Revised December 8, 2023
- Opening a Brex Account
- Managing Your Brex Account
- Using Brex Services
- General Provisions
- Defined Terms
This Platform Agreement is a binding legal agreement between Company and Brex and governs your use of the Services. In this Platform Agreement, “Company” or “you” means the company that is applying for or has opened a Brex Account to use the Services, and “Brex” or “we” means Brex Inc. and its past, present, or future affiliates, successors and assigns, unless stated otherwise.
References to “Platform Agreement” mean this agreement and any terms and agreements incorporated herein by reference, which includes, but is not limited to the User Terms, Rewards Terms, Data Processing Addendum, and any Service-Specific Terms that are applicable to the Services you use, such as the Brex Card Program Terms.
You may only apply for, open, and maintain a Brex Account and/or otherwise access or use the Services if you agree to this Platform Agreement, so read it carefully.
Section 4 of this Platform Agreement includes an agreement to resolve any Disputes through binding arbitration on an individual basis and includes a waiver of any representative, consolidated, mass, or class actions, along with important disclaimers and limitations of liability.
Definitions for capitalized terms (like “Brex Account” and “Services”) are included below in Section 5.
1. Opening a Brex Account
Only companies organized and registered in the United States (e.g., C-corps, S-corps, LLCs, or LLPs) may apply for a Brex Account. Individual consumers, sole proprietors, unincorporated partnerships, and companies organized and/or registered outside the United States, are not permitted to open a Brex Account.
A Brex Account is commercial in nature, and you acknowledge and understand that certain consumer protection laws (e.g., the Electronic Funds Transfer Act or Regulation E) and consumer-specific rules (e.g., NACHA rules specific to consumers) do not apply to your use of the Services and transactions you may conduct using your Brex Account.
1.2 Account Requirements
Representations and Warranties
By submitting an application for a Brex Account, Company (inclusive of any natural person that submits an application on Company’s behalf) represents and warrants that at the time of application and at all times that Company uses Brex Services:
- Company is a business entity (e.g., C-corp, S-corp, LLC, LLP)
- Company is duly organized and registered in the United States
- Company is in good standing under the laws of the United States
- Company has a valid U.S. Employer Identification Number (EIN)
- Company is not engaged and will not engage in any Prohibited Activities
- The natural person that submits Company’s application:
- is an authorized representative of Company;
- is not, and is not affiliated with, a Prohibited Person; and
- is authorized to submit the application and all required information on behalf of Company, and enter into binding agreements on behalf of Company
- All information provided to Brex is and will be current, accurate, and complete
- Company and Entities will use Company’s Brex Account(s) exclusively for business purposes and not for any personal, family, or household use
- All Linked Accounts are business rather than consumer accounts and are not established or used for personal, family, or household purposes
Required Information and Actions
You must provide Company Data to apply for and maintain a Brex Account and to access the Services. Company Data may include registered business name, business address, ownership details, contact information including email and phone number, tax identification number, the nature of the business, financial information, details for your Linked Accounts and External Accounts, and other business or personal information that we may require or request from time to time.
You may also be asked to provide certain Personal Data including the names, contact information, personal addresses, social security numbers, and dates of birth of Administrators, Users, Beneficial Owners, and Control Persons. We may also require that you provide certain documentary information used to verify Company Data and Personal Data such as organizational documents and certificates of registration, proof of address, or personal identification.
You will keep all Company Data and Personal Data current, complete, and accurate at all times during the application process. We may require additional information from you at any time, including Company Data and Personal Data to assess Company’s financial condition, for verification purposes, or for other legitimate business purposes.
You must connect at least one Linked Account to your Brex Account. All Linked Accounts must be business accounts rather than consumer accounts. You authorize us to verify that the account details you provide for your Linked Accounts and External Accounts are correct, the Linked Accounts belong to you, and proper authorization is received for any External Accounts.
To help the government fight the funding of terrorism and money laundering activities, U.S. federal law requires that financial institutions obtain, verify, and record Company Data and Personal Data identifying companies and their Beneficial Owners and Control Persons. You agree to provide the required information to open and maintain your Brex Account and agree to keep such information current. We may share this information with Service Partners and Third-Party Service Providers for these purposes.
1.3 Account Verification
Verification and Validation of Information
Brex, its Service Partners, and Third-Party Service Providers rely on the accuracy of the information Company provides when opening and maintaining your Brex Account. You may be required to verify information previously provided or provide additional information in the course of applying for or receiving certain Services.
You acknowledge that you have obtained or will obtain appropriate consent and authorization of any person whose Personal Data you provide before sharing such data with Brex.
You acknowledge and agree that we may use and provide Company Data and Personal Data to Service Partners and Third-Party Service Providers to validate the information you have provided and determine your eligibility for the Services.
We may approve or deny your application for a Brex Account or a particular Service or grant you or anyone seeking to access your account with your authorization provisional, limited access while your application is pending additional review. We may deny your application, interrupt provision of the Services or access to you, any Entityor any User, or suspend or close your Brex Account where, in our sole determination, the information you provided to Brex is incomplete, inaccurate, or out of date.
Consent to Electronic Signature and Electronic Communications
You agree that submitting your application for a Brex Account and indicating your agreement to the terms of this Platform Agreement electronically during the application process constitutes your electronic signature to this Platform Agreement. You also agree that your electronic consent has and will have the same legal effect as a physical signature. By agreeing to the terms of the Platform Agreement, you consent to us providing Notices and account statements to you electronically, and understand that this consent has the same legal effect as a physical signature. You may only withdraw consent to receive Notices electronically by closing your Brex Account.
In certain circumstances, including when we are required by a Service Partner, we may require supplemental agreements between Brex and Company or parties affiliated with Company (including Company or Entity employees, contractors, or authorized agents of Company or an Entity). The availability of specific Services, or continued access or use of specific Services, may be subject to entering into these supplemental agreements. We may require Company to enter into a security agreement or provide a security interest in Company assets for certain Services. Required supplemental agreements are provided separately from this Platform Agreement.
1.4 Account Use Restrictions
Brex Accounts and Services may not be (a) used for any purpose that is unlawful or prohibited by this Platform Agreement, (b) used for any personal, family, or household use, (c) used for any transaction involving any Prohibited Activities, (d) provided to or used for any transaction involving an individual, organization, country, or jurisdiction that is blocked or sanctioned by the United States, including those identified on any lists maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) or the U.S. Department of State, (e) used or accessed by third parties who are not Company or Entity employees, contractors, or authorized agents of Company or an Entity, (f) copied, modified, adapted or used to create derivative works of or republish the Services; (g) reverse engineered, decompiled, disassembled, or otherwise used to attempt to derive the source code of the Services; (h) accessed or used for purposes of comparison with or benchmarking against third party products or services or in order to build similar services or competitive services; (i) used to act as a service bureau; (j) used to gain or attempt to gain unauthorized access to the Services; or (k) used for any purpose not related to the business of Company or an Entity.
We may terminate Brex Accounts that we know or believe are engaged in any Prohibited Activities or otherwise do not comply with the restrictions in this section, as determined in Brex’s sole discretion. Brex may limit Company’s or other authorized parties’ use of or access to certain Services or require that you provide additional information to open or maintain your Brex Account where Company or an Entity is engaged in Restricted Activities, as determined in Brex’s sole discretion.
