PENNY PLATFORM AGREEMENT
Last Updated: February 25, 2025
This Platform Agreement, together with all applicable Penny Terms, forms a binding contract between Company and Penny (the “Agreement”) and governs your use of the Services. By submitting your application to open a Penny Account you are agreeing to the Platform Agreement and accept and enter into the Agreement. Capitalized terms used in the Agreement have the meaning provided in the “Definitions” section of this Agreement. As used in the Agreement, "you" refers to Company, and "we" refers to Penny Inc. (“Penny”).
You may only apply for, open and maintain a Penny Account and use the Services if you accept the Agreement.
Penny Platform
Subject to Penny’s approval of the Company in opening a Penny Account, Penny grants you the right to access and use those Services made available through your Penny Account. As our products and business evolve, Penny may update the Services and will make commercially reasonable efforts to notify you in advance of material changes to the Services. Some Services may be delivered or supported by Penny affiliates, Third-Party Service Providers and Financial Institution Partners and may require your agreement to additional terms with such parties.
Opening a Penny Account
To receive access to or use the Services, you first need to submit an application for a Penny Account. As part of the application, you must provide all information we request, which may include Company Data and Personal Data.
You may also need to provide documentary information used to verify Company Data and Personal Data (such as corporate registration certificate, proof of address, financial statements, bank statements, or personal identification). Use of certain Services or features may also require that you permit Penny to access Company Data and Personal Data through Third-Party Services. At any time, including if you request access to additional features or Services, we may require additional information and documentation that we or our Financial Institution Partners deem necessary for compliance and underwriting.
We provide Company Data and Personal Data to Financial Institution Partners and Third-Party Service Providers to determine your eligibility for Services and Cards. We may also request information from credit reporting agencies using Company Data and Personal Data, and may report the performance of your account to one or more credit reporting agencies. We, Financial Institution Partners and Third-Party Service Providers may approve or deny your application or grant you provisional access to the Services, Third-Party Services or your Penny Account while your application is pending additional review. We may deny applications, interrupt provision of the Services to you, or suspend or close your Penny Account where Company Data or Personal Data is incomplete, inaccurate or out of date. If a deficiency results in suspension or closure of your Penny Account, we will make commercially reasonable efforts to provide you with notice.
If your business was referred to Penny, you acknowledge and agree that Penny may provide the status of your application and limited Company Data about you to the Penny customer or partner that referred you, which may include (a) notice that you successfully opened a Penny Account and/or met other criteria required by the referral link or other referral method, such as completing a minimum required payment; or (b) aggregate spend data or total spend volumes as required to determine partner incentives.
Important Information About Procedures for Opening a New Account
To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify, and record information that identifies each person (individual or business) who opens an account. We may share this Company Data and Personal Data with Financial Institution Partners and Third-Party Service Providers for these purposes. We may decline to open an account for any reason at our sole discretion, or the discretion of any Financial Institution Partner. We will provide you with any adverse action notices as required by law. We are not liable for any damages or liabilities resulting from refusal of an account relationship.
Fees
Some Services may have associated transaction, finance, subscription or other Fees, which Penny advises on a per Partner basis (for Program Level fees), and via a website link, http://docs.thepennyinc.com/docs/fees (for Transactional Level fees). Fees are subject to change from time to time and Penny will notify you of changes in advance via the Penny Portal.
Managing your Penny Account
Program Reserve Funding. In order to secure your liability to Penny or Financial Institution Partner relating to the VCC Program or any other services provided hereunder, Penny may require you to fund a program reserve (“Program Reserve”) and a negative balance reserve (“Negative Balance Reserve”) in the amount specified by Penny (taken together, “Program Reserve Amount”). In some instances, the Program Reserve Amount may be deposited into a separate account.
Termination of Cards. You acknowledge that Cards will be subject to cancellation at any time by Penny or the Financial Institution Partner, in accordance with the Penny Terms, or as required by Applicable Law, or, on a case-by-case basis, where Penny believes, at its sole discretion, that the Cards are being used for unauthorized, fraudulent, illegal or suspicious purposes or as otherwise detailed in the Penny Terms.
