Last Updated On: 6/7/2018
These are the Terms and Conditions (“Terms”) governing use of WEX Inc. (“WEX”) commerce services. These services provide payment processing capabilities (the “WEX Services”) between merchants providing goods and services for sale (“Sellers”) and customers purchasing or paying for such goods and/or services (“Buyers”); Sellers and Buyers, their employees, agents, contractors or otherwise designated entities that may use WEX Services are collectively called a “System User”.
PLEASE READ THIS AGREEMENT AND DISCLAIMERS CAREFULLY. BY VIRTUE OF A SYSTEM USER’S USE OR CONTINUED USE OF THE WEX SERVICES, SUCH SYSTEM USER AGREES TO AND BECOMES SUBJECT TO THESE TERMS.
WEX Services are provided through software developed and owned by WEX and/or its licensors, including any corrections, updates, or upgrades thereto (the “Software”). WEX Services and Application Programming Interfaces (“APIs”) are documented by interface specifications and help manuals (the “Documentation”), which shall be deemed “Confidential Information” of WEX. The WEX Services include, without limitation, Payment WorkSuite and AR-Exchange. Payment WorkSuite comprises a set of payment-centric applications designed to be fully interoperable with one another. Access and use of each application is tightly controlled through granular, assignable permissions and security measures. AR-Exchange is a separate information exchange portal (that exists within Payment WorkSuite) through which a System User that is a Seller may review information related to payments made against Seller’s invoices. The portal allows the Seller to view information from multiple participating Buyers. With regard to the Software and Documentation, System Users are hereby granted a limited, revocable, non-exclusive, non-transferable license without right to sublicense by WEX or its third party licensors, providers or suppliers, to use the Software as part of, or for use with, the WEX Services and for no other purpose and subject to the Terms herein.
1 Eligibility, Use and Termination.
The WEX Services and related services are available only to registered System Users. WEX may immediately modify, restrict, or terminate access to any System User whose business activity, in the WEX sole discretion, causes risk including, without limitation, where said use or foreseeable use of the Software or Services:
a. infringes on any intellectual property or other third party rights;
b. would introduce viruses or any other code, files or programs intended to disrupt, damage or limit the functioning of any technology or to obtain access to any third party information;
c. could be deemed to be unlawful, threatening, abusive, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, or contains explicit or graphic descriptions or accounts of sexual acts;
d. is for the purpose of enabling others to gain competitive intelligence concerning the design, product attributes, or other aspects of the Software or Services;
e. is used or suspected of being used to provide service bureau or time-sharing services; or
f. with System User’s systems or business processes doesn’t comply with this Agreement or the requirements defined by the acquiring organization, the Payment Card Industry (PCI) Security Standards Council, MasterCard, Visa, or similar entities.
1.2 Application for Use.
Each System User may apply to use WEX Services under the Terms herein. Application may be made directly to WEX, or through another channel authorized by WEX. System User agrees to provide true and accurate information when establishing an account on the system and to maintain and promptly update information as applicable. System User agrees not to impersonate any person or use any name that it is not authorized to use. If any information provided by System User is untrue, inaccurate, not current, or incomplete, WEX has the right to terminate System User’s use of the services.
1.3 Use of APIs for Integration with Host Systems.
Where System User employs WEX’s APIs to use WEX Services, the design, development, implementation and maintenance of such interface and functionality shall be the System User’s sole responsibility. System User shall employ such competent resources as it deems necessary to ensure that the APIs function correctly with the System User’s platform, operating environments and business processes (the “Integration”). System User shall be responsible for ongoing support of its Integration and related issues and shall be responsible for all of its own development and implementation costs associated with such Integration.
1.4 Other Relationships.
a. A System User will have an agreement with an appropriate financial entity. When the System User is a Seller that wants to process credit or debit card transactions, it has or will obtain a merchant processing account from an approved merchant acquiring organization. Such account shall be enabled with the capability to process one or more of Visa, MasterCard, American Express, Diner’s Club, Discover or other financial transaction processing capabilities that may be offered.
b. For the avoidance of doubt, the WEX and System User agree that any errors occurring during a transaction between a Buyer and a Seller that do not result from the action or inaction of WEX shall be resolved solely between the Buyer and Seller. WEX will, in its sole discretion, provide assistance in making any corrections to any payments that it deems appropriate in such mistaken transactions or otherwise resolving such situations.
a. By WEX: WEX reserves the right to terminate System User’s access or Agreement if System User is in breach of any Terms of this Agreement. System User agrees to pay the reasonable costs of collection. WEX may require that System User pay all past-due charges and/or assess additional setup fees to reestablish System User’s account.
b. By System User: System User may terminate WEX Services at any time either by (i) having the System User’s merchant acquiring organization provide WEX with written or email notice of such termination, or (ii) System User may send such termination request directly to WEX, but such termination shall not be effective until it is confirmed by WEX with the System User’s merchant acquiring organization or other channel authorized by WEX.
2 Licensed Information of System User.
2.1 License Grant.
Solely for the purpose of presenting all materials and information provided by System User to describe its products and/or services, including, but not limited to, all descriptions for goods and services (“Level-3 Detail Data”), System User marks, trade names, graphics, photographs, or similar content, along with any updates, revisions, and corrections thereto (collectively, “Licensed Information”), System User grants to WEX a nonexclusive, transferable, worldwide license to use, reproduce, distribute, perform, display, and transmit the Licensed Information. WEX is also granted the right to modify the format, structure, and organization of the Licensed Information solely for the purpose of integrating the Licensed Information into its databases pursuant to WEX’s technical requirements.
2.2 Removal of Licensed Information.
Without limiting the foregoing, if all or part of the Licensed Information becomes the subject of an actual or threatened law suit brought by a third party, or WEX believes the Licensed Information may violate the rights of a third party, WEX will be entitled to immediately remove such Licensed Information from its databases without incurring any liability to System User.
3.1 System User Rights.
System User will retain all right, title, and interest in the Licensed Information as delivered by System User to WEX, including all copyrights, patents, trademarks, and other intellectual property rights therein.
3.2 WEX Rights.
As between System User and WEX, System User acknowledges that WEX (together with its licensors) owns all right, title and interest in and to the WEX APIs, the Software, Documentation, the marks, interfaces, and other design elements and that System User shall not acquire any right, title, or interest, except as expressly set forth in this Agreement. System User shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Software or Documentation provided by WEX. System User will not remove, obscure, or alter WEX’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the Software or any WEX Software or Documentation. WEX reserves all rights not specifically granted to System User herein.
4 Information Assurance, Access, Privacy, and Confidentiality.
4.1 Information Assurance.
If System User or WEX have access to third party credit card information and/or other protected or proprietary information (“Sensitive Data”), both parties agree to respect the sensitive nature of this information and take all prudent steps to safeguard its privacy and security. Consistent with the Payment Card Industry (PCI) Data Security Standard, Visa Cardholder Information Security Program, MasterCard Site Data Protection program, and similar initiatives sponsored by the merchant acquiring organization and similar entities, System User and WEX agree to institute and maintain appropriate technical and procedural security measures to protect the Sensitive Data.
4.2 Access and Interference.
The Software contains robot exclusion headers and System User agrees not to use any robot, spider, other automatic device, or manual process to monitor or copy the web pages or the content contained herein without WEX’s prior expressed written permission. System User agrees not to use any device, software or routine to interfere or attempt to interfere with the proper working of the WEX Services or any transaction being conducted hereon. System User agrees not to take any action that imposes an unreasonable or disproportionately large load on the WEX infrastructure that might be construed as a denial of service action. System User agrees not to copy, reproduce, alter, modify, create derivative works, or publicly display any content (except, in the case of a System User, such System User’s Licensed Information) from the WEX Services without the prior expressed written permission of WEX.
The privacy policies applicable to the WEX Services are posted and accessible from the log-in page of the WEX application and are deemed incorporated by reference in these Terms.
If System User has subscribed to AR-Exchange, System user agrees to share the company profile information provided to WEX with Buyers.
Neither Party shall disclose the Confidential Information to any third party, or use the Confidential Information in any manner except as explicitly authorized under this Agreement. Both Parties agree to use the same degree of care to prevent disclosure of the Confidential Information as they use to protect their own confidential information, but no less than a reasonable degree of care. In the event of any unauthorized disclosure of Confidential Information, the disclosing party shall immediately provide the other party with written notice of the details of such disclosure (including but not limited to the identification of the receiving party).
5 Fees and Payments.
5.1 Service Fees.
WEX Services are made available to System User through WEX, its third party solution-provider relationships, its merchant acquiring channel-partner(s), or other channels as defined by WEX. WEX Services feature a variety of capabilities that are available to System User; some are included in the basic monthly service fee, others require additional payment, and still others may be offered at no charge. Currently, the AR-Exchange service is provided at no charge. Any offering of fee-based services may be presented via email, a posted notice on the WEX Services, or other published means and shall be provided upon System User’s acceptance of the Terms and fees. System User shall pay the designated fees for each month that System User utilizes WEX Services. Unless otherwise agreed to by the parties in writing, WEX’s services are provided on a month-to-month basis and will continue until terminated by WEX or by System User. Any fees charged by WEX are considered earned as of the first day of the monthly billing period. Any fees collected in advance at the time of setup of the service or designated specifically as setup fees are considered earned at that time unless WEX materially fails to provide the service within a reasonable period after initial registration by System User.
5.2 Account Setup.
Once an account has been set up and properly configured, subsequent requests by System User to change the functionality of, suspend, and/or reactivate, the account may be subject to an administrative charge. Setup fees are non-refundable after account setup has been substantially completed.
5.3 Special Charges.
Rates for special charges or supplementary fees may be presented via email, a posted notice on the WEX Services, or other published means.
5.4 Billing issues.
Disputes concerning improper billing should be brought to the attention of WEX or the System User’s acquiring bank, as appropriate, within sixty (60) days of the billing in question. WEX shall not be obliged to address any issues not brought to its attention during such period.
5.5 Change of Rates and Services.
The fees charged are subject to change and WEX may change the nature of its services offered from time to time. Notice of such changes may be presented via a posted notice on the WEX website, by email, through Seller’s merchant acquirer or through other WEX channel-partner(s), or by other published means.
6 Representations and Warranties.
6.1 Representations and Warranties of System User.
a. System User represents and warrants that it has the full power and authority to enter into these Terms and to grant WEX the rights granted herein and to the best of its actual knowledge (i) it is the sole owner or a permitted user of the Licensed Information and the System User Marks and has secured all necessary rights with respect to use of the Licensed Information and the System User Marks to the full extent contemplated herein; (ii) no part of the Licensed Information or the System User Marks violates or infringes upon any intellectual property rights or other rights of a person or entity or constitutes defamation, invasion of privacy, or the violation of any right of publicity or other rights of any person or entity or is otherwise subject to any claims relating thereto; and (iii) System User has complied and shall continue to comply with all legislation, rules, and regulations regarding the Licensed Information.
b. If System User has subscribed to AR-Exchange, System User represents and warrants that it shall (i) interpret all system invitations that System User receives from WEX as transactional email messages, for purposes of its relationship with the Buyer; (ii) respond promptly and accurately to all such system invitations; and (iii) immediately report any concerns regarding such transactional emails to WEX.
6.2 Compliance with Law.
System User agrees that it will not perform any act that would violate any State or Federal law, including, but not limited to, the Federal Equal Credit Opportunity Act, implementation of Regulation B, the Federal Fair Credit Reporting Act, and the Federal Truth-In-Lending Act. System User also agrees that it will not fail to perform any act that is necessary to avoid a violation of any State or Federal law, including, but not limited to, the laws listed in this Section 6.2. System User explicitly recognizes that the Federal Truth-In-Lending Act and its implementing Regulation Z require, and System User agrees to provide, a brief description of the goods or services purchased with a credit card, together with other disclosures.
6.3 Representations and Warranties of WEX.
WEX represents and warrants that: (a) it has the full power and authority to enter into these Terms and to grant System User the rights granted herein; (b) it has complied and shall continue to comply with all applicable laws, rules, and regulations regarding the WEX Services.
6.4 Disclaimers of Warranties.
OTHER THAN AS PROVIDED HEREIN, THE SOFTWARE AND WEX SERVICES ARE PROVIDED “AS IS,” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. EXCEPT FOR THE EXPRESS WARRANTIES HEREIN, WEX HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF SYSTEM USABILITY, SECURITY, TITLE OR FITNESS FOR A PARTICULAR USE OR PURPOSE WITH RESPECT TO THE SOFTWARE, OR THE WEX SERVICES. WEX DOES NOT WARRANT THAT THE WEX SERVICES OR WEX API WILL OPERATE WITHOUT INTERRUPTION, THAT THEY ARE ERROR FREE, OR THAT ALL DEFECTS WILL BE CORRECTED. WEX MAKES NO WARRANTIES WITH RESPECT TO THE TIMELINESS OR ACCURACY OF ANY RESULTS, DOCUMENTS, DATA OR INFORMATION THAT MAY BE OBTAINED OR RETRIEVED THROUGH USE OF THE SOFTWARE.
Some jurisdictions do not permit the disclaimer of certain implied warranties, so some of the foregoing may be inapplicable. To the extent that WEX may not, as a matter of law, disclaim any warranty, the scope and duration of such warranty shall be the minimum permitted under applicable law.
7 Indemnity / Limited Liability.
7.1 By System User.
System User shall indemnify, defend and hold harmless WEX and WEX’s directors, officers, employees, agents, consultants, customers, shareholders, distributors and sub licensees from and against all claims, actions, liabilities, losses, expenses, damages and costs, including, but not limited to, reasonable attorneys’ fees, that may at any time be incurred by reason of: (a) any claims arising out of the conduct of System Users business or use; (b) any transactions submitted through WEX Services for payment processing; (c) any third party claim arising out of or relating to breach or alleged breach of System Users’ obligations hereunder; (d) any claim based upon alleged errors or omissions or misrepresentations in the Licensed Information provided by System User; or (e) any viruses, Trojan horses, worms, time bombs, cancelbots, other computer malware or programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, that are contained in the Licensed Information provided by System User.
7.2 By WEX.
WEX shall indemnify, defend, and hold harmless System User and System User’s directors, officers, employees, agents, consultants, shareholders, distributors, and sub licensees from and against all claims, actions, liabilities, losses, expenses, damages, and costs, including, but not limited to reasonable attorneys’ fees, that may at any time be incurred by reason of any third party claim arising out of or relating to breach or alleged breach of, or any claim that is otherwise inconsistent with WEX’s representations or warranties contained in these Terms, or any damages suffered by System User and System User’s directors, officers, employees, agents, consultants, distributors, and sub licensees on account of System User’s use of the Software and Services in accordance with these Terms.
7.3 Limitation of Liability.
WEX DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY PRODUCT OR SERVICE OFFERED BY ANY SYSTEM USER THROUGH THE WEX SERVICES, NOR TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION SUPPLIED THROUGH THE WEX SERVICES BY ANY SYSTEM USER. EXCEPT WHEN DUE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF WEX, WEX WILL NOT BE LIABLE TO ANY SYSTEM USER OR ANY THIRD PARTY FOR LOSS OF PROFITS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA, INTERRUPTION OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, ARISING OUT OF OR RELATED TO THESE TERMS, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY. IN NO EVENT SHALL WEX’S TOTAL LIABILITY IN CONNECTION WITH THESE TERMS OR THE USE OF THE WEX SERVICES, WITH REGARDS TO A PARTICULAR SYSTEM USER, EXCEED THE TOTAL AMOUNTS PAID TO WEX BY SUCH SYSTEM USER HEREUNDER.
Some states do not allow the limitation of liability, so the foregoing limitation may not be applicable. Please consult legal counsel as to the specific legal rights that may be applicable from state to state.
8 General Provisions.
8.1 Governing Law.
These Terms will be interpreted and governed by the laws of the Commonwealth of Virginia, without reference to conflict of laws principles.
8.2 Relationship of Parties.
The relationship of WEX and System User established by these Terms is that of independent contractors, and nothing contained in these Terms will be construed to constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.
8.3 Amendments and Modifications.
WEX may change these Terms at any time; provided, however, that such changes shall not become effective for thirty (30) days from the notice thereof. Notice of changes may be provided via email, posted on the WEX Services website(s), or otherwise published to the System User. System User’s continued use of the WEX Services thereafter shall constitute acceptance of such changes.
8.4 Waiver of Breach.
The waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default.
If any provision of these Terms is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect.
8.6 Force Majeure.
Neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, sabotage, terrorist activity, governmental actions, unavailability of transportation, acts or omissions of third parties, delays, failure, or substantial failure involving the Internet or World Wide Web or similar services including network traffic, or any other cause beyond its reasonable control.
Neither this Agreement nor any of the rights or obligations arising from it shall be assigned or delegated, in whole or in part, by contract, action of law or otherwise, by System User, without the prior written consent of WEX and any such attempted assignment shall be void and unenforceable. WEX may assign this Agreement to a parent or subsidiary corporation, to a company in which the majority owner is the same as the majority shareholder of WEX, or to a successor in interest to all or substantially all assets of such WEX. This Agreement, together with the rights and obligations in connection to it, shall be binding upon and insure to the benefit of the Parties and their respective successors, permitted assigns and legal representatives.
8.8 Email Correspondence and Notices.
System User agrees that email may be used for routine correspondence regarding their use of the WEX Services and for offers, solicitations, newsletters or similar correspondence from WEX.
Except as otherwise provided herein, all notices required or permitted under these Terms will be in writing and will be deemed given when: (a) delivered personally; (b) sent by confirmed telex or facsimile; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) day after deposit with a commercial overnight carrier specifying next day delivery, with written verification of receipt. If the communication is to WEX, it shall be addressed to WEX Inc., 14151 Newbrook Drive, Suite 200, Chantilly, VA 20151.
8.9 Entire Agreement.