We may update the lists of Prohibited Activities or Restricted Activities at any time by posting a revised version to our website. The revised version will be immediately effective upon posting and it is your responsibility to ensure you do not violate these terms. Be sure to contact us immediately if the nature of your business or your corporate ownership, or that of your Entities, changes.
2. Managing Your Brex Account
2.1 Authorized Users
You must specify at least one Administrator to manage your Brex Account when submitting your application for a Brex Account. Administrators must have, and Company represents that any individual designated as an Administrator has, the requisite power and authority to conduct business and manage Company’s Brex Account, including by authorizing debits from Linked Accounts. In the event that an individual designated as an Administrator no longer has such requisite power and authority, Company must notify us promptly and shall be responsible to designate another Administrator with such requisite power and authority to conduct business and manage Company’s Brex Account.
Administrators may take a variety of actions, including: adding, removing, or managing additional Administrators and Users; applying for or removing Services or Third-Party Services, connecting and authorizing debits from current and new Linked Accounts and External Accounts; consenting to new and updated terms, if applicable; and taking actions specified in any Service-Specific Terms. Administrators must not authorize the use of Company’s Brex Account or the Services by any Prohibited Person. More details about Administrator permissions are available on our website, and we may change these permissions from time to time by updating our website or otherwise providing you Notice.
Administrators must monitor Company’s Brex Account activity and statements as required by applicable Service-Specific Terms. Certain Services include additional permission levels and authorizations, in which case Administrators on your Brex Account will be able to authorize and assign Users these permission levels and authorizations.
In the event of a dispute regarding who is authorized to act on behalf of the Company in connection with Company’s Brex Account, you agree that Brex is not obligated to adjudicate any such dispute and may continue to honor instructions from any designated Administrator, or suspend Company’s Brex Account or limit use of the Services unless and until the dispute is resolved, in Brex’s sole discretion.
Users other than Administrators may perform a variety of more limited activities on the Brex Account, depending on the role assigned to each User. Information about the types of User roles is available on our website. We may limit the number of Users you can create, and we may change the names, number, and permissions of roles from time to time by updating our website or otherwise providing you Notice.
All Users, including Administrators, may use Company’s Brex Account, transact, and use the Services only for valid, lawful, bona fide business purposes on Company’s behalf. Users may not use the Services for personal, family, or household purposes. Users must accept and comply with the User Terms.
2.2 Responsibility for Use
Company is responsible and liable for the actions or failures to act of all Users that use, access, or access the Services through Company’s Brex Account, including without limitation, any breach or violation of this Platform Agreement by Company, an Entity, or any User or other person associated therewith.
Company is responsible for ensuring that Administrators, Users, and any other persons associated with Company or an Entity communicate respectfully and will refrain from using any form of disrespectful, harassing, abusive, or hateful speech with Brex team members or Third-Party Service Providers. If Brex receives reports of any such behavior, we may contact your Administrator, suspend or limit access to Company’s Brex Account or the Services, or close your Brex Account, in Brex’s sole discretion.
Safeguards and Credentials
You will keep your Brex Account secure and only provide access to individuals that you have authorized to use the Services on your behalf. You will take all reasonable steps to safeguard the privacy, confidentiality, and security of User Credentials. You will closely and regularly monitor the activities of Users who access the Services, and you will use all reasonable means to protect Cards, checks, mobile devices, web browsers, and anything else used to access or utilize the Services.
You will ensure that each User has their own unique set of Credentials, keeps those Credentials secure, does not share those Credentials with any other person or third party, and does not reuse Credentials for other services.
You will not allow any unauthorized person to use the Services. You will immediately disable User access to the Services or limit permissions where you know or suspect your Brex Account has been compromised or may be misused or where you know or believe a User’s Credentials are compromised or lost; and you will promptly notify us of any unauthorized access or use of your Brex Account or the Services.
2.4 Updates to Company Information
We may require additional information from you, including regarding Entities, at any time, including Company Data (such as business licenses or other information related to Company’s business) and Personal Data (such as copies of government-issued personal identification and proof of address) to verify Beneficial Owners or Control Persons, validate information provided, verify the identity of Administrators or Users, or assess the financial condition and business risks of Company and/or its Entities.
You will keep Company Data and each User’s Personal Data current, complete, and accurate in your Brex Account(s) at all times.
You must promptly notify us in writing if any of the following events occur with respect to Company or any Entity, as your failure to do so can result in Fines, losses, damages, and other expenses to you and Brex:
- The nature of the company’s business changes significantly;
- There is a change of Beneficial Owners or Control Persons;
- There is a material change in the control or ownership (whether direct or indirect), including transfer or sale of 25% or more of assets;
- There is a planned or anticipated liquidation or voluntary bankruptcy or insolvency proceeding
- Involvement in a regulatory proceeding in which claims are asserted that would, if sustained in a legal or regulatory proceeding or alternative dispute resolution forum, result in a material monetary penalty or materially impact the company’s financial condition or business operations;
- Receipt of a judgment, writ or warrant of attachment or execution, lien, or levy against 25% or more of the company’s total assets; and/or
- Engagement in any Prohibited Activities or any Restricted Activities that were not previously disclosed to and preapproved by Brex.
3. Using Brex Services
We may assess Fees for some Services, including periodic fees, usage fees, late or failed payment fees, late fee interest charges of up to 10% per annum, attorneys’ fees and costs, service fees, and other fees we disclose to you.
We will disclose Fees to you when opening your Brex Account, when you start using a new Service, through our website, via an Order Form, or by updating this Platform Agreement or applicable Service-Specific Terms. We may add new Fees or increase existing Fees upon 30 days' Notice to you, or earlier as provided by applicable Service-Specific Terms. We may also charge a new or increased Fee when you affirmatively agree to such Fee even if that is earlier than 30 days after receiving Notice.
3.2 Authorization to Debit Linked Accounts
THIS SECTION PROVIDES AUTHORIZATION TO AUTOMATICALLY DEBIT YOUR CURRENT AND PREVIOUSLY LINKED ACCOUNTS FOR ALL FEE AMOUNTS OWED TO BREX. PLEASE READ IT THOROUGHLY.
You understand and agree that by using the Services, you agree to pay any and all Fees when due, including as set forth in all applicable Order Forms you enter into with Brex. You must maintain at least one Linked Account at all times and agree that Brex may directly debit any Linked Account for payment of amounts owed. You may change or update Linked Accounts through your Brex Account.
Your Authorization to Debit Linked Accounts
You authorize Brex or its respective successors and assigns to collect amounts owed by you for your use of the Services by debiting funds from your current and previously Linked Accounts at financial institutions (including banks and credit unions). If we use the Automated Clearinghouse (ACH) network, the debits will be governed by the rules established by the National Automated Clearinghouse Association (NACHA) for business-related ACH debits. You also authorize Brex to debit your Linked Accounts for verification purposes (through microdeposits or similar means).
Manner and Timing of Payment
We may debit Linked Accounts for all amounts owed to us in connection with your use of the Services. If you fail to pay the full amount owed on time, Brex may charge you Fees on or as a result of unpaid balances and 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 Brex 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. If we cannot collect these amounts via ACH or another method, you agree to immediately pay all amounts due and owing as directed.
You understand and agree that Brex has sole discretion to determine the order of priority when collecting from any Linked Account amounts owed for using multiple Services.
In the event that we make an error in processing an electronic debit, you authorize us to correct the error by initiating an electronic credit or debit to the Linked Account in the amount of such error on or after the date such error occurs.
Withdrawing Your Authorization
To withdraw the debit authorization from all of your Linked Accounts (including your Brex Business Account), you must provide us 30 days’ notice and pay all amounts owed under your Brex Account, including those set forth in an Order Form, immediately, including Charges (as defined in the Brex Card Program Terms), Fees, Fines, and other amounts. Withdrawal of a debit authorization does not terminate the Platform Agreement or your obligation to pay all amounts owed under your Order Form. Company will be responsible for all costs of collections and damages if amounts owed are not paid in full by Company.
3.3 Brex Empower Platform
Brex Empower is a financial software platform designed to accelerate your business, increase accountability, and make it easy for employees to manage corporate cards, budgets, payments, spend management, procurement, travel and more. To the extent that you have not already done so, you can request access to the Brex Empower platform by contacting our sales team. You must accept the terms of this Platform Agreement and enter into an Order Form with Brex in order to gain access to the Brex Empower platform.
During the term of your subscription, the Brex Empower platform Services may be accessed and used by Company and/or any Entity solely as set forth in this Platform Agreement and any applicable Order Form(s).
Migrating Your Existing Brex Account
YOU UNDERSTAND AND AGREE THAT WE RESERVE THE RIGHT TO MIGRATE YOUR BREX ACCOUNT TO THE BREX EMPOWER PLATFORM AFTER PROVIDING YOU WITH NOTICE. YOU WILL NOT BE RESPONSIBLE FOR PAYING ANY FEES RELATING TO THE BREX EMPOWER PLATFORM WITHOUT YOUR CONSENT TO SUCH FEES. HOWEVER IF COMPANY IS MIGRATED TO THE BREX EMPOWER PLATFORM AND DOES NOT CONSENT TO THE FEES CHARGED IN CONNECTION THEREWITH, WE MAY LIMIT YOUR OR ANY ADMINISTRATOR’S OR USER’S ACCESS TO THE BREX EMPOWER PLATFORM SERVICES WITH PRIOR ADVANCE NOTICE AND WITHOUT PENALTY TO BREX.
By granting you access to the Brex Empower platform, we allow you, on a nonexclusive, non-assignable, royalty-free, worldwide (except where restricted by applicable law), nontransferable and subscription basis, during the term of Company’s subscription to the platform as set forth in an applicable Order Form, to access and use, and to permit any Administrators and Users to access and use, the Brex Empower platform solely for your internal use in compliance with the terms of this Platform Agreement or other written agreements between you and Brex, and subject at all times to your full and timely payment of the Brex Empower platform Fees. To the extent that Entities access the Brex Empower platform, Company will be responsible for their compliance with all obligations hereunder and will be directly liable to Brex for non-compliance therewith including any fines or costs related thereto.
3.4 Changes to the Services
We may add Services or modify existing Services at any time. Some Services, such as payment-related services, may be provided only by specific Brex entities such as Brex Payments LLC.
We do not guarantee that each of the Services will always be offered or available to you. Services will change from time to time, and certain Services may be discontinued. In the event Brex discontinues or modifies a certain Service you are using in a way that materially reduces the features or functionality of the Service, we will make commercially reasonable efforts to provide at least 30 days advance Notice to you before the Service is discontinued or materially modified.
You acknowledge and understand that in order to use certain Services, you and in some instances parties associated with you (including Entities, and your and their employees, contractors, or agents authorized to use the Services) must agree to Service-Specific Terms governing access to and use of such Services. We may eliminate, amend, or add to Service-Specific Terms at any time subject to any provisions governing termination or amendments. Unless expressly stated otherwise in an applicable Order Form and/or any Service-Specific Terms, any new or modified Services will be subject to this Platform Agreement. In the event of a conflict between this Platform Agreement and any Service-Specific Terms, the Service-Specific Terms will govern.
3.5 Notices, Monitoring, and Communication
You agree that we and any agents acting on our behalf may send Notices or otherwise communicate with you using the contact information provided to us or our agents by you, including by Users associated with your Brex Account, including via email, in-app notifications, SMS/text, and phone numbers associated with mobile phones or devices, and you consent to any use of autodialing or automated voice messaging technology. We and our agents are not responsible or liable for any charges or costs incurred by you or such Users in connection with such communications. Notices shall be considered received 24 hours after they are sent.
You agree that Brex may monitor or record the interactions or activities of Administrators, Users, or persons given access to the Services or your Brex Account when using any of Brex’s websites or mobile applications or accessing the Services. We and our agents may also monitor or record any communications for quality assurance or other reasonable business purposes.
We may send text or SMS messages to Users of Company’s Brex account, including in connection with use of Credentials (such as in the case of multi-factor authentication challenges) to allow us to verify their identity. Opting out of such messages may result in making Company ineligible for certain Services or increase the financial risks to Company, including losses caused by lost or stolen Credentials and/or fraud. You are required to maintain updated web browsers, computers, and mobile device operating systems to receive Notices correctly. Contact us immediately if you are or believe you are having problems receiving Notices.
Unless you're communicating with us about a matter where we've specified another notice address, you may contact us using the information specified here.
3.6 Brex Property and Licenses
Brex owns all Brex Property. Company, Administrators, other Users, and other persons or entities accessing or using the Services through Company’s Brex Account may use Brex Property only pursuant to and for the purposes set forth terms of this Platform Agreement or other written agreements between you and Brex and may not modify, reverse engineer, create derivative works from, or disassemble Brex Property or register, attempt to register, or claim ownership in Brex Property or portions of Brex Property.
Brex grants you a revocable, nonexclusive and nontransferable license to use Brex Property as provided through the Services and as permitted by this Platform Agreement and any applicable written agreements, including any Order Form(s). This license terminates upon termination of this Platform Agreement, unless earlier terminated earlier by us.
You grant Brex a worldwide, irrevocable license to use, modify, distribute, copy, and create derivative works from Company Data for the purposes identified in this Platform Agreement.
To the extent such rights are not expressly identified in this Platform Agreement, we reserve all other rights to our intellectual property relating to the Services and shall own all modifications, improvements, enhancements, derivative works, additional models or features made by us to the Services (collectively “Modifications”), whether or not such Modifications were made by us on the basis of any Feedback, ideas, suggestions, or information provided by you, Entities, Administrators, or Users.
3.7 Identification as Customer
We may publicly reference you as a Brex customer on our website or in other communications during the term of this Platform Agreement. We will not express any false endorsement or partnerships. You grant Brex a limited license to use Company trademarks or service marks for this purpose.
3.8 Beta Services and Feedback
We sometimes release Beta Services in order to test new products, features, and programs, and we may make these Beta Services available to you to get your Feedback. We may change or discontinue Beta Services at any time. Beta Services are confidential until we publicly announce the products, features, or programs, and if you use Beta Services, you agree to keep information about the Beta Services confidential. Any Beta Services are provided to you AS IS and without warranty. We may use any Feedback about the Services or Beta Services freely and without restriction. Except where specifically notified by us, we will not compensate or credit you for Feedback provided to us.
3.9 Fines, Liability, and Actions We May Take
You agree to pay all Fines assessed against Brex that result or arise from Company’s, an Entity’s or any associated person’s violation of the terms of this Platform Agreement, or other agreements you have with Brex or a Service Partner, including but not limited to fines assessed against Brex resulting from the use of Company’s Brex Account in connection with any Prohibited Activities or any not previously disclosed and preapproved Restricted Activities.
We may report Company payment history and performance to one or more credit reporting agencies.
Actions We Make Take
If we believe, in our sole discretion, that Company, an Entity, or any User or other person associated therewith has violated the terms of this Platform Agreement or other written agreement with Brex, violated applicable law, engaged in fraudulent or unfair activities, or has otherwise engaged in activities that violate our or others’ rights, or created an undue risk of harm for us or others, we may take a number of actions to protect Brex, its customers, and others at any time, in our sole discretion and with or without Notice. The actions we may take against Company, an Entity, or any User or other person associated therewith under such circumstances include:
- Terminating this Platform Agreement and/or any Order Form;
- Limiting access to Brex Accounts and/or any or all of the Services;
- Closing or suspending a Brex Account, immediately and without penalty to us;
- Refusing to provide Services in the future;
- Limiting the ability to pay or send money or make withdrawals;
- Holding or otherwise restricting the balance in, or payments to/from a Brex Account for as long as reasonably needed to protect against the risk of liability or loss, to be determined in our sole discretion;
- Debiting a Brex Account or any Linked Account for any amounts owed;
- Reversing transactions associated with a Brex Account or otherwise remitting funds in accordance with applicable rules governing payments (e.g., NACHA rules);
- Contacting others that have transacted with you, other financial institutions, other impacted third parties, or law enforcement or other regulators about your actions and/or your Brex Account;
- Updating inaccurate information provided to us; and
- Taking legal action.
Our decision about actions we may take in relation to your Brex Account may be based on confidential criteria that are essential to our management of risk and the protection of Brex, our customers, service providers, or others. We may use proprietary fraud and risk modeling when assessing the risk associated with the account. In addition, we may be restricted by law, regulation, or a governmental authority from disclosing certain information to you about such decisions or actions. You agree that we have no obligation to disclose the details of our risk management or security procedures to you.
If Company, an Entity, or any associated User violates this Platform Agreement or any other written agreement with Brex, you will be liable to Brex for any losses, damages, or expenses we sustain. You will also be liable for all Fees (including those committed to under any Order Form), Fines, reversals, chargebacks, claims, penalties, negative balances, attorney’s fees and costs, and statutory interest (where applicable) owed by you, an Entity, or any associated User, and any other losses or damages incurred by Brex, any Brex customer, or a third party, that are caused by, arise out of, or result from Company’s, an Entity’s, or any associated User’s use of the Services in violation of this Platform Agreement or other written agreement with Brex. We may deduct some or all of these losses, damages, and expenses from Company’s Brex Account or any Linked Account.
Termination of this Platform Agreement shall not prevent us from taking any of these actions or having recourse to any of these remedies.
4. General Provisions
4.1 Term and Termination
This Platform Agreement is effective when you accept its terms when applying for a Brex Account and continues until terminated by either you or us, in accordance with this Platform Agreement and applicable Service-Specific Terms.
You may ask us to terminate this Platform Agreement by ceasing to use the Services, paying all amounts owed to Brex (including, but not limited to, all Fee commitments under any Order Form), and providing notice to us. We may decline to terminate this Platform Agreement or close your Brex Account if you have a negative balance in respect of any Service, have Fees that remain owing to Brex under the term of any Order Form, if any funds that we are holding on your behalf are subject to a hold, lien or other restriction, if there are pending transactions, or if we believe that the Brex Account is being closed to evade any legal or regulatory requirement or investigation. We may decline to send you any funds remaining in your account, less any amounts you are liable for, until we have completed the process of terminating your Brex Account and/or any restrictions or holds on such funds have been removed.
In addition to the termination rights provided for in Section 3.9 below, Brex has the right to terminate this Platform Agreement at any time and for any reason with thirty (30) days notice to you.
In the event that this Platform Agreement is terminated, except as expressly provided herein, the applicable Service-Specific Terms will immediately terminate (other than sections that survive termination).
Sections 2.2 (Responsibility for Use), 2.3 (Access), 3.5 (Notices, Monitoring, and Communication), 3.8 (Beta Services and Feedback), 3.9 (Fines, Liability, and Actions We May Take), 4.1 (Term and Termination), 4.2 (Data Privacy and Confidentiality), 4.4 (Limitations of Liability), 4.5 (Disclaimer of Warranties by Brex), 4.6 (Indemnification), 4.7 (Governing Law and Venue), 4.8 (Binding Arbitration), 4.9 (Compliance with Court Orders and Legal Process) and 4.12 (Assignment) together with the provisions of the Service-Specific Terms that identify continuing obligations, and all other provisions of this Platform Agreement or the agreements, terms, and policies incorporated herein giving rise to continuing obligations of the parties, will survive termination of this Platform Agreement.
4.2 Data Privacy and Confidentiality
You acknowledge and agree that we may disclose Confidential Information and Company Data if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce this Agreement; (iii) respond to claims that Brex has violated the rights of third parties; or (iv) protect the rights, property, or personal safety of Brex, its users and the public.
Information provided on our website and in other communications from us, other than the agreements, offers, policies, and terms referenced or otherwise incorporated by this Platform Agreement, Service-Specific Terms, or that we otherwise expressly denote as governing your relationship with Brex, is for information purposes only. We may change or update information from time to time without Notice.
Unless otherwise expressly stated by Brex, you acknowledge that Brex is not a law firm, accountant, financial advisor, or other professional services provider, and accordingly, does not provide legal, financial, benefits, tax, IT, compliance, or other professional advice. Any information provided by Brex does not constitute legal or professional advice. You understand that you are responsible for any actions taken based upon information received from Brex, and where professional advice is needed, that you should seek independent professional advice from a person who is licensed or qualified in the applicable area.
Information we provide on our website and in other communications to you may contain third-party content or links to third-party sites and applications. We do not control any such third-party content, sites, or applications, and we are not responsible or liable for the availability, accuracy, completeness, or reliability of third-party content or for damages, losses, failures, or problems caused by, related to, or arising from such third-party content or the products or practices of third parties.
4.4 Limitations of Liability
Brex’s liability to you is limited with respect to your Brex Account and the Services. Brex is not liable to you for consequential, indirect, special, exemplary, treble or punitive damages or lost profits or revenue, reputational harm, physical injury, or property damage arising from or related to (i) your Brex Account; (ii) Brex’s Services, including Cards and the Brex Empower platform; (iii) your use of or inability to use Services, Cards or the Brex Empower platform, or (iv) this Platform Agreement any other written agreement between you and Brex, including Service Specific Terms and any Order Form(s), and any terms, agreements, or policies incorporated therein by reference, whether or not we were advised of their possibility by you or third parties, unless prohibited by applicable law.
Our maximum liability to you arising from or related to (i)-(iv) above is limited to the total amount of Fees actually paid by you to Brex in the twelve months preceding the event that is the basis of your claim. These limitations apply regardless of the legal theory on which your claim is based, unless prohibited by applicable law.
To the extent applicable law prohibits or restricts any of the limitations of liability set forth in this Platform Agreement, or any portion of them, or a court or arbitrator holds that such limitations, or any portion of them, are unenforceable for any reason, this Platform Agreement shall be interpreted and construed in a manner that limits Brex’s liability to the greatest extent possible under applicable laws.
4.5 Disclaimer of Warranties by Brex
THE SERVICES, BREX PROPERTY, AND BETA SERVICES ARE PROVIDED AS IS AND AS AVAILABLE. BREX DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES OF NON-INFRINGEMENT OF THE SERVICES, BREX PROPERTY, AND BETA SERVICES. NOTHING IN THIS PLATFORM AGREEMENT WILL BE INTERPRETED TO CREATE OR IMPLY ANY SUCH WARRANTY.
THIRD-PARTY SERVICES ARE NOT PROVIDED OR CONTROLLED BY BREX. BREX DOES NOT PROVIDE SUPPORT FOR AND DISCLAIMS ALL LIABILITY ARISING FROM FAILURES OR LOSSES CAUSED BY THIRD-PARTY SERVICES.
BREX DISCLAIMS ALL WARRANTIES AND DOES NOT GUARANTEE THAT (A) SERVICES AND DATA PROVIDED UNDER THIS PLATFORM AGREEMENT ARE ACCURATE OR ERROR-FREE; (B) THE SERVICES WILL MEET YOUR SPECIFIC NEEDS OR REQUIREMENTS; (C) THE SERVICES WILL BE USABLE BY COMPANY, ADMINISTRATORS, OR USERS AT ANY PARTICULAR TIME OR LOCATION; (D) SPECIFIC MERCHANTS WILL PERMIT PURCHASES USING CARDS ISSUED BY AN ISSUER; (E) SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE FROM HACKING, VIRUSES, OR MALICIOUS CODE; AND (F) ANY DEFECTS IN THE SERVICES WILL BE CORRECTED, EVEN WHEN WE ARE ADVISED OF SUCH DEFECTS.
BREX IS NOT LIABLE FOR AND DISCLAIMS LIABILITY FOR ANY DAMAGES, HARM OR LOSSES TO YOU, ANY USER, OR ANY ENTITY ARISING FROM UNAUTHORIZED ACCESS OR USE OF YOUR BREX ACCOUNT OR THE SERVICES.
You agree to indemnify, defend, and hold harmless Brex, Service Partners, and Third-Party Service Providers (including their respective affiliates, directors, employees, agents, and representatives), from and against all losses, liabilities, claims, demands, or expenses, including reasonable attorney’s fees, arising out of or related to any third party claims alleging or involving: (i) Company or an Entity’s breach or alleged breach of this Platform Agreement or any other agreements with Brex; (ii) acts or omissions of Users or other persons associated with Company or Entity that violate a contractual or legal obligation owed to Brex or others; or (iii) Company’s or an Entity’s actual or alleged infringement of a third party’s intellectual property rights.
4.7 Governing Law and Venue
This Platform Agreement will be construed, applied, and governed by the laws of the State of Utah exclusive of its conflict or choice of law rules except to the extent that U.S. federal law controls or unless otherwise specified in this Platform Agreement. Subject to Section 4.8 (Binding Arbitration), all litigation shall be brought in the state or federal courts located in Salt Lake County, Utah.
4.8 Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL IMPACT HOW LEGAL CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, UNLESS YOU OPT OUT AS SET FORTH BELOW. FOR PURPOSES OF THIS PROVISION ONLY, THE TERMS “WE,” “US,” AND “OUR” INCLUDE BREX INC. AND/OR ITS PAST, PRESENT, OR FUTURE AFFILIATES EXCEPT BREX TREASURY, LLC, THEIR RELATED PERSONS OR ENTITIES, AND/OR ANY PREDECESSORS OR SUCCESSORS IN INTEREST. LEGAL CLAIMS INVOLVING BREX TREASURY, LLC ARE GOVERNED BY THE DISPUTE RESOLUTION PROVISIONS OF THE BREX BUSINESS ACCOUNT CUSTOMER AGREEMENT. FOR THE AVOIDANCE OF DOUBT, UNLESS YOU OPT OUT OF THIS SECTION PURSUANT TO THE PROCEDURES SET FORTH BELOW, THIS SECTION WILL GOVERN ANY CLAIMS YOU, OR ANY PERSONS OR ENTITIES CLAIMING THROUGH OR CONNECTED WITH YOU (E.G., ANY ENTITY OR PERSON YOU AUTHORIZE TO USE OR ACCESS YOUR BREX ACCOUNT), HAS AGAINST US.
You and We Agree to Arbitrate Disputes Between Us
Either you or we may, at either’s sole election, require that the sole and exclusive forum for resolution of a Dispute be final and binding arbitration pursuant to this Binding Arbitration section, unless you opt out as provided below, in which case you and we may resolve the Dispute through litigation in court. Disputes are subject to arbitration regardless of whether they arise from contract, tort, a constitution, statute, common law, principles of equity, or any other legal theory. Disputes include matters arising as initial claims, counterclaims, cross-claims, third-party claims, or otherwise. Nothing in this section affects the right of a party to seek temporary injunctive or declaratory relief from a court of appropriate jurisdiction in conjunction with a Dispute that is subject to arbitration in order to prevent imminent and irreparable harm.
The scope of this Binding Arbitration section is to be given the broadest possible interpretation that is enforceable. You and we agree that this Platform Agreement is entered into pursuant to a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §1, et seq., governs the interpretation and enforcement of this Binding Arbitration section.
Opt Out Procedure
If you want to opt out of this Binding Arbitration section, you may do so by delivering a written opt-out notice to Brex Inc., 50 W. Broadway, Ste 333, #15548, Salt Lake City, UT 84101, Attn: Legal Department. The written opt-out notice must be sent to this address within thirty (30) days of the date you accept this Platform Agreement for the first time and you are responsible for maintaining proof that it was sent within this time period (e.g. copy of postmarked mail containing the opt-out notice, copy of receipt from delivery service showing date the delivery service received the opt-out notice for delivery). The opt-out notice must identify the name of your company, state that you are opting out of the Binding Arbitration section of the Platform Agreement, and include the name and signature of someone authorized by you to opt you out of this section. You may send an opt-out notice by mail, delivery service, or courier, as long as it is sent to the address specified above within the specified time. No other methods can be used to opt out of this Binding Arbitration section. Opting out of this section has no effect on any previous, other, or future arbitration or dispute resolution agreements that you may have with us or third parties. If you opt out of this Binding Arbitration section, all other parts of the Platform Agreement will continue to apply.
Arbitration Procedures. In the event you or we elect to resolve a Dispute through final and binding arbitration pursuant to the terms of this section, the Dispute will be resolved by arbitration before a single arbitrator, as provided in this section, unless you and we mutually agree otherwise. All issues will be for the arbitrator to decide, except issues relating to arbitrability, the scope or enforceability of this Binding Arbitration section, or the interpretation or enforceability of the Prohibition of Class and Representative Actions and Non-Individualized Relief provision below shall be for a court of competent jurisdiction to decide.
Arbitration will be administered by JAMS or the American Arbitration Association (“AAA”), at the election of the party initiating arbitration. The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, AAA’s Commercial Arbitration Rules (if AAA is chosen as the administrator) or JAMS’s Comprehensive Arbitration Rules & Procedures or Streamlined Arbitration Rules & Procedures depending on the amount in dispute (if JAMS is chosen as the administrator), except to the extent such rules and procedures conflict with this Binding Arbitration section or any countervailing applicable law. You may review JAMS’s rules and procedures by visiting its website at www.jamsadr.com. You may review AAA’s rules and procedures by visiting its website at www.adr.org. In the case of a conflict between the rules and procedures of the administrator and this Binding Arbitration section, this section shall control, subject to countervailing applicable law, unless all parties to the arbitration consent to have the rules and procedures of the administrator apply.
If the value of the relief sought in arbitration is $50,000 or less, you or we may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and us subject to the discretion of the arbitrator to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise.
Either you or we may commence arbitration by providing a written demand for arbitration to JAMS or AAA and the other party detailing the nature of the Dispute and the relief requested. The arbitrator will apply the substantive law as described in Section 3.4. Each party shall bear the expense of its own attorneys’ fees and its out-of-pocket costs incurred in connection with the arbitration, except the appropriate apportionment of any administrative fees and expenses or arbitrator fees and expenses associated with the arbitration shall be determined by the arbitrator in the arbitration award. The award of the arbitrator shall be final and binding, and judgment on the award may be entered in any court of competent jurisdiction.
The arbitrator shall take steps to reasonably protect Confidential Information. The arbitration proceedings and information related to them will be maintained as confidential, including the nature and details of the Dispute arbitrated, evidence produced, testimony given, and the outcome of the arbitration, unless such information was already in the public domain or was obtained independent from the Dispute. Company and Brex, and all witnesses, advisors, and arbitrators will only share such information as necessary to prepare for or conduct arbitration or other legal proceedings, or to enforce the outcome of the same, unless additional disclosure is required by law.
Prohibition of Class and Representative Actions and Non-Individualized Relief
NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS A PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED OR COULD HAVE BEEN ASSERTED IN COURT ON A PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS. YOU AND WE ALSO AGREE NOT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION AGAINST US OR YOU. UNLESS CONSENTED TO IN WRITING BY ALL PARTIES TO THE ARBITRATION: (1) THE CLAIMS OF TWO OR MORE INDIVIDUALS OR PARTIES CANNOT BE CONSOLIDATED OR JOINED IN THE SAME ARBITRATION UNLESS THOSE PERSONS OR PARTIES ARE PARTIES TO A SINGLE TRANSACTION, AND (2) AN AWARD IN ARBITRATION SHALL DETERMINE THE RIGHTS AND OBLIGATIONS OF THE NAMED PARTIES ONLY, AND ONLY WITH RESPECT TO THE CLAIMS IN ARBITRATION, AND SHALL NOT (A) DETERMINE THE RIGHTS, OBLIGATIONS, OR INTERESTS OF ANYONE OTHER THAN A NAMED PARTY, OR RESOLVE ANY CLAIM OF ANYONE OTHER THAN A NAMED PARTY; NOR (B) MAKE AN AWARD FOR THE BENEFIT OF, OR AGAINST, ANYONE OTHER THAN A NAMED PARTY. NO ADMINISTRATOR OR ARBITRATOR SHALL HAVE THE POWER OR AUTHORITY TO WAIVE, MODIFY, OR FAIL TO ENFORCE THIS PROVISION, AND ANY ATTEMPT TO DO SO, WHETHER BY RULE, POLICY, ARBITRATION DECISION OR OTHERWISE, SHALL BE INVALID AND UNENFORCEABLE. ANY CHALLENGE TO THE VALIDITY OF THIS PROVISION SHALL BE DETERMINED EXCLUSIVELY BY A COURT OF COMPETENT JURISDICTION AND NOT BY JAMS, AAA, OR ANY ARBITRATOR.
If any portion of this Binding Arbitration section, other than the Prohibition of Class and Representative Actions and Non-Individualized Relief is deemed invalid or unenforceable, the remaining portions of this section shall nevertheless remain valid and in force. If a court decides that any of the provisions of the Prohibition of Class and Representative Actions and Non-Individualized Relief is invalid or unenforceable because it would prevent the exercise of a nonwaivable right to pursue public injunctive relief and that decision is not overturned after any rights to appeal are exhausted, then any claim regarding the entitlement to such relief (and only that form of relief) must be severed from arbitration and may be litigated in court. Also, if a court decides that any of the provisions of the Prohibition of Class and Representative Actions and Non-Individualized Relief is invalid or unenforceable for any other reason and that decision is not overturned after any rights to appeal are exhausted, then any claim that may not be arbitrated in accordance with the provisions of the Prohibition of Class and Representative Actions and Non-Individualized Relief that are held to be invalid or unenforceable must be severed from arbitration and may be litigated in court. For the sake of clarity, in no event shall any court decision finding a provision of the Prohibition of Class and Representative Actions and Non-Individualized Relief invalid or unenforceable be deemed to authorize an arbitrator to adjudicate claims or make awards in a manner that is inconsistent with the terms of this Binding Arbitration section.
Future Amendments to this Binding Arbitration Section. Notwithstanding any provision in this Platform Agreement to the contrary, you and we agree that if we make any amendment to this Binding Arbitration section (other than an amendment to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by this Binding Arbitration section that have arisen or may arise between you and us. We will notify you of amendments to this Binding Arbitration section by posting the amended terms on www.brex.com at least 30 days before the effective date of the amendments and by providing notice through email to one or more designated administrators of your Brex Account. If you do not agree to these amended terms, you may close your Brex Account within the 30-day period and you will not be bound by the amended terms.
If you elect to have your claim addressed as part of a mass arbitration (defined below), you agree to the additional procedures set forth below.
If twenty-five (25) or more claimants submit notices or attempt to file demands raising similar claims, are represented by the same or coordinated counsel (regardless of whether the notices or demands are submitted simultaneously), and the parties cannot resolve the cases during the Informal Resolution Period, all of the cases must be resolved in arbitration through staged sets of proceedings. You agree to this process even though it may delay the arbitration of your case.
If these mass filing procedures apply to your case, the tolling period for your claims will be extended until your case is selected to proceed as part of a staged proceeding, withdrawn, opted out of arbitration (as set forth below), or otherwise resolved.
First Stage: In the first stage, counsel for the parties shall each select twenty-five (25) cases per side (50 cases total) to be filed in arbitration and to proceed individually in accordance with this Arbitration Agreement, with each case assigned to a separate and different arbitrator (unless the parties agree otherwise). In the meantime, any remaining cases shall not be filed or deemed filed in arbitration, nor shall any Arbitration Fees be assessed in connection with those cases unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After the first stage is completed, the parties shall engage in a global, non-binding, and confidential mediation of all remaining cases with a retired federal or state court judge. The parties shall each pay one-half of the mediator's fee.
Second Stage: If the parties are unable to resolve the remaining cases after the mediation, the parties shall repeat the same process except that fifty (50) cases shall be selected per side (100 cases total) to proceed individually in accordance with this Arbitration Agreement, with each case assigned to a separate and different arbitrator (unless the parties agree otherwise). After the second stage is completed, the parties will again engage in a global, non-binding, and confidential mediation of all remaining cases with a retired federal or state court judge, with the shall each pay one-half of the mediator's fee.
If the parties are unable to resolve any remaining cases after a second global mediation session:
Option One: You and Brex may, separately or by agreement, opt out of arbitration and elect to have your case heard in a court of competent jurisdiction consistent with these terms. You may opt out of arbitration by providing an individual, personally signed notice of your intention to opt out of arbitration to Brex via email at firstname.lastname@example.org within thirty (30) days after the conclusion of the second global mediation session. Brex may opt your case out of arbitration by sending an individual, signed notice of its intention to opt out of arbitration to your counsel via email no more than thirty (30) days following the expiration of your thirty (30) day opt-out period. Counsel for the parties may agree to adjust these deadlines.
Option Two: If neither you nor Brex elects to have your case heard in court consistent with Option One, then you agree that your case will be resolved through continuing staged proceedings as set forth below. Assuming the number of remaining cases exceeds two hundred (200), then two hundred (200) cases shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining cases is fewer than two hundred (200), then all of those cases shall be filed and proceed in individual arbitrations. No more than five (5) cases within any set of two hundred (200) cases may be assigned to the same arbitrator to proceed individually, unless the parties agree otherwise in writing. Any remaining cases shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those cases unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process.
Throughout the staged process above, the arbitrators for the cases are encouraged to resolve the cases within one hundred twenty (120) days of appointment or as swiftly as possible thereafter, consistent with fairness to the parties. If any case selected for a staged set of proceedings is withdrawn prior to the arbitrator's award (and without the consent of the other party), another case shall be selected to proceed individually in arbitration consistent with the process set forth above.
A court of competent jurisdiction will have the authority to enforce this "Mass arbitration" section and, if necessary, to enjoin the filing or prosecution of arbitrations or the assessment or collection of Arbitration Fees. This "Mass arbitration" section is intended to be severable from the rest of this Arbitration Agreement. If a court decides that the staging process set forth in this "Mass arbitration" section is not enforceable (and after exhaustion of all appeals), then all cases may be filed in arbitration, but the payment of Arbitration Fees will be assessed as the arbitrations advance and arbitrators are appointed, rather than when the arbitrations are initiated.
4.9 Compliance with Court Orders and Legal Process
If we are notified of or become aware of a court order or other legal process or request (e.g., subpoenas, garnishments, levies, warrants) or if we otherwise believe we are required to do so in order to comply with applicable law or regulatory requirements, we may take certain actions, including without limitation providing information in our possession, custody, or control; holding payments to/from your Brex Account or holding or otherwise restricting funds in your Brex Account; or suspending, terminating, closing, or limiting access to your Brex Account. We will decide, in our sole discretion, which action is required or appropriate. We do not have an obligation to contest or appeal any court order or legal process involving you or your Brex Account.
We are not responsible to you or any Entity or User for any losses or consequences sustained due to actions we may take to comply with a legal order, legal process or request, or applicable law. We may, but are not required to, provide Notice of any court order, legal process or requests, or actions we may take in conjunction with them or in an effort to comply with applicable law.
4.10 Headings and Interpretation
Headings in this Platform Agreement are for reference only. Except where otherwise specified, all references to sections or provisions refer to this Platform Agreement or the applicable incorporated terms. The phrases including, for example, or such as do not limit the generality of the preceding provision; the word or will be read to mean either… or… or any combination of the proceeding items; words in the singular include the plural and words in the plural include the singular; and provisions listing items and using and require all listed items.
4.11 Changes to Terms
We reserve the right to amend this Platform Agreement and any Service-Specific Terms, including by deleting, modifying, or adding provisions, at any time by posting the amended version of this Platform Agreement or Service-Specific Terms to the Brex website. The amended version will be effective at the time we post it, unless otherwise noted.
If any amendments materially reduce your rights or increase your responsibilities, we will provide you with at least 30 days’ advance Notice of the amended Platform Agreement or Service-Specific Terms before the amended agreement/terms becomes effective as to you.
Continued use of or access to a Brex Account or any Services, through the actions of any Administrator or User, after any amended Platform Agreement or Service-Specific Terms becomes effective as to you constitutes acceptance of the amended agreement/terms. If you do not agree with amended terms, you may close your Brex Account in a manner consistent with this Platform Agreement or stop using the Service to which any amended Service-Specific Terms apply before they become effective as to you. It is your responsibility to ensure that the contact information, including any email addresses, associated with your Brex Account remains accurate and current. Please contact us immediately if your contact information changes so we can assist with updating your account.
You are responsible for notifying Entities and Users of any applicable updates to the Platform Agreement, any Service-Specific Terms, and all terms, agreements, and policies incorporated by reference, and for ensuring Entities and Users comply with such updates. We may or may not provide Notice of updates directly to Entities and Users.
Outside of amendments made consistent with the terms of this Platform Agreement and any Service-Specific Terms, the only other way this Platform Agreement or Service-Specific Terms may be amended or otherwise modified is through an agreement in writing that is duly signed by an authorized representative of Brex and an authorized representative of Company.
Any waiver, modification, or indulgence that we provide to Company, of any kind or at any time, applies only to the specific instance involved and will not act as a general waiver or a waiver, modification, or indulgence under this Platform Agreement or Service-Specific Terms for any other or future acts, events, or conditions. Further, any delay by Brex in enforcing our rights under this Platform Agreement or Service-Specific Terms does not constitute forfeiture or waiver of such rights.
You may not transfer or assign (by operation of law or otherwise) this Platform Agreement, any of your rights or obligations hereunder, or operation of your Brex Account, without Brex's prior express written consent. If you wish to make such a transfer or assignment, or the ownership of Company or any Entity is changing, you must give us prior written notice. If we consent to such a transfer or assignment by Company, the assignee or successor must assume all of Company’s rights, obligations, and liabilities under this Platform Agreement and your relationship with Brex, and will be bound by all the terms of this Platform Agreement. In the event of a change in ownership, you will continue to remain fully responsible for the use of your Brex Account by the assignee or successor, if such assignee or successor is granted access in our sole discretion. Brex may assign, pledge, or otherwise transfer this Platform Agreement or any of its rights and powers under this Platform Agreement without restriction and without providing Notice to you. Any such assignee or successor will have all rights as though originally named in this Platform Agreement instead of Brex.
4.13 Entire Agreement
This Platform Agreement, any Service-Specific Terms that may apply to you based on your use of the Services, any Order Forms, and any terms, agreements or policies incorporated by reference, constitute the entire understanding of the parties with respect to the subject matter described and supersede all other proposals or previous understandings, written or oral, between the parties. No other agreements, representations, or warranties other than those provided in this Platform Agreement, any applicable Service-Specific Terms, and any terms, agreements or policies incorporated by reference, will be binding unless in writing and signed by Company and Brex.
Unless provided otherwise in this Platform Agreement, if any provision of this Platform Agreement is held by a court or arbitrator to be invalid or unenforceable, that provision will be fully severable, such provision shall be construed and enforced in a manner that reflects the original intentions of the parties as closely as possible and is consistent with applicable law, and the remaining provisions of this Platform Agreement shall remain in full force and effect.
5. Defined Terms
Capitalized terms in this Platform Agreement are defined as follows:
Administrator means an individual(s) with the requisite power and authority to conduct business and manage Company’s Brex Account, including Entity access and use of that Account, and act on behalf of Company, including consenting or binding the Company to this Platform Agreement and binding Company or Entity to any Service-Specific Terms, as designated by Company.
Beneficial Owner means any individual who, directly or indirectly, owns 25% or more of the equity interests of Company or an Entity.
Beta Services means beta or pre-release products or services, which may contain features and functionality that are incomplete or subject to substantial change or discontinuation.
Brex Account means Company’s account(s) with Brex that is/are used to access the Services, including Company’s Brex Business Account(s), if applicable.
Brex Business Account means the cash management, payment and other Services offered by Brex Treasury. It is any self-directed account(s) managed by Brex Treasury on Company’s behalf for the purchase, sale, or carrying of securities. If Company has multiple Brex Business Accounts, references to a single Brex Business Account means the first such account Company opened, unless we tell you otherwise via Notice.
Brex Business Account Agreement means the Brex Business Account Customer Agreement, one of the Service-Specific Terms which is entered into between Company and Brex Treasury to govern terms related to its Brex Business Account.
Brex Data means all data developed or collected by Brex through the development or provision of Services, Cards, or Third-Party Services, or generated or recorded by the Brex platform, but which does not include Company Data.
Brex Empower means the Brex Empower platform available through the Brex dashboard or Brex mobile application.
Brex Property means the Services and related technology, the Brex Empower platform and related technology, Brex Data, and copyrights, patents, trade secrets, trade or service marks, brands, logos, and other intellectual property encompassing or incorporated into each of the foregoing.
Brex Treasury means Brex Treasury LLC, a FINRA-registered broker-dealer.
Card Networks means the payment card networks including Visa or Mastercard.
Cards means physical or virtual payment cards issued by an Issuer and managed through a Brex Account.
Brex Brokerage Agreement means the Service-Specific Terms that govern Brex Brokerage Accounts.
Charge means a payment for goods or services made using a Card to a merchant that accepts payments on the applicable Card Network.
Company Data means information or documentation provided by Company or an Entity to Brex, and which includes Financial Data, and any Personal Data provided by Company, an Entity, and/or their Administrators or Users.
Confidential Information means any information disclosed by you to Brex, or vice versa, that should be reasonably understood to be confidential in light of the nature of the information. However, Confidential Information will not include any information which (a) is or becomes generally available to the public other than as a result of the receiving party’s breach of its confidentiality obligations; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) is disclosed to the receiving party, without restriction, by a third party with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
Control Person means a single individual with significant responsibility to control, manage, or direct Company or an Entity.
Credentials means usernames, passwords, and other identifiers or credentials used to assist in identification and authentication with regard to use of the Services or to access a Brex Account.
Dispute means any past, present, or future claim, dispute, or controversy involving you (or persons or entities claiming through or connected with you), on the one hand, and us (or persons claiming through or connected with us), on the other hand, relating to or arising out of the Platform Agreement, any Services, any application for a Brex Account, and/or the activities or relationships that involve, lead to, or result from any of the foregoing.
Entity means an affiliated legal entity of Company that Company has expressly allowed access to its Brex Account, subject to Brex’s approval in its sole discretion.
External Account means an account held at a financial institution by an individual User and authorized for debits of amounts owed to the Brex customer with which the User is affiliated
Feedback means all feedback, suggestions, ideas, or enhancement requests you submit to us.
Fees means charges we impose on you for use of Services or a Brex Account.
Financial Data means Company’s, an Entity’s or External account owner’s bank balance, transaction, account, or other financial information accessible to Brex through Linked Accounts, External Accounts or Third-Party Services.
Fines means all fines, penalties, or other charges assessed against Brex that result or arise from Company’s, Company’s Affiliates, Company Users, or any other persons associated with Company’s violation of the terms of this Platform Agreement, any of the Service-Specific Terms, or other agreements you have with Brex or a Service Partner.
Issuer means the bank that is a member of the Card Network indicated on Cards and is responsible for issuing the Cards to you.
Linked Account means any account that is held with a financial institution and is connected to your Brex Account and authorized for payment of amounts to Brex, including of Charges, Fees, and Fines.
Notice means any physical, voice, or electronic communication, or legal notices that are provided or directed to Company, Entities, or Users and/or Company’s Brex Account, including via email, in-app notifications, SMS/text, and phone numbers associated with mobile phones or devices.
Order Form means any agreement (including supplements, addendums, exhibits, appendices and/or any amendments to the agreement or any of foregoing) agreed between Customer and Brex for Services, which may include Fees for the use of such Services and impose specific terms and conditions on Customer’s use of Services.
Personal Data has the meaning set forth in the Data Processing Addendum.
Platform Agreement means this Platform Agreement, as amended from time to time, and any terms, agreements, and policies referenced including the User Terms, Rewards Terms, and any applicable Service-Specific Terms.
Prohibited Activities means the business types and activities posted on our website as updated from time to time.
Prohibited Person means any individual or organization that is subject to sanctions in the United States, identified on any lists maintained by OFAC or the U.S. Department of State, or is subject to any law, regulation, or other list of any government agency that prohibits or limits us from providing a Brex Account or Services to such person or from otherwise conducting business with the person.
Restricted Activities means the business types and activities posted on our website as updated from time to time.
Security Procedures means certain procedures and controls that are intended to help secure and protect your Brex Account and data from misuse, fraud, and theft.
Service Partner means a bank, financial institution, or other partner that provides services directly related to one or more Services.
Service-Specific Terms mean the terms and agreements applicable to particular Services offered by Brex, including the Brex Business Account Customer Agreement, the Brex Card Program Terms, any Service Partner terms, and any other terms and conditions that govern access to and use of any Service.
Services means the financial products, technology, expense management, cash management, payment services, integrations with Third-Party Services, website, mobile application, and all other services, features, products, software, and content provided by Brex, including but not limited to those available through your Brex Account and your use of the Brex Empower platform.
Third-Party Services means services and data provided by third parties in relation to or provided through the Services. Third-Party Services include but are not limited to accounting or expense management platforms (such as QuickBooks, Xero, and NetSuite), payment processors and e-commerce platforms (such as Shopify), and applications used to monitor Linked Accounts (such as Finicity).
Third-Party Service Provider means an affiliate, agent, representative or other third party that assists us in providing the Services to you, Company, and/or an Entity that supports our internal operations, or that provides other services related or connected to, or provided through the Services or a Brex Account.
Users means any employees, contractors, or agents authorized by Company or an Entity to use the Services and/or issued Credentials by Brex or Company, and includes Administrators and other account roles as designated by Brex.