposit account at the Bank, and your funds in this pooled deposit account may be combined with the funds of other Fluz Commercial Prepaid Visa Debit Card accountholders.
5.10 Activating Cards.
The applicable Authorized User must activate every Card before it can be used. In the case of a physical Card, the Authorized User must both activate the Card and set a PIN before it can be used (See Section 5.12 – Card & PIN Security). An Authorized User may activate a virtual Card and a physical Card on the Website or by calling 1 929-357-2780.
5.11 Fees. See Section 4 for fees that apply to the Card and Card Account.
5.12 Card and PIN Security.
When selecting a PIN for a physical Card, the Administrator should not use numbers or words that appear in Administrator’s date of birth, address, or social security number. Administrator and Authorized Users must memorize PINS and not share them with anyone. No one should write the PIN on a Card or keep it in the same location as the Card. The Administrator and Account Owner 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 protections for lost or stolen Cards or unauthorized transactions except as expressly stated in these Terms. Cards should be treated like wallet cash. Until the Administrator or an Authorized User reports a Card as lost or stolen or reports an unauthorized transaction on a Card Account, Account Owner shall be fully responsible for all transactions, even if that Card is lost, stolen or used for unauthorized transactions. Customer Service must be contacted IMMEDIATELY if the Administrator or an Authorized User believes: (a) a Card has been lost or stolen, (b) someone has gained unauthorized access to any Access Information, or (c) someone other than the Administrator has transferred or may transfer funds from the Card Account. Reporting a lost/stolen Card or unauthorized transactions through [email protected] or by calling 1 929-357-2780 or by logging into the Website to deactivate the Card Account is the best way to minimize possible losses. If the Authorized User has both a virtual and a physical Card and one of those Cards is reported as lost or stolen, both Cards will be canceled and new Cards will be issued. Unless we authorize a transaction after a Card has been blocked (See Section 5.27 – Our Liability to Account Owner), Account Owner is responsible for all unauthorized transactions initiated and fees incurred from the unauthorized use of a Card Failure to promptly notify us could result in the Account Owner losing ALL of the money in the Card Account. If you tell us within two business days after you learn of any unauthorized transactions, you will lose no more than $50 if someone accessed your Card Account without your permission. If you DO NOT tell us within two business days after you learn of an unauthorized transaction, and we can prove we could have stopped someone from accessing your Card Account without your permission if you had told us, you could lose as much as $500. Also, if your Card Account transaction history or other information shows transfers that you did not make or authorize, tell us at once. If you do not tell us within 60 days after the information is made available to you, you may not get back any money you lost after the 60 days if we can prove that we could have stopped someone from taking the money if you had told us in time. If a good reason (such as a long trip, a hospital stay, or other extenuating circumstances) kept you from telling us, we will extend the times specified above to a reasonable period. You agree to cooperate reasonably with us in our attempts to recover funds from, and to assist in the prosecution of, any unauthorized users of your Card Account.
5.14 Using the Card.
Cards 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 a Card to make purchases at any merchant that accepts Visa debit cards or is otherwise part of the Pulse Network, subject to the available Card Account balance, the transaction limits and transaction restrictions outlined below, and the other terms and condition of these Terms. If an Authorized User uses a 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 User uses a Card, Account Owner authorizes us to reduce the value available in the applicable Card Account in the amount of the transaction plus any applicable fees. An Authorized User shall not be permitted to exceed the amount of funds that are available funds in the applicable Card Account. Nevertheless, if a transaction exceeds the amount of available funds as described in Section 5.19, Account Owner will be fully liable to us for the full amount of the transaction plus any applicable fees. We may refuse to process a transaction, or temporarily “freeze” the Card Account if we notice transactions that are unusual or appear suspicious, or use of the Card Account that are not consistent with its intended use, in which case we will notify the Administrator.