Cardholder Agreements. Client, and its Authorized Users as applicable, shall be responsible for entering into a Cardholder Agreement with the Financial Institution Partner, and shall further ensure that (i) each Authorized User agrees, accepts, and complies with such Cardholder Agreements; and that (ii) Client shall maintain records of such acceptance for at least two (2) years after the Card is terminated.
Applicable Law. You represent that you shall not use, or allow yourUsers to use, the Card in a way that may violate Applicable Law, or for any illegal purposes.
Losses. You acknowledge that you are liable for any negative balance in your Penny Account, and agree that you shall immediately pay off any negative balance. You bear all risk and cost of compliance with any requirements of Financial Institution Partner, fraud losses, credit losses, load failures, chargebacks, forced post, or other losses on the Card (“Losses”), including without limitation, Losses from any account load method chargebacks, card based dispute claims, and possible regulatory fines incurred from your activity. You shall be responsible for and liable for all losses and reasonable expenses associated with unauthorized transactions, including, but not limited to, use of stolen cards by third-parties, use of a compromised account or card number by third-parties, BIN attacks, skimming, cards phishing, or any other event that may be deemed as fraud.
No Interest. You are not entitled to interest on any funds held in any Penny Account.
Administrators. You must specify at least one Administrator to manage your Penny Account when submitting your Application. Administrators can add, remove, or manage additional Administrators and Users; request and manage Cards; set or change spending limits; view transactions; run reports and download statements; provide, view or update Company Data and Personal Data; connect Third-Party Services, and other accounts to your Penny Account; provide authorization to debit accounts; consent to new or updated terms and conditions; and perform other tasks on your behalf. You are responsible for (a) any actions or failure to act on the part of Administrators, Users, and those using credentials issued to Administrators or Users to access Company's Penny Account; and (b) compliance with the terms and conditions for any Third-Party Services enabled, accessed or used through your Penny Account.
Compliance. All potential Users will be required to accept and comply with the Agreement to become Users, and all Users that are authorized to use Cards or other payment tools may also be required to accept and comply with terms presented or required by Financial Institution Partners, Penny or Third-Party Service Providers.
Security and Monitoring your Penny Account
You will keep your Penny Account secure and only provide access to individuals that you have authorized and meet all applicable requirements under the Agreement. You will maintain API access tokens securely. You are solely responsible for keeping your Penny Account and API tokens secure, and we are not liable for any acts or omissions by you in connection with your Penny Account and API access tokens, or as a result of your credentials being compromised. You will immediately disable User access to the Services if you know or believe a User’s or Administrator’s access credentials or your Penny Account has or may have been compromised or has been or may be misused; and you will promptly notify us (via the Services or by contacting our support team) of any known or reasonably suspected unauthorized access or use.
Authorized Users
Your authorization of a User will allow them to use the Services and access certain functionality of your Penny Account. You are responsible for (a) ensuring that Users are aware of our rights and comply with your obligations under the Agreement, including the section “Requirements and Prohibited Activities” below; (b) notifying Users of and administering your corporate expense and spend management policies; (c) ensuring proper use of the Cards and all charge information is complete and correct; and (d) resolving any disputes relating to your maintenance or administration of your expense and spend management policies.
Requirements and Prohibited Activities
Only United States Entities in good standing may apply for a Penny Account. Companies registered outside the United States, as well as consumers, sole proprietors and unincorporated partnerships, are not permitted to use, or attempt to open or use, a Penny Account. Foreign offices or Company Affiliates of United States Entities may only use the Services and be issued Cards subject to any requirements imposed by Penny and each applicable Financial Institution Partner. You are and will remain fully responsible for all use of the Services and compliance with the Agreement, including acts or omissions of a Company Affiliate or any User or other person associated with Company or a Company Affiliate.
Company shall not, and shall not permit any other entity or person to: (a) use the Penny Account, Cards, or Services for (i) any expenses other than Company's or a Company Affiliates’ bona fide business expenses, (ii) any purpose that is unlawful or prohibited by the Agreement, the Card Terms or any Payment Network rules, (iii) any personal, family, or household use, or (iv) any activities not for the benefit of the Company or a Company Affiliate, unless otherwise pre-approved in writing by Penny and its partners; (b) provide, provide access to, or use for the benefit of an individual, organization, or country that is blocked or sanctioned by the United States -- including those identified by the United States Office of Foreign Asset Control (OFAC) -- the Penny Account, Cards or Services; (c) permit use of the Penny Account, Cards, or Services by third parties not authorized by Penny and its partners; (d) modify, reverse engineer, create derivative works from, copy or disassemble Penny Property; (e) register, attempt to register, or claim ownership in Penny Property or portions of Penny Property; (f) use the Penny Account in a materially different way than as stated in Company Application or as otherwise authorized by Penny and its partners; or (g) use the Penny Account in connection with any prohibited activities, or any other restricted category or business activity as determined by Penny or any of its partners in their sole discretion ((a) through (g), collectively, “Restrictions”).
