Spendesk - US specific terms

Capitalized terms not specifically defined in this document have the meaning attributed to them in the General Terms and Conditions.

1. General liability

1.1. Exclusion of warranties

NOTWITHSTANDING ANY CONTRARY PROVISION SET OUT IN THE GENERAL TERMS AND CONDITIONS, SPENDESK’S PLATFORM, CONTENT AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. UNLESS STATED OTHERWISE. SPENDESK DOES NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, OR ADEQUACY OF THE PLATFORM, CONTENT OR OTHER DATA, INFORMATION OR THIRD-PARTY CONTENT THAT MAY BE PROVIDED THROUGH THE PLATFORM. SPENDESK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PLATFORM, CONTENT, AND OTHER SUBJECT MATTER OF THESE TERMS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT. NO ORAL, WRITTEN INFORMATION OR ADVICE GIVEN BY SPENDESK’S PLATFORM OR EMPLOYEES, WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO THE WARRANTIES EXPRESSLY SET OUT IN THE GENERAL TERMS AND CONDITIONS.

SPENDESK MAKES NO WARRANTY THAT (i) ANY PART OF THE PLATFORM OR THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS (ii) THE PLATFORM OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM OR THE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY CONTENT OBTAINED BY THE CUSTOMER THOUGH THE PLATFORM OR THE SERVICES WILL MEET THE CUSTOMER’S EXPECTATIONS, OR (v) ANY ERRORS WILL BE CORRECTED. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF A PLATFORM IS DONE AT THE CUSTOMER’S OWN DISCRETION AND RISK AND THE CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

1.2. Limitation of liability

In addition to the limitations set out in the General Terms and Conditions, Spendesk shall not be liable to the Customer (i) for any business loss, loss of profit, loss of reputation or goodwill, regulatory fines or sanctions incurred by the Customer or its Users, or for any form of indirect loss whether arising from negligence, breach of contract, tort, breach of regulatory or statutory duty or otherwise even if Spendesk had been advised of the possibility of such losses, (ii) in respect of any failure by or insolvency of Spendesk’s partner bank, and (iii) in any way for any interest or claims of any third parties in respect of the Account and/or the Cards, except as required by law or regulation.

2. Payment Services provided by the Partners

2.1. Payment Services restrictions

Spendesk does not make any representation or warranty to the Customer or any User in relation to the Payment Services. Spendesk does not guarantee that the Payment Services, and particularly the Cards, can be used anywhere or be accepted by any Acceptor, or that the Card Network will authorize any particular Payment Transaction. Spendesk shall not be liable for any loss or damage suffered if an ATM or Acceptor refuses to accept the Card (in whole or part), or if a Payment Transaction is not authorized, or if the Partner and/or Card network cancels or suspends a Card. Similarly, Spendesk shall not be liable to the Customer or the User for any loss or damage the Customer or any User may suffer as a result of the Users' use or inability to use the Card.

2.2. Spendesk's role in relation to the Account and Cards - Lost or stolen Cards

All the Customer's and the Users’ rights and obligations in relation to the Account and Cards are subject to the Partners’ Documents, and Spendesk's only role, through the Platform, is to facilitate communication between the Customer and the Users on the one hand, and the Partner on the other hand in relation to the Payment Services (application process, registration, crediting, requests for additional Cards, Cards distribution, etc.).

Spendesk will not be liable for any loss caused or suffered as a result of lost, stolen, or unauthorized use of a Card or Personalised Security Credentials. If a Card is lost or stolen, some or all of the value of the funds on the Account or Card may be lost, subject to any rights that the Customer may have under applicable law. Spendesk's role will be limited to providing the Customer with reasonable assistance in challenging unauthorized Payment Transactions and seeking refunds in accordance with applicable law or regulation, and the Partners’ Documents.

3. Applicable law and competent jurisdictions

3.1. Applicable law

Notwithstanding any contrary provisions set out in the General Terms and Conditions, the interpretation of any rights and obligations of the Parties under the Contract, including to the extent applicable, any negotiations, arbitrations or any other proceedings hereunder, will be governed in all respects exclusively by the laws of the state of California, U.S.A.

3.2. Dispute resolution

Notwithstanding any contrary provisions set out in the General Terms and Conditions, the Parties agree to apply the following rules.

In case of any dispute, controversy, or claims relating in particular to the validity, interpretation, or execution of the Contract, both Parties shall first try to resolve them through amicable negotiations.

In case the dispute cannot be resolved through negotiations between the Parties within fifteen (15) day of notice from one Party to the other of the dispute, such dispute will be finally settled through binding arbitration under the American Arbitration Association (AAA) and in pursuance to its rules (the “Rules”).

Either Party may start the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by Spendesk. If Spendesk is unable, for any reason to solely appoint a single arbitrator within thirty (30) days after either Party delivers a request for arbitration, a neutral arbitrator shall be appointed as provided in the Rules.

The arbitration will be conducted exclusively in the English language at a site specified by Spendesk in the state of California, U.S.A. The award of the arbitrator will be the exclusive remedy of the Parties for all claims, counterclaims, issues, or accountings presented or pleaded to the arbitrator. The award of the arbitrators will require the payment of the costs, fees, and expenses incurred by the prevailing Party in any such arbitration by the non-prevailing Party.

Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the Party that resists its enforcement.