1 Introduction and Definitions
The Vergo Charge Card is a business spending card issued by Issuer to Vergo Technology, Inc., the Cardholder. These Terms of Use are a legal agreement between you and the Cardholder. By requesting, applying for, or using a Card, you agree to be bound by these Terms of Use.
Whenever you see the following terms, they mean:
The Card allows you to initiate payments for the purchase of goods or services with merchants and conduct certain other transactions as permitted by, and on behalf of, the Company, which are charged to the Company’s Account. You are an authorized user of the Card, and you may access the Card only to the extent authorized by the Company and these Terms of Use.
There may be other agreements between you and us concerning your use of the Card and the Transactions you initiate. In the event of a conflict between these Terms of Use and any such agreements, these Terms of Use will control to the extent of the conflict.
2 The Card
If you request and are approved to receive a Card, you will be issued a Card with which you, subject to these Terms, may initiate Transactions that will be associated with the Company’s Account. Although your Card will be linked to the Account, records of any transactions involving your Card will be maintained separately from transactions associated with all other Cards linked to the Account.
Your Card must be activated before you can use it. You can activate your Card by following the instructions provided with your Card or by calling 1 (833)-333-0417.
Important information about procedures for obtaining a Card: 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 identifying each person who opens an account, including any Permitted Users who may access an account. This means that before a Card can be provided to you, the Issuer may require you to provide certain information and documents to verify your business and your beneficial owners. This may include corporate registrations or filings, your name, legal address, Social Security Number or Tax Identification Number, date of birth and other information that will allow the Issuer to identify you. We also may ask for a driver’s license or other identifying documents from you. By obtaining a Card, you agree to provide us with the information requested by the Issuer or our service providers from time to time.
3 Using Your Card
You may only use your Card for lawful and bona fide business Transactions on behalf of the Company. You may not use your Card for personal, family or household purposes. You also agree that you will not use your Card for “Prohibited Transactions,” meaning:
No person other than you and any Permitted User is permitted to use the Account or the Card, and you must take reasonable steps to prevent others from doing so. You are responsible for the usage of any person you permit to use the Card (a “Permitted User”). You will ensure that no Permitted User uses a Card for any Prohibited Transaction. Your Card remains the property of the Issuer and must be returned upon request. We or the Issuer may cancel, revoke, repossess or restrict the use of your Card at any time. We, the Company, or the Issuer may decline to authorize or reverse Transactions and suspend and/or close your Card for any reason including, without limitation, violation of these Terms of Use or any other agreement you have with us, if we or the Issuer suspect fraudulent activity, or if we or the Issuer believe your use of the Card otherwise presents undue risk to us or the Issuer. We, the Company, or the Issuer may also decline to authorize Transactions at merchants characterized by the applicable card network or us as prohibited merchants. Neither we nor the Issuer will be responsible for losses resulting from declined or reversed Transactions, or any other actions described in this paragraph. We and the Issuer are not responsible and will have no liability if a merchant refuses to honor a Card or accept a purchase.
4 Card Authorization Holds
When you use your Card to initiate a Transaction at certain merchants, including restaurants, gas stations, hotels, and rental car companies, a hold may be placed on your Card which may differ from the actual Transaction amount. Such a hold will reduce the amount that is available to you for Transactions until the hold is released.
5 Linked Accounts
You authorize us to use any information associated with any Linked Account in connection with the Program, including to verify account balances and account information, identify spending patterns and potential fraud, determine and review spending limits, analyze and report transactions, and provide Services to you. You must maintain at least one Linked Account at all times to participate in the Program.
6 No Preset Spending Limit
From time to time, we or the Issuer may, in each such person’s sole discretion, establish and modify credit limits applicable to the Account, any Card, or any Transactions. We will communicate credit limits to you through email. You are responsible for any Transactions that exceed any credit limits and agree to promptly take any actions necessary to comply with any credit limits at all times. Any limits we or the Issuer may establish are at our and the Issuer’s complete discretion; we may decline or permit Transactions below or exceeding such limits at our discretion. We use information available about you, including Transaction and payment patterns, Transaction volumes, current and anticipated use of a Card, financial information or projections about you, the nature and history of your business, and other information about you and/or the merchant at which a Card is presented to determine whether to authorize a Transaction. We may, but are not required to, provide notice to you regarding whether specific Transactions or volumes of Transactions are likely to cause us not to authorize Transactions or otherwise limit your spending. Any such guidance may be modified at any time with or without notice to you. We also may suspend or terminate your Card privileges in our sole discretion, with or without prior notice to you.
7 Fees
You agree to pay the fees as set forth in these Terms. The amount of each fee will be charged to your Account on the date it is due. When a fee is charged to your Account, your available credit will be reduced by the amount of the fee.
7.1 Late Fee. If we do not receive the full Amount Due shown on your statement by its Payment Due Date, then we may assess a late fee equal to $30.
7.2 Annual Fee. You do not have any annual fee at this time.
7.3 Replacement Card Fee. If you request a replacement Card, we may impose a fee of up to $20.
7.4 Foreign Currency Transaction Fee. If any Transaction on your Account is made in a currency other than U.S. dollars, then we may assess a Foreign Currency Transaction Fee of up to [20 basis points (0.20%)] of the amount of such Transaction. Please also see “Transactions Made in Foreign Currencies” below for other important information about Transactions made in foreign currencies.
7.5 Cross Border Transaction Fee. If any Transaction on your Account is made at a location outside of the United States in U.S. dollars, then we may assess a Cross Border Transaction Fee of up to [90 basis points (0.90%)] of the amount of such Transaction.
Notwithstanding the foregoing, in no event shall any fee or portion of such fee be assessed if prohibited by applicable law. If any fee or portion of a fee set forth above is finally determined to be prohibited by applicable law, then we will not assess such fee or portion of such fee and will credit your Account for any amounts received that otherwise would have been prohibited by applicable law.
8 Transactions Made in Foreign Currencies
If you make a Transaction in a currency other than U.S. dollars, the Card Network will convert it into a U.S. dollar amount. The Card Network will use its own currency conversion procedures. The conversion rate in effect on the processing date may differ from the rate in effect on the transaction date that appears on your statement. As discussed above, we may assess a Foreign Currency Transaction Fee on such Transactions and this fee is in addition to any cost that you may incur due to the conversion procedures used by the Card Network.
9 Periodic Statements
We will provide you with a periodic statement for billing cycles in which there is activity on your Account. Please review each periodic statement promptly and carefully. If you believe a periodic billing statement contains any error or any other amount that you do not owe (collectively, an “Error”), you must contact us immediately. You must report any Error to us no more than 60 days after the posting of the first periodic billing statement containing the Error. You waive the right to dispute any amount after this date. In your notice of an Error, you must include your identity, details about the transaction, and an explanation of why you believe that the transaction is erroneous. We will review the information provided in the notice in a commercially reasonable manner.
10 Payments
You promise to pay all Transactions, fees, and other amounts arising from or related to the Card and/or your Account, including Transactions you make, even if you do not present a Card or sign for the Transaction, Transactions that other people make if you let them use a Card for your Account, and Transactions that Permitted Users make or permit others to make. You must pay the full amount due shown on each of your periodic statements no later than by its payment due date (“Due Date”).
Unless we agree otherwise, you must make payments electronically pursuant to an ACH authorization that you have provided to us for a Linked Account. You must pay in U.S. dollars. We may refuse to accept a payment in a foreign currency. If we do accept it, we will charge your Account our cost to convert it to U.S. dollars. You also must make your payments in accordance with any terms contained in your periodic statement. We can accept nonconforming payments, late payments, partial payments, and payments marked “payment in full” or with any other restrictive endorsement without losing any of our rights under these Terms. We have the right to defend ourselves in connection with any demand to return funds we have received and may agree to a compromise of the demanded amount as part of a settlement. You authorize us to apply payments and credits at our discretion, including in a manner most favorable or convenient for us. If applicable law requires that payments and credits be applied in a certain order, then we will do so.
11 Permitted Users
You may request additional Cards for Permitted Users. Permitted Users may use your Account subject to these Terms. You are solely responsible for all acts and omissions of you, the Permitted Users, or any other person as it relates to any such person’s use of the Cards and the Account, including compliance with applicable law.
Permitted Users are not required under these Terms to pay for any Transaction, but this does not limit the rights of any party under any other agreement or under applicable law. You must promptly notify us if you wish to cancel the authority of a Permitted User to use your Account and follow any instructions that we provide.
12 Default
You are in default under these Terms if:
If you are in default, then we may declare the entire balance of your Account immediately due and payable without notice, except to the extent required by law. We also may suspend your ability to make Transactions and/or cancel or suspend any feature or service associated with your Account. If we use an attorney to collect your Account, then we may charge you our legal costs to the extent permitted by law. These may include reasonable attorneys’ fees, court or other collection costs, and fees and costs of any appeal.
13 Notice of Loss, Theft or Unauthorized Use
If you, an Authorized Representative, or any Permitted User knows of or suspects the loss, theft, compromise or possible unauthorized use of a Card or Account, you must contact us immediately by calling 1 (202) 979-9711 or following any instructions on your statement.
14 Unauthorized Use
Your liability for unauthorized Transactions that occurs prior to us receiving your notice will not exceed fifty dollars ($50). You will not be liable for unauthorized Transactions that occur after we receive your notice. If you are eligible for other protection from unauthorized Transactions under the Card Network's rules and you have met all conditions for such protection, your liability will be limited in accordance with such Card Network’s rules.
All Transactions authorized by your Authorized Users or by any person to whom you have given access to a Card or your Platform Account will not constitute unauthorized Transactions, even if such Authorized Users or persons exceeded the authority you have given them or failed to comply with your own policies concerning use of the Platform Account or Cards. In addition, you agree that you will provide us and any law enforcement authority reasonable assistance with any investigation or prosecution with respect to unauthorized Transactions.
15 Disputes Regarding Charges on Your Account
You shall use your best efforts to resolve all disputes directly with any merchant, including without limitation, disputes involving purchase price discrepancies, quality, warranty, or performance issues. All Transactions must be paid in full regardless of disputes, except to the extent otherwise required by applicable law. If you have questions or wish to dispute a Transaction, you must provide us with notice in writing no later than the lesser of 60 days from the billing date of such Transaction or any time period set by the Card Network. If you do not provide notice within this time, Transactions will be considered final and binding even if there was an error or basis for dispute. If we determine that a Transaction qualifies for a chargeback to the merchant, then we will initiate a chargeback under the Card Network rules. Any accepted chargeback will be credited to your Account. You will not pursue any claim against or reimbursement from a merchant if we have credited your account for a chargeback. You will remain liable for any Transaction that cannot be charged back to the merchant.
16 Returns and Refunds
Please be aware of the merchant’s return policies before using your Card to make a purchase. Neither we nor the Issuer are responsible for the delivery, quality, safety, legality or any other aspect of the goods or services you purchase using your Card. If you have a problem with a purchase that you made with your Card or if you have a dispute with the merchant, you must handle it directly with the merchant. If you are entitled to a refund for any reason for goods or services obtained using your Card, you agree to accept credits to your Card for the refund and agree to the refund policy of the merchant.
17 Communications
You authorize us to contact you by phone, electronic mail, or text message at any phone number or address you provide, including without limitation contacting you using automatic telephone dialing systems and/or prerecorded/artificial voice messages, and you authorize such contacts even if it involves a wireless telephone and/or results in charges to you. Additionally, you authorize the Issuer and our service providers, debt collectors, collection attorneys, and other third parties working for us to contact you using these methods. You also agree that we may monitor and/or record our calls with you. You agree that any written notice or disclosure, required by law or these Terms, may be mailed or e-mailed to the mailing address or e-mail address we have on file for you. It is your sole responsibility to provide and maintain your current mailing address, email address, and other contact information with us.
18 Closing Your Account
You may close your Account at any time by contacting us and destroying all Cards or returning all Cards to us as we direct. You will remain responsible for any amounts you owe us under these Terms and on your Account. These Terms will not terminate until you pay all that you owe to us in connection with these Terms. We may close, cancel, or suspend your Account at any time with or without notice at our discretion.
19 Arbitration Agreement
Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with us and limits the manner in which you can seek relief from us or Issuer. Both you and we acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, our officers, directors, employees and independent contractors (“Personnel”) and Issuer and Issuer’s Personnel are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Issuer and such Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
19.1 Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York County, New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
19.2 Costs of Arbitration. The Rules will govern payment of all arbitration fees. Vergo will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. We will not seek its attorneys’ fees and costs in arbitration unless you bring a claim against us and the arbitrator determines that your claim is frivolous.
19.3 Small Claims Court; Infringement. Either you or we may assert claims, if they qualify, in small claims court in New York County, New York or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
19.4 Waiver of Jury Trial. YOU AND WE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and we are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and we over whether to vacate or enforce an arbitration award, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
19.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
19.6 Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 228 Park Ave S., PMP 76551, New York, NY 10003-1502 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your Account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
19.7 Exclusive Venue. If you send the opt-out notice 19.6, and/or in any circumstances where the foregoing arbitration agreement permits either you or us to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and we agree that any judicial proceeding (other than small claims actions or collections actions) will be brought in the state or federal courts located in, respectively, New York County, New York, or the federal district in which that county falls.
19.8 Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this arbitration agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with us.
20 Choice of Law
These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
21 Other Important Information
21.1 Card Security
It is important that you protect your Card and any associated information concerning your Card to prevent unauthorized use, misuse or fraud. You and the Company are responsible for securing your Card and any associated card numbers (including the CVV), login credentials, PINs, security codes or any other security features provided to you in connection with your Card.
21.2 Prohibited Cardholders
The U.S. Department of the Treasury’s Office of Foreign Asset Control (“OFAC”) administers and enforces economic sanctions programs against countries and groups of individuals. You represent and warrant that you are not currently and will not become subject to an OFAC list. Additionally, you represent and warrant that you are not currently and will not become subject to any law, regulation or other list of any government agency that prohibits or limits us from allowing you to use a Card, initiate Transactions associated with the Account, or from otherwise conducting business with you.
