These Commercial Card Terms (“Terms”) are entered into by and between the organization identified and executing the Card Program Application (“Organization”) and Capital One, National Association (“Bank”). The Terms, Card Program Application (“Application”) and any other agreements, addenda, riders, documents or schedules (including the Card Program Schedule) are incorporated herein, each as may be amended or otherwise modified from time to time, (collectively, the “Agreement”) and govern the Card Program provided by Bank to Organization. The Agreement is effective as of the “Effective Date of Agreement” set forth on the Card Program Schedule provided to Organization by Bank. The “Effective Schedule Date” will be updated with each change to Organization’s Card Program. Unless otherwise defined herein, capitalized terms shall have the meanings as set forth in Section 2 below.
Section 1. INTRODUCTION.
If Organization is approved for a Card Program following submission of Organization’s Application and accompanying documentation, Bank will provide Organization with an Agreement, including the applicable Card Program Schedule, outlining the terms associated with Organization’s Card Program. The use of each and every Card and Account issued or established as a part of Organization’s Card Program shall be governed by the Agreement. By using or authorizing any person to use a Card or the Card Program, Organization confirms its acceptance and agreement to abide by the terms of the Agreement.
Section 2. DEFINITIONS AND INTERPRETATION.
Unless otherwise defined herein, capitalized terms shall have the following meanings:
The meanings of defined terms shall be equally applicable to the singular and plural forms of the defined terms. All references to “include,” “includes,” or “including” shall be deemed to be followed by the words “without limitation.”
Section 3. BUSINESS USE OF THE CARD PROGRAM.
Organization represents, warrants, and covenants that the Card Program (including any and all Accounts and Cards) has been established and will only be used by Organization and its Employees for a commercial or other bonafide business purpose. Organization further represents and warrants that none of the Account(s) or Card(s), and Transaction(s) related to the Card Program have been established or will be used for personal, family, or household purposes. Organization is responsible for both: (a) instructing all Administrators and Cardholders that the Card Program (including each Account and Card issued under the Agreement) is only used to pay for or, if cash advance access has been requested by Organization, to obtain Advances to pay for bonafide business expenses; and (b) ensuring that the Card Program is only used to pay for or to obtain Advances to pay for bona fide business expenses and permitted types of Transactions as may be limited by the Administrator or Bank. Any DDA associated with this Card Program must be a Commercial DDA.
Section 4. DESIGNATION OF CARDHOLDERS AND ADMINISTRATORS.
Section 4.1 Designating Administrator(s). Organization is responsible for designating and creating the authorization for its Administrators and Cardholders (including through the CCP Channels) and for revoking such authorization. Organization shall appoint one or more Administrators to manage Organization’s Card Program. Organization agrees that each Administrator is hereby empowered to exercise full control over Organization’s Card Program including each and every Account and Card. The permissions and powers of an Administrator include all rights belonging to Organization with respect to the Card Program including the rights (in any manner that each Administrator may in his or her absolute discretion see fit) to: (a) manage access, request changes to, and close the Card Program; (b) add and remove Cardholders and request the issuance of Cards for Cardholders; (c) establish and change roles and permissions of Cardholders (including establishing limits on the use of a Card such as Transaction Limits); and (d) , execute Transactions and dispute Unauthorized Transactions within the Card Program.
Section 4.2 Bank’s Reliance on Actions of Administrators. Organization represents and warrants that all designations of Administrators are duly authorized by Organization and, further, that Bank may entirely rely upon such designations. Bank may rely upon any instruction, decision, representation, designation of authority, or information that Bank, in its sole discretion, believes to emanate from Organization’s Administrator, regardless of the actual sender. Bank may at its sole discretion require additional security or process checks relative to the actions of or access to certain rights by the Administrator(s). Bank’s decision of whether to implement any such check(s) does not in any way diminish Organization’s liability for the actions of Organization’s Administrator(s).
Section 4.3 Designation of Cardholders. Each Cardholder (including each Administrator) shall be designated by an Administrator. Bank is not responsible for determining the status of a Cardholder as an Employee of Organization. An Administrator shall designate the respective permissions, designations, authorities, Transaction Limits and entitlements and other limits for each Cardholder. Organization is responsible for collecting and destroying any Cards that the Cardholder has in their possession after revoking a Cardholder’s authority or a Card. Notwithstanding the foregoing, Bank may, in its sole discretion, and at any time without notice, immediately suspend or revoke the designated roles, permissions, designations, authorities, and entitlements within the Card Program of an Administrator, or Cardholder.
Section 4.4 Terminating Authorization. Organization may terminate a Cardholder’s authorization to use a Card, an Account, or any part of the Card Program upon written notice to Bank by an Authorized Representative or an Administrator (including requests made through the CCP Channels, by written notice as required by the Agreement, or by calling Bank’s Commercial Card Servicing Team at 866-772-4497 or such other telephone number as may be provided by Bank, from time to time). Organization shall be liable for all Transactions made under the Card Program by any individual to whom a Card Account(s) and Card(s) were issued, or to which any such individual had access, until such Cardholder has been removed or such Card has been cancelled; either of which shall be effective only after Organization provides written notice to Bank requesting removal of such Cardholder or cancellation of such Card and receives Bank’s confirmation (either verbal or written) of receipt of such notice. It is expressly understood and agreed that a Card or Account number that is in the possession of an individual to whom the Card was issued or authorized by Organization to use such Card or Account shall not be considered to be lost, stolen, or in the hands of an unauthorized person, and Organization shall continue to be liable to Bank for the use of such Card or Account until such Card is returned to Bank, or until Organization has provided notice to Bank in accordance with these Terms.
Section 5. REQUESTING CARDS.
Section 5.1 Card Issuance Requests. Subject to Bank’s approval, upon Organization’s request to issue a Card through an Administrator, including using the CCP Channels (a “Card Issuance Request”), Bank will establish and issue Cards linked to Card Accounts for use in making Transactions. Each Card shall be valid through the noted expiration date unless canceled prior to the expiration date. Single use Virtual Cards have a default six-month expiration date. Static Virtual Cards expire automatically two (2) years from the date of issuance. If Organization wishes to alter those default expirations for all Virtual Cards, they may make such request to Bank, in writing. The maximum expiration permitted is one (1) year for single use Virtual Cards and three (3) years for static Virtual Cards. Organization is able to adjust the expiration date at the card level when making a payment request but cannot set the expiration for a period longer than one (1) year for a single use Virtual Card or three (3) years for a static Virtual Card. Unless the Card is a “Descriptive Title Card”, each Physical Card issued by Bank at Organization’s request shall bear Organization’s name as well as the legal name of the Cardholder as provided by the Administrator, unless otherwise agreed as set forth below. When Organization requests a Card, the Administrator shall provide the name of the Cardholder and other information requested by Bank, such as the phone number and address of the Cardholder and the desired authority and limits on each Card as available under the functionality of the Card Program. Bank strongly recommends that a mobile phone number of each Cardholder be provided. While no product or service can completely prevent fraud, in Bank's determination, identity verification through a mobile phone when activating a Card may reduce the likelihood of Unauthorized Transactions. Organization agrees that Bank will mail the requested Physical Card to each Cardholder at Organization’s business address unless Organization furnishes other instructions to Bank.
Section 5.2 Request for Descriptive Title Cards. With limited exceptions, Organization may request that Bank issue Physical Card(s) that do not include the name of a natural person but are instead embossed with a descriptive title (e.g., a department name within Organization) (“Descriptive Title Cards”). To the extent that Bank issues Descriptive Title Card(s) to Organization, Organization expressly agrees and acknowledges that Bank has informed Organization that by requesting Descriptive Title Card(s), any Cardholder using one of these Descriptive Title Cards may potentially be refused a Transaction by the merchant because of invalid signature verification (or other reasons). Organization further acknowledges that since Organization has knowingly requested that Bank issue Descriptive Title Card(s), Organization shall have no right to charge back to the merchant(s) or Bank for any Unauthorized Transactions that occur(s) with or as a result of any Descriptive Title Cards issued to Organization. While Bank will investigate all claims of Unauthorized Transactions and pursue recovery where applicable, Organization expressly agrees that Organization shall have no recourse to recover any Losses from Bank for alleged or actual unauthorized use of these Descriptive Title Card(s). Organization further agrees that Organization shall have no right to assert or allege unauthorized use of these Descriptive Title Card(s) as a defense to payment.
