Brex Cash Customer Agreement
Revised October 25, 2022
IMPORTANT NOTE: These terms are effective for new customers who have joined Brex on or after October 25, 2022. They will become effective for all other Brex customers by November 28, 2022, and until then, the effective terms for those other customers can be found here.
Table of Contents
- Opening a Brex Cash Account
- About Brex Cash
- Account Use and Restrictions
- Payment Services
- Funds Availability
- Managing Your Brex Account
- Payment or Security; Liens
- FINRA Dispute Resolution
- Account Holds, Suspensions, Terminations, and Other
- Actions We May Take
- Additional Terms
This Brex Cash Customer Agreement (“Brex Cash Agreement”) is a supplement to the Brex Platform Agreement and is entered into between the company applying for Brex Cash and its representatives (“Company” or “you”) and Brex Treasury LLC (“Brex Treasury,” “we,” “our,” or “us”). Brex Treasury is a Financial Industry Regulatory Authority (“FINRA”)-registered broker-dealer that manages self-directed accounts on Company’s behalf for the purchase, sale, or carrying of securities (“Brex Cash Accounts”). Check the background of Brex Treasury or one of its investment professionals on FINRA's BrokerCheck.
This Brex Cash Agreement governs your relationship with Brex Treasury and your use of Brex Cash Accounts, including any payment Services offered through your Brex Cash Account. Capitalized terms that are not defined in this document have the definitions provided in the Platform Agreement.
In exchange for gaining access to your Brex Cash Account, you consent to receive all Notices and information from us electronically, including required disclosures, account statements, and tax forms. The terms of this Brex Cash Agreement will be binding upon Company and Brex Treasury, and their respective successors and representatives who obtain the rights and obligations set forth in this Agreement solely by operation of law. The Company may not assign or delegate its obligations hereunder without the prior written consent of Brex Treasury.
We reserve the right to amend this Brex Cash Agreement, including by deleting, modifying, or adding provisions, at any time by posting the amended version of this Brex Cash Agreement to the Brex website. The amended version will be effective at the time we post it, unless otherwise noted. If any amendments reduce your rights or increase your responsibilities, we will provide you with at least 30 days’ advance email notice of the amended Brex Cash Agreement before the amended agreement becomes effective as to you. Such email notice will be sent to the email address(es) we have on file for the Administrator(s) of your Brex Cash Account. Your continued use of your Brex Cash Account or any payment Services available through your Brex Cash Account, through the actions of any Administrator or User, after any amended Brex Cash Agreement becomes effective as to you constitutes acceptance of the amended agreement. If you do not agree with any amended Brex Cash Agreement, you may close your Brex Cash Account before it becomes effective as to you. It is your responsibility to ensure that the contact information, including any email addresses, associated with your Brex Cash Account remains accurate and current. Please contact us immediately if your contact information changes so we can assist with updating your account.
Outside of amendments made consistent with the terms of this Brex Cash Agreement, the only other way this Brex Cash Agreement may be amended or otherwise modified is through an agreement in writing that is duly signed by an authorized representative of Brex Treasury and an authorized representative of Company.
If you request other Services provided by Brex Treasury that require you to agree to specific terms and conditions, such terms and conditions will be deemed incorporated into and made part of this Brex Cash Agreement. Any Services provided by entities other than Brex Treasury will be governed by the terms and conditions applicable to such Services.
You understand and acknowledge that this Brex Cash Agreement contains a pre-dispute arbitration clause in Section 9 that governs claims or Disputes between you and Brex Treasury. The Brex Platform Agreement contains a pre-dispute arbitration clause in Section 3 that governs claims or Disputes between you and Brex Inc. or any of its past, present, or future affiliates, except Brex Treasury.
2. Opening a Brex Cash Account
Only companies organized and registered in the United States (such as C-corps, S-corps, LLCs, or LLPs) may apply for a Brex Cash Account. Individual consumers, sole proprietors, unincorporated partnerships, and companies organized and/or registered outside the United States are not permitted to use, or attempt to open or use, a Brex Cash Account or the Services.
You are required to inform us prior to completing your Brex Cash Account application if Company is (or is an affiliate of) a financial institution or registered in any capacity with FINRA, the U.S. Securities and Exchange Commission (“SEC”), or a foreign equivalent, including if Company is an investment adviser subject to the Investment Advisers Act of 1940 or investment fund registered under the Investment Company Act of 1940, or if Company provides financial services of any sort to others. You are also required to inform us prior to completing your Brex Cash Account application if any exchange owns a majority of Company’s capital stock, or if Company is a member of any exchange or self-regulatory organization, a member of any firm or member corporation registered on any exchange, a bank, trust company, insurance company, or any corporation or firm engaged in the business of dealing either as a broker-dealer or as a principal in securities. You understand and agree that Company is obligated to promptly notify Brex Treasury in writing if any Company Administrators, Users, or Control Persons become registered or employed in any of the above-described capacities. You must also notify us immediately if any of the information that you provided with your Brex Cash Account application is no longer correct, or if your business falls into any category that requires notification under this section. If you fail to do so, we may immediately close your Brex Cash Account.
Brex Treasury is not a registered investment adviser. It is your responsibility to evaluate whether the investments offered by Brex Treasury are suitable for your investment goals and objectives. Your Brex Cash Account is self-directed and you are solely responsible for any and all orders placed in it. Neither Brex Treasury nor any of its affiliates or employees will recommend any security, transaction or order, solicit orders, act as a market maker in any security, or produce or provide first-party research with respect to any investments. You understand that when Users or Administrators request assistance from Brex Treasury or its employees in using your Brex Cash Account, it will be limited to an explanation of the Account’s functionality. Such assistance does not constitute investment advice, an opinion with respect to the suitability of any transaction, or solicitation of any orders. Brex Treasury does not provide legal or tax advice.
2.2 Applying for a Brex Cash Account
By submitting an application for a Brex Cash Account, each of Company and the Natural Person Applicant submitting this application represents and warrants that:
- Company is a business entity organized and registered in the United States
- Company is validly existing and in good standing in its jurisdiction of organization
- Company has a valid U.S. Employer Identification Number (EIN)
- The representative who is applying for a Brex Cash Account is authorized to provide information about Company, submit the application on behalf of Company, and enter into binding agreements on behalf of Company
- All information you and the representative submitting the application provide to us is and will be current, accurate, and complete, and you will keep such data current, complete, and accurate at all times
- Company and all Users will use Brex Cash for business purposes only and not for any personal, family, or household use
- Company is not engaged in any Prohibited Activities or Restricted Activities
- You have reviewed this Brex Cash Agreement and the Brex Platform Agreement
When we approve the application, Brex Treasury will open a Brex Cash Account for Company and act as Company’s broker to purchase and sell money market fund securities or sweep funds to partner banks (in an allocation of Company’s choosing) to satisfy deposits or complete payment instructions related to your Brex Cash Account. By opening a Brex Cash Account, you are appointing Brex Treasury to act as Company’s broker for this sole purpose.
When you sign up and are approved for a Brex Cash Account without applying for a Brex Card, you understand and agree that you will receive the Card that is paid daily to use with your Brex Cash Account. Please see the Brex Card Program Terms for the terms governing your use of this Card product.
We may deny Company’s application to open a Brex Cash Account or may decline to offer Services for any reason or no reason at our sole discretion. You agree that we may review information available to us about you, Company, other Brex Account users, or beneficial owners of Company from If sources, including information provided to us by our affiliates and service providers, to determine whether to open a Brex Cash Account for Company.
2.3 Customer Identification Program Notice
To help the government fight the funding of terrorism and money laundering activities, federal law requires financial institutions to obtain, verify, and record information that identifies each person who opens an account.
When you open an account, we are required to collect certain information from you, which may include but is not limited to information concerning your principal place of business, local offices, employer identification number, certified articles of incorporation, government-issued business license, and other corporate organizational documents. U.S. Department of the Treasury, Securities and Exchange Commission, and Financial Industry Regulatory Authority rules already require you to provide most of this information and may require you to provide additional information. If you don't provide the information requested or your identity can't be verified, we may not be able to open an account or carry out transactions for you. If we have already opened an account for you, we may have to close it.
3. About Brex Cash
3.1 MMF Investments and the Cash Sweep
Your Brex Cash Account is a cash management program that provides you the opportunity to either (i) automatically invest your uninvested cash balances into one or more money market mutual funds or other investment options that we may offer upon Notice to you (“MMF Investments”), or (ii) automatically sweep your funds to accounts at partner banks that may be Federal Deposit Insurance Corporation (“FDIC”)-insured up to $250,000 (“Cash Sweep”). You will have the opportunity to customize your desired allocation of funds between MMF Investments and Cash Sweep, and you may modify this allocation as Company’s cash management needs change. You should regularly monitor the list of partner banks participating in the Cash Sweep, as program banks may be added or removed over time.
The Brex Treasury FDIC-Insured Deposit Sweep Program Disclosure Statement (the “Sweep Disclosures”) describe the mechanics of the Brex Cash Account cash management program and contain other important disclosures, including information relating to SIPC coverage. You will receive a prospectus for the applicable MMF Investment funds prior to, or at the same time as, your cash balance is so invested. By adding money to your Brex Cash Account you agree that you have reviewed the applicable investment prospectuses. Yields for MMF Investments published by Brex Treasury and the applicable money market mutual fund are variable and may change at any time. Where yield reflects fee waivers, it may change at any time if our mutual fund partners revoke or modify the fee waivers.
Brex Cash provides you the opportunity to earn a return on your uninvested cash balance. It should not be viewed as a long-term investment option. If you are interested in a long-term investment option for your cash balances, please consider alternatives other than Brex Cash that may be better suited for such a purpose.You acknowledge that many types of traditional brokerage products will not be available in your Brex Cash Account and you are not entitled to request such products or services from us. Except for the MMF Investments, you may not use your Brex Cash Account to purchase securities of any kind.
3.2 MMF Investment Overview, Risks, and Limitations
A money market mutual fund is a type of mutual fund that is required by law to invest in low-risk securities. Money market funds are considered relatively low-risk investments compared to other mutual funds and pay dividends that generally reflect short-term interest rates. Specifically, a government money market fund is a type of money market fund that is required by law to invest 99.5% of its total assets in cash, government securities, or repos that are fully collateralized. Money market funds seek to achieve a high level of current income obtainable from investments in short-term securities as is consistent with the preservation of capital and the maintenance of liquidity.
Prior to or at the same time your funds are first swept into a Participating Fund, you will be furnished with the appropriate prospectus. You should read the prospectus carefully and consider the investment objectives, risks, charges, and expenses of each money market fund carefully before investing. You may also contact us to obtain a free prospectus at any time.
Although a money market fund seeks to preserve the value of your investment at $1 per share, it cannot guarantee it will do so. An investment in a money market fund is not insured or guaranteed by the FDIC. The money market fund’s sponsor has no legal obligation to provide financial support to the money market fund, and you should not expect that the sponsor will provide financial support to the money market fund at any time. Yield fluctuates and past performance does not guarantee future results or returns.
Money market funds typically bear ongoing fees and expenses to operate their business. These fees can include management fees, 12b‐1 fees, shareholder services fees, and other expenses. These costs are deducted from a fund’s assets, reducing investment returns. Many money market funds pay 12b‐1 fees that compensate third parties for activities such as distribution or shareholder servicing. In addition, Brex Treasury may also provide sub accounting, processing of purchases, statement preparation, tax reporting or marketing services and support to its clients that are invested in the money market funds.
In general, money market funds are offered to meet the liquidity needs of clients, but unlike a “money market” deposit account at a bank, money market funds are not insured or guaranteed by the FDIC, any other government agency, or any bank. In general, money market funds seek to achieve the highest rate of return (less fees and expenses) consistent with prudence and their investment objectives. However, money market funds are securities and as such are subject to investment risk, including loss of principal amount invested.
The past performance of a security, industry, sector, market, or financial product does not guarantee future results or returns. If you are interested in a long-term investment option for your cash balances, you may want to consider options that are better suited for that purpose. We do not charge fees on purchases or redemptions of shares of the MMF Investments because we receive remuneration directly from the money market fund or its manager or affiliates for the cash distributions and other services that we provide to the money market mutual fund.
3.3 Multiple Cash Accounts
We may offer you the ability to open multiple Brex Cash accounts (“Multiple Cash Account”) under the same Company EIN. Any reference to your Brex Cash Account shall also include any Multiple Cash Account(s) under Company’s EIN, unless expressly excluded. Subject to certain limitations as explained more fully in the Sweep Disclosures, if you utilize the Cash Sweep, the aggregate balances in your Company’s Multiple Cash Accounts will be eligible for the applicable standard maximum FDIC deposit insurance amount offered by partner banks for a nonretirement single ownership deposit account, which is currently $250,000. Ccreating Multiple Cash Accounts will not in and of itself increase the maximum FDIC deposit insurance coverage available to Company.
If you utilize Multiple Cash Accounts, your Brex Card will remain governed by the Brex Card Terms.
If you breach or default on any of your obligations to us under this Brex Cash Agreement or any other agreement with us, or if you become subject to any bankruptcy or insolvency, or any similar condition or proceeding, or if our security interest pursuant to Section 7.2 of this Agreement ceases to be a first priority perfected security interest, or if we in our discretion deem it otherwise necessary or advisable, Brex Treasury may, in its sole discretion, choose the order and priority of which of your Multi Accounts to liquidate, sell, pledge, transfer, or otherwise dispose of to set off and discharge obligations that you may have to Brex Treasury or its affiliates.
3.4 Account Statements
You will receive an email notification when your monthly statement is available online. The statement will reflect activity in your Brex Cash Account. Physical statements will be mailed to your physical address upon request and only in the event we become aware that you did not receive our emails. It is your responsibility to keep your contact information updated to ensure that you receive relevant account Notices timely. You must notify us in writing, as promptly as possible but within no later than 10 days if you believe any information shown on your Brex Cash Account statement is unauthorized or incorrect.
4. Account Use and Restrictions
You understand that your Brex Cash Account is self-directed, and that by opening your Brex Cash Account you are appointing Brex Treasury as Company’s agent for the sole purpose of carrying out directions supplied by Company Users, Administrators, or Control Persons to Brex Treasury in accordance with this Brex Cash Agreement. You also understand and acknowledge that you are authorizing Brex Treasury to open or close your Brex Cash Account, place and withdraw orders, and take such other steps as are reasonable to carry out directions supplied to Brex Treasury by Company.
You understand and acknowledge that Brex Treasury offers its brokerage Services through the Brex website and/or mobile application, and that by opening a Brex Cash Account Company is agreeing to receive and transmit financial information through such electronic means. You also agree that Brex Treasury may monitor or record the interactions or activities of Administrators, Users, or persons given access to the Services or your Brex Cash Account when using Brex websites or mobile applications or accessing the Services.
Your access to and use of your Brex Cash Account is subject to the account use restrictions outlined in this section and Section 1.3 of the Brex Platform Agreement. You acknowledge and agree that none of the funds in your Brex Cash Account may be subject to the Employee Retirement Income Security Act of 1974 (ERISA). Additional restrictions may apply to the use of your Brex Cash Account if Company or any beneficial owner or controlling officer of Company is a publicly traded company or foreign or domestic broker-dealer, or is an officer, director, or 10% shareholder of a publicly traded company. This may include additional screening or restrictions on the creation or use of your Brex Cash Account.
4.1 Compliance with Law
If we or our financial institution partners cannot confirm the legality of any transaction or believe that the use of your Brex Cash Account violates this Brex Cash Agreement or facilitates Prohibited Activities or Restricted Activities, we may take any such steps we believe are necessary or prudent, in our sole discretion. This may include refusing transaction(s), freezing the funds in question, or suspending or closing your Brex Cash Account. Brex Treasury, Brex Inc., and their affiliates are not liable for any damages arising from actions taken to confirm the legality of any such transactions, including delays in payments or restrictions we may temporarily or permanently impose on your Brex Cash Account.
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 to comply with orders, subpoenas, or other requests for information; holding payments to/from your Brex Cash Account or holding or otherwise restricting funds in your Brex Cash Account; or suspending, terminating, closing, or limiting access to your Brex Cash 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 Cash Account. We are not responsible to you for any losses or consequences you sustain 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 you with Notice of any court order, legal process or requests, or actions we may take in conjunction with them.
This Brex Cash Agreement and your use of the Brex Cash Account are subject to U.S. law, including economic sanctions and embargo laws. You represent and warrant that you are not, are not employed by, owned or controlled by (in whole or in part, directly or indirectly) or acting as agent of, any person designated by OFAC as a Specially Designated National or blocked person, or who you have reason to believe may be a Specially Designated National or blocked person. You further represent that you are not employed by, owned or controlled by (in whole or in part, directly or indirectly), or acting as agent of any government or government-controlled entity, except as you have disclosed in writing to Brex Treasury.
5. Payment Services
For this Section 5, “we” and “us” refers to either Brex Treasury or Brex Payments LLC, a licensed money transmitter. Brex Payments LLC holds funds in a custodial capacity as an agent of its customers in a pooled account titled in the name of the licensee for the benefit of its customers.
5.1 Use of Payment Services
Your ability to send and receive payments through your Brex Cash Account is subject to the terms posted in the Brex Platform Agreement, and may be subject to additional terms imposed by our financial institution partners, applicable payment networks, and this Brex Cash Agreement. Violation of these terms may result in the closure of your Brex Cash Account or the suspension or termination of your Brex Cash Account’s payment capabilities.
Your use of Brex Cash Account payment Services is subject to Article 4A of the Uniform Commercial Code – Fund Transfers as adopted in the state of Utah. As such, payments you receive and payments you originate are provisional until final settlement of such payments through a Federal Reserve Bank, or payment is otherwise made as provided in Article 4A-403(a) of the Uniform Commercial Code. If we do not receive such payment, we are entitled to a refund from you in the amount credited to your Brex Cash Account and the party originating such payment will not be considered to have paid the amount so credited. Credit entries may be made by Automated Clearing House (“ACH”). We are not required to give you any Notice of the payment order or credit if we receive a payment order to credit your Brex Cash Account by wire or ACH.
We will process payments orders received outside the applicable funds transfer windows set by participating financial institutions on the following business day. Deposits, withdrawals, or payments requiring a purchase or liquidation of money market mutual fund shares may require additional processing time. We may reject payment orders or delay an order to confirm authorization or to confirm that the order does not violate applicable law or regulation.
You agree that we are entitled to act upon any instructions given by Company Users, Administrators, or Control Persons so long as we reasonably believe such instruction was actually given by Company Users, Administrators, or Control Persons.
If your payment requires us to convert one type of currency to another, we will exchange your funds at the current exchange rate in accordance with our standard procedures. We, our banking partners, third party financial institutions, or payment processors may include a mark-up or fee on such currency conversion and may profit in connection with any such currency conversion. You accept the fee, risk of fluctuations in currency and exchange rates and acknowledge that we will not be responsible for losses resulting from such currency fluctuations.
You agree to fund all payment orders authorized by you in your Brex Cash Account, and you acknowledge that we are entitled to rely on the information, representations, and warranties that you or any User and/or Control Person provide to us in connection with payment Services. We are not responsible for the accuracy, completeness, or authenticity of such information. You agree that if you describe any beneficiary or financial institution by name and account or identifying number, we and other financial institutions may process the payment order based solely on that number, even if it identifies a different person or entity than you intend. If you provide an incorrect account number, you could lose the amount transferred. We assume no responsibility to detect errors in your instructions and you should not expect that we will do so.
You acknowledge that you could lose money, up to the entire value of your Brex Cash Account, through an unauthorized electronic funds transfer. You must notify us immediately if you suspect that an unauthorized electronic funds transfer has occurred or that the Brex Cash Account credentials of any Administrator may have been compromised, or if unauthorized access to your Brex Cash Account has occurred.
We will accept payments on your behalf to your Brex Cash Account transmitted through the ACH network, which are not subject to the Electronic Funds Transfer Act. Your rights and obligations with respect to such payments will be construed in accordance with and governed by laws of the state of Utah and the operating rules of the National Automated Clearing House Association (“NACHA”), which are applicable to ACH transactions involving your Accounts with exception of any NACHA rules specific to consumers. You are required to comply with the NACHA rules available at http://www.nacha.org/rules (“NACHA Rules”) for all transactions submitted over the ACH network, with the exception of any NACHA rules specific to consumers. As used in this Section, the terms Entry, Entries, Originator, Originating Depository Financial Institution (“ODFI”), Receiver, and Receiving Depository Financial Institution (“RDFI”) have the meaning provided in NACHA Rules.
Failure to comply with the NACHA Rules, including disputes or unauthorized transactions arising from your use of the ACH network, may result in suspension or termination of your ability to make payments using the ACH network.
You agree to obtain consent from any payment recipient or customer to initiate a credit or debit transaction to or from their account over the ACH network. You agree to fulfill the obligations of an Originator for all Entries we submit on your behalf. We are obligated to provide the ODFI with all information reasonably necessary to identify you and you authorize us to provide such information to the ODFI . You also acknowledge that the ODFI is a third-party beneficiary with regard to these ACH terms. We reserve the right to change the procedures for transactions from time to time as we deem reasonable or necessary to provide the ACH payment Services to you or to conform with changes in NACHA Rules, ODFI requirements, or other events beyond our control that affect the manner in which we provide the ACH payment Services to you.
Funds transfers sent through the ACH system are provisional and may be revoked for a period of time. We may debit your Account for any amount that was previously credited if an ACH transfer is revoked, reversed, or returned or we do not receive final settlement. You acknowledge that we and the ODFI have the right to review the volume and character of Transactions you initiate and your business operations to evaluate the credit risk associated with processing Transactions on your behalf. We also have the right to reject any Transaction if we have attempted but are unable to verify the authenticity of the Transaction or other data, if you have failed to comply with your payment obligations or Brex Cash Account balance obligations, if you have failed to satisfy any of your obligations under this Brex Cash Agreement or under the Platform Agreement. We will notify you of a rejection within two business days after the Transaction would otherwise have been transmitted by us but we will have no liability to you by reason of the rejection of any Transaction or the fact that such notice is not given at an earlier time. If a transaction (including a request for cancellation or amendment) received by us purports to have been transmitted or authorized by you, it will be deemed effective as your Transaction and you will be obligated to pay us the amount of such Transaction even where not authorized by you, provided we accepted the instruction in good faith and acted in compliance with our security procedures. If an instruction received by us was transmitted or authorized by you, you will be obligated to pay the amount of the Transaction whether or not we complied with the security procedure and whether or not that Transaction was erroneous in any respect or that error would have been detected if we had complied with such procedure.
You must at all times maintain a balance of available funds in your Brex Cash Account sufficient to cover ACH Transactions initiated from your Account. In the event of insufficient funds, we may set off with respect to, the securities, cash, or other property that are, now or in the future, carried or held in or through your Brex Cash Account or are otherwise in our possession or control against any amounts we owe to you in order to obtain payment from you. You must pay us in immediately available funds for the amount of any rejected Entries and for the amount of any returned debit Entries, or any adjustment Entries accepted by us, which we have previously credited to your Brex Cash Account. Such amounts will be immediately due and payable by you to us. Your obligation to pay us remains immediately due and payable whether or not the rejected, returned or adjustment Transaction was processed in accordance with any requirement of the NACHA Rules applicable to any party other than us and notwithstanding whether we or you may have a claim against another ACH participant for breach of the NACHA rules or other applicable law. You agree that we need not send a separate notice of debit Entries that are returned unpaid. We may hold any or all funds in a Brex Cash Account if we determine that there are inconsistent or conflicting instructions regarding a Transaction or regarding settlement or claims on the Brex Cash Account including, without limitation, any claim by a judgment creditor, levy or other legal process, or proceeding in bankruptcy. We may interplead or hold any or all funds, prevent withdrawals or transfers, or otherwise act to prevent or reduce loss or risk to us and in addition to any other remedy we may have you will reimburse us for any costs associated with the same.
In addition to the limitations on our liability included in Section 13.5 and elsewhere in this Brex Cash Agreement and the terms of the Platform Agreement, you agree that we are (a) excused from failing to transmit or delay in transmitting a Transaction if such transmittal would violate any provision of any risk control program of the Federal Reserve or any rule or regulation of any other U.S. or foreign governmental regulatory authority, and (b) not responsible for the acts or omissions of any Federal Reserve Bank or transmission or communications facility, any Receiver or RDFI, or for any return of an Transaction by such Receiver or RDFI, none of whom is deemed our agent for this purpose. You will reimburse us for any fines or penalties and any associated costs imposed on, or assessed against, us by NACHA, any Federal Reserve Bank, any ACH operator, any state or federal regulatory agency or other U.S. or foreign governmental body, or any clearinghouse or other third party having oversight or rulemaking authority over ACH Transactions when the fine, penalty or other expense is caused by, or related to, your Entries or your use of the ACH Services. Such amounts are immediately due and payable by you to us. Your obligation to pay us remains immediately due and payable whether or not the fine or penalty was imposed or assessed in accordance with any requirement of the NACHA Rules or any laws applicable to any party other than us and notwithstanding either of us may have a claim against another ACH participant for breach of the NACHA Rules or other applicable law.
5.3 Wires and Foreign Exchange
By initiating a wire transfer or entering a standing wire transfer instruction through the Brex Cash dashboard, you authorize us to wire funds from your Brex Cash Account according to your instructions. If there is more than one Administrator for your Brex Cash Account, you agree that we may accept and rely on wire transfer requests from any Administrator, and that we will not be liable for acting upon instructions that we believe in good faith to be genuine. We may request additional information from you to verify wire transfers or other transactions initiated through your account. We may refuse to act upon any instruction that we cannot verify as accurate and authorized by you, or by an Administrator, in accordance with such security procedures as we may impose from time to time. You agree to be bound by any wire transfer instruction, whether or not authorized, that is issued in your name and accepted by us.
You cannot amend or cancel a wire transfer order after we receive it. In certain circumstances, we may take reasonable measures to amend or cancel the wire transfer order on your request, but we will not be liable to you if the wire transfer order is not amended or cancelled. You will reimburse us for any costs, losses, claims, or damages arising from any request from you to amend or cancel a payment order.
Funds transfers, and deposits to your Brex Cash Account sufficient to fund the wire transfer must be cleared and the funds must be available on the date of the proposed transfer or your wire may be delayed. In addition, wire transfers initiated by you after the transfer window available to us through our financial institution partners will be queued and processed on the following business day. Wire transfers within the U.S. are generally received by the destination bank on the same day the wire is initiated. However, we cannot guarantee that the destination bank will post the wired funds for same-day credit. We may be unable to send wire transfers to some countries. It is your responsibility to confirm that the country of your payment recipient is a supported destination prior to placing a wire transfer order.
If you use Brex Cash to send an international wire transfer in a currency other than U.S. dollars, then we will choose the foreign exchange rate (“FX Rate”) for that transfer at our sole discretion. The FX Rate we choose may vary from time to time or vary among customers depending on your relationship with us, the type of transaction being conducted, the transaction amount, type of currency, the date and time of the currency exchange, and/or other factors we deem relevant. The FX Rate will typically include fees, costs, or other markups as determined by us in our sole discretion. You should expect that this rate will be less favorable to you than the rate we pay for foreign currency transactions or rates quoted online or available in publications.
We may refer to the signatures you may provide to us when you apply for a Brex Cash Account or the signatures on a check or other document containing signatures of an Administrator to determine the authenticity of signatures and whether a check or instructions are authorized. We may pay checks or follow other instructions if we reasonably believe that you have authorized the checks or instructions. You agree to safeguard your blank and canceled checks, and to take reasonable steps to prevent their unauthorized use. If your checks are lost or stolen, you agree to notify us immediately. For security reasons, we reserve the right to close your Brex Cash Account and transfer the balance to a new Brex Cash Account and return all checks written by you but not yet paid to payees. You will be responsible for issuing any replacement checks.
We will automatically process or convert checks into electronic images during the check collection and return process, but we will not be responsible for any indirect, special, or consequential damages under any circumstances for our inability to provide you copies of checks. To the fullest extent permitted by applicable laws and rules, our liability, if any, will not exceed the face amount of the check in question. You agree to provide us with reasonable proof of any loss. We are not obligated to, but may at our option, pay a check, other than a certified check, presented to us for payment more than 6 months after its date. If you do not want us to pay a stale-dated check, you must place a stop-payment order on the check. If you choose to have your checks printed by another vendor and you use check stock or features that make it difficult for us to process the check, then we may not be able to negotiate the check on your behalf, and you bear any risk of loss.
Checks deposited to a Brex Cash Account are not subject to the funds availability requirements of Regulation CC. Checks will generally be available on the first business day after the deposit date, but we may place an extended hold on your deposited funds in our sole discretion. We will notify you if we delay the availability of your funds, and we will tell you when you can expect your funds to be available.
You agree that we and any agents acting on our behalf may send Notices to you regarding any returned checks which you deposit into your Brex account.
5.5 Remote Check Deposit
These terms apply to checks you deposit using the Brex Cash app or mobile interface. Checks you submit to us for deposit must be endorsed by you, and must accurately and legibly provide all the information on the front and back of the check. When we accept a check image from you via the app, we do not guarantee that the image contains no errors, and we are not responsible for the content of the image or any of the information you transmit to us through the Brex Cash app. You are solely responsible for information or data that is transmitted, supplied or key-entered by you, your employees or agents. Our partner financial institutions or agents on our behalf may process the deposit by preparing a substitute check or by clearing the item as an image. We reserve the right to accept or reject all or any part of any deposit you submit to us, and we do not guarantee any or all of the check amount will be credited to your Account.
By using the remote check deposit service, you promise that any item you submit for deposit has not previously submitted or deposited with us or with anyone else and will not be again unless we tell you to; that after submitting the item to us you will not negotiate, transfer, transmit, deposit or present the Eligible Item or a duplicate of it in any form; that you will not have the Item stopped or cancelled, or have a replacement issued; and that no person will receive a transfer, presentment, or return of, or otherwise be charged for, the Item (either the original Item, or a paper or electronic representation of the original Item) such that the person will be asked to make payment based on an Item that has already paid.
Any amounts we credit to your Brex Cash Account using remote deposit is a provisional credit only, and, to the fullest extent permitted by applicable laws and rules, you are liable to us for recovery of any amount credited to you in the event of non-payment, collection costs, attorney’s fees, and any other losses, expenses, or other costs we or our partner financial institutions incur that result from attempting to obtain payment on unpaid checks you deposit remotely. We are also not responsible for any late fees, overdraft fees, or any other costs if any or all of your deposit is rejected or if it fails to clear after we receive it. We will notify you if your deposit fails to clear, and we will debit your Brex Cash Account in the amount of any provisional credit to your Brex Cash Account. Funds associated with remote deposit will be available to you in accordance with the terms of Section 6 and are not subject to the funds availability requirements of Regulation CC. You are responsible for safeguarding both your mobile device against unauthorized deposits and the original copies of checks you submit for deposit, and you will notify us immediately of any lost or stolen original checks. We cannot guarantee that the remote deposit Service will be available for use.
We may place limits on the dollar amounts of items you can deposit using this service. We might not disclose these limits to you and can modify these limits and add others at any time at our sole discretion..
5.6 Returned Checks
You agree that we and our partner financial institutions may send Notices to you regarding any returned checks you attempted to deposit into your Brex account.
6. Funds Availability
Your available Brex Cash Account balance is a calculation consisting of a variety of factors, including (i) the total balance in your Brex Cash Account, (ii) the amount of any holds that have been placed on the funds or securities in your Brex Cash Account, (iii) pending transactions (such as pending Card transactions or inbound or outbound ACH transactions, wire transactions or checks) that have been authorized or processed but not yet posted or settled, and (iv) amounts subject to holds in accordance with Brex Treasury’s risk management procedures. The manner in which Brex Treasury calculates available balances may change at any time, subject to Brex Treasury’s risk management policies.
Funds transferred into your Brex Cash Account may not be immediately available for withdrawal, and we may hold such funds in compliance with U.S. state or federal laws or regulations, our risk management procedures, or those of our financial institution partners or payment networks. When you attempt to transfer assets from another financial institution, we are not required to accept or honor any payment orders or to purchase securities until the funds have been deposited in your Brex Cash Account. We may decline to honor any payment instruction if your available Brex Cash Account balance is negative or is inadequate to cover the amount of the payment instruction.
If we receive a deposit or transfer on a day that is not a business day, we may not credit your Account until the next business day. You may contact us for information on the status of any deposit or transfer or if you believe we are holding your funds in error.
You understand that your Brex Cash Account will be opened with certain default service instruction features and preferences, and that Company is not required to use such default settings.
7. Managing Your Brex Account
7.1 Security Procedures
You are responsible for assessing the security requirements of your business and selecting and implementing Security Procedures appropriate to mitigate your exposure to potential security incidents. This responsibility includes selecting appropriate administrative, procedural, and technical controls that are appropriate to protect Company’s financial accounts.
Brex may suggest that you implement certain Security Procedures in connection with your use of the Services. You understand that your responsibility for the security of your business is not diminished by any Security Procedures that we provide or suggest. You agree to review all of the Security Procedures we suggest and choose those that are appropriate to protect Company against unauthorized transactions. If you believe that the Security Procedures we suggest are insufficient for Company then it is your sole responsibility to independently implement other Security Procedures that meet Company’s needs.
We may update the Security Procedures that we suggest at any time. You agree to review the Security Procedures we suggest regularly and contact us with any questions about the Security Procedures.
By using the Services, you represent that you have reviewed the Security Procedures and agree that those you have chosen are commercially reasonable for you to protect against unauthorized transactions. You assume all liability arising from disabling, opting out of, or failing to properly use Security Procedures made available to you or implemented at your discretion.
7.2 Transactions and Activities
Though we may suggest Security Procedures, we cannot guarantee that you will not become a victim of fraud. You are solely responsible for and will be bound by any transaction (including any transfer, instruction, or payment order we receive related to the Services), even if it is not authorized, if the transaction is initiated under your Credentials or processed in accordance with your instructions.
We may help you resolve unauthorized transactions, but you acknowledge and understand that you are responsible for any financial loss caused by Administrators, Users, or other persons given access to the Services or your Brex Account, and any financial loss due to compromised Credentials, any unauthorized use or modification of your Brex Account or the Services, or as a result of any instructions provided by you. Brex is not liable or responsible to you, and you waive any right to bring a claim against us, for any such losses.
8. Payment or Security; Liens
In the course of providing Brex Cash Account payment functionality, we may, but are not required to, advance funds to you to satisfy payment orders that exceed the amount of funds available in your Brex Cash Account. In addition, if we, our financial services partners, or our affiliates incur any obligations or indebtedness in connection with any transaction executed for your Brex Cash Account for any reason, such obligations or indebtedness will be deemed to be incurred by you. You agree that you will promptly repay any amounts due to us arising from your use of your Brex Cash Account. You further agree that we may debit your Brex Cash Account to satisfy these obligations. To satisfy your obligation to us (if any), you agree that you will execute any documentation that we request to transfer funds to us or otherwise satisfy amounts owed to us.
8.2 Security Interest and Control Agreement
You acknowledge and agree that your Brex Cash Account will be treated as a “securities account” (within the meaning of Section 8-501(a) of the UCC) in respect of which Brex Treasury’s bank partners are “securities intermediaries” (within the meaning of Section 8-102(a)(14) of the UCC) and as to which Brex Treasury has “control” (within the meaning of Section 8-106 of the UCC), or to the extent that your Brex Cash Account is recharacterized as a deposit account, your Brex Cash Account will be a “deposit account” (within the meaning of Section 9-102(a)(29) of the UCC) in respect of which Brex Treasury’s bank partners are the banks at which such deposit account is maintained and as to which the Brex Treasury has “control” (within the meaning of Section 9-104 of the UCC).
As security for the repayment of present or future indebtedness owed to us, you grant us a continuing security interest in, and lien on, and a right of setoff with respect to, the securities, cash, or other property that are, now or in the future, carried or held in or through your Brex Cash Account or are otherwise in the possession or control of Brex Treasury (“Collateral”). If you owe money to Brex Treasury as a result of activity in your Brex Cash Account, and there is Collateral available in your Brex Cash Account that may fully or partially satisfy your obligation to us, you agree that we may elect to, with or without Notice, make your debit balance immediately due and payable. By opening your Brex Cash Account, you acknowledge and agree that, to your actual knowledge, there are no security interests in any of the Collateral other than security interests created under this Brex Cash Agreement. You further acknowledge and agree that you may not in the future pledge any security interest in your Brex Cash Account to any party except Brex Treasury or its affiliates without Brex Treasury’s explicit written consent.
In addition, you agree that Brex Treasury and its affiliates act as agents for each other in respect of the Collateral and rights associated therewith. You agree that Brex Treasury may act on its affiliates’ orders or instructions as to the Collateral without your further consent, including all notifications directing us to transfer or redeem any Collateral.
You authorize us to take any action necessary to perfect or maintain the perfection of a security interest held by us, to the extent perfection has not already been achieved by Brex Treasury as a result of your agreeing to this Brex Cash Agreement and the securities account control provisions contained herein. You agree to pay any fees and costs associated with the perfection or maintenance of such security interests or the satisfaction of amounts owed. You agree that if you breach or default on any of your obligations to us under this Brex Cash Agreement or any other agreement with us, or if you become subject to any bankruptcy or insolvency, or any similar condition or proceeding, or if our security interest ceases to be a first perfected security interest, or if we in our discretion deem it otherwise necessary or advisable, we may liquidate, sell, pledge, transfer, or otherwise dispose of any Collateral in your Brex Cash Account or apply amounts on deposit to set off and discharge obligations that you may have to us.
8.3 Continuing Liability
You will remain liable for any negative balance in your Brex Cash Account and for any other amounts owed to Brex Treasury, and you agree to indemnify and promptly reimburse us for any loss or expense incurred, including without limitation losses or expenses incurred in enforcing any lien or other remedies available to us subject to applicable laws and rules. We may report past due amounts to a credit reporting agency, refer your account to a collection agency, or exercise any other rights or remedies we may have under the Platform Agreement, this Brex Cash Agreement, or under applicable law.
We will disclose Fees to you when opening your Brex Cash Account or through our website. We may update, add, or change Fees upon 30 days' Notice to you (though we may not provide prior Notice when we reduce any Fee).
Money market mutual funds to which we sweep your Brex Cash Account deposits may charge fees, which will be deducted from the yield you earn.
This Brex Cash Agreement contains a predispute arbitration clause. By signing an arbitration agreement, you and we agree as follows:
- You and we are giving up the right to sue each other in court, including the right to a trial by jury, except as provided by the rules of the arbitration forum in which a claim is filed.
- Arbitration awards are generally final and binding; a party's ability to have a court reverse or modify an arbitration award is very limited.
- The ability of the parties to obtain documents, witness statements and other discovery is generally more limited in arbitration than in court proceedings.
- The arbitrators do not have to explain the reason for their award unless, in an eligible case, a joint request for an explained decision has been submitted by all parties to the panel at least 20 days prior to the first scheduled hearing date.
- The panel of arbitrators may include a minority of arbitrators who were or are affiliated with the securities industry.
- The rules of some arbitration forums may impose time limits for bringing a claim in arbitration. In some cases, a claim that is ineligible for arbitration may be brought in court.
- The rules of the arbitration forum in which the claim is filed, and any amendments thereto, are incorporated into this Brex Cash Agreement.
You and we agree that any claim or Dispute between you and Brex Treasury arising out of or related to this Brex Cash Agreement, any application for a Brex Cash Account, your Brex Cash Account, your access to or use of any Services provided by Brex Treasury, or the relationship between you and Brex Treasury shall be resolved by binding arbitration.
Any arbitration under this provision shall be conducted before FINRA in accordance with the arbitration rules then in effect at FINRA. Judgment on any arbitration award may be entered in any court of competent jurisdiction. Costs, fees or taxes involved in confirming or enforcing the arbitration award may be fully assessed against and paid by the party resisting the confirmation or enforcement of the award. This arbitration agreement is intended to be interpreted broadly and shall be enforced and interpreted exclusively in accordance with applicable federal law of the United States, including the Federal Arbitration Act (9 U.S.C. §1, et seq.).
No person shall bring a putative or certified class action to arbitration, nor seek to enforce any pre-dispute arbitration agreement against any person who has initiated in court a putative class action; or who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the putative class action until: (a) the class certification is denied; or (b) the class is decertified; or (c) the customer is excluded from the class by the court. Such forbearance to enforce an agreement to arbitrate will not constitute a waiver of any rights under this Brex Cash Agreement except to the extent stated herein.
Contact us by email at email@example.com if you would like more information on or would like to obtain the FINRA arbitration rules.
11. Account Holds, Suspensions, Terminations, and Other
Actions We May Take
11.1 Account Closure
If you decide to close your Brex Cash Account you will contact us. When your Brex Cash Account is closed, we will sell any securities in your Brex Cash Account and return the remaining balance to you, assuming no remaining funds in your account are subject to holds or other restrictions. We may decline to close your Brex Cash Account if your Brex Cash Account has a negative balance, is subject to a hold, lien or other restriction, or if we believe that the Brex Cash Account is being closed to evade any legal or regulatory requirement or investigation.
11.2 Actions We May Take
If we believe, in our sole discretion, that you’ve violated the terms of this Brex Cash Agreement, engaged in any Prohibited Activities or Restricted Activities, violated applicable law or rules, engaged in fraudulent or unfair activities, or have otherwise engaged in activities that violate our or others’ rights or create 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 include, but are not limited to, the following:
- Terminate this Brex Cash Agreement, limit your or any Administrator’s or User’s access to your Brex Cash Account and/or the Services, and/or close or suspend your Brex Cash Account, immediately and without penalty to us;
- Refuse to provide the Services to you, any Administrator or User, or any other individual in the future;
- Limit your, any Administrator’s or User’s, or any other individual’s access to our websites, software, systems (including any networks and servers used to provide any of the Services) operated by us or on our behalf, your Brex Cash Account or any of the Services, including limiting your ability to pay or send money or make withdrawals;
- Hold or otherwise restrict the balance in your Brex Cash Account or hold payments to/from your Brex Cash Account, for a period of time or indefinitely, if reasonably needed to protect against the risk of liability or loss to us or others or if you have engaged in any Prohibited Activities or Restricted Activities, to be determined in our sole discretion;
- Return or reverse transactions associated with your Brex Cash Account or otherwise remit funds in accordance with applicable rules governing payments (e.g. NACHA rules) and/or in an effort to remediate fraudulent or criminal conduct, as determined in our sole discretion.
- Contact others who have transacted with you, other financial institutions, other impacted third parties, or law enforcement or other regulators about your actions and/or Brex Cash Account;
- Update inaccurate information you, the Natural Person Applicant, any Administrator or User, or any other individual acting under or associated with your Brex Cash Account; or
- Take legal action against you, the Natural Person Applicant, any Administrator or User, or any other individual acting under or associated with your Brex Cash Account.
If you’ve violated this Brex Cash Agreement or have engaged in any Prohibited Activities or Restricted Activities, then you’re also responsible for damages to Brex Treasury caused by your violation and/or such activities.
If we close your Brex Cash Account or terminate your use of the Services for any reason, we’ll notify you of such actions. If any funds in your Brex Cash Account are subject to a hold or restriction and that hold or restriction is later removed, we will either send any unrestricted funds to an external account you specify or make such funds available for withdrawal. To the extent permitted by law, we will deduct from your Brex Cash Account any reasonable expenses we incur while attempting to contact you or other costs we may incur in the process of closing your Brex Cash Account. You will continue to be liable to us for any transactions or obligations, or any losses or expenses we sustain, that are associated with your Brex Cash Account, whether incurred before, during, or after the account closing process.
You are responsible for all reversals, chargebacks, claims, fees, fines, penalties, negative balance, and any liability incurred by Brex Treasury, any Brex Treasury customer, or others caused by or arising out of your breach of this Brex Cash Agreement and/or your use of the Services.
Our decision about actions we may take in relation to your Brex Cash Account may be based on confidential criteria that are developed for 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 your Brex Cash 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.
Nothing in this section is intended to limit our rights to refuse to provide Services to anyone, at any time, and for any reason consistent with applicable law, in our sole discretion. We retain any and all such rights.
11.3 Unclaimed Property
Assets in your Brex Cash Account are subject to state and federal laws on abandoned and unclaimed property. If your Brex Cash Account is deemed abandoned pursuant to applicable statutes, we will turn over the assets in your Brex Cash Account to the appropriate authorities after making a reasonable effort to contact you. We may deduct any reasonable expenses that we incur during this process. Once this process is complete, we will have no further obligation to you.
Any complaints concerning your account should be directed to Customer Support (firstname.lastname@example.org) or send a written complaint to:
Brex Treasury LLC
50 W Broadway, Ste 333
Salt Lake City, UT 84101
13. Additional Terms
13.1 Governing Law and Jurisdiction
You agree that, except to the extent federal law controls and except as otherwise stated in this Brex Cash Agreement, the laws of the State of Utah, without regard to principles of conflict of laws, will govern this Brex Cash Agreement and any claim or Dispute that has arisen or may arise between you and Brex Treasury.
You and we agree that any claims or Disputes between us that are litigated in court, rather than adjudicated in arbitration pursuant to Section 9 of this Brex Cash Agreement, shall be litigated exclusively in the state or federal courts located in Salt Lake County, Utah and you and we consent to the jurisdiction of such courts.
13.2 Continuing Obligations
Sections 4.2 (Compliance with Law), 5.1 (Use of Payment Services), 5.2 (ACH), 5.5 (Remote Check Deposit), 8.1 (Advances), 8.2 (Security Interest and Control Agreement), 8.3 ( Continuing Liability), 10 (Arbitration), 11.1 (Account Closure), 11.2 (Actions We May Take), 11.3 (Unclaimed Property), 13.1 (Governing Law), 13.5 (Limitation of Liability); and 13.6 (Tax Reporting) and any other provisions of this Brex Cash Agreement that identify or give rise to continuing obligations of the parties will survive termination of this Brex Cash Agreement. Terminating this Brex Cash Agreement will not discharge any obligations arising from the Brex Platform Agreement or any other Program Terms, to the extent those are still in effect.
13.3 Entire Agreement and Waiver
This Brex Cash Agreement, as amended from time to time, together with any disclosures or agreements that we reference herein, constitutes the entire understanding between Company and Brex Treasury for the subject matter described and supersedes all other proposals or previous understandings, written or oral, between the parties.
Waivers of rights under this Brex Cash Agreement must be expressed in writing and signed by the party waiving the rights. A waiver will apply only to the particular circumstance giving rise to the waiver and will not be considered a continuing waiver in other similar circumstances, unless the intention to grant a continuing waiver is expressed in writing. Our failure to insist on strict compliance with this Brex Cash Agreement or any other course of conduct on our part shall not be construed as a waiver of our rights under this Brex Cash Agreement.
13.4 Electronic Consent
By creating a Brex Cash Account, you are agreeing to transact business with Brex Treasury electronically, and by electronically indicating that you have read the terms of this Brex Cash Agreement you acknowledge and agree that such electronic assent is valid evidence of Company’s consent to be legally bound by this Brex Cash Agreement and such subsequent terms as may govern the use of Brex Treasury’s Services. The use of an electronic version of any document fully satisfies any requirement that the document be provided to in writing. You accept Notice by electronic means as reasonable and proper Notice, for the purpose of any and all applicable laws, rules and regulations. The electronically stored copy of your assent is considered to be the true, complete, valid, authentic and enforceable record of the Brex Cash Agreement, admissible in judicial or administrative proceedings to the same extent as if such assent were originally generated and maintained in printed form.
13.5 Limitation of Liability
YOU AGREE THAT COMPANY’S USE OF THE BREX CASH ACCOUNT AND SERVICES IS AT COMPANY’S SOLE RISK. BREX TREASURY’S SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, OTHER THAN THOSE WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER APPLICABLE LAW OR RULES.
ALTHOUGH CONSIDERABLE EFFORT IS EXPENDED TO MAKE BREX TREASURY’S SERVICES AVAILABLE AROUND THE CLOCK, BREX TREASURY DOES NOT WARRANT THAT THEY WILL BE AVAILABLE AND ERROR FREE AT ALL TIMES WITHOUT FAIL. UNLESS PROHIBITED UNDER APPLICABLE LAW OR RULES, THE BREX PARTIES ARE NOT LIABLE BY REASON OF DELAYS OR INTERRUPTIONS OF THE SERVICES OR TRANSMISSIONS, OR FAILURES OF PERFORMANCE OF THEIR RESPECTIVE SYSTEMS, REGARDLESS OF CAUSE, INCLUDING THOSE CAUSED BY GOVERNMENTAL OR REGULATORY ACTION, THE ACTION OF ANY EXCHANGE OR OTHER SELF REGULATORY ORGANIZATION, OR THOSE CAUSED BY SOFTWARE OR HARDWARE MALFUNCTIONS..
UNLESS PROHIBITED UNDER APPLICABLE LAW OR RULES AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS BREX CASH AGREEMENT, YOU UNDERSTAND AND AGREE THAT BREX TREASURY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, (COLLECTIVELY THE “BREX PARTIES”) WILL NOT BE LIABLE TO COMPANY OR TO THIRD PARTIES UNDER ANY CIRCUMSTANCES, OR HAVE ANY RESPONSIBILITY WHATSOEVER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING TRADING LOSSES, DAMAGES, LOSS OF PROFITS, REVENUE, OR GOODWILL) THAT COMPANY MAY INCUR IN CONNECTION WITH ITS USE OF THE SERVICES PROVIDED BY BREX TREASURY OR ANY OF ITS AFFILIATES, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT FORESEEABLE, EVEN IF ANY BREX PARTY HAS BEEN ADVISED OR WAS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
TO THE EXTENT APPLICABLE LAW OR RULES PROHIBIT OR RESTRICT ANY OF THE LIMITATIONS OF LIABILITY SET FORTH IN THIS BREX CASH 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 BREX CASH AGREEMENT SHALL BE INTERPRETED AND CONSTRUED IN A MANNER THAT LIMITS THE LIABILITIES OF THE BREX PARTIES TO THE GREATEST EXTENT POSSIBLE UNDER APPLICABLE LAWS AND RULES. IN ACCORDANCE WITH FINRA RULE 2268(d), NOTHING IN THIS BREX CUSTOMER AGREEMENT SHALL BE CONSTRUED TO LIMIT THE ABILITY OF ARBITRATORS TO MAKE ANY AWARD IN ACCORDANCE WITH FINRA RULES AND APPLICABLE LAW.
13.6 Tax Reporting
The proceeds of sale transactions and dividends paid will be reported to the Internal Revenue Service (IRS) in accordance with applicable law. You certify that the taxpayer information that you have provided or will provide to Brex Treasury and its affiliates is accurate and complete. If you have detailed questions related to Company’s tax strategy, you should consult a tax professional. Brex Treasury does not and will not offer tax advice.
13.7 Force Majeure
Subject to applicable laws and rules, we are not liable for loss caused directly or indirectly by conditions beyond our reasonable control, including Force Majeure events. “Force Majeure” means events that are beyond the reasonable control of a party, including to the following: disasters, extraordinary weather conditions, global pandemics, earthquakes or other acts of God, war, insurrection, riot, labor strikes, terrorist acts, government restrictions, exchange or market rulings, suspension of trading, computer or communication line failure, or failure of market centers or transmission facilities.
We are a member of the Securities Investor Protection Corporation (“SIPC”). Customers are protected up to the applicable SIPC limits if Brex Treasury were to go out of business and there were customer securities or funds unaccounted for. Current SIPC limits are $500,000 for securities and cash per customer, of which up to $250,000 may be in cash (free credit balances). Note that the mere act of creating Multiple Cash Accounts will not in and of itself increase the maximum SIPC insurance coverage available to Company. Because money market fund balances are considered securities, they do not count against the $250,000 cash limitation of SIPC coverage on free credit balances. However, SIPC does not provide protection against market losses or the failure of a money market fund. You may obtain information about the Securities Investor Protection Corporation (SIPC), including the SIPC brochure, by contacting SIPC at asksipc.org or calling 202-371-8300. SIPC’s website is located at www.sipc.org.
If any provision of this Brex Cash Agreement is held by a court or arbitrator to be invalid or unenforceable, that provision will be fully severable. In such event: (1) 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 (2) the remaining provisions of this Brex Cash Agreement shall remain in full force and effect.
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