21.3 Legal Compliance
You agree to follow all laws, regulations, and card network rules that apply to your use of the Card and any Transactions you initiate.
21.4 Third-Party Service Providers
We and the Issuer work with one or more third-party service providers, including Unit Finance Inc. (“Unit”), in connection with your Card. Unit may assist in processing Transactions, handling account operations, and providing technological connections between us, the Issuer and our service providers. By using your Card, you license and authorize us to share your information with Unit and/or other third parties, access information maintained by Unit and/or other third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. In particular, you agree that Unit may perform any functions on your Card and the Company’s Account that we or the Issuer are otherwise authorized to perform and that Unit’s access and use of your information will be governed by the terms of Unit’s Privacy Policy, available at https://www.unit.co/clients-privacy-policy. These Terms of Use are made solely between you and us and do not establish a contractual or any other legal relationship between or among you, the Issuer or Unit, or any other third-party service provider.
21.5 Privacy
We will only disclose information about you, your Card and the Transactions you make in accordance with our Privacy Policy, available at https://www.getvergo.com/legal/end-user-privacy-policy. By requesting, applying for, or using a Card, you agree to our privacy policy.
21.6 Contacting Us
If you have questions about your Card or Transactions, you may contact the Company or us by 1 (202) 979-9711 or emailing us at support@getvergo.com.
21.6 Amendments to these Terms
We may update, amend, delete, or replace any of these Terms by posting an updated version to our website or providing other written or electronic notice to you. Any changes to these Terms will be effective upon posting unless another effective date is indicated. If required by law, we will give you advance notice of change(s) and a right to reject the change(s). Your continued use of the Card will serve as your acceptance of any changes to these Terms.
21.7 Other Terms and Conditions
If any part of these Terms is found to be invalid, the rest of it will still remain in effect (except as noted in “Arbitration Agreement” section above). We may delay or not enforce any of our rights under these Terms without losing or waiving any such right. We may sell, assign or transfer our rights and obligations under these Terms (or any portion thereof) without notice to you. You may not sell, assign or transfer your rights and obligations under these Terms without obtaining our prior written consent. Nothing contained in these Terms shall be construed as constituting or creating a partnership, joint venture, agency, or other association or relationship between you and us. To the extent that either party undertakes or performs any duty for itself or for the other party as required by these Terms, the party shall be construed to be acting as an independent contractor and not as a partner, joint venturer, or agent for the other party. In no event shall we be liable to you for any failure or delay in performance wholly or in part due to causes or circumstances beyond our reasonable control including, but not limited to the following: acts of God; acts of the public enemy; civil disturbance; war; acts of the United States of America or any state, territory or political division of the United States of America; fires; floods; natural disasters; pandemic or epidemic events; regional, statewide, or nationwide strikes, or any other general labor dispute not specific to us; and/or communication line failures (collectively “force majeure”). Our inability to perform under these Terms due to force majeure events will not be considered a breach or default.
EXCEPT AS OTHERWISE REQUIRED UNDER APPLICABLE LAW, WE ARE NOT LIABLE FOR ANY LOSS SUSTAINED BY ANY PARTY RESULTING FROM ANY ACT, OMISSION OR FAILURE TO ACT BY US OR THOSE ACTING ON OUR BEHALF, WHETHER WITH RESPECT TO THE EXERCISE OR ENFORCEMENT OF OUR RIGHTS OR REMEDIES UNDER THESE TERMS, UNLESS THE LOSS IS CAUSED BY OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. OUR LIABILITY UNDER THESE TERMS SHALL BE LIMITED TO ACTUAL DAMAGES INCURRED BY YOU AS A DIRECT RESULT OF OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IF ANY. FURTHERMORE, OUR LIABILITY SHALL NOT EXCEED THE SUM OF ALL FEES PAID BY COMPANY UNDER THESE TERMS PRIOR TO THE DATE WHEN ANY CLAIM IS MADE. IN NO EVENT WILL WE BE LIABLE FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
EXCEPT AS OTHERWISE REQUIRED UNDER APPLICABLE LAW, WE MAKE NO WARRANTY WITH RESPECT TO GOODS, PRODUCTS OR SERVICES PURCHASED USING A CARD. WE FURTHER DISCLAIM ALL WARRANTIES WITH RESPECT TO GOODS, PRODUCTS AND SERVICES PURCHASED WITH A CARD, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY.
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New Jersey Residents: Because certain provisions of these Terms are subject to governing law, they may be void, unenforceable or inapplicable in some jurisdictions. None of these provisions are void, unenforceable or inapplicable for New Jersey residents. The section headings of these Terms are not contract terms.