Penny and our Financial Institution Partners may be subject to regulation and acceptable use and risk management policies that require us to strictly enforce the Restrictions and prevent any activities that violate or could potentially violate the Agreement. We may therefore limit, suspend or terminate your Penny Account and/or access to the Services or Cards if we believe in our reasonable discretion that the Agreement may be or was violated, if required by a Financial Institution Partner or government authority, if we suspect you are engaged in fraudulent or illicit activities, if we believe you are creating an undue risk to us or others, or to comply with Applicable Law. Without limiting any of your indemnification or other obligations to us, you agree to pay all Fines and Fees imposed on Penny or any affiliate, officer, employee, agent or representative thereof by Financial Institution Partners, regulators, Payment Networks, or government agencies for your violation of this Section.
Identification as Customer
We may publicly reference you as a Penny customer on our website or in marketing materials during the term of the Agreement. You grant Penny a limited license to use Company trademarks or service marks for this purpose. Please notify us if you prefer that we not identify you as a Penny customer and we will use best efforts to remove references to you on our website and marketing materials.
Ownership and License
As between you and Penny, Penny and its licensors own all Penny Property, including all modifications, improvements, enhancements, derivative works, models or features. You, Administrators, and Users may use Penny Property only as and for the purposes provided in the Agreement.
Subject to the terms and conditions of this Agreement (including the timely and complete payment of all applicable fees), Penny grants you a nonexclusive, non-sublicensable and nontransferable license to use Penny Property as permitted by the Agreement to the extent that Penny provides it to you via the Services. This license terminates upon termination of the Agreement unless terminated earlier by us in accordance with the Agreement.
The Penny APIs may be protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. Penny’s rights apply to the Penny APIs and all output and executables of the Penny APIs, excluding any software components developed by Client. Client agrees to abide by all applicable intellectual property laws and other Applicable Law, as well as any additional copyright notices or restrictions contained in this Agreement. Penny (or its partners and vendors) owns all rights, title, and interest in and to the Penny APIs. Except as set forth in the Agreement, this Agreement grants Client no right, title, or interest in any intellectual property owned or licensed by Penny or any third party, including (but not limited to) the Penny APIs and Penny trademarks. All right, title, and interest in and to software components developed by the Client shall remain with the Client.
You agree NOT to:
(i) Use or otherwise access the Penny API for use with Users until you have received the Application approval from Penny.
(ii) Create any script or other automated tool that attempts to create multiple API Keys. You may not allow any third party to use Client’s API Key for such third party’s own benefit.
(iii) Use the Penny APIs in any manner or for any purpose that violates any law or regulation, promotes illegal activities, violates Partner agreements or any Terms, violates any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, or in any manner inconsistent with this Agreement;
(iv) Modify, adapt, alter, translate or create derivative works from the Penny API;
(v) Use the Penny APIs to engage in conduct that violates any Applicable Law or advertising guidelines;
(vi) Sell, lease, share, transfer, or sublicense the Penny APIs, or access or access codes thereto;
(vii) Use the Penny APIs in a manner that adversely affects Penny and/or the Penny Service(s) or exceeds: (a) reasonable request volume, as set by Penny from time to time, (b) constitutes excessive or abusive usage, or (c) otherwise fails to comply or is inconsistent with any part of the Penny API documentation, as determined by Penny in its sole discretion;
(viii) Otherwise exercise rights to the Penny API except as expressly allowed by this Agreement;
(ix) Reverse engineer or attempt to reconstruct, identify or discover any underlying ideas, underlying user interface techniques, or algorithms related to the Penny Service;
(x) Remove, obscure or alter any Penny’s (or any of its partner’s) copyright notices, trademarks or other proprietary rights notices affixed to or contained within the API; or
(xi) use the Penny APIs in a product or service that competes with products or services offered by Penny.
Data and Privacy
You acknowledge, understand and agree that Penny, Financial Institution Partners and Payment Networks collect, process and share Company Data and Personal Data through your use of Cards, the Services, and Third-Party Services. We may use and disclose Company Data and Personal Data (a) for identity verification and underwriting, establishment and adjustment of spend limits, spend and transaction analysis, fraud and loss prevention, and reporting; (b) to provide, maintain and improve the Services; (c) as required by law, Financial Institution Partners or Payment Network rules; (d) to report Company performance to credit reporting agencies and credit rating agencies, where appropriate; and (e) to enforce and protect our rights, including as needed in dispute resolution. To the extent applicable, Personal Data will be processed in accordance with the Penny Privacy Policy. Where Company Data or Personal Data is shared by us with our subcontractors, Penny will implement controls to reduce the risk of loss or accidental disclosure. Penny may generate, use and disclose De-Identified Data for Penny's own business purposes, including to develop and improve Penny products, services, and marketing efforts. Penny may also include De-Identified Data in both public and private reports.
Rewards and Benefits
Penny may determine when, how, and under what conditions Company or Users may qualify for or earn rewards, including cash rebates. Any right to rewards or benefits shall terminate upon the termination of the Agreement, the closure of your Penny Account, or in the event of any breach of the Agreement. Any rewards accrued for a given month, prior to termination date will be awarded. Cash rebates will be deposited to your Penny Account, unless otherwise mutually agreed in advance. Additional details regarding rebates may be provided in your Penny Client Agreement
Beta Services
Penny may make Beta Services available to you, which may be subject to additional terms and conditions. If you opt in to any such Beta Services, you acknowledge that Beta Services may be unstable and subject to frequent, substantial interruptions and to erroneous output and operation. You agree not to use any Beta Services for any mission critical or other important functions.
Feedback
Company hereby grants Penny a royalty-free, fully-paid, irrevocable, perpetual, nonexclusive, worldwide, assignable and otherwise transferrable license, with the unrestricted and unlimited right to grant sublicenses, (a) to create derivative works based upon any Feedback; and (b) to use, copy, display, publish, distribute or otherwise commercialize or exploit in any manner any Feedback or derivative works based thereon. You acknowledge and agree that any Feedback you submit is not Confidential Information. Penny has no obligation to compensate or credit you for Feedback you provide, regardless of whether or how we may use or otherwise commercialize or exploit it.
Company Payment Obligations to Penny
Amounts Owed to Penny. You are responsible for payment in full of all Charges, Fees, Fines and other amounts owed by you to Penny. Amounts owed will be deducted from your Penny Account in accordance with the Agreement. In the event your Penny Account balance cannot satisfy the amounts owed, you will be invoiced for the difference with total amounts payable upon receipt in accordance with the Agreement.
All Charges, Fees, Fines and other amounts owed by you to Penny are exclusive of, and you are responsible for, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied in connection with this Agreement. All monetary amounts owed under the Agreement are stated in US Dollars (USD), unless otherwise specified by Penny through the Services or in applicable Penny Terms.
Past Due Amounts and Collections. Amounts owed under the Agreement may be collected from any Penny Account, a Linked Account, or offset from any other amount owed to you. This right may be exercised against Company, its Company Affiliates, and any assignees for the benefit of your creditors or receivers. This right will exist even if we do not exercise it prior to the making, filing, or issuance of an arbitration demand, court order, or other action.
Any failure to pay the full amount owed to Penny when required is a breach of the Agreement, pursuant to which Penny may declare the entire balance due immediately, regardless of the current billing cycle. You are responsible for all costs or expenses that we or Issuers incur collecting amounts owed but not timely paid, including legal or collections fees and any interest at the maximum rate permitted under law.
Authorization to Debit Linked Accounts and Your Penny Accounts
THIS SECTION PROVIDES AUTHORIZATION TO AUTOMATICALLY DEBIT YOUR LINKED ACCOUNTS FOR ALL AMOUNTS YOU OWE UNDER THE AGREEMENT. PLEASE READ IT THOROUGHLY.
Authorization
You authorize Penny, Financial Institution Partners, and their assigns to collect amounts owed under the Agreement by debiting funds from the Linked Accounts. If we use the Automated Clearinghouse ("ACH") network, debits will be governed by the rules established by the National Automated Clearinghouse Association ("NACHA") for business-related ACH debits. You also authorize us to debit your Linked Accounts for verification purposes (through microdeposits or similar means).
Timing
Your Linked Accounts may be debited for all payments and other amounts owed in connection with the Services or under the Agreement when due.
For Cards, we may provide you statements identifying Charges, Fees, Fines, or other amounts charged to your Penny Account, as well as any payments, refunds, Chargebacks granted or other credits to that account, as specified in your Penny Terms. Your Linked Account will be automatically debited for the full amount owed as identified in the statements.
If we, the applicable Financial Institution Partner, or an assign cannot or do not collect all amounts via debit, you agree to immediately pay all amounts owed as directed. You also authorize Penny, Financial Institution Partners, or their assigns to debit Linked Accounts immediately, on any date, where (a) the total aggregate balance of Linked Accounts is less than any balance minimums that we have communicated to you via the Services; or (b) we determine that Company poses or may pose an unacceptable risk to Penny, Financial Institution Partners, or third parties or no longer satisfies the underwriting criteria used to establish the spending limit for Company; however, Penny will make commercially reasonable efforts to provide prior notice to Company. In the event amounts due are not paid immediately, Penny reserves the right to charge commercially reasonable interest rates.
Withdrawing Authorization
To cancel the debit authorization from a Linked Account, you must provide us (30) days advanced written notice and pay all amounts owed under your Penny Account immediately, including Charges and other amounts that you are obligated to pay under the Terms. Such withdrawal of a debit authorization does not terminate the Agreement or your obligation to pay all amounts owed under the Agreement or the Card Terms. Company will be responsible for all costs of collections and damages under the Agreement if amounts owed are not paid by Company as described in the Agreement. Spending limits may be reduced (including to zero), and your Penny Account may be terminated or otherwise limited, if you withdraw debit authorization.
Term and Termination
The Agreement is effective when you submit an application for a Penny Account or otherwise agree to the Platform Agreement and continues until terminated as set forth in the Agreement.
Event of Default. Penny may suspend or terminate any or all of the Services where any of the following occur (each an “Event of Default”):
(i) You are in breach of your representations, warranties or obligations under the Agreement;
(ii) You have insufficient funds in the Penny Accounts to settle its obligations under the Agreement, is over-indebted or is otherwise unable to, or fails to or is likely to fail to, meet its financial obligations under this Agreement;
(iii) You are not using the Services as intended by Penny or its Partners, or are using the Services in a manner that is reasonably likely to cause reputational damage to Penny or its Partners;
(iv) Penny knows or reasonably suspects that fraud has occurred, is occurring, or is likely to occur with regard to the Services;
(v) You are in violation, or reasonably likely to be in violation, of Applicable Law;
(vi) Penny receives an instruction from Financial Institution Partner or a Payment Network to suspend the Services;
(vii) You become subject to any voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding, which involuntary proceeding is not dismissed or stayed within thirty (30) days, or a receiver is appointed, or you make an assignment for the benefit of creditors, or admit an inability to pay debts as they become due; or
(viii) You commence a dissolution or the winding up of business or ceases to do business.
Penny Termination. Notwithstanding anything to the contrary herein, if Penny determines that (i) an Event of Default cannot be or has not been cured within a reasonable time; or (ii) termination is required by Applicable Law, the Financial Institution Partner or a Payment Network for any reason; then Penny may terminate the Agreement immediately upon written notice.
Client Termination. You may terminate the Agreement by paying all amounts owed and providing notice to us but remain responsible for all Charges, Fees, Fines, and other amounts owed. Your payment and Penny's acceptance of any amounts does not extinguish or waive any of Penny's rights hereunder.
Upon termination, any related Cards will be terminated. Attempted use of a terminated card, including subscription charges where the card was previously lodged with the merchant, will result in a declined transaction and corresponding decline fees. Penny reserves the right to withhold a minimum balance until such time that attempted card activity (and corresponding network fees incurred by such activity) subsides. Penny typically maintains a minimum balance for six (6) months after the latest card authorization attempt. The sections titled Security and Monitoring your Penny Account, Data and Privacy, Beta Services, Feedback, Past Due Amounts and Collections, Authorization to Debit Linked Accounts, Term and Termination, Notice and User Notifications, Limitation of Liability, Disclaimer of Warranties by Penny, Indemnification, Governing Law, Dispute Resolution and Arbitration, Legal Process, Assignment, and Confidential Information of the Agreement, the provisions of the Card Terms that identify continuing fee payment and other obligations, and any other provisions of the Agreement giving rise to continued obligations of the parties will survive termination of the Agreement.
Notice and User Notifications
You consent to us providing Notices to you and User Notifications to Users electronically, including in each case those required by law, and your Users must consent to receiving User Notifications electronically. Such electronic Notices and User Notifications shall have the same effect as if provided in writing.
Our Notices to you will be effective if provided to an Administrator, and User Notifications will be effective if provided to the applicable User, in each case electronically through the Services, via email, or (except as provided below) via SMS to the contact information provided to us by the Administrators or the User, as applicable; provided that any required Notice of any material change to or amendment of the Agreement below will be provided to an Administrator. Company is responsible for coordination of all communication with Penny and represents and warrants it is entitled to make and receive any communication or Notice on each Company Affiliate’s behalf.
Notices and User Notifications may include alerts about Services, Cards, Charges or other kinds of transactions and may provide Administrators and Users the ability to respond with information about your Penny Account. Administrators and Users may elect to not receive certain Notices or User Notifications through your Penny Account, but this will limit the use of certain Services and may increase the financial risks to Company.
Except as may be otherwise specified in the Agreement, notices from you to Penny will be provided via the Services by contacting Penny through the Services, with a copy sent concurrently by email to legal@thepennyinc.com.
LIMITATION OF LIABILITY
PENNY IS NOT LIABLE TO YOU FOR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS, STOLEN MONIES OR UNAUTHORIZED ACCESS TO YOUR ACCOUNTS, PROPERTY DAMAGE, OR LOST REVENUE ARISING FROM OR RELATED TO THE AGREEMENT OR TO THE SERVICES OR CARDS, INCLUDING YOUR OR A COMPANY AFFILIATE’S USE OF OR INABILITY TO USE SERVICES OR CARDS, WHETHER OR NOT WE WERE ADVISED OF THEIR POSSIBILITY BY YOU OR THIRD PARTIES. OUR AGGREGATE LIABILITY TO YOU UNDER THE AGREEMENT FOR ALL CLAIMS IS LIMITED TO THE GREATER OF THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU TO PENNY IN THE THREE MONTHS PRECEDING THE EVENT THAT IS THE BASIS OF YOUR CLAIM OR $10,000. THESE LIMITATIONS APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH YOUR CLAIM IS BASED.
Representations and Warranties
In addition to other representations and warranties provided by you in the Agreement, you represent and warrant that (a) Company and each Company Affiliate is and will continuously throughout the term of the Agreement be duly organized and in good standing under the laws of its jurisdiction of incorporation; (b) Administrators have requisite organizational power and authority to conduct business on and manage Company's Penny Account in all respects, including delegating access or authority to other Users and connecting and authorizing debits from Linked Accounts, and Company is responsible and liable for each and every action taken by any Administrator that relates to the Agreement, Penny Terms, the Services, any Card or any Third Party Services; (c) you are opening an account on behalf of a Company organized and registered in the United States and that you are not opening an account as a consumer, sole proprietor, or unincorporated partnership; (d) you, Company Affiliates and Users will not engage in activities prohibited by the Agreement or any other agreement with us or a third party; (e) all Linked Accounts belong to you or a Company Affiliate; and (f) all Company Data and Personal Data provided to Penny is and shall remain complete, accurate, and current, you will update such Company Data and Personal Data immediately whenever it changes, and you have all necessary rights, consents and authorizations to make Company Data and Personal Data available to us for the purposes contemplated hereunder.
DISCLAIMER OF WARRANTIES BY PENNY
THE SERVICES, PENNY PROPERTY, AND BETA SERVICES ARE PROVIDED TO YOU AS IS AND AS AVAILABLE. NOT ALL SERVICES MAY BE AVAILABLE OR OFFERED TO YOU. PENNY DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, AND YOU ACKNOWLEDGE THAT NO PENNY PERSONNEL ARE AUTