Effective Date: March 25, 2022
These ClearSpend General Terms of Service (as amended from time to time, the “Terms”) govern the relationship between ClearSpend, Inc. (“ClearSpend”) and the customer entity or individual end user accessing or using the ClearSpend Services defined herein (the “Customer”). ClearSpend and Customer are each a “Party” and collectively the “Parties” hereto. The Terms, together with any exhibits, schedules, or other attachments incorporated therein, constitute the “Agreement” between the Parties.
By submitting an application to register with the ClearSpend Platform (as defined herein) or otherwise accessing or receiving ClearSpend Services, Customer agrees to abide by these Terms. The Agreement is effective as of the earlier of: (A) the date that Customer submits an application to register with the ClearSpend Platform; or (B) the date the Customer first accesses, uses, or receives ClearSpend Services (each as applicable, the “Effective Date”).
BY APPLYING TO REGISTER WITH THE CLEARSPEND PLATFORM OR OTHERWISE ACCESSING OR RECEIVING THE CLEARSPEND SERVICES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND FULLY ACCEPTED ALL OF THE PROVISIONS OF THIS AGREEMENT AND HAS AGREED TO BE BOUND THEREBY, SUCH THAT THIS AGREEMENT CONSTITUTES A VALID AND ENFORCEABLE CONTRACT BETWEEN THE PARTIES IN ACCORDANCE WITH ITS TERMS, AS THOUGH DULY EXECUTED BY THE HANDWRITTEN SIGNATURE OF AN INDIVIDUAL AUTHORIZED TO BIND CUSTOMER TO THESE OBLIGATIONS.
IF CUSTOMER DOES NOT ACCEPT THESE TERMS, CUSTOMER IS NOT AUTHORIZED TO ACCESS OR USE CLEARSPEND SERVICES AND SHOULD EXIT AND CEASE ALL USE OF CLEARSPEND SERVICES IMMEDIATELY.
1. Registration. If Customer meets the eligibility criteria disclosed in these Terms, Customer may apply to register for the ClearSpend Services through the ClearSpend Platform. To complete the registration process, Customer agrees to provide the information requested by ClearSpend and connect at least one Linked Account (as defined herein). ClearSpend may decline a registration or refuse the ClearSpend Services to any applicant in its sole discretion.
2. Scope of Services.
2.1 Services. ClearSpend shall provide to Customer certain card issuing, licensed platform, and related technical and professional services described in Section 2 hereof that facilitate Customer’s corporate spend management (collectively, “ClearSpend Services”). As a condition of its receipt of ClearSpend Services hereunder, Customer represents and warrants to ClearSpend that: (A) Customer will not use the ClearSpend Services in violation of any applicable laws, regulations, or this Agreement; (B) Customer will use the ClearSpend Services only for valid and lawful business purposes, and not for personal, family, or household use; (C) Customer will not make or request a payment to any of the types or categories of organizations and entities listed on Exhibit A hereto (as it may be amended by ClearSpend from time to time); and (D) Customer will not resell or sublicense the ClearSpend Services to any third parties or use them on a third party’s behalf without ClearSpend’s express prior written authorization in each instance. Only United States businesses (“U.S. Entities”) may register with ClearSpend and access the ClearSpend Services. ClearSpend may (but has no obligation to) modify the manner in which the ClearSpend Services are provided and the features thereof in its discretion, and such modified ClearSpend Services may be subject from time to time to additional terms and conditions that will be provided by ClearSpend at the time of such modification.
2.2 Authorized Users; Administrator. The ClearSpend Services may only be used by authorized employees and other authorized users of Customer who are United States residents and at least 18 years of age, (collectively, “Authorized Users“). Customer shall be responsible for any use or misuse of the ClearSpend Services by its Authorized Users. Customer must identify at least one employee Authorized User with administrative access (“Administrator”) to manage access to and use of the ClearSpend Services, including designating Authorized Users.
3. Services to Be Provided. The ClearSpend Services include the following:
3.1 Cards Issuance. ClearSpend offers a card issuing solution through which Authorized Users may make payments using virtual prepaid cards (“Cards”) issued through Stripe Issuing and its bank partners, or such other financial institutions as ClearSpend may subsequently designate (“Bank”), through the Visa network (or such other card network as ClearSpend may select in the future) (the “Networks”). In addition to these Terms, by using the ClearSpend Services you agree to the Stripe Issuing terms available at https://stripe.com/issuing/celtic/spend-card-terms-and-disclosures/legal and the Stripe Treasury Agreement for Connected Accounts available at https://stripe.com/treasury-connect-account/legal). Customer shall be responsible and liable for all charges made on Cards by Authorized Users.
3.2 ClearSpend Platform. ClearSpend provides access to a proprietary software-as-a-service platform and its related financial technology features, interfaces, and applications, as well as ClearSpend’s website, web portals, and mobile applications (collectively, the “ClearSpend Platform”) that allow Customer to manage Authorized Users, initiate and track payments, reconcile transactions, and review information and analytics regarding the Cards.
3.3 Additional Services. ClearSpend may perform additional professional, technical, and other consulting ClearSpend Services in connection with the Card and/or ClearSpend Platform.
3.4 Fees and Payment. Customer shall be responsible for a $25.00 ACH return fee for any debits from the Linked Account that are returned. Customer shall reimburse ClearSpend for its costs and expenses (including without limitation reasonable attorney’s fees) incurred in the collection of any past due amounts. All fees and other charges set forth hereunder are exclusive of any sales, use, excise, or similar taxes imposed by any government authority. When ClearSpend is obligated under applicable law to collect taxes from Customer as part of the transactions contemplated hereunder, the appropriate amount shall be added to the invoice and paid by Customer, unless Customer provides ClearSpend with a valid tax exemption certificate authorized by the appropriate taxing authority, or other documentation sufficient to evince an exemption to said taxes. Neither Party shall have any responsibility or liability hereunder for any tax or other duty assessed against the other Party’s net income, employment practices, or other internal business operations.
4. Additional Terms for Card Services
4.1 General. All Cards and related documentation and materials issued to or used to process payments requested by Customer and/or its Authorized Users shall remain the property of ClearSpend or Bank, as applicable, and must be immediately returned or destroyed (with certification of destruction) at any time upon ClearSpend’s request. ClearSpend and/or the Bank may cancel, suspend, revoke, repossess, or restrict the use of any or all Cards at any time for any reason in their discretion, and reserve the right to decline to process any individual transactions from Authorized Users.
4.2 Account. Customer will fund an account (“Account”) provided by Bank that will be used to fund all transactions made using the Card services. Customer authorizes Clearspend to debit and credit the Account in connection with providing the Card services and settling any and all fees and other amounts or liabilities owed by Customer to ClearSpend or Bank under the Agreement. This authorization must remain in place in order for Customer to use the ClearSpend Services. Customer must maintain a prefunded Account balance sufficient to cover the purchase balance of all Cards associated with the Account, including all pending transactions, and any fees and other charges on the Account. Funds must be available and transferred from the Account to a Card before the Card may be used to complete transactions. No credit or loans are being extended by ClearSpend or Bank to Customer and Cards cannot be used to spend more than the available balance associated with a Card. ClearSpend claims no property interest in any funds Customer holds in an Account, and such funds will be the sole and exclusive property of Customer until such time as such amounts are due and payable in order to fund Cards, pay fees or liabilities, or meet any other obligations of Customer to ClearSpend or Bank under this Agreement. Within a reasonable time following the termination or expiration of this Agreement, ClearSpend will return any funds in the Account to Customer after all fees or other amounts owed by Customer are deducted therefrom, unless the return of such funds is prohibited by law. Amounts owed by Customer under this Agreement to ClearSpend or Bank may be set off against funds in the Account.
4.3 Linked Account. Customer is required to link a bank account that ClearSpend is authorized to debit and credit to fund the Account, provide the Card services, and settle any and all fees and other amounts or liabilities owed by Customer to ClearSpend or Bank under this Agreement (“Linked Account”), which authorization will remain in full force and effect until thirty (30) days after ClearSpend receives written notice from Customer of termination of the authorization. In addition, Customer may transfer funds to the Account through the Platform by authorizing ClearSpend to debit the Linked Account in the amount designated by Customer. Once authorized, a funds transfer cannot be canceled. Transfers may take up to 5 business days to be credited to the Account. Hold times may be longer or shorter at ClearSpend's discretion. Amounts owed by Customer to ClearSpend or Bank under this Agreement may be set off against funds in the Linked Account.
4.4 Limits on Cards and Accounts. ClearSpend or Bank may place limitations or restrictions on use of the Account and Cards, including by limiting the type, number and dollar amounts of any transactions, even if Customer has sufficient available funds in the Account. These limits may include but are not limited to transaction limits, daily limits, monthly limits, Card limits, and other restrictions. Unless approved by ClearSpend, Card will have a maximum single-transaction limit of $10,000. ClearSpend reserves the right to set single-transaction limits according to its discretion. These limits may be higher or lower than limits Customer has set for any individual Card. In all case, the lower limit shall apply when authorizing new payment transactions.
4.5 Card Security. Customer must ensure that each Authorized User keeps all Card numbers and related information confidential and secure. In the event that a Card or related numbers or information is lost, stolen, or compromised, Customer shall immediately contact ClearSpend and fully cooperate with ClearSpend’s efforts to investigate the lost, stolen, or compromised Card and remediate or mitigate the effects of any fraud or other harm caused by such event, including without limitation by facilitating communications with Authorized Users and promptly providing documentation and information relevant to such efforts.
5. Additional Terms for ClearSpend Platform.
5.1 License. To the extent access or use of ClearSpend Platform is provided to Customer, ClearSpend grants Customer a limited, non-exclusive, non-sublicensable, revocable right to access and use the ClearSpend Platform while Customer is receiving the applicable ClearSpend Services, subject at all times to Customer’s compliance with the terms and conditions hereof. Access and use will be solely for the internal business purposes of the Customer in enabling and/or administering the Cards and related transactions effected through the ClearSpend Services. As between the Parties, Customer is solely responsible for the accuracy and completeness of all data and content uploaded or provided by or on its behalf to or through ClearSpend Platform.
5.2 Additional Restrictions. Customer shall not: (A) use the ClearSpend Platform to create any product, service, software, documentation, or other material that performs substantially the same functionality as or otherwise competes with the ClearSpend Platform or any ClearSpend Services; (B) disassemble, decompile, reverse-engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the ClearSpend Platform or any of its components; (C) encumber, sublicense, transfer, distribute, rent, lease, time-share or use the ClearSpend Platform in any service bureau arrangement or otherwise for the benefit of any third party; (D) adapt, combine, translate, create derivative works of or otherwise modify the ClearSpend Platform, or create any compilation, anthology, or similar work or material incorporating the ClearSpend Platform or any portion thereof; (E) disable, circumvent, or otherwise avoid or undermine any security device, mechanism, protocol, or procedure implemented in the ClearSpend Platform; (F) use or access the ClearSpend Platform for any unlawful, fraudulent, deceptive, malicious, or otherwise harmful or injurious purpose; (G) remove, obscure, deface, or alter any proprietary rights notices on any element of the ClearSpend Platform or accompanying documentation; or (H) use the ClearSpend Platform in any manner which could damage, disable, overburden, or impair the ClearSpend Platform or interfere with any third party’s authorized use of the ClearSpend Platform. Customer will not utilize any software, hardware, or other tool to scan or monitor the ClearSpend Platform or ClearSpend’s servers or network infrastructure for the purpose of measuring or analyzing uptime, operating systems, virtual environments, or other installed applications, including without limitation for stress testing, load testing, or performance benchmarking.
5.3 Authorized Users. Customer may permit access to the ClearSpend Platform to certain of its Authorized Users in connection with its receipt of ClearSpend Services. Such authorization will be limited to the number of Authorized Users or seats issued by ClearSpend. Customer shall be responsible for its Authorized Users’ compliance with the terms and conditions of this Agreement and the End User Terms (defined below), and liable for any Authorized User’s breach thereof.
5.5 Access Credentials. Customer must ensure that each Authorized User keeps the assigned user access codes and related login credentials for ClearSpend Platform confidential and secure, and is responsible for any use or misuse of ClearSpend Platform or the payment activities that take place through the access codes or credentials of its Authorized Users.
5.6 Ownership. ClearSpend and/or its licensors own all right, title, and interest, including without limitation all intellectual property rights, in and to ClearSpend Platform and related technology and all data collected by or on behalf of ClearSpend or its affiliates in connection with the use of ClearSpend Platform, all of which constitute the Confidential Information (defined below) of ClearSpend and its licensors. Nothing herein shall be construed as any sale, assignment, or other transfer of any proprietary interest in or to the ClearSpend Platform, and ClearSpend reserves all rights in the ClearSpend Platform not expressly granted herein.
5.7 Additional Terms for Apple Users. NOTE – The terms and conditions of this paragraph apply to Customer only if Customer downloaded ClearSpend’s mobile application (the “App”) through Apple Inc.’s App Store. Customer acknowledges that this Agreement is between Customer and ClearSpend, and that Apple Inc. (“Apple”) bears no responsibility for the App and its content. The license grant under this Agreement with respect to the App is a non-transferable license to use the App on any Apple-branded products that Customer owns or controls as permitted by this Agreement and the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the App may be accessed and used by other accounts associated with Customer via “Family Sharing” (as defined in the Apple Media Services Terms and Conditions) or volume purchasing. Customer acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price (if any) of the App to Customer; provided that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by Customer or a third party relating to the App or Customer’s use of the App, including without limitation: (A) product liability claims; (B) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (C) claims arising under consumer protection, privacy, or similar legislation. In the event of any third-party claim that the App or Customer’s possession and use thereof infringes a third party’s intellectual property rights, Apple will not be responsible for any investigation, defense, settlement, or discharge thereof. Apple and its subsidiaries are third-party beneficiaries of this Agreement, and upon Customer’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Customer as a third-party beneficiary thereof.
6. Term and Termination.
6.1 Term. The term of this Agreement commences as of the Effective Date and continues until terminated by ClearSpend or Customer as permitted by this Agreement. Either Party may terminate this agreement by providing fifteen (15) days written notice to the other Party, provided that, with respect to Customer, Customer has paid all amounts owed under the Agreement.
6.2 Additional ClearSpend Termination Rights. ClearSpend may immediately terminate this Agreement and/or individual ClearSpend Services immediately in the event: (A) Customer is in material breach of any of its representations, warranties, or obligations under these Terms; (B) changes in applicable laws or regulations (including rules and regulations of the Networks) or the interpretation thereof would prohibit the ClearSpend Services, create liability for Bank or either Party, or make the performance of ClearSpend’s obligations hereunder not commercially feasible, unduly burdensome, subject to material additional requirements; (C) Customer or any principal or individual associated therewith becomes a restricted or blocked person with whom ClearSpend or its affiliates may not transact business under applicable laws or regulations, or any transactions conducted by Customer or Authorized Users in connection with the ClearSpend Services are determined to be fraudulent, unlawful, or otherwise harmful to the rights of ClearSpend or third parties; (D) of fraudulent or illegal access or use of the ClearSpend Services by Customer, an Authorized User, or any third party accessing or using ClearSpend Services through Customer’s systems, or (E) Bank stops providing Card issuing services for ClearSpend for any reason.
6.3 Effect of Termination. Customer’s obligation to pay for all account balances, transactions, services, fees, and other outstanding amounts and fees accrued or incurred up to the effective date of termination or expiration of this Agreement (including any account balances and transactions posting to accounts after such termination or expiration) shall survive termination or expiration and be payable to the applicable Party or third party in accordance with this Agreement. Upon termination or expiration of this Agreement for any reason, the ClearSpend Services will terminate and Customer shall immediately cease (and cause its Authorized Users to immediately cease) all use of Cards and the ClearSpend Platform. As between the Parties, Customer is solely responsible for making alternate arrangements for payment services from and after any such termination or expiration.
6.4 Survival. Sections 5.6, 6.3, 6.4, 7.5, 7.7, 11.3, 12, 14 through 17, and 20 through 22, together with any provisions which expressly by their terms or should by their nature survive, shall survive the termination or expiration of this Agreement for any reason.
7. Use of the ClearSpend Services
7.1 Compliance with Law. Customer agrees to comply with, and will not use the ClearSpend Services in violation of, any applicable laws and regulations, including without limitation: (A) U.S. economic sanctions laws and export controls administered by the Office of Foreign Assets Control; (B) Networks’ rules and regulations; and (C) laws and regulations governing data privacy, information security, and consumer protection.
7.2 Legal Compliance. Customer and ClearSpend agree to cooperate with each other in preventing and prosecuting any fraudulent activity by employees of either Party hereto or any third party with respect to the ClearSpend Services, or otherwise arising in connection with any other relationship between the Parties anticipated by or set forth in the Agreement. ClearSpend reserves the right to interrupt, suspend, or terminate the ClearSpend Services without notice to Customer if ClearSpend, in its sole discretion, suspects any fraudulent, illegal or otherwise tortious or abusive activity. Customer agrees to provide, at no cost to ClearSpend, any and all documentation and information as ClearSpend may request, including but not limited to affidavits and police reports, with respect to ClearSpend’s investigation of suspected unlawful or tortious activity involving the ClearSpend services. Failure to timely provide reasonable cooperation with any such investigation by ClearSpend shall result in Customer's liability for all fraudulent usage of the ClearSpend Services, to the extent such liability was directly or indirectly caused by Customer’s failure to cooperate.
7.3 Liability for Unauthorized Use; Lost or Stolen Cards. Except as expressly set forth in this Section, Customer understands and agrees that Customer is fully liable for the unauthorized use of the ClearSpend Services, including any Card, and all charges made and fees incurred with respect thereto. Customer agrees to notify ClearSpend immediately of any actual or suspected loss, theft or unauthorized use of any of the ClearSpend Services, including unauthorized or fraudulent use of any Card or any passwords, access credentials, or other security codes or procedures relating to such Cards or ClearSpend Services. Customer agrees to immediately deactivate any of its Cards or ClearSpend Platform accounts that are or are suspected of being lost, stolen, compromised, or that may have been used without proper authority or as a result of fraud. Customer will not be liable for unauthorized charges on a Card that occur after Customer notifies ClearSpend and the Cards are deactivated as required above. Customer agrees that ClearSpend shall have the right to suspend or cancel provision of the ClearSpend Services, including any Card, to any Authorized User after receiving notice of reported or suspected unauthorized use, fraud, or lost or stolen Cards. Unauthorized use does not include use by a person to whom Customer has given a Card, a person to whom a Customer has given authority to use the Card, or any other person with authority to use the ClearSpend Services or who is employed or contracted by Customer or an affiliate or who is using the systems, networks or computing devices of Customer or an affiliate, including any Card, and Customer will be liable for all use and charges by any such user or person.
7.4 Account Statements; Duty to Review. ClearSpend will provide Customer access to a periodic statement that covers Customer’s Card activity. Customer agrees to review each statement, and if Customer believes that a statement contains an error or if Customer wants to dispute a charge, Customer agrees to notify ClearSpend in writing within sixty (60) days of the date of the statement on which any such error or charge first appears. If Customer does not notify ClearSpend within such time period, Customer waives all rights with respect to such error or charge to the fullest extent permitted by law.
7.5 No Responsibility for Third-Party Goods. To the maximum extent permitted under applicable law, ClearSpend disclaims all responsibility and liability for any goods, services, or other items charged on the Cards or paid for using the ClearSpend Services. ClearSpend is not responsible if any merchant or other business refuses to honor Cards or any of the ClearSpend Services.
7.6 Stop Payment. Customer acknowledges that once a payment is processed using any ClearSpend Services, ClearSpend cannot “stop payment” on or cancel the transaction.
7.7 Feedback. “Feedback” means any feedback, recommendations, enhancement requests, suggestions, testimonials, endorsements, or ideas for improvement communicated to ClearSpend by Customer regarding the ClearSpend Services or any of ClearSpend’s other products or services. From time to time, Customer may voluntarily provide Feedback to ClearSpend. In such event, Customer grants to ClearSpend a perpetual, irrevocable, fully transferable, freely sublicensable, royalty-free, worldwide license to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Feedback for any purpose in ClearSpend’s discretion without restriction. The foregoing license to Feedback shall survive the termination or expiration of this Agreement for any reason.
8. Regulation; Verification; Underwriting
8.1 Government Regulation. To help the government fight the funding of terrorism and money laundering activities, applicable law may require ClearSpend, ClearSpend affiliates, the Bank, and/or the Networks to obtain, verify, and record information that identifies each person who receives access to the ClearSpend Services. Customer shall, when requested by ClearSpend, provide to ClearSpend, Bank, and/or the Networks any relevant documentary and other evidence of Customer’s identity, those of its principals or affiliates, or the identity of any individual to whom Customer provides access to the ClearSpend Services, so that ClearSpend, its affiliates, the Bank, and/or the Networks may comply with any applicable law or regulation or Networks’ rules.
8.2 Verification. Customer (or any individual Authorized User) is not permitted to receive the ClearSpend Services if ClearSpend, ClearSpend’s affiliates, the Bank, and/or the Networks cannot verify Customer’s or such Authorized User’s identity, financial condition, creditworthiness, or other necessary information, or suspect risk of non-compliance with applicable laws and regulations. Customer shall, when requested by ClearSpend, provide to ClearSpend any information or documents required by ClearSpend to authorize Customer to use the Services. Customer hereby authorizes ClearSpend, directly or through third parties, to make inquiries, checks, and screens necessary or desirable to validate information concerning the Customer’s identity, financial condition, or creditworthiness, including, but not limited to: (A) requiring Customer to confirm ownership of an e-mail address and one or more deposit accounts; (B) ordering a commercial credit report; (C) verifying Customer’s information against third-party databases or other sources; and (D) undertaking any other action necessary to verify Customer’s information. Notwithstanding any steps taken to verify such information, Customer hereby represents and warrants on behalf of itself and all Authorized Users that all information Customer provides to ClearSpend in connection with the ClearSpend Services is complete, accurate, timely, and up to date in all respects. ClearSpend shall have the right to withhold or delay the issuance of, or to suspend or deactivate, any Card or other payment service until Customer provides such information as may be necessary to validate the foregoing, or in the event applicable legal screens do not clear.
8.3 Disclosure. Customer agrees that ClearSpend or its affiliates or contractors, in its sole discretion, may disclose information about Customer to satisfy ClearSpend’s or its affiliates’ or contractors’, Bank’s, or the Networks’ legal obligations under applicable law, including, but not limited to anti-money laundering, trade and economic sanctions laws and/or regulations, or as may otherwise be required by law, court order, government investigation, or Networks’ rules.
9. Data Security. Each party shall take commercially reasonable steps in its discretion in accordance with generally accepted industry standards (A) to safeguard the systems it uses to transmit, process or store information from unauthorized access or use, and from viruses and other malicious code, and (B) to provide reasonable disaster recovery and business continuity capabilities for such systems.
10. Consent to Electronic Communications and Notices. Customer consents to electronic delivery of all documents related to the ClearSpend Services, and accepts any future changes to those documents that may be delivered to Customer. By consenting to conduct transactions and receive disclosures and notices electronically Customer agrees to provide ClearSpend with the information needed to communicate electronically. Customer agrees to keep its e-mail and account information provided to ClearSpend current at all times.
11. Data and Analytics
11.1 Responsibility. As between the Parties, Customer shall be solely responsible for ensuring the validity, accuracy and completeness of all information, data, files and instructions (including any personal information) provided or transmitted to ClearSpend or its affiliates or contractors in connection with the ClearSpend Services (collectively “Customer Data”). ClearSpend shall be entitled to rely upon the Customer Data in providing the ClearSpend Services, and may share such Customer Data with Issuing Bank. ClearSpend shall not be required to act on instructions provided by Customer if ClearSpend reasonably doubts an instruction’s contents or Customer’s compliance with the Agreement or any legal requirements, it being understood that in any event ClearSpend shall not be held liable or responsible for the quality, accuracy, timeliness, or content of any Customer Data.
11.2 License. Customer grants to ClearSpend a non-exclusive, royalty-free right and license to use Customer Data in connection with the performance of the ClearSpend Services and its respective obligations hereunder. Such license shall be sublicensable to Bank and ClearSpend’s third-party contractors in furtherance of the foregoing permitted purpose. Customer represents and warrants that: (A) Customer Data, its provision thereof, and ClearSpend’s use thereof in accordance with this Agreement do not and will not infringe, misappropriate, or otherwise violate the personal or proprietary rights of any third party; and (B) its collection, storage, transmission, and disclosure of Customer Data hereunder are in full compliance with all applicable laws, regulations, and Networks’ rules.
11.3 Data Uses. ClearSpend and its affiliates and contractors may: (A) de-identify, aggregate with the data of others, or otherwise render anonymous or not identifiable any personal information that is part of Customer Data, or (B) extract information from the Customer Data and from Customer's usage of the ClearSpend Services (the resultant data from items (A) and (B), “Anonymized Data”). ClearSpend may use, store, process, disclose, transmit, and create derivative works of Anonymized Data, alone or aggregated with any other data, in connection with research and development, for the improvement, administration, and management of the ClearSpend Services, for statistical performance monitoring and benchmarking purposes, for reporting to third parties, for legal and regulatory compliance, and for the creation and delivery of additional data and analytics tools and products and services (any or all of the foregoing, “Data Uses”), each to the furthest extent permitted under applicable law. Customer represents and warrants that it possesses all rights, licenses, authorizations, and consents with respect to the Customer Data provided hereunder (and has made sufficient disclosure to its Authorized Users) as required to permit such Data Uses. As between the Parties, ClearSpend will own all right, title and interest in or to any and all information, data, databases, tools, products, services, derivative works, and other intellectual property or proprietary materials developed in connection with such Data Uses, and to any records, logs, transaction data, and other data and information resulting from the provision of the ClearSpend Services hereunder.
12. Confidential Information
12.1 Confidential Information. “Confidential Information” means sensitive, proprietary, and/or non-public information and materials (whether or not such information or material is marked “confidential”) that a Party to this Agreement or its affiliate (“Disclosing Party”) discloses to or makes accessible to the other Party or such other Party’s affiliate (“Receiving Party”), which a reasonable person would consider to be confidential and/or proprietary to the Disclosing Party, including without limitation information pertaining to the business, services, customers, or technology of Disclosing Party, such as (A) business or operating plans, strategies, know-how, portfolios, prospects or objectives; (B) methods of operation; (C) relationships with third parties; (D) systems access credentials; (E) account numbers; (F) regulatory and legal compliance information; and (G) financial records and related information. Notwithstanding the foregoing, Confidential Information does not include information that (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (ii) becomes generally known by the public without the breach, negligence, or other wrongdoing of the Receiving Party; (iii) is rightfully received by the Receiving Party by a third party which is under no obligation of confidentiality with respect to such information; or (iv) was independently developed by the Receiving Party without reference to or use of any portion of Confidential Information, as demonstrated by the Receiving Party’s written records.
12.2 Other Examples and Exceptions. Customer acknowledges and agrees that the terms and conditions of this Agreement along with the pricing, costs and details of services, transactional information, the software, systems, password-protected portals developed, utilized or maintained by ClearSpend or its affiliates or contractors, the internal operating procedures employed by ClearSpend or its affiliates, technical information, such as file record layouts, and transaction information, including without limitation Card numbers and data gathered at the point-of-sale by ClearSpend, are Confidential Information of ClearSpend and its affiliates or applicable third party licensors. The BINS (Bank Identification Numbers) assigned to the Cards are the property and Confidential Information of the Bank. Anonymized Data will not be deemed Confidential Information of Customer. Customer is solely responsible for ensuring the confidentiality of Cards, account numbers, passwords, or other security codes or procedures applicable to Customer’s and its users’ access and use of the ClearSpend Services.
12.3 Obligations. The Receiving Party agrees to protect the confidentiality of Confidential Information using at least the same standard of care as it uses to protect its own information of a like nature, but in any event no less than a reasonable standard of care. The Receiving Party shall disclose such information only to its or its affiliates’ employees, contractors, funding sources, and professional advisors in furtherance of its respective obligations and rights hereunder, provided that such entities or individuals have agreed to be bound by confidentiality obligations with respect thereto which are materially similar to those set forth hereunder. For avoidance of doubt, nothing in this shall be construed as restricting any Data Uses.
12.4 Permitted Disclosure. If Receiving Party is ordered, as part of an administrative or judicial proceeding of competent jurisdiction, investigation or audit by the government or industry self-regulatory authority, or other operation of applicable law or Networks’ rules, to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will, to the extent permitted by applicable law: (A) notify the Disclosing Party of such request as promptly as practicable; and (B) reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in its efforts to contest the disclosure or secure a protective order or similar confidential treatment for such Confidential Information.
12.5 Equitable Relief. ClearSpend and Customer agree there may not be an adequate remedy at law for a breach of the requirements of this Section, and accordingly agree that in the event of such actual or threatened breach, the Disclosing Party shall be entitled to seek preliminary and/or final injunctive relief therefor, without the necessity of posting bond or other security, in addition and without prejudice to any other rights or remedies available at law or in equity.
13. Representations and Warranties. Customer represents and warrants that (A) it is duly organized, validly existing and in good standing as a legal entity under the laws of its applicable jurisdiction; (B) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized and effective to bind Customer; and (C) the execution and delivery of, and Customer’s performance under, this Agreement does not and will not breach any agreement or other legal duty that Customer owes to any third party.
14. Disclaimer; Limitation of Liability; Force Majeure.
14.1 Disclaimer of Warranties. CLEARSPEND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY WITH RESPECT TO THE CLEARSPEND SERVICES OR MATTERS RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SECURITY, QUIET ENJOYMENT, ADEQUACY OR SUFFICIENCY, UNINTERRUPTED SERVICE, AND ANY IMPLIED WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. THE PARTIES AGREE THAT ANY STATE LAWS ADOPTING THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT (UCITA) DO NOT APPLY TO THIS AGREEMENT AND ANY WARRANTIES CONTAINED THERE ARE EXPRESSLY DISCLAIMED HEREIN.
14.2 No Liability for Third Parties. Customer acknowledges that performance of the ClearSpend Services by ClearSpend is dependent on performance by numerous third parties, including without limitation the Bank and Networks, among others. ClearSpend and its respective affiliates and contractors do not guarantee timely delivery of all payments and shall not be liable for any loss or damage of any type suffered by Customer as a result of any delay in the receipt of payments by any payee. Nothing herein shall be construed as any warranty or guarantee whatsoever with respect to the timing of any individual payment or transaction utilizing the ClearSpend Services. ClearSpend and its affiliates and contractors shall not be responsible for Customer’s or its Authorized Users’ acts or omissions (including, without limitation, the amount, accuracy, timeliness of transmittal, or authorization received from Customer) in using the ClearSpend Services, or those of any third party.
14.3 Limitation of Liability. EXCEPT IN CONNECTION WITH AN INDEMNIFICATION OBLIGATION HEREUNDER, A BREACH OF ITS RESPECTIVE CONFIDENTIALITY OR INFORMATION SECURITY OBLIGATIONS HEREUNDER, OR A VIOLATION OF CLEARSPEND’S PROPRIETARY RIGHTS, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES AND CONTRACTORS BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS OR SAVINGS OR COST FOR REPLACEMENT SERVICES), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY IN ANY CLAIM BETWEEN THE PARTIES BROUGHT IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE BY CUSTOMER TO CLEARSPEND FOR CLEARSPEND SERVICES IN THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE EVENT OR CAUSE OF ACTION GIVING RISE TO SAID CLAIM FIRST ACCRUED, REGARDLESS OF THE NUMBER OF CLAIMS OR THE FORM OF ACTION OR DAMAGES. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EVEN IF OTHER REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
14.4 Force Majeure. Neither party will be liable for any failure or delay in performing hereunder (other than with respect to Customer’s payment obligations, fraud, unauthorized payments, or illegal conduct, or with respect to ClearSpend’s reliance on Customer Data) if such failure or delay is caused by conditions beyond its reasonable control, including without limitation acts of God, embargoes, governmental restrictions, strikes, riots, insurrection, wars, or other military action, acts of terrorism, civil disorders, rebellion, fires, floods, vandalism, or sabotage; acts of government, the Networks, or regulatory agencies; or failures or fluctuations in electrical power, heat, light, air conditioning, computer or telecommunications services or equipment (each a “Force Majeure Event”). Market conditions, fluctuations in a Party’s economic condition, and (with respect to Customer) activities by Authorized Users will not be deemed Force Majeure Events under this Section. The Party whose performance is affected by a Force Majeure Event will promptly notify the other Party, if notification is reasonably practicable, giving details of the situation, and will make reasonable efforts to mitigate the impact of the Force Majeure Event and to resume performance. The obligations of the affected Party will be suspended to the extent caused by the Force Majeure Event for the duration thereof, and the time for performance of the affected obligation will be extended by the time of the delay caused by the Force Majeure Event.
15.1 Customer Agreement to Indemnify. Customer will defend at its expense and indemnify ClearSpend and its Indemnitees from and against any Losses incurred in connection with third-party claims, suits, or other proceedings brought in connection with: (A) any breach of the representations, warranties, or covenants made by Customer in this Agreement; (B) any dispute regarding the proposed or actual use of any ClearSpend Service to make a payment on behalf of an Authorized User, whether that dispute involves the person to receive the payment or a third party; (C) Customer’s negligence, willful misconduct, or violation of applicable law or regulation; and (D) any dispute between Customer and an Authorized User, except to the extent such dispute was directly caused by ClearSpend’s material breach of its respective obligations hereunder.
15.2 Intellectual Property. ClearSpend shall indemnify, defend, and hold harmless Customer and its Indemnitees from and against any Losses incurred by such Indemnitees as the result of a third-party claim, suit, or other proceeding brought in connection with the allegation that the ClearSpend Services infringe the U.S. patent, copyright, or trademark rights of a third party, provided that ClearSpend shall have no responsibility hereunder for any claim that results from: (A) the combination of the ClearSpend Services with any material not provided by ClearSpend; (B) a change to the ClearSpend Services made by any person or entity other than ClearSpend; or (C) any use of the ClearSpend Services by Customer which does not comply with the terms of this Agreement or applicable law. In the event of an indemnifiable claim of infringement under this paragraph, or if ClearSpend reasonably anticipates any such claim, ClearSpend may, at its option, either: (i) replace or modify the allegedly infringing ClearSpend Services so that they are no longer infringing; (ii) procure for Customer additional licenses or rights sufficient to permit continued use of the allegedly infringing ClearSpend Services; or (iii) terminate the applicable ClearSpend Services upon written notice to Customer and refund to Customer all prepaid, unused fees or charges applicable to the period of time following the effective date of termination (if any). This Section sets forth ClearSpend’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for any third-party claim of intellectual property infringement regarding the ClearSpend Services.
15.3 Procedure. The Party seeking indemnification will promptly notify the indemnifying Party in writing of any demands or claims for which indemnification will be sought, provided that failure to so notify shall not relive the indemnifying Party of its obligations under this Section except to the extent the indemnifying Party is materially prejudiced thereby. The indemnified Party shall reasonably cooperate with the indemnifying Party’s defense and investigation of the claim, at the indemnifying Party’s cost and expense. The indemnifying Party must obtain the prior written approval of the indemnified Party prior to entering into any settlement of any indemnifiable claim hereunder which involves the admission of any guilt, liability, or wrongdoing on behalf of the indemnified Party. Notwithstanding the foregoing, the indemnified Party (or its Indemnitee, as applicable) may at any time participate in the defense of any indemnifiable claim at its own cost and expense upon written notice to the indemnifying Party.
16. Waiver of Jury Trial. THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THIS AGREEMENT OR A PARTY’S PERFORMANCE HEREUNDER.
17. Independent Contractors. The Parties intend that an independent contractor relationship will be created by this Agreement and that no agency, fiduciary relationship, joint venture, or partnership will be established thereby. The employees or agents of one Party shall not be deemed or construed to be the employees or agents of the other Party for any purpose whatsoever. Neither Party will have any authority, and neither Party will represent that it has any authority, to assume or create any obligation, express or implied, on behalf of the other Party, except as specifically set forth in this Agreement.
18. Subcontracting. ClearSpend may use subcontractors or other third parties to fulfill its obligations under this Agreement and any of the transactions contemplated thereby.
19. Assignment. Customer may not assign or transfer (including by operation of law) this Agreement or its access to or use of the ClearSpend Services without the prior written consent of ClearSpend, and any attempt to so assign or transfer without ClearSpend’s express consent shall be null and void ab initio and of no force and effect. Subject to the foregoing restriction, this Agreement will be binding on the Parties and their respective permitted successors and assigns.
20. Publicity. If Customer is a business entity or similar organization, Customer grants to ClearSpend the non-exclusive, royalty-free license to use and display Customer’s trade name and current trademark brand or logo in its customer lists, advertisements, and other marketing materials factually describing Customer as a client of ClearSpend. In addition, ClearSpend has the right to identify any Customer to third parties in order to make disclosures and filings required by securities and other applicable laws, to describe to funding sources, potential acquirers or investors, advisors and auditors the relationship of the Parties hereunder and the existence of this Agreement, and as otherwise required to perform the ClearSpend Services required under this Agreement. Except as specifically provided in this Agreement, a Party may not use the name, logo, trademark, or service mark of the other party without the other Party’s prior written consent.
21. Notices. All notices, requests, demands, and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given: (A) when received if personally delivered; (B) two (2) days after sending if sent by a nationally recognized expedited delivery service; (C) upon receipt, if mailed by certified mail, return receipt requested; or (D) on the send date of the applicable email, for email notices. Notices shall be sent to the addresses for each Party provided during the registration process, as may be updated by either Party upon written notice to the other Party.
22.1 No Waiver. No waiver of any of the provisions of this Agreement will be valid unless in writing and signed by the Party making the waiver. A waiver of one provision does not operate as a future waiver of that or any other provision of this Agreement.
22.2 Governing Law. This Agreement is governed by the laws of the United States of America and the laws of Delaware, without regard to principles of conflicts of law. Any action brought in connection with this Agreement shall be brought exclusively in the federal and state courts in Delaware, and each Party hereby consents to personal jurisdiction over it by such courts.
22.3 Class Action Waiver. BY USING THE CLEARSPEND SERVICES AND AGREEING TO THESE TERMS, CUSTOMER HEREBY WILLINGLY, EXPRESSLY, AND KNOWINGLY WAIVES ALL RIGHT TO BRING OR PARTICIPATE IN ANY CLASS-ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR PRIVATE ATTORNEY-GENERAL ACTION BROUGHT UNDER OR IN CONNECTION WITH THESE TERMS AND/OR CUSTOMER’S USE OR RECEIPT OF CLEARSPEND SERVICES. CUSTOMER MAY NOT BRING ANY CLAIM, SUIT, OR OTHER PROCEEDING TO ENFORCE THESE TERMS AS THE MEMBER OF ANY CLASS OR AS PART OF ANY SIMILAR COLLECTIVE OR CONSOLIDATED ACTION.
22.4 Severability. If any provision of this Agreement is held invalid or unenforceable, that provision will be construed, limited, modified, or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain unaffected. The Parties will make a reasonable effort to modify the invalid or unenforceable provision to render it enforceable in accordance as closely as possible to the intent of the original provision.
22.5 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter, and supersedes all prior oral or written proposals, communications, or other understandings pertaining thereto.
22.6 Interpretation. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect the construction or interpretation of any material term hereof. The Parties acknowledge that each Party has consulted (or has had opportunity to consult) with counsel prior to executing this Agreement, and accordingly agree that no rule or principle of contract interpretation that construes contract terms against the drafter shall apply hereto.
22.7 Counterparts.The Agreement therewith may be executed in one or more print or electronic counterparts, each of which will be deemed to be an original, but all of which together shall constitute one and the same instrument.
22.8 Modification. CUSTOMER ACKNOWLEDGES AND AGREES THAT FROM TIME TO TIME, CLEARSPEND MAY AMEND THE TERMS OF THIS AGREEMENT BY POSTING A NEW VERSION OF THE AGREEMENT TO https://www.clearspend.com/terms. BY CONTINUING TO ACCESS AND USE THE CLEARSPEND SERVICES FOLLOWING THE DATE THAT SUCH NEW VERSION IS POSTED, CUSTOMER EXPRESSLY ACCEPTS ANY MODIFICATION OR AMENDMENT TO THIS AGREEMENT CONTAINED IN SUCH NEW VERSION.
The following business activities will be considered prohibited from receiving, transacting, or otherwise participating on the ClearSpend Services:
• Gambling establishments, casinos, advanced deposit wagering, lotteries, lottery syndicates, sweepstakes, sports-betting, games of chance, tipster-oriented business activities (such as odds making or sports forecasting), insurance and other protection services offered in connection with gambling activities.
• Sale of all controlled substances (Schedule I-IV) as described on the U.S. Department of Justice (DOJ) Drug Enforcement Agency (DEA) controlled substance list.
• Sale or production of any product containing or marketed with reference to marijuana (leaves, seeds, oils, CBD, etc.).
• Synthetic drugs or plant extracts that contain a “legal high” (such as bath salts, K2, spice, kava kava, kratom, salvia divinorum, etc.).
• Sale or distribution of firearms, ammunition, explosives, and other weapons and their accessories.
• Sale of any counterfeit goods or services used to circumvent patents, trademarks or copyright laws.
• Any illegal multi-level marketing (MLM) or pyramid scheme or product.
• Sale, promotion, distribution or marketing of any product or services with unproven or doubtful efficacy or products/services that may violate “Unfair, Deceptive, or Abusive Acts or Practices” (UDAAP).
• Prostitution or escort services.
• Sale, production or distribution of illegal materials, including but not limited to child exploitation.
• Sale, production or distribution of any or adult related or sexually explicit pornographic material.
• Sale, distribution, promotion or marketing of materials which incite violence, hatred or racism or which are considered obscene or any other legally protected characteristic under federal or state law.
• Any business dealing in the sale or exchange of crypto-currencies or other digital assets or Initial Coin Offerings (ICO).
• Businesses classified as financial institutions, such as banks, credit unions or any financial services, such as money service businesses (MSBs), money transmitters, foreign currency exchanges, securities or commodities brokers, or investment companies.