Payhawk Card Terms
These Payhawk Card Terms (the "Terms") are incorporated into and made a part of the Payhawk Platform Agreement between you ("You" or "Company") and Payhawk Inc. ("Payhawk", “we”, “us” and “our”) governing your use of the Payhawk Platform, as available here. Capitalized terms used herein that are not otherwise defined herein shall have the meaning provided in such Payhawk Platform Agreement (the "Platform Agreement"). The Platform Agreement as supplemented by these Terms governs your use of the Card feature of your Payhawk Account. Capitalized terms that are not defined in these Terms have the definitions provided in the Platform Agreement.
1. Card Terms
Cards are issued by Cross River Bank, a state-chartered bank having its principal offices at 400 Kelby Street, Fort Lee, New Jersey 07024 (“Issuer”). Issuer is the creditor responsible for funding your Charges. These Terms govern your use of the Cards. You may only use the Cards if you, your Administrators, and your Users consent to the applicable Card Terms.
You authorize us and the Issuer to obtain credit bureau reports, employment, and income information about you that we and the Issuer will use when considering your application for credit. We and the Issuer may obtain and use information about your accounts with the Issuer and others such as Checking, Deposit, Investment, and Utility accounts from credit bureaus and other entities. You also authorize us and the Issuer to obtain credit bureau reports and any other information about you in connection with: 1) extensions of credit on your account; 2) the administration, review or collection of your account; and 3) offering you enhanced or additional products and services. If you ask, we will tell you the name and address of the credit bureau from which we and the Issuer obtained a report about you.
2. Spending Limits
(a) Users may not make any Charge that would cause Company to exceed or violate any of the limits set forth in this Section 2. Company may view these limits through the Payhawk Platform.
(b) When a Company opens a Payhawk Account, Issuer will establish a "Maximum Spending Limit" for such Payhawk Account, which will be the maximum aggregate amount available for Charges across all Cards associated with such Payhawk Account. The initial Maximum Spending Limit will be set by Issuer in its sole discretion. Issuer may increase or decrease the Maximum Spending Limit at any time based on risk and credit considerations.
(c) Subject to the Maximum Spending Limit, Issuer, Payhawk, or Administrators may set and adjust from time to time spending limits for particular cards, as well as overall daily spending limits.
(d) The aggregate amount available for Charges on Cards associated with Company's Payhawk Account at any given time (the "Available Spend") will be the lesser of: (i) the amount presented by us in the Payhawk Platform; or (ii) the Maximum Spending Limit. The amount available for Charges on a particular Card will be subject to the card spending limit and/or daily spending limit (if any) for such Card.
3. Requesting Cards
Administrators may request Cards for Users through your Payhawk Account but will only request Cards for and provide Cards to individuals (whether or not employees of the Company) who are authorized by the Company. Cards may be denied or canceled due to changes in Issuers' policies, as required by law, or for other reasons we determine are appropriate under the circumstances. Cards may be issued to Users as virtual Cards (i.e. Cards issued without an associated physical card) or physical Cards. Administrators will be able to view transactions and manage their Cards through the Payhawk Platform.
4. Using Cards
Users may only use Cards for bona fide business-related Charges. You must use Cards for only commercial or business purposes and may not use any Card for any personal, family, or household purpose. You may not use your Card or account for illegal transactions or in a manner inconsistent with these Terms. You are responsible for selecting who in your organization should have access to Cards. You agree to establish and maintain controls designed to ensure that the Cards are only used for bona fide Company purposes and in compliance with card network rules. You are solely responsible for Charges made by any individuals given access to Cards even if they are not the person associated with or named on the Card. Payhawk, Issuers, card networks, or other intermediary third-party service providers (including merchant acquirers) may deny or reverse Charges for any reason. Payhawk is not responsible for any losses, damages, or other harms caused by Charges that are denied or reversed.