5.15 Merchant Holds on Available Funds.
When an Authorized User uses a 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 applicable Card Account for an amount equal to or in excess of the final transaction amount. Those held funds will not be available 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. Please be advised that an Authorized User may experience difficulties using a Card at unattended vending machines, kiosks, and gas station pumps. If a physical Card is declined at a “pay at the pump” gas station even though the applicable Card Account contains sufficient funds, the Authorized User should pay for their purchase inside the station with the cashier. An Authorized User may not use a virtual Card for making purchases at any vending machines, kiosks or gas station pumps.
5.16 Transaction Restrictions.
Account Owner or any Authorized User may not use any Card for unlicensed online gambling or illegal transactions. The 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 these Terms.
5.17 Responsibility for Transactions.
Account Owner is responsible for all transactions initiated and fees incurred by use of any Card. If the Administrator or an Authorized User permits another person to have access to a Card Account number, we will treat this as if the Administrator has authorized such person to use the subject Card, 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 an Authorized User even if that Authorized User exceeds the scope of their permissions. If the Administrator has requested revocation of an Authorized User’s permissions as described in Section 5.6, transactions made using the subject Card will be considered unauthorized after that request has been processed.
5.18 Transaction History.
The Administrator may obtain information about the available funds in the Card Account and a 60-day history of all Card Account transactions on the Website.
5.19 Account Alerts.
If the Administrator or any Authorized User provides an email address to us, we may send that person important notices via email. All such notices shall be deemed to have been given to Account Owner. In addition, if the Administrator or any Authorized User provides a mobile phone number or other text message address to us, we shall assume that Account Owner has obtained all legally required consent(s) of such persons to receive texts at that number or address. For the avoidance of doubt, Account Owner accepts sole and complete responsibility for obtaining all such consent(s) and agrees to notify us promptly of any changes in the applicable contact information. The Administrator or Authorized User may change the frequency of notifications we provide at any time by updating their notification setting on the Website. Third-party data charges and message fees may apply.
5.20 Transactions in Foreign Currencies.
If an Authorized User makes a purchase using a Card in a currency other than in U.S. dollars, the amount of funds deducted from the applicable Card Account will be converted by Visa into U.S. dollars. The exchange rate applied will be selected Visa from the range of rates available in wholesale currency markets on 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 Account Owner performed the transaction.
An Authorized User should receive a receipt for each Card transaction. Account Owner agrees to retain, verify, and reconcile Card transactions against those receipts.
5.22 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 the Card Account. We are not responsible for the delivery, quality, safety, legality, or any other aspects of goods or services purchased using a Card. All such Card transaction disputes must be addressed and handled directly with the merchant from whom those goods or services were purchased.
The privacy and security of non-public personal information is very important to us. We safeguard the information we receive regarding the employees and agents of our business customers in a manner consistent with how we safeguard customer information. Account Owner agrees that we. may disclose information to third parties regarding the Administrator, any Authorized User, the Card Account, or Card transactions: (a) as necessary to effect, administer, or enforce the Card transaction requested; (b) to protect against or prevent actual or potential fraud, unauthorized transactions, or other liability; (c) as necessary to comply with government agency or court orders; or (d) as permitted and required by applicable law.
5.24 Replacement Cards.
The expiration date of a virtual Card is identified on the front of the Card. The expiration date of a physical Card is identified on the front of the Card. If there is a positive balance of funds in the applicable Card Account upon expiration of the subject Card and these Terms is not in default, we may issue a new Card. We may also issue a new Card when the Card expires even if there are no funds in the applicable Sub Account. If a Card must be replaced for any reason, the applicable Authorized User should contact the Administrator, who must contact Customer Service. Please note that User Information must be provided whenever a replacement Card is requested.
5.25 Our Liability to Account Owner.
If we do not complete a transfer of funds to or from the 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, Account Owner does not have enough available funds in the Card Account to perform the requested 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 the Administrator or applicable Authorized User knew of the problem when the subject Card transaction was initiated; (d) funds in the Card Account are subject to legal process or are otherwise not available for transactions; (e) a merchant refuses to accept a Card; (f) access to the funds in applicable Card Account is blocked because the Administrator or Authorized User reported the subject Card as lost or stolen; or (g) if we have reason to believe the subject transaction is unauthorized.