Section 5.3 Request for ATM/Cash Access (Physical Cards Only). Organization may from time to time request in writing that Bank permit certain Cardholders to obtain Advances by either: (a) presenting a Physical Card to an institution that accepts the Physical Card for that purpose; or (b) by using the Physical Card at an ATM that accepts the Physical Card for that purpose. Cardholders are not permitted to use a Virtual Card for an Advance. Organization shall require each Cardholder to maintain in strict confidence the personal identification number (“PIN”) assigned to such Cardholder for ATM access using a Physical Card. Bank does not warrant or represent that all institutions (financial or otherwise) will accept a Physical Card for the purposes of obtaining Advances, and Bank shall have no liability in connection with such refusal. Bank may at any time without prior notice cancel, revoke, or suspend a Cardholder’s ability to obtain Advances; Bank may do so with or without also canceling the Card or Card Account. For each Advance, Organization will be charged a fee as disclosed in the Card Program Schedule.
Section 5.4 Affiliate Participants. The term “Affiliate Participant” means any of the subsidiaries or affiliates of Organization that are identified on the Card Program Schedule. Upon Bank and Organization adding any such Affiliate Participant to the Card Program Schedule, except as expressly set forth herein, such Affiliate Participant shall have the rights and obligations of “Organization” under the Agreement, and Organization may designate Employees of such Affiliate Participant as Cardholders under the Agreement and issue Cards to such Employees. Organization shall be responsible and liable to Bank for each Affiliate Participant’s compliance with, and fulfillment of, the terms and conditions of the Agreement. Organization represents, warrants, and covenants that: (a) it has full power and authority to accept such responsibility and liability; it has the authority to act for itself and to bind any Affiliate Participant with respect to any and all matters relating to the Agreement, including, without limitation, obtaining or requesting credit, satisfying payment obligations, acceptance of notices (which will be sent only to Organization), issuing instructions and agreeing to waivers, modifications, or amendments to the Agreement. Organization expressly agrees that Bank collect payment from Organization for any amounts owed by an Affiliate Participant under the terms of the Agreement, whether or not Bank shall have proceeded against any such Affiliate Participant. Bank shall have no direct liability or obligation to any Affiliate Participant, and Organization shall be the only entity entitled to make a claim against Bank on behalf of itself or an Affiliate Participant under or in connection with the Agreement. In addition to other indemnification obligations set forth in these Terms, Organization agrees to indemnify and hold Bank harmless from and against any and all Losses of any nature whatsoever (including, but not limited to, reasonable attorneys’ fees, court costs, and any and all costs incurred in the enforcement of the Agreement) arising from or relating to: (a) the unenforceability, invalidity, or illegality of the Agreement as against any Affiliate Participant; (b) any Affiliate Participant’s use of the Card Program and any Cards or Accounts, or its failure to comply with the terms of the Agreement; and (c) any and all claims or actions by an Affiliate Participant against Bank; provided, however that Organization shall not be obligated to indemnify Bank for claims, losses, or damages attributable to Bank’s gross negligence or willful misconduct. Organization expressly agrees that any such liability or indemnity obligation shall be joint and several with the liability or Obligations owed by the Affiliate Participant.
Section 6. VIRTUAL CARD PAYMENTS TO VENDORS.
Section 6.1 Authorizing a Payment Request. Organization may elect to use the Card Program to make payments directly to Organization’s third party vendors (“Vendors”) by submitting a Vendor payment request through the CCP Channels or any other third party portal that may be offered by Bank (each, a “Payment Request”). With each Payment Request, Organization hereby acknowledges, agrees, represents and warrants that: (i) Organization is solely responsible for submitting Payment Requests with sufficient advance notice and complete and accurate information to ensure timely payment; (ii) Bank is not liable for any penalties, overdraft charges, insufficient fund charges, late payment charges or any other charges of any type resulting from Organization’s failure to maintain sufficient funds to cover such Payment Requests or a failure to provide accurate payment information, nor is Bank liable for any delays in processing a Payment Request; and (iii) Bank is not responsible if any merchant, company, financial institution, or other intended recipient rejects a payment made using the Card Program.
In order to ensure that all Virtual Card requests and payments are authorized and to reduce the risk of fraudulent Transactions, Organization acknowledges and agrees that Bank may elect to restrict a Virtual Card to a single use; provided, however, Bank shall not be liable in the event that Bank does or does not elect to limit or restrict the use of the Virtual Card by Organization. Bank will investigate all claims of Unauthorized Transactions and pursue recovery where applicable but Organization may remain liable for all Transactions that occurred before Bank was notified of the alleged loss, theft, or unauthorized use. Unauthorized use is not a defense to payment for any Transaction. All Virtual Cards must have an expiration date. The default expiration date is six (6) months from the date of issuance for single use cards and two (2) years for static cards. Organization may request to extend this default expiration, but the maximum expiration period is one (1) year for single use cards and three (3) years for static cards. If a Vendor fails to swipe the Virtual Card prior to expiration, or if a Vendor refund is issued, the amount of the Virtual Card or refund will be refunded to Organization.
Section 6.2 Payment Requests by Organization. Bank will process any payments due from Organization depending on the type of payment method selected by Organization. The payment methods offered are as follows:
(a) Virtual Card EAP Payments. Vendors may be paid by Payment Request submitted through the CCP Channels via a single pay file. Payments using electronic accounts payable (“EAP”) will appear on Organization’s billing statement with payment due in full to Bank at the end of Organization’s approved billing cycle as set forth in the Card Program Schedule. Payment Requests made using EAP may take five (5) Business Days, or longer, before the Virtual Card is swiped by the Vendor and payment is posted to the designated Vendor’s account.
(b) Virtual Card Relay Payments. Once approved for Virtual Card Relay, Organization can initiate a request for a Virtual Card Vendor payment through the CCP Channels using Bank’s Virtual Card Relay Solution. The Virtual Card Relay Solution allows payments to be made to Bank in the amount of each Vendor invoice, which will be withdrawn via ACH debit from the commercial demand deposit account designated by Organization for use with the Card Program (“Commercial DDA”) as part of the payment flow for each Payment Request rather than being billed during the agreed upon billing cycle as set forth in the Card Program Schedule. In addition to the representations and warranties above, for each Payment Request using Virtual Card Relay Solution, Organization hereby acknowledges, agrees, represents and warrants that: (i) Organization is a legal owner of the Commercial DDA to be debited for payment to the Vendor, and Organization has full authority to authorize such payments; (ii) the Payment Request is a duly authorized Transaction and Bank is authorized to make a one-time electronic fund transfer (debit) (via ACH or otherwise) from the Commercial DDA designated by Organization; (iii) Bank may withdraw the funds from Organization’s Commercial DDA as early as the same day Bank receives Organization’s Payment Request, even if the Payment Request is for a future date; and (iv) Organization will ensure that the Commercial DDA information is accurate and that there are sufficient immediately available funds in the Commercial DDA to pay for such Payment Request. If for any reason the payment by Organization to Bank fails, the Virtual Card will either not be issued or if already issued, will be cancelled.
(c) Alternate Payment Portal Service. For Vendors that still only accept payment through telephone, fax, or web, a “Pay for You” service is available to facilitate such payments using portal login credentials authorized by Organization or Vendor. Organization may request implementation of the Pay for You service, and Bank, in the sole discretion, may agree to implement such service. The Pay for You service may be subject to additional agreements and fees, which will be disclosed to Organization prior to initiating the such service. Organization must onboard each Vendor to the Pay for You service in accordance with Bank’s requirements prior to making payments to such Vendors.
Section 6.3 Accuracy and Completion of Payment Requests. A Payment Request as described above will not be considered to be transmitted to Bank until it appears as a posted Transaction. Organization shall not assume that Bank has received Organization’s Payment Request if it does not appear as a posted Transaction. Bank may not be able to fulfill any Organization Payment Request if there is an inaccuracy in the Commercial DDA or other information provided by Organization or if there are insufficient funds available in the Commercial DDA. Bank is not required to notify Organization about such payment failures, and Bank will not be liable for such payment failures, including any payments rejected by Vendors or any associated fees or charges incurred by Organization. It is always Organization’s responsibility to initiate Payment Requests and to confirm that the intended Vendor has received the requested funds. Organization acknowledges and understands that Payment Requests may be processed via ACH.
Section 6.4 Duplicative Charges and Oversettlement. From time to time a duplicative Vendor charge may mistakenly appear or the final invoice amount may have increased since the Virtual Card was issued. With Virtual Card EAP, a chargeback can be utilized or the final amount due adjusted on the monthly statement. With Virtual Card Relay, a duplicative charge can still be corrected via chargeback but if any additional amounts are due Bank, the funds will be sought at the time of Organization’s next requests for a new Virtual Card.
Section 7. ACCESSING THE CARD PROGRAM VIA THE INTERNET.
Section 7.1 CCP Channels. Bank may make some or all portions of the Card Program, including administration of the Card Program available via the Internet, including mobile applications, websites, and other related internet channels (the “CCP Channels”). Organization’s use of the CCP Channels to access any information, content, communications, features, or other means of using the Card Program (including, any Account(s), Card(s), or Transactions) shall be governed by the Agreement. Organization agrees that all electronic communications that Bank receives on or through the CCP Channels, such as those directing Bank to take an action with respect to Organization’s Card Program (including, but not limited to, issuing Cards) that match the Security Procedures assigned to Organization or other identity information that Organization, Authorized Administrators, or other Cardholders have provided when enrolling in or using the Card Program will be deemed valid, authentic, and binding obligations of Organization.
Section 7.2 Device Security, Unauthorized Access. Organization shall access CCP Channels using the Security Procedures assigned to Organization by Bank. Bank does not control the security of the devices that Organization, Administrators, or other Cardholders use to access the CCP Channels. Organization is responsible for ensuring that Organization, Administrators, and other Cardholders keep safe and secure all respective password(s), PINs, codes, digital certificates, and any other login credentials or security access information related to the CCP Channels (the “Security Procedures”). Organization is solely responsible for the activities that occur on any device using any Organization, Administrator, or other Cardholder Security Procedures to access the CCP Channels. Organization agrees to immediately notify Bank (by calling the Commercial Card Servicing Team at 866-772-4497 or such other telephone number as may be provided by Bank, from time to time) of the discovery of any unauthorized access or use of the CCP Channels. Organization acknowledges and agrees that Organization, Administrator(s), and other Cardholders will not share their respective Security Procedures with anyone.
Section 7.3 Availability of CCP Channels. Subject to all terms hereof, Organization may use the CCP Channels seven days a week, twenty-four hours a day, except for any scheduled or unscheduled interruptions in the CCP Channels for maintenance, security, or any other reasons, as further described herein; provided, however, that Bank retains the right, in its sole discretion and at any time, to suspend, design, operate, and make ongoing changes to the design and operation of the CCP Channels and any technology associated with the CCP Channels. Organization’s continued use of the CCP Channels (through use by an Administrator or other Cardholder) after the effective date of the changes in design and operation of the CCP Channels constitutes acceptance by Organization of all such changes. Organization hereby acknowledges and accepts the risk that, from time to time, the CCP Channels may not work correctly or may not work at all, and that Bank shall have no liability for failure or unavailability of the CCP Channels. If the CCP Channels are not working or work incorrectly, Organization should contact Bank during normal business hours at the servicing telephone number or email address provided by Bank or found on the Bank website.
Section 7.4 System Security. To help protect the confidentiality and security of Organization’s Card Program, Accounts, and other financial information, Organization and all Administrator(s), and other Cardholders must connect to the CCP Channels using an Internet browser that supports no less than 256-bit encryption and TLS 1.2. Use of the CCP Channels with lower than 256-bit encryption is strictly prohibited. To the extent Organization, Administrator(s), or other Cardholders are able to access the CCP Channels using lower than 256-bit encryption, Bank specifically disclaims any and all liability for any Losses resulting from the use of such lower encryption, and Organization expressly understands and agrees that any Losses resulting from the use of such lower encryption are Organization’s sole and exclusive responsibility. Bank may change the connection requirements from time to time and shall do so by providing notice thereof; the Parties agree that posting the changes within the CCP Channels shall constitute reasonable notice of any such change.
Section 7.5 Intellectual Property Ownership Regarding the CCP Channels. As between Bank and Organization, Bank exclusively owns and reserves all right, title, and interest (including all intellectual property rights) in and to the CCP Channels under the Agreement, including all programs, features, functions (as well as the combination and “look and feel” of the same), and subsequent updates or upgrades of any of the foregoing that are made generally available by Bank, including the APIs, the API documentation, any URLs, any technical support, and any software or technology provided to Organization in connection with Organization’s use of any of the above. All rights not expressly granted to Organization in the Agreement are retained by Bank unless otherwise designated or clearly implied as belonging to third parties.
Section 7.6 Reverse Engineering. Organization agrees not to use the CCP Channels for any purpose other than as expressly authorized by Bank. By using the CCP Channels, Organization expressly agrees that Organization and all Authorized Administrator(s) and other Cardholders will not: (i) decompile, reverse engineer, or otherwise access or attempt to access the source code for the CCP Channels; (ii) use any automated system (e.g., robot, bot, screen scraper, etc.) to access the CCP Channels or its features; (iii) use the CCP Channels in a destructive way, such as by transmitting viruses or exploiting bugs; (iv) access Bank’s services or systems other than as permitted by the Agreement; (v) use the CCP Channels for any illegal purposes; or (vi) provide Bank with false or incorrect information about Organization’s Card Program or other financial information.
Section 8 ALERTS SERVICE.
Bank may offer Organization security alerts and/or alerts and communications about Organization’s Card Program, including regarding any Accounts, Cards, Transactions, and/or Cardholders (the “Alerts”). Subscription to Bank’s Alerts service is optional, and Organization may elect to subscribe or unsubscribe at any time. Subscription to Bank’s Alerts service does not limit or amend Organization’s duty to monitor and review its Transactions, Accounts, and the Card Program. Bank shall have no liability for any failure or delay to send an Alert or obligate Bank to act or forbear from acting as the result of an Alert or response to an Alert. To receive security Alerts or other communications via text message, the receiving mobile device must be subscribed to a wireless service on a participating mobile carrier and must be able to receive text messages using the mobile device and the applicable carrier’s service. Organization and each Cardholder are responsible for any fees or charges from their wireless carrier for Alerts sent to the assigned mobile number. Bank recommends that a mobile phone number be provided for each Administrator and Cardholder so that Bank may authenticate a Cardholder’s identity and provide Alerts intended to combat fraud. Alerts may also be sent by email to the designated primary email address for Organization, Administrators, or Cardholders, but the Card or Account may already be restricted, based upon the type of security concern, until the issue can be reconciled by the Cardholder or Administrator.
Section 9. TECHNICAL SUPPORT AND SERVICING.
From time to time, Authorized Administrators or other Cardholders may encounter technical difficulties in accessing or using various functions of the CCP Channels. In order to most efficiently diagnose the source of any issue, it may be necessary for Bank to access the Account and troubleshoot or emulate the Cardholder. Additionally, general Account maintenance may occasionally require that Bank have Account access. Organization acknowledges and agrees that Bank will have this servicing visibility and Account access for the purposes of correcting platform errors, confirming optimal and updated settings, and/or taking action requested by the Authorized Administrator or Cardholder on behalf of Organization. Organization agrees to abide by all such technical or other support rules and policies. If such support is provided, it will be provided in addition to any standard support offered to Organization related to the Card Program. Any questions regarding the Card Program should be directed by an Authorized Administrator to Commercial Card Servicing Team at the telephone number or email provided by Bank and included on Bank’s website.
Section 10. BANK’S USE OF THIRD PARTY SERVICE PROVIDERS.
Organization acknowledges and agrees that Bank may now, or may in the future, utilize one or more third party service providers (each a “Service Provider”) in creating, producing, delivering, or otherwise providing the Card Program and any of its features, including the aggregation of Organization’s financial information for the credit approval process. Organization acknowledges and agrees that Bank may delegate its duties under the Agreement, in whole or in part, to any Service Provider. Bank’s use of a Service Provider shall not relieve Bank of its obligations under the Agreement, and Bank shall be responsible for the aspects of the Card Program.
Section 11. PAYMENTS; LIABILITY FOR TRANSACTIONS, FEES AND OTHER CHARGES.
Section 11.1 Organization’s Payments to Bank. Organization shall pay and shall be responsible for paying Bank for its Obligations due under the Card Program and the Agreement, including all credit extended and any Transaction processed and paid under the Card Program for any purpose or by any means whatsoever, as well as for any and all fees and charges that may be assessed. Organization’s Obligations include credit extended for business, unauthorized consumer purposes through the use of a Card for Transactions, and any Unauthorized Transactions that occur before Organization notifies Bank in accordance with these Terms that a Card or Account should be cancelled. The applicable Card Program fees, charges and any interest rates related to Organization’s Card Program shall be according to the Card Program Schedule furnished by Bank to Organization. Bank may amend the applicable fees, charges, and interest rates from time to time upon notice to Organization.
Section 11.2 Special Requests. From time-to-time, Organization may request special reports or rush delivery of Cards or other information. If Bank complies with Organization’s special requests, Bank may assess additional fees to the Card Program as disclosed on the Card Program Schedule.
Section 11.3 Billing Statements; Late Payments. Bank will deliver periodic billing statements for Organization’s Card Program, reflecting the total of all Transactions and other activity for the Card Program’s Accounts and Cards during the preceding billing cycle. The billing cycle shall be as agreed upon between Organization and Bank. Organization shall pay the entire “New Balance” by 5 p.m. EST on the “Payment Due Date” as set forth on each billing statement. If Organization does not pay the New Balance in full by the specified Payment Due Date, Bank may assess a late fee and/or other such applicable fees as set forth in the Card Program Schedule. If Organization has instead been approved for individual billing such that an individual associated with Organization receives periodic billing statements, the billing statement will be sent to the Cardholder designated on the Card Account. If such Cardholder does not pay the entire “New Balance” on the “Payment Due Date” as set forth on the billing statement, Organization shall pay such amount within ten (10) days after receipt of notice from Bank that such amount is past due and Bank may assess a late fee and/or other such applicable fees as set forth in the Card Program Schedule.
Section 11.4 Methods of Payment. Organization acknowledges and understands that all payments must be made from a Commercial DDA and those payments may be processed via ACH. Organization hereby authorizes Bank to originate ACH debit entries to the Commercial DDA for payment. Payments may be made in any other manner to which Bank has agreed or notified Organization of in writing. Bank may apply Organization’s payments to Bank and credits to the amounts owed for the Card Program in any order that Bank establishes from time to time.
Section 11.5 Automatic Payments. For Organization’s convenience, Bank offers automatic payment options for payment of the Obligations due as described below. If Organization elects to utilize an automatic payment feature, Organization agrees to provide a Commercial DDA to Bank and authorizes Bank to initiate debit entries or other electronic funds transfers to the Commercial DDA via ACH debit or other electronic funds transfer system. Organization agrees that it will maintain an adequate amount of available funds in the Commercial DDA for payment of all Obligations.
a. Automatic Debit. If Organization will utilize the standard automatic debit option, the “New Balance” shown on the face of Organization’s billing statement(s) will be the amount debited by Bank from the Commercial DDA designated by Organization. Organization agrees that Bank will not be liable for the validity of any item on, or any error in, any billing statement unless Organization provided to Bank written notice of the alleged error within thirty (30) days after the billing statement is first made available to Organization on paper, electronically, or through CCP Channels, and Bank has, in its sole discretion, agreed that an error was made. Organization may also revoke its authorization for automatic debit in writing in sufficient time to halt that cycles billing but shall remain fully obligated to pay the balance due on a timely basis through an alternative payment method.
b. Daily Payment Services. If Organization will utilize the daily payment feature as set forth on the Card Program Schedule, Organization agrees to provide a Commercial DDA to Bank and authorizes Bank to initiate debit entries or other electronic funds transfers to the Commercial DDA to make such payments via ACH debit or other electronic funds transfer system. Organization further acknowledges that the debit entries initiated by Bank will be in the amount of each Business Day’s Obligations due under Organization’s Card Program. Organization agrees that it will maintain an adequate amount of available funds in the Commercial DDA for the daily payment of all Obligations. Organization’s authorization for any payment may be revoked, in writing, but must be received before 3 p.m. ET on a Business Day in order to halt that Business Day’s ACH debit entry. Organization acknowledges that revoking its authorization for any payment may result in a payment default and suspension or termination of use of the Cards and the Card Program.
Section 11.6 Payment Default. If Organization fails to make a payment in full by 5 p.m. EST on the “Payment Due Date” for any “New Balance” on a Card Program billing statement, or if Organization fails to maintain a sufficient balance in its Commercial DDA for either automatic debit or daily payment services, Organization shall be: (a) in default and deemed to have committed a material breach of the Agreement; and (b) deemed late and delinquent, and responsible for paying Bank a late fee as disclosed on the Card Program Schedule; and (c) responsible for payment of all collection expenses incurred by Bank, including reasonable attorney fees. Organization’s payment of any late fee shall not cure any default, whether caused by Organization’s late payment or otherwise.
Section 11.7 Invalid Payments. To the extent Bank receives any payment in respect of the Obligations and such payment is subsequently, in whole or in part, invalidated, declared to be fraudulent or preferential, set aside or otherwise required to be paid to any other person or entity, then to the extent of such recovery, the Obligation or part thereof originally intended to be satisfied, and all liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such payment had not occurred.
Section 11.8 Returned Payments. A “Returned Payment Fee” as disclosed on the Card Program Schedule may be assessed as a purchase Transaction against the Card Program (e.g., against a Master Account or Card Account) if: (a) any check or other negotiable instrument that Organization attempted to use to pay the Obligations is returned unpaid to Bank; or (b) any ACH transaction results in a returned ACH entry.
Section 11.9 Entire Balance Due. Organization’s Obligations under the Card Program shall be immediately due and payable at once, without notice or demand, in the event that: (a) Organization fails to make a required payment when due, with such default deemed a material breach of the Agreement; (b) a voluntary or involuntary bankruptcy or insolvency proceeding is filed by or against Organization; (c) a receiver or trustee for the benefit of creditors is appointed for Organization; (d) Organization or Bank terminates the Card Program; or (e) the Agreement is terminated. Organization’s Obligations under the Card Program shall be immediately due and payable upon demand by Bank in the event that: (x) Organization commits a material breach of the terms of the Agreement other than a payment default; (y) Organization makes any material false or misleading statements on the Application or in any other information provided to Bank while the Agreement is in effect; or (z) Organization is in default under any other agreement with Bank.
Section 11.10 Obligations Absolute. Nothing herein contained shall impair the obligation of Organization, which shall be unconditional and absolute, to repay all extensions of credit and/or other Obligations arising out of the use of the Card Program, Cards, Cards Accounts, and Accounts for any purpose, and to pay applicable fees, charges, and interest on all such extensions of credit.
Section 12. TOTAL CREDIT LIMIT OR MAXIMUM VIRTUAL CARD RELAY AMOUNT
Section 12.1 Total Credit Limit; Transaction Limits. Bank shall establish a Total Credit Limit for Organization’s Card Program and Bank may assign a portion of the Total Credit Limit to be available for use amongst each of the Master Account(s) and associated Card Account(s) for each Solution, not including the Maximum Virtual Relay Amount which is established separately. Bank may, in Bank’s sole discretion and from time to time, amend or adjust (i.e., increase or decrease) the Total Credit Limit and/or the Maximum Virtual Card Relay Amount, or the portion of either limit that may be assigned to any Solution or Master Account. From time to time, Bank will advise Organization of the Total Credit Limit and the Maximum Virtual Card Relay Amount. Upon request from an Administrator, Bank may, in its sole discretion, increase or decrease any Transaction Limits in accordance with such request, provided that Organization has an adequate Total Credit Limit or limit on a particular Card Account for the increase in the Transaction Limit.
Section 12.2 Exceeding Credit Limit. Bank may, but is not required to, permit Transactions on a Card Account that would allow the Card Program’s outstanding balance to exceed either the applicable Credit Limit for a particular Solution, the Total Credit Limit, or Maximum Virtual Card Relay Amount. In the event that the Organization’s Transactions cause Organization to exceed the Total Credit Limit, Organization agrees to immediately pay for any such Transactions exceeding the Total Credit Limit. Organization is responsible for ensuring that the total of all Card Program Master Account balances does not exceed the Total Credit Limit. If, on the closing date of any billing cycle for any Master Account or Card Account within Organization’s Card Program, the “New Balance” disclosed on the billing statement exceeds the “Total Credit Limit” disclosed on the same billing statement, Bank may assess an “Over Limit Fee” to the Card Program as set forth within the Card Program Schedule. If Organization exceeds any Credit Limit established by Bank for the Card Program (including the limit on any Card, Master Account, or any Card Account), Bank may review the applicable Account(s) or the entire Card Program and, in Bank’s sole discretion, take one or more of the following actions: (a) take no action; (b) increase the applicable Credit Limit; (c) reject any Transactions until a payment is made to reduce the Card Program balance below the applicable Credit Limit or Total Credit Limit, as applicable; or (d) revoke and cancel all privileges arising with respect to the applicable Card, Master Account, Card Account, or Card Program.