5. Periodic Statements
You are responsible for payment in full of all Charges and Fees. We will provide you periodic statements identifying Charges and Fees, refunds, any other Card transactions, or other amounts owed or credited to your Payhawk Account. Periodic statements will be delivered monthly or as otherwise described in materials we provide to you when you receive your Card or otherwise indicated by Notice to you. If you believe that there are any errors on your periodic statement, you must notify us no more than sixty (60) days after the first periodic billing statement containing the error was provided to you, and submit any disputes or Chargebacks in accordance with these Terms.
6. Failure to Pay, Set Off, Collections
If you fail to pay the full amount owed within 2 business days after the close of your billing cycle, You will be in default and default interest will begin to accrue. As a mandatory condition for Payhawk to provide Services to you, we will request that you provide us with access to a bank account held in your name (the “Linked Account”). We may attempt to collect amounts owed from any Linked Account, whether or not it is your primary Linked Account or is currently connected to your Payhawk Account. We may collect partial payments for unpaid amounts from any Linked Account, but any partial payment is not a waiver of our rights and will not satisfy your obligation to pay in full.
Any failure to pay the full amount owed to Payhawk when required is a breach of the Platform Agreement and these Terms. You are responsible for all costs or expenses that we or Issuer incur in the process of collecting amounts owed but not timely paid, including legal or collections fees, and you are responsible for paying interest on such amounts at up to the maximum rate permitted under law, to the extent we decide to charge such interest in our sole discretion.
7. Defaults Generally
You are in default under these Terms if:
(a) You do not comply with the terms of these Terms;
(b) You file bankruptcy or another insolvency proceeding is filed by You or against You;
(c) We have a reasonable belief that You are unable or unwilling to repay Your obligations to us or any third party;
(d) You provide false or misleading information to us; or
(e) You default under any other agreement You have with us.
If You are in default, then we may declare Your entire balance immediately due and payable without notice, except to the extent required by law. We also may suspend Your ability to make Charges. If we use an attorney to collect any amount that You owe, then we may charge You our legal costs to the extent permitted by law. These may include reasonable attorneys’ fees, court or other collection costs, and fees and costs of any appeal.
8. Disputed Charges
If you have a dispute with a merchant or seller regarding the product or service that is the subject of a Charge, you should contact the merchant or seller to resolve the dispute. If a Charge is not appropriately addressed with the merchant or seller, then you may submit a chargeback of the Charge by contacting Payhawk via the Payhawk’s Platform or using Payhawk's support channels. You acknowledge that Issuer and Payhawk are subject to the card network rules with respect to chargebacks and may not be able to successfully charge back the Charge. If you believe a Charge was unauthorized, or if you believe the periodic statement contains any errors, you should contact Payhawk immediately through the Payhawk Platform or using Payhawk's support form. You must report any disputed Charge or error no more than 60 days after the disputed Charge posted to your periodic statement. Notices for disputed Charges must specify your details, details about the User, details about the disputed Charge, and an explanation of your belief that the disputed Charge was made in error or was unauthorized. Payhawk will review the information submitted in a commercially reasonable manner. To avoid late fees and sustained reduction to available spend, you should pay the disputed Charge while Payhawk determines the validity of the dispute, except where a provisional credit has been issued. If the dispute is deemed valid, Issuer and Payhawk will credit the disputed Charge amount back to your Payhawk Account. You hereby assign and transfer to Issuer any rights and claims, excluding tort claims, that you may have against any merchant or seller for any disputed Charge fully or partially credited to your Payhawk Account.
9. Lost or Stolen Cards
You will promptly notify us and take appropriate measures to prevent unauthorized transactions when a Card is lost, stolen, breached, or needs to be replaced. In such cases, Administrators may request the issuance of replacement Cards by Issuers through your Payhawk Account. Replacement Cards may have new account numbers that will require you to update the Card on file for any scheduled or recurring payments. If you do not update the Card for scheduled or recurring payments, the transactions may not be completed. You are solely responsible for updating Cards stored with merchants where account numbers have been changed. You will keep your Payhawk Account secure and only provide access to individuals that you have authorized. You will immediately disable User access to the Cards if you know or believe your Payhawk Account or Cards have or may have been compromised or stolen or have been or may be misused, and you will promptly lock the Card via the Service and notify us of any known or reasonably suspected unauthorized access or use. You are ultimately responsible for financial loss caused by Administrators, Users, or other persons given access to the Services, your Payhawk Account, or Cards, except as provided by Card Network rules. We may suspend access to your Payhawk Account or Cards if we believe your Payhawk Account or Cards have been compromised or that not doing so may pose a risk to you, Payhawk, Issuers, or any third parties.
10. Transactions Made in Foreign Currencies
If you make a charge in a currency other than U.S. dollars, the Card Network will convert it into a U.S. dollar amount. The Card Network will use its own currency conversion procedures. The conversion rate in effect on the processing date may differ from the rate in effect on the transaction date that appears on your statement. Any cost incurred due to the conversion procedures used by the Card Network will be borne by you.
You authorize us to contact you (which includes, without limitation, any of your employees and agents in their capacity as your employee or agent) by phone, electronic mail, or text message at any phone number or address you provide, including without limitation contacting you using automatic telephone dialing systems and/or prerecorded/artificial voice messages, and you authorize such contacts even if it involves a wireless telephone and/or results in charges to you. Additionally, you authorize our service providers, debt collectors, collection attorneys, and other third parties working for us to contact you using these methods. You also agree that we may monitor and/or record our calls with you. You agree that any written notice or disclosure, required by law or these Terms, may be mailed or e-mailed to the mailing address or e-mail address we have on file for you. It is your sole responsibility to provide and maintain your current mailing address, email address, and other contact information with us.
12. Governing Law
These Terms are governed by applicable federal law and by New Jersey law (without regard to conflicts of law principles). However, in the event you default and we file a lawsuit to recover funds loaned to you, the statute of limitations of the state where the lawsuit is filed will apply, without regard to that state’s conflicts of law principles or its “borrowing statute.”
13. Representations and Warranties
You represent and warrant, as of acceptance of these Terms and each day that the Terms are in force, that:
(a) you are duly organized, validly existing, and in good standing under the laws of your jurisdiction of incorporation or organization, as the case may be;
(b) you have the requisite organizational power and authority to conduct your business as presently conducted and hereafter contemplated to be conducted and to execute, deliver and perform these Terms;
(c) these Terms have been duly executed and delivered by an authorized officer or executive, and constitutes the legal, valid, and binding obligation of you, enforceable against you in accordance with the terms set forth, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to the enforcement of creditors’ rights generally and by general principles of equity;
(d) all information furnished by you for purposes of or in connection with these Terms is true and correct in all material respects and no such information omits to state a material fact necessary to make the information so furnished not misleading;
(e) there is no Material Change;
(f) you are not currently and will not become subject to a U.S. Office of Foreign Asset Control list, or any law, regulation, or other list of any government agency that prohibits or limits us from providing Cards to you or from otherwise conducting business with you; and
(g) you are in compliance with all applicable, federal, state and local laws and regulations, and the rules and regulations of any applicable Card Network.
“Material Change” means any fact known to you (including threatened or pending litigation) that could materially and adversely affect your financial condition, business, property, or prospects.
14. Limitation of Liability
Under no circumstances will we nor the Issuer be responsible or liable to you for (i) any indirect, punitive, incidental, special, consequential, lost profits, data loss or exemplary damages; or (ii) lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to these Terms or a Card, even if these damages are foreseeable, and whether or not you have advised us of the possibility of these damages.
You agree to arbitrate all disputes arising under or in connection with these Terms. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE ANY CLAIM OR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST US. If any part of this arbitration provision is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) according to this provision and the applicable arbitration rules. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. Any arbitration hearing will occur in the judicial district in which you reside. The arbitrator’s award shall be binding on you and may be entered as a judgment in any court of competent jurisdiction. For purposes of this arbitration provision, references to you, Program Manager and Issuer also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns.