Brex Cash Customer Agreement
Revised May 5, 2020
Table of Contents
- Opening a Brex Cash Account
- About Brex Cash
- Requirements and Prohibited Activities
- Payment Services
- Funds Availability
- Payment or Security; Liens; Setoff
- FINRA Dispute Resolution
- Closing your Brex Cash Account
- 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”). Brex Treasury is a FINRA-registered broker-dealer that manages self-directed accounts on Company’s behalf for the purchase, sale, or carrying of securities (“Brex Cash Accounts”). 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.
We may update or replace this Brex Cash Agreement by posting an updated version to Brex Platform Agreement and providing Notice to you of changes to material terms. Your continued use of your Brex Cash Account or any payment Services available through your Brex Cash Account constitutes acceptance of this Brex Cash Agreement as amended. 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 an amendment and will be incorporated into and made part of this Brex Cash Agreement.
You understand and acknowledge that this Brex Cash Agreement contains a pre-dispute arbitration clause in Section 9 for matters relating to use of your Brex Cash Account and your relationship with Brex Treasury. The Brex Platform Agreement contains a pre-dispute arbitration clause in Section 3.5 for matters relating to other Brex Services and your relationship with Brex Inc.
2. Opening a Brex Cash Account
Only companies incorporated 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 located 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 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 principal in securities. You understand and agree that Company is obligated to promptly notify Brex Treasury in writing if any Company Administrators, Users, or Controlling Persons become registered or employed in any of the above-described capacities. 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 representative submitting this application represents and warrants that:
- Company is a business entity incorporated and located 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
- Any information you provide to us is and will be current, accurate, and complete
- Company 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, the Brex Cash Program Disclosures, 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 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 purpose.
We may deny Company’s application to open a Brex Cash Account or may decline to offer Services for any reason or no reason in 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 multiple sources, including information provided to us by our affiliates and service providers, to determine whether to open a Brex Cash Account for Company.
3. About Brex Cash
3.1 Cash Sweep
Your Brex Cash Account is a cash management program that provides you the opportunity to earn a return on your cash reserves by automatically “sweeping” uninvested cash balances into one or more money market mutual funds or other investment options that we may offer from time to time upon Notice to you.
The Brex Cash Program 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 funds prior to, or at the same time as, your cash balance is so invested. By adding money to your Brex Cash Account you consent to this Brex Cash Agreement and the Brex Cash Program Disclosures and agree that you have reviewed the applicable investment prospectuses. Yields 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.
Subject to applicable law and regulation, Brex Treasury may use any free credit balance that has not been swept to the applicable money market mutual fund in connection with its business.
3.2 Available Investment Options
Money market mutual funds typically invest in highly liquid and low-risk securities. However, all investments involve risk, including the risk that you may lose the principal 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 should consider options that are better suited for that purpose. We do not charge fees on purchases or redemptions of shares of these money market funds 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.
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 money market fund or other investment option to which we will sweep your deposits, or other investment options that we may in the future offer through your Brex Cash Account, you may not use your Brex Cash Account to purchase securities of any kind.
4. Requirements and Prohibited Activities
4.1 Prohibited and Restricted Activities
We may refuse to open or maintain a Brex Cash Account where required by law or regulation, if Company engages in any Prohibited Activities or Restricted Activities, or otherwise or in our sole discretion. You agree that you have legal title to all funds you or others place in your Brex Cash Account, and that you do not intend to and will not use any funds in your Brex Cash Account for personal, family, or household use. 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.
You must 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 Section 2.1 (Eligibility). If you fail to notify us, we may immediately close your Brex Cash Account.
4.2 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 engages in any Prohibited Activities or Restricted Activities, we may take such steps as we believe necessary. This may include refusing the transaction, 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 in good faith 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.
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
5.1 Use of Payment Services
You will have the ability to send and receive certain payments through your Brex Cash Account. The use of your Brex Cash Account to make and receive payments is subject to the terms posted on Brex Platform Agreement in respect of the applicable payment Service, and may be subject to additional terms imposed by our financial institution partners and applicable payment networks. By using each payment Service, you agree to the applicable payment terms, including those of our partner financial institutions, service providers, and payment networks. 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 California. 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 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 we receive outside the applicable funds transfer windows available to us through our financial institution partners 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 Brex Treasury is entitled to act upon any oral instructions given by Company Users, Administrators, or Controlling Persons so long as Brex Treasury reasonably believes such instruction was actually given by Company Users, Administrators, or Controlling 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. You accept the 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 Administrator 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.