Section 13. DECLINING TRANSACTIONS; LIMITING TRANSACTION TYPES.
Bank may decline Transactions for any reason, including: (a) operational matters; (b) the Account is in default; (c) suspected fraudulent or unlawful activity; (d) the Transaction would cause Organization to violate the Total Credit Limit or any Credit Limit, Transaction Limits, failure to fund a transaction, or other limits placed on the Card pursuant to the terms of the Card Program; or (e) the Transaction has an MCC specified by Organization as being ineligible for selling goods and services to Employees of Organization. Bank is not responsible for any Losses associated with a declined Transaction. Organization hereby acknowledges and agrees that transmissions across the Internet can fail for various reasons and without warning, which may cause a Transaction to be declined. On a case by case basis, an Administrator may grant, designate, or limit Transactions by MCC and permissions regarding any Cardholder, Master Account, Card Account, and Card. Typically, the MCC corresponds to the type of business or service the merchant (or group of merchants in similar lines of business) provides. From time to time, a Card Association may change or amend the MCC applicable to merchants. Organization should not rely on MCC to determine whether any Transaction is authorized or appropriate. Bank shall have no responsibility in assigning MCC and no liability for any Transaction to a prohibited or restricted merchant based upon the incorrect MCC used by a merchant. Organization acknowledges and understands that MCC categories and merchant registration are administered and monitored by the Card Association and not within the control of Bank. Organization agrees that Bank will not be liable to Organization, and Organization shall be responsible for the amount of any such Transaction, if a merchant accepts a Card or other payment made by a Cardholder for other types of Transactions, if any such merchant has been assigned or registered with the Card Association using the incorrect MCC category or merchant registration, or if Bank does not give authorization for the Transaction.
Section 14. TRANSACTIONS MADE IN FOREIGN CURRENCIES.
In the event that any Transaction is made in a currency other than United States Dollars, the charges incurred in a foreign currency will be converted by the Card Association into United States Dollars in accordance with the procedures and currency conversion rate set forth in the then-applicable Card Association operating regulations. The currency conversion rate in effect on the transaction processing date may differ from the rate in effect on the transaction date or statement posting date. Organization agrees to pay such amount as part of the Obligations under the Card Program.
Section 15. ANNUAL FEES FOR PHYSICAL CARDS.
If applicable, Organization shall be responsible for paying Bank a nonrefundable annual fee (“AMF Fee”) for each Physical Card in the amount as set forth in the Card Program Schedule. The AMF Fee will be due and payable for each Physical Card when the applicable Card Program is initially established, and in the same month annually thereafter (the “Anniversary Date”). Each year, the AMF Fee(s) shall be assessed against the Card Program, in advance, on the applicable Anniversary Date, and will be based upon the total number of Physical Cards open under the Card Program. For Physical Cards issued between Anniversary Dates, Bank shall charge a pro-rata AMF Fee that will be determined as of the first calendar day following the month that such Physical Card is issued, which shall be due and payable on the next Anniversary Date. Organization agrees that the AMF Fees may be charged to the Card Account to which the Physical Card is linked; the AMF Fee will appear as a purchase Transaction. All AMF Fees are nonrefundable notwithstanding the amendment, revocation, or cancellation of all or any part of the Master Accounts, Card Accounts, or Cards, the Agreement, the Card Program, or Organization’s failure to utilize any Physical Card or the Card Account to which it is linked.
Section 16. REPRESENTATIONS AND WARRANTIES.
Organization represents and warrants that: (a) it is duly organized, existing, and in good standing under the laws of the jurisdiction of its incorporation or formation; (b) it has full right, power and authority to execute, deliver and perform its obligations under the Agreement; (c) the execution, delivery and performance by Organization of the Agreement and securing extensions of credit from time to time through the issuance or establishment of Organization’s Account, Cards, and Card Accounts has been validly authorized by all necessary action of Organization and does not violate Organization’s articles of incorporation, charter, partnership agreement, by-laws or any other document or agreement pursuant to which Organization is organized, or any provision of Applicable Laws; (d) the Agreement constitutes the legal, valid and binding obligation of Organization, enforceable against Organization in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditor’s right generally or by equitable principles relating to enforceability; (e) all information (including business and financial data, as well as personal data) now or hereafter furnished to Bank and the information contained in each request to issue a Card, notice of cancellation, or other documentation submitted by an Administrator to Bank hereunder shall be true, complete, and accurate as of the date thereof and may be relied upon by Bank as being authorized by Organization; (f) all Accounts, Cards and Card Accounts established or issued under or pursuant hereto shall be used only for business or commercial purposes, and Bank may rely upon any Transaction as evidence of use for this purpose; (g) all Employees presented by an Administrator in a request to issue a Card made to Bank are fully authorized to use such Card; and (h) all of the Personal Data under the Agreement has been lawfully obtained from the Cardholders and lawfully provided to Bank. The foregoing representations and warranties are made to induce Bank to issue Cards and to open Accounts for Organization, and to extend credit to it from time to time, and shall constitute continuing representations and warranties until such time as the Agreement is terminated as herein provided, all Cards have been returned to Bank or canceled, all Card Accounts have been cancelled, and all Obligations owing to Bank under the Agreement have been paid in full.
Section 17. ORGANIZATION’S NOTICE OBLIGATIONS TO BANK.
Organization further acknowledges and agrees that Organization shall immediately provide to Bank written notice of the following:
any change in Organization’s ownership or Organization’s Beneficial Owners, as defined in the Beneficial Ownership Rule (31 CFR Section 1010.230);
any change in Organization’s key executives, Authorized Representative(s), Authorized Administrator(s), or other Cardholder(s);
any change to the name, address, phone number, email, or other contact information applicable to Organization, or the Card Program;
any change to Organization’s ability to pay or perform any obligations, liability, or indebtedness to Bank under the Agreement;
if Organization becomes insolvent or if bankruptcy or other insolvency proceedings are commenced by or against Organization;
if a receiver or trustee for the benefit of creditors is appointed for Organization;
Organization’s merger with or consolidation into another entity;
Organization’s sale to another entity;
Organization’s purchase of another entity;
any entry of a judgment against Organization of a material nature or amount; and
any seizure or forfeiture of, or the issuance of any writ of possession, garnishment or attachment, or any turnover for any material property of Organization.
Organization agrees that its obligations are ongoing and that Bank shall have the right, but not the obligation, to make demand from time to time that Organization demonstrate its compliance with the terms of the Agreement. Organization further hereby agrees that, upon Bank’s demand and at Organization’s sole expense, Organization will promptly: (i) execute and deliver financial and other information or documentation including either: (A) fiscal year-end financial statements prepared by an independent certified public accounting firm in accordance with GAAP consistently applied, interim financial statements (e.g., quarterly balance sheets, statements of income or operations and retained earnings and cash flow statements of Organization), and schedules of aged accounts receivable and aged accounts payable; or (B) such financial information as required by Bank and set forth in the Card Program Schedule; and (ii) provide Bank with any and all information requested by Bank to allow Bank to review Account activity (including any Transactions) as part Bank’s obligations under Applicable Laws.
Section 18. SECURITY INTEREST AND SET OFF.
As security for the prompt and complete payment and performance when due of any and all Obligations, Organization hereby grants to Bank a continuing lien and security interest in any and all accounts (including any Accounts) of Organization with Bank now and in the future, including any funds on deposit with Bank in such accounts (including any Accounts), including certificates of deposit and other deposit accounts in which Organization is an account holder (with the exception of IRA, pension and other tax-deferred deposits). Organization agrees that, should there be a termination of the Agreement, default and/or acceleration of the entire balance owed hereunder, Bank may at any time, without notice to Organization, thereafter apply any such funds on deposit with Bank, including certificates of deposit and other deposit accounts in which Organization is an account holder, toward any of Organization’s unpaid Obligations under the Card Program and any and all other present and future indebtedness and obligations that Organization may then owe to Bank. This security interest is supplemental to and not in lieu of the security interest granted by Organization to or for the benefit of Bank under any other agreement. In addition to all rights provided by Applicable Laws, Organization agrees that any and all amounts on deposit in any accounts (including all Accounts) of Organization with Bank may be set off and applied against any obligations in any currency Organization owes Bank under the Agreement or any other agreement between Organization and Bank.
Section 19. ALLEGED LOST OR STOLEN CARDS & UNAUTHORIZED TRANSACTIONS.
In the event of the alleged loss, theft, or unauthorized use of a Card, Card Account or Master Account, Organization must immediately notify Bank upon discovery of the alleged loss, theft, or Unauthorized Transaction, or one or more transactions attributable to the forgoing upon their appearance on the billing statement. Bank will, within a reasonable timeframe from notification by Organization, engage in an investigation to determine whether: (a) the Transaction was made by an Authorized Administrator or Cardholder; (b) the Transaction was made by another Employee and appropriate controls were not in place; and (c) the Transaction resulted in a direct or indirect benefit to Organization. Bank will investigate all claims of Unauthorized Transactions and pursue recovery where applicable. However, depending upon the results of that investigation, Organization may still remain liable for all Transactions that occurred before Banks was notified of the alleged loss, theft or unauthorized use. Unauthorized use is not a defense to payment for any Transaction. Bank has no duty to inform Organization of the specifics or conclusions of the investigation.
In the event of the alleged loss, theft, or unauthorized use of a Card, Card Account or Master Account, Organization will make every reasonable effort to: (a) recover the Card(s) and cancel access to the CCP Channels; and (b) remove authority to use a Card, Account, or otherwise make Transactions under the Card Program from, any person for whom Organization intends to terminate, or from any unauthorized individual with possession or access to the Card(s) or online access to the CCP Channels (including any person who ceases to be employed by Organization). Organization also agrees to provide Bank and any law enforcement authority with all requested assistance with investigation of and any prosecution of unauthorized use, including, obtaining an affidavit or similar written, signed statements from the applicable Cardholders. Organization will cooperate in all legal action against any such person, and in connection therewith, will promptly make available all relevant information and witnesses.
Section 20. AMENDMENTS.
Bank may, at any time, amend any term or condition of the Card Program (including any terms communicated on the Card Program Schedule), or may otherwise amend the Agreement in any manner deemed acceptable by Bank by providing written notice to Organization in accordance with Section 25.1 below. Organization acknowledges that if Bank amends the Card Program or the Agreement by general posting on Bank's website or through the CCP Channels, Bank shall be under no obligation to otherwise notify Organization of the amendments as Organization understands and agrees that Organization's access to the website or CCP Channels is assumed and shall be sufficient notice. Any change in terms will apply to any outstanding account balances on the effective date of the change. Organization’s continued use of the Card Program (as through use of any Master Account, Card Account, or Card by an Authorized Administrator or other Cardholder) after the effective date of any amendment constitutes acceptance by Organization of any and all such amendments.
Section 21. TERM AND TERMINATION/CANCELLATION OF THE CARD PROGRAM.
Section 21.1 Effective Date; Bank’s Termination Rights. The Agreement shall be effective as of the Effective Date of Agreement set forth on the Card Program Schedule and shall remain in effect until terminated by either Party as set forth herein. Notwithstanding the provisions set forth in Section 11.3, the Cards are Bank’s property and, except as otherwise required by Applicable Laws, Bank may, with or without cause, liability, or notice to Organization, any Administrator, or any Cardholder, suspend, revoke, cancel, or otherwise terminate all or any part of the Agreement, the privileges of the Card Program, including each and every Account, Card, or use of the Card Program by Organization. Bank will provide notice of the exercise of its termination rights as soon as reasonably practicable.
Section 21.2 Organization’s Termination Rights & Obligations. Organization may cancel or terminate the Card Program, or may cancel or terminate one or more Master Accounts, Cards, or Card Accounts by giving Bank written notice of cancellation or termination. After Organization provides Bank with such written notice of termination or cancellation, Organization may not make, or cause to be made, any Transactions using the Account(s) or Card(s). Any such termination or cancellation will be effective only after Bank has received such written notice, and Organization has received confirmation of Bank’s receipt of such notice. Organization remains liable for all Obligations (including all outstanding balances and amounts for which Organization has yet to be billed, and any Transaction or Advance originated by any Cardholder) resulting from Organization’s use of the Card Program in accordance with the terms of the Agreement.
Section 21.3 Effect of Termination; Survival. Upon any termination of the Agreement: (a) all Obligations owed by Organization in connection with the Card Program shall become immediately due and payable; (b) Organization will immediately destroy and will ensure that all Cards issued to Cardholders are immediately destroyed; and (c) Bank shall not be liable in contract, tort, or otherwise for failure to honor the Card(s) under any circumstances. All other terms and obligations of the Agreement will remain in full force and effect until Organization pays in full and entirely satisfies all outstanding Obligations under the Agreement. If any Transactions are made after Organization provides Bank with written notice of cancellation, excluding Unauthorized Transitions, Organization will continue to be liable until Bank is paid in full. The terms of Sections 11, 23, 24, 25, 27 and 28 shall survive termination of the Agreement.
Section 22. USE OF TRADE NAMES, SERVICE MARKS, ETC.
Other than expressly agreed to by the Parties in writing, neither Party shall use the names, trademarks, trade dress, logos, service marks, or trade names of the other Party in connection with any representation, solicitation, advertising, promotion, sales or marketing publication, or advertisement without prior full disclosure to and written permission from the other Party, which approval may be withheld in the other Party’s sole discretion. The name Capital One and all logos depicting the Capital One name are trademarks of Capital One. All other trademarks used in relation to the Card Program are property of Bank unless otherwise designated or clearly implied herein as belonging to third parties. Nothing contained in the Agreement shall be construed as granting by implication, estoppel, or otherwise, any license or right under any patent, trademark, copyright (except as expressly stated herein) or proprietary rights of Bank or of any third party.
Section 23. LIMITATION OF LIABILITY, DAMAGES AND INDEMNIFICATION.
Section 23.1 Limitation of Liability. Organization agrees that Bank shall not be liable to Organization for any Losses for any error or mistake in judgment or for any act done, or step taken or omitted, or for any mistake in fact or law, or for anything which Bank may do or refrain from doing in connection with the Card Program and the Agreement, or performing any services for Organization in connection therewith, except for Organization’s direct damages attributable to Bank’s gross negligence or willful misconduct. In connection with any matter or cause of action relating to or arising out of the Agreement, Bank shall not be responsible for the acts or omissions of Organization or of any other person or entity (including any merchant or any Administrator or Cardholder) or due to other causes beyond Bank’s reasonable control. In no event shall Bank be liable for lost profits, indirect, incidental, special, consequential, or punitive damages, foreseeable or unforeseeable, which may arise in connection with the performance or nonperformance by Bank regarding the Card Program and the Agreement, even if Bank has been advised of the possibility of such damages. BANK MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE CARD PROGRAM OR BANK’S PERFORMANCE OF SERVICES UNDER THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section 23.2 Indemnity. Organization shall indemnify and hold Bank, its affiliates, and their respective directors, officers, shareholders, employees, agents, representatives, and their successors and assigns harmless from and against any and all Losses incurred by Bank resulting directly or indirectly from, or arising in connection with the following: (a) Bank providing the Accounts and Cards, extending credit to Organization, or otherwise providing the Card Program to Organization, including honoring or acting upon any instructions received from Organization (whether through its Authorized Representative, Administrator(s) and Cardholder(s) or over the CCP Channels using the Security Procedures assigned to Organization), use of the Cards or Accounts or otherwise in connection with the Card Program; (b) Organization’s material breach or violation of any of Organization’s representations, warranties, or covenants under the Agreement, or any act or omission by Organization in connection with default or acceleration under this Agreement; (c) billing the Cardholder directly, or the issuance by Bank, or use by Organization, of Descriptive Title Cards or other Cards that do not specify a Cardholder name; (d) any incorrect classification of a merchant under MCC which has the effect of allowing Transaction(s) that Bank and Organization intended to preclude; and (e) Bank’s good faith refusal to approve any Transactions, provided, however, that Organization shall have no obligation to indemnify Bank for Losses that result from Bank’s gross negligence or willful misconduct.
Section 24. DISPUTES OVER TRANSACTIONS.
Bank has no liability for goods or services purchased with a Card, a merchant’s failure to honor Transactions made with a Card, or a merchant’s failure to seek authorization before honoring a Card. In a dispute with a merchant, Bank will be subrogated to Organization’s rights and each Cardholder’s rights against the merchant. Organization shall make good faith efforts to resolve or otherwise settle all disputes that are in any way related to goods, delivery of services, or performance directly with the merchant involved. Notwithstanding any dispute Organization may have with a merchant, Organization shall pay to Bank the entire balance outstanding on the Card Program, including the Transaction associated with such merchant dispute. Organization agrees that it shall not assert any claims or defenses that Organization may have or believe that it has against any merchant against Bank.
Section 25. NOTICES; COMMUNICATION WITH ORGANIZATION.
Section 25.1 Notices. Except as otherwise specifically provided in these Terms, notices under the Agreement shall be provided, in writing, by nationally recognized overnight courier or hand delivery. In addition to the foregoing, Bank reserves the right to provide notice to Organization by either: (a) general posting on Bank’s main website or through the CCP Channels; or (b) sending notice by email to the email address(es) provided by Organization for that purpose; or (c) on the Card Program billing statement(s), each of which Organization agrees will be considered “in writing” and sufficient notice for purposes of the Agreement. Organization may send notices to Bank at Capital One, National Association, Commercial Card, P.O. Box 84012, Columbus, GA 31908-4012, or such other address as Bank may specify. Bank may send notices to Organization at Organization’s primary address as shown on Bank’s records at such time. Each party is entitled to treat as authentic any notice, communication or instruction believed by it in good faith to be genuine or to have been signed, sent or authorized by a representative of the sending party, and Bank may, but is not obligated to, act on a notice received via email or other electronic communication from Organization.
Section 25.2 Other Communications. Each Payment Request or other instruction that is sent to Bank electronically in accordance with the Agreement shall be considered to be an original writing and to have been signed by an Authorized Representative. Organization is solely responsible for the accuracy and completeness of instruction or communication sent to Bank. Bank is not responsible for any Losses incurred by Organization arising from interception of any information relating to any Transactions, use of a Card or use of the CCP Channels if Organization uses regular e-mail or sends an unencrypted communication using the CCP Channels.
Section 25.3 Timing. Any written notice or other written communication to be given to Bank under the Agreement will be deemed to be given upon receipt by Bank; provided, however, that it will not be effective until Bank actually receives it and has had a reasonable opportunity to act upon such notice. Any written notice or other written communication to be given to Organization under the terms of the Agreement will be effective and deemed to be given when mailed or electronically transmitted in accordance with the Agreement.
Section 25.4 Monitoring and Recording. Organization agrees on behalf of Organization and Organization’s Authorized Representatives, Administrators, Cardholders, Employees, agents and Vendors, that Bank may monitor and record telephone and electronic communications in connection with the Card Program at any time, without further notice to Organization or any party to the communication. Bank’s understanding of telephonic communications and records thereof shall be conclusive evidence of the actual notice, Payment Orders or other Instructions given. Bank’s records as to the Agreement, the Card Program, and any Transactions or other communications related hereto will control in the event of any conflict with Organization’s records.
Section 26. CARD SERVICES PROVIDED BY CARD ASSOCIATION.
Mastercard, or if applicable, another Card Association, offers additional services and programs that Organization may access directly through the Card Association while the Card Program remains in effect. Organization may access the Common Data Format Service (“CDF Service”) which allows Organization to receive certain Card data, and the Smart Data Generation 2 Service (“SDG2,” and collectively with the CDF Service, the “Association Provided Services”) which is an Internet based expense management system. Both of the Association Provided Services are available for Physical Card Solutions only. The current provisions of the Association Provided Services are described in the information published by the Card Association, which has been or will be provided or otherwise made available to Organization by Bank. In the event that the Card Association modifies or suspends either Association Provided Services, Bank may modify or terminate this Section at any time upon notice to Organization. The Card Association is solely responsible for providing the Association Provided Services and Organization agrees that Bank shall have no responsibility or liability, and shall be held harmless, for any Losses incurred by Organization with the use of the Association Provided Services. Organization agrees that Bank may collect the fees due to the Card Association for the use of the Association Provided Services as directed to Bank from the Card Association.
Section 27. CONFIDENTIALITY.
Section 27.1 Obligations of Organization. Organization agrees to safeguard and not disclose to any third party the terms of the Agreement, including, without limitation, any Security Procedures, and (except when required to be disclosed under Applicable Laws) the payment and pricing terms or fees in connection with the Card Program, and any other information, in any form, furnished or made available directly or indirectly by Bank to Organization marked confidential, restricted, or with a similar designation, or information which, under the circumstances of its disclosure, a reasonable party would deem to be strategic information, a trade secret or otherwise restricted (collectively, “Confidential Information”). Organization agrees to limit the internal access, disclosure and distribution of all Confidential Information to its Employees who have a need to know such information and will at all times have appropriate policies in effect to ensure the confidential status of such information. Organization will be responsible for the acts and omissions of its Employees and Vendors with respect to Confidential Information. Organization will promptly notify Bank if it knows or becomes aware of any actual or suspected compromise of security, including any unauthorized use or possession of Confidential Information, including the Security Procedures assigned to Organization.
Section 27.2 Obligations of Bank. Bank agrees to maintain, in accordance with its customary practices, the confidentiality of the Confidential Information (which, for purposes of this Section 27.2 shall also include Personal Data) obtained by it pursuant to the Agreement, except that such Confidential Information may be disclosed: (i) with Organization's consent; (ii) to Related Persons of Bank that are advised of the confidential nature of such Confidential Information and are instructed to not disclose such Confidential Information in accordance with the terms hereof; (iii) to the extent such Confidential Information presently is or hereafter becomes: (A) publicly available other than as a result of a breach of this Section; or (B) available to or in the possession of Bank or any of their Related Persons, as the case may be, from a source (other than Organization or any of its Related Persons) not known by them to be subject to disclosure restrictions; (iv) to the extent disclosure is required by Applicable Laws or other legal process or requested or demanded by any governmental authority or any other regulatory or self-regulatory authority having jurisdiction over Bank; (v) to the extent consisting of general portfolio information that does not identify Organization; (vi) to current or prospective assignees, or direct or contractual counterparties (including insurers and reinsurers) to any other transactions under which payments are to be made by reference to Organization and its obligations, the Agreement, or payments hereunder and to their respective Related Persons, in each case to the extent such assignees counterparties or Related Persons agree to be bound by provisions substantially similar to the provisions of this Section (and such Related Person may disclose information to their respective Related Persons in accordance with clause (ii) above); and (vii) in connection with the exercise or enforcement of any right or remedy under the Agreement, in connection with any litigation or other proceeding to which Bank or any of its Related Persons is a party or bound, or to the extent necessary to respond to public statements or disclosures by Organization, any Guarantor or their Related Persons referring to Bank or any of their Related Persons. In addition, Bank may disclose the Agreement and information about this Agreement, and any of Organization’s Confidential Information to Service Providers in connection with the administration of the Agreement and the Card Program. The terms of this Section and the Agreement shall replace any nondisclosure or other confidentiality agreement entered into by and between Organization and Bank regarding the Card Program, and the event of any conflict between the terms of this Section and those of any other contractual obligation entered into between Bank and Organization with respect to the Card Program, the terms of this Section shall govern.
Section 28. MISCELLANEOUS.
Section 28.1 The Relationship. The relationship between Bank and Organization is solely that of creditor and debtor. Nothing herein contained shall constitute the Parties as partners, co-venturers, fiduciaries or render either Party liable for the debts or liabilities of the other Party except as specified herein.
Section 28.2 Assignability. The Agreement shall be binding upon and shall inure to the benefit of Organization and Bank and their respective successors and assigns. The Agreement, or any of the rights hereunder or in connection with the Card Program, may not be assigned by Organization without Bank’s prior written consent. Bank may assign the Card Program, in whole or in part, and any of Bank’s rights under the Agreement without Organization’s consent.
Section 28.3 Waiver; Exercise of Bank’s Rights. No delay or omission by Bank to exercise any right under the Agreement shall impair such right or be construed to be a waiver of any default or an acquiescence therein, and the authorization of Transactions shall not constitute any waiver or acquiescence. Any single or partial exercise of any such right by Bank shall not preclude other or further exercise thereof or the exercise of any other right, and no waiver, amendment, or other variation of the terms, conditions, or provisions of the Agreement whatsoever shall be valid unless in writing, and then only to the extent set forth in such writing. All remedies contained herein or afforded by Applicable Laws shall be cumulative and all shall be available to Bank until Organization’s Obligations under the Agreement have been paid in full and entirely satisfied and the Card Program has been terminated.
Section 28.4 Governing Law, Forum Selection, Service or Process and Waiver of Jury Trial. The Agreement and any and all claims and disputes relating to or arising out of the Agreement, whether sounding in contract, tort, or otherwise, in each case, shall be governed by, and construed and enforced in accordance with, the laws of the State of New York without reference to principles of conflict of laws or choice of laws. Each Party irrevocably and unconditionally consents to the exclusive jurisdiction of the state and federal courts sitting in New York County, New York for any and all claims and disputes arising out of or relating to the Agreement. Organization consents and waives all objections to personal service of process of documents, including a summons or complaints, and agrees that the service thereof may be made by certified or registered mail at Organization’s address provided for notices under the terms of the Agreement. THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE THE RIGHT TO A JURY TRIAL IN ANY DISPUTE BETWEEN THE PARTIES (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE), INCLUDING ARISING OUT OF, UNDER, OR RELATING TO THE AGREEMENT.
Section 28.5 Public Entities. If Organization is a public entity, Organization expressly agrees that (a) use of the Cards shall be limited to Transactions made in the ordinary course of administration, (b) notwithstanding any conflicting provisions contained in the Agreement, cash advances are prohibited, (c) Organization will comply with all laws and regulations applicable to the validity, execution, and compliance herewith, and (d) any Transactions shall have received prior approval and appropriation of funds to pay for such Transactions has been made in compliance with Applicable Laws.
Section 28.6 Banking Agreements. If Organization is a party to Bank’s Treasury Management Terms and Conditions Agreement, Organization and Bank agree that the Card Program provided under the Agreement is not subject to or part of such Treasury Management Terms and Conditions Agreement.
Section 28.7 Complete Agreement; Severability; Headings. Unless Bank agrees otherwise in writing, the Agreement constitutes the entire agreement between Organization and Bank with respect to the Card Program. If the performance of the Card Program in accordance with the terms of the Agreement would result in a violation of Applicable Laws, then the Agreement will be deemed amended to the degree necessary to comply with such Applicable Laws and Bank will incur no liability to Organization as a result of such violation or amendment. If any provision of the Agreement is held to be invalid, illegal or unenforceable, such provision shall be valid, legal and enforceable to the maximum extent permitted by such holding and the validity, legality or enforceability of the other provisions of the Agreement will not be affected or impaired by such holding. Section headings contained in the Agreement are included for convenience only, and shall not affect the construction or interpretation of the Agreement.
Section 28.8 Compliance with Applicable Laws; Identification Notice. Organization agrees to comply with, and be responsible for compliance with Applicable Laws, without limiting the generality of Organization’s obligations, to comply with programs and regulations administered by the Office of Foreign Assets Control (“OFAC”) and the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (“FinCen”) including screening each Cardholder to insure such Cardholder is not on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC and implementing measures to prevent use of the Account in violation of such programs and regulations.
Section 28.9 Important Information About Procedures for Opening a New Account. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for you: When you open an account, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver's license or other identifying documents. As part of the application process and for the purposes of underwriting and account setup, we may also require additional information about the Organization, Organization’s Beneficial Owners and controlling persons, Organization’s customers, Organization’s Authorized Representatives, Organization’s Authorized Administrators, and other related individuals.
Section 28.10 Force Majeure. Bank shall not be liable for any failure, error, malfunction or any delay in carrying out any of its obligations under the Agreement if such failure, error, malfunction or delay results from Bank acting in accordance with Applicable Laws, or from acts of God, adverse weather conditions, fire, casualty, interruption of transmission or communication facilities, CCP Channels outages, equipment or system failure, failure of third party data processing services, internet disruptions, power failure, delay in transportation, accident, acts of terrorism, riot, war, pandemic, epidemic or disease outbreak, legally mandated quarantine or travel or work restrictions, emergency conditions, including strike or stoppage of labor, disruptions in the financial markets, issuance or operation of any adverse governmental law, ruling, regulation, order or decree, or an emergency that prevents Bank from operating normally or otherwise administering the Card Program, or any other cause beyond Bank’s reasonable control (each, a “Force Majeure Event”).
Section 28.11 Third Party Beneficiaries. Except as expressly provided herein, nothing in the Agreement is intended to confer any rights or remedies under the Agreement to any third party. Unless Organization has Bank’s prior written consent, Organization may not allow third parties to use the Card Program.
Section 28.12 Electronic Execution and Consent. Organization and Bank agree that these Terms, the Agreement, the Application and any related agreements between Organization and Bank are entered into on an interstate basis and are subject to the Electronic Signatures in Global and National Commerce Act and may be executed electronically, including by adoption of an electronic signature (e.g., the clicking of an “I ACCEPT” button when presented with same), and delivered by facsimile, e-mail, or other electronic method, and that the copies or counterpart signature pages so sent shall be treated and have the same force and effect as delivery of a physical original with a manual signature. Organization agrees and acknowledges that Bank may, at its option, send to Organization any record, notice, disclosure, statements and other information via electronic means (including through CCP Channels or otherwise through the Card Program), including information that Bank is required by Applicable Laws to provide to Organization in writing. Electronic communication methods include methods Bank employs that deliver visual text or images to be displayed on a computer or mobile device screen (such as e-mail, SMS or other mobile device text message, and posting through the CCP Channels or otherwise through the Card Program). Organization consents to receive statements and other notices from Bank electronically. Organization agrees and acknowledges that it has sufficient hardware and software to execute, send, and receive any and all agreements (including the Application), notices, disclosures, records, statements, or other material related to its relationship with Bank. Bank shall be entitled to rely on Organization’s electronic signature as Organization’s authorization of an agreement to the underlying action or request. Bank is not obligated to, but may, however, require that Organization deliver a paper original of the Application and any other document that makes up part of the Agreement with a manual original signature.
SCHEDULE 1 TO COMMERCIAL CARD TERMS
CARD PROGRAM REWARDS PROGRAM TERMS
Through the Card Program, Organization can earn rewards and take advantage of either the “Rebates” redemption option or the Mastercard “Rewards” redemption options as further explained below. Organization must choose between these redemption options; if Organization elects to redeem its rewards through the Rebate redemption option, Organization will be unable to redeem its rewards for any of the below listed Mastercard Rewards redemption options. For purposes of the Agreement and Card Program, Bank shall use the generic term “Rewards Program” to describe the rewards earn and redemption options applicable to Organization; thus, even if Organization chooses to redeem its rewards as a Rebate, the phrase “Rewards Program” may nevertheless be used to describe Organization’s Rewards Program terms and conditions (“Rewards Program Terms”). Bank may amend the Rewards Program Terms from time to time upon notice to Organization or in response to a change in Rewards Program Terms by Mastercard.
By participating in the Card Program, Organization agrees to these Rewards Program Terms.
1. Rewards Program Overview:
2. Rewards Program Earn:
The Card Program Schedule will provide the Rebate earn rates or Rewards points earn rates (by Purchase Category Type) that are applicable to Organization; these earn rates shall be calculated as a multiple of Organization’s total Net Purchase Volume. “Net Purchase Volume” is defined as Organization’s total purchase Transactions across the entire Card Program less the following: credit chargebacks, credit losses, cash advances, delinquency assessments, fees, and charges or other Transactions determined (in Bank’s sole discretion) to be unauthorized. Certain Transactions will be excluded from Organization’s Net Purchase Volume calculation. For more information on specific exclusions, Organization should refer to the Mastercard Guide to benefits.
3. Rewards Program Redemption Options:
4. Mastercard Rewards:
Organization may request that the rewards earned on purchases made through the Card Program be redeemed as a payment to Organization (or a party designated by Organization) in the form of a direct deposit into a Commercial DDA. This shall hereinafter be referred to as a “Rebate.”
(a) When Organization’s Rewards Program is established with a Rebate as the redemption option, Organization understands and agrees that:
(b) The Rebate payment shall be made monthly and will typically be deposited by the 15th of the month following the month in which such Rebate is earned.
(c) If, for any reason, the Rebate payment is rejected by the receiving bank, Bank will make a reasonable attempt to notify Organization (by informing an Authorized Administrator) of the rejection and may apply the redemption as a statement credit to the Card Program or may decide to take no further action.