To the extent permitted by applicable law, we may assign these Terms without Account Owner’s consent. Account Owner may not assign or transfer these Terms without our prior written consent.
5.27 Severability and Waiver.
If any provision of these Terms are held to be invalid or unenforceable, such provision(s) will be deemed to be modified to the minimum extent necessary to make it valid and enforceable and the rest of these Term will not be affected. We do not waive our rights by delaying or failing to exercise them at any time.
Subject to applicable law, we may add to, delete, or amend these Terms at any time in our sole discretion without providing notice to Account Owner. We reserve the right, subject to applicable law, to deliver to the Administrator any notice of changes to existing terms or the addition of new terms by posting an updated version of these Terms on the Website or delivering notice of changes electronically. By continuing to use the Card and Card Account, Account Owner agrees to be bound by the updated Terms.
5.29 Entire Terms.
These Terms constitute the entire and sole agreement between Account Owner and us with respect to the Card and Card Account and supersedes all prior understandings, arrangements, or agreements, whether written or oral, regarding the Card and Card Account.
5.30 Cancellation and Suspension.
To the extent permitted by applicable law, we may cancel or suspend any Card or Card Account, or these Terms immediately, for any reason, and without giving Account Owner prior notice. Account Owner may cancel the Card Account, or these Terms at any time by notifying Customer Service at the number or address provided below. Cancellation or suspension of these Terms will not affect any of our rights or Account Owner’s obligations arising under these Terms before such cancellation or suspension occurred. In the event the 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.
5.31 Governing Law.
These Terms are governed by and construed in accordance with the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the laws of another jurisdiction.
Account Owner agrees to defend, indemnify, and hold harmless us and our parents, subsidiaries, and other affiliated companies, and our and its employees, contractors, officers, and directors upon request 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 violation of these Terms, applicable law, or any third-party rights, or Account Owner’s 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.
5.33 NO WARRANTY OF AVAILABILITY OR UNINTERRUPTED USE.
From time to time, services related to the Card or Card Account may be unavailable. When this happens, the Administrator may be unable to access the Website and Authorized Users may be unable to use Cards assigned to them or obtain Card information. The Administrator should notify us immediately if any such interruptions occur. Account Owner agrees 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.
5.34 LIMITATION OF LIABILITY.
We shall have no liability to Account Owner if we are unable to complete a Card transaction for any reason beyond our control. Except as otherwise expressly provided in these Terms or as otherwise required by applicable law, we, our affiliates, and the parties with whom we contract in order to offer the Cards, Card Account 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 these Terms (as well as any related or prior agreement that Account Owner may have had with us).
5.35 NOTIFICATION OF CHANGES.
If Account Owner’s postal address, email address, telephone number, or other contact information changes, the Administrator 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 Card transactions being declined. In such event, we shall not be responsible for any resulting misuse of funds available in the Card Account. The Administrator must notify us immediately in the event of the insolvency, receivership, conservatorship, bankruptcy, reorganization or change in Principal Owners. We may terminate these Terms in the event of a change of control, reorganization, restructuring, conversion, consolidation, division or merger of Account Owner or any Principal Owner.
5.36 DISPUTE RESOLUTION BY BINDING ARBITRATION.
For any and all controversies, disputes, demands, claims, or causes of action between Account Owner 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 Card, 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 Account Owner request. As used in this Section, “we” and “us” mean Bank and its subsidiaries, affiliates, predecessors, successors, and assigns and all of Bank’s 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:
• ACCOUNT OWNER IS GIVING UP ACCOUNT OWNER RIGHT TO HAVE A TRIAL BY JURY; and
• ACCOUNT OWNER IS GIVING UP ACCOUNT OWNER RIGHT TO HAVE A COURT RESOLVE 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, the Administrator, and Authorized Users may contact Customer Service at [email protected].