You have read and agree to the provisions of the Platform Agreement relating to the use of Security Procedures and Credentials to access all Services provided through your Brex Account, including your Brex Cash Account.
You agree to hold harmless, indemnify, and defend us against any losses, claims, costs, expenses, or damages arising out of any action taken or omitted by us in connection with this Brex Cash Agreement or your use of the payment Services available through your Brex Cash Account.
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 purpose of carrying out directions supplied by Company Users, Administrators, or Controlling 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 its 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.
We will accept payments on your behalf to your Brex Cash Account transmitted through the Automated Clearing House (“ACH”) network, which are not subject to the Electronic Fund Transfer Act, and your rights and obligations with respect to such payments will be construed in accordance with, and governed by, laws of the state of California as provided by the operating rules of the National Automated Clearing House Association (“NACHA”), which are applicable to ACH transactions involving your Accounts. If you submit credit or debit instructions over the ACH network, you are required to comply with the NACHA rules available at http://www.nacha.org/rules (“NACHA Rules”), which are incorporated by reference into this Brex Cash Agreement. 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 (as such terms are defined in the NACHA Rules). We are obligated to provide our financial services partner (or “ODFI” as such term is defined in the NACHA Rules) with all information reasonably necessary to identify you for which the ODFI transmits Entries, and you authorize us to provide such information to them. You also acknowledge that our ODFI is a third-party beneficiary with regard to these ACH terms. We reserve the right to change the procedures by which you make debits and credits 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.
Under NACHA Rules, funds transfers sent through the ACH system are provisional and may be revoked for a period of time. If an ACH transfer is revoked and we do not receive final settlement, we may charge your Account for any amount that was previously credited. You acknowledge that we and our ODFI have the right to review the volume and character of the Entries you initiate, and your business operations to evaluate the credit risk associated with processing Entries on your behalf. We also have the right to reject any Entry if we have attempted but are unable to verify the authenticity of the Entry 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 no later than the second business day after the Entry would otherwise have been transmitted by us, but we will have no liability to you by reason of the rejection of any Entry or the fact that such notice is not given at an earlier time. If an Entry (or a request for cancellation or amendment of an Entry) received by us purports to have been transmitted or authorized by you, it will be deemed effective as your Entry and you will be obligated to pay us the amount of such Entry even though the Entry was not authorized by you, provided we accepted the Entry in good faith and acted in compliance with the security procedures with respect to such Entry. If an Entry received by us was transmitted or authorized by you, you will be obligated to pay the amount of the Entry, whether or not we complied with the security procedure and whether or not that Entry 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 your ACH Entries. 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 Entry 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 which are returned unpaid. You agree that we may hold any or all funds in a Brex Cash Account if we reasonably determine that there are inconsistent instructions regarding an Entry 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 any or all funds, freeze or hold 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.
Without limiting the “Limitation on Liability” provisions elsewhere in this Brex Cash Agreement and the terms of the Platform Agreement, you agree that (a) we will be excused from failing to transmit or delay in transmitting an Entry 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) we will not be responsible for the acts or omissions of any Federal Reserve Bank or transmission or communications facility, any Receiver or Receiving Depository Financial Institution (as such terms are defined in the NACHA Rules), or for any return of an Entry by such Receiver or Receiving Depository Financial Institutions, none of whom is deemed our agent for this purpose. You will reimburse us for any fines or penalties (and any associated costs, including reasonable attorneys’ fees and costs) imposed on, or assessed against, us by NACHA, any Federal Reserve Bank, any ACH Operator) as such term is defined in the NACHA Rules), 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.
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. Please confirm that the country of your payment recipient is a supported destination prior to placing a wire transfer order.
You will receive a monthly or quarterly statement showing activity in your Brex Cash Account. 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.
We may refer to the signatures you 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. 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.
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. We 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 any check you submit to us, and we do not guarantee that the check will be deposited to your Account.
Any amounts we credit to your Brex Cash Account using remote deposit is a provisional credit only, and 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 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 your check is rejected or if it fails to clear after we receive it. We will notify you if your check 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. 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.
6. Funds Availability
6.1 Available Balance
Your available Brex Cash Account balance is a calculation that will consider a variety of factors, including but not limited to (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. Please contact us if you believe we are holding your funds in error. 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 through the cash sweep features of your Brex Cash Account 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.
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.
6.2 Brex 1 Card Authorization and Restrictions
The Brex 1 Card is a credit card provided by Brex Inc., an affiliate of Brex Treasury. Whenever you spend on your Brex 1 Card, you explicitly agree, acknowledge, and authorize Brex Inc. to provide instructions to Brex Treasury, on your behalf, to immediately restrict available funds in your Brex Cash Account in an amount equivalent to the authorized amount of your Brex 1 Card Charges. You further authorize Brex Treasury to immediately execute upon any such instructions from Brex Inc., and you release and hold harmless Brex Treasury from any and all liability arising out of its reasonable reliance on instructions received from, or reasonably believed by Brex Treasury to have been received from, Brex Inc. under this provision. You understand that upon such restriction, the restricted funds will no longer be available for you to spend or transfer, even if the funds are still in your Brex Cash Account.
7. Payment or Security; Liens; Setoff
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.
7.2 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. We may rehypothecate any Collateral held or carried through your Brex Cash Account or in our possession or control.
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.
7.3 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. We may report past due amounts to a credit reporting agency or refer your account to a collection agency.
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.
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. Please see the Brex Cash Program Disclosures and the applicable fund prospectus for more information.
9. FINRA Dispute Resolution
By opening a Brex Cash Account and agreeing to the terms of this Brex Cash Agreement, you understand and acknowledge that matters related to your Brex Cash Account are subject to a pre-dispute arbitration clause which provides for dispute resolution in the FINRA arbitration forum. We are required to inform you that 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 agree that all controversies that may arise between us will be determined by arbitration. Such controversies include, but are not limited to, those involving any transaction in any of your accounts with us, or the construction, performance or breach of any agreement between us, whether entered into or occurring prior, on or subsequent to the date you agreed to this Brex Cash Agreement.
No person may 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 agreement except to the extent stated herein.
Any controversy or claim arising out of or relating to this Brex Cash Agreement or with respect to your Brex Cash Account established hereunder will be settled by arbitration in accordance with the rules of FINRA Dispute Resolution, Inc. (“FINRA DR”). You agree to arbitrate any controversy or claim before FINRA DR in the State of California.
10. Closing your Brex Cash Account
10.1 Account Closure
Please contact us if you wish to close your Brex Cash Account. When your Brex Cash Account is closed, we will sell any securities in your Brex Cash Account, reverse any deposits, and return the remaining balance to you. 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.
We may close your Brex Cash Account at any time if required by law or regulation or in our sole discretion, including if we believe that your use of your Brex Cash Account violates this Brex Cash Agreement.
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 obligations incurred while the Brex Cash Account was open or that you incur during or after the account closing process.
You acknowledge and agree that upon closure of your Brex Cash Account, Brex Treasury may choose the method by which your funds may be returned to you (i.e., Brex Treasury may require that you accept repayment of your funds via wire or ACH, instead of via physical check).
10.2 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.
11. Additional Terms
11.1 Governing Law
This Brex Cash Agreement will be construed, applied, and governed by the laws of the State of California exclusive of its conflict or choice of law rules except to the extent that US federal law controls. Subject to Section 9, all litigation will be brought in the state or federal courts located in San Francisco, California.
11.2 Continuing Obligations
Sections 4.2 (Compliance with Law), 5.1 (Use of Payment Services), 5.2 (ACH), 5.5 (Remote Check Deposit), 7.1 (Advances), 7.2 (Security Interest and Control Agreement), 7.3 (Continuing Liability), 9 (FINRA Dispute Resolution), 10.1 (Account Closure), 10.2 (Unclaimed Property), 11.1 (Governing Law), 11.5 (Waiver; Limitation of Liability); and 11.6 (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.
11.3 Entire Agreement
This Brex Cash Agreement, together with any disclosures 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. No other agreements, representations, or warranties other than those provided in this Brex Cash Agreement will be binding unless in writing and signed by Company and Brex Treasury.
11.4 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.
11.5 Waiver; Limitation of Liability
You agree that Company’s use of the Brex Cash Account, including Brex Treasury’s app and website, 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 the laws applicable to this Brex Cash Agreement.
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. You agree that Brex Treasury is not responsible for temporary interruptions in service due to maintenance, website or app changes, or failures, nor is Brex Treasury be liable for extended interruptions due to failures beyond its control, including but not limited to the failure of interconnecting and operating systems, computer viruses, forces of nature, global pandemics, labor disputes and armed conflicts.
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 UNDER THIS BREX CASH AGREEMENT, 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. THE BREX PARTIES ARE NOT LIABLE BY REASON OF DELAYS OR INTERRUPTIONS OF THE SERVICE 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.
11.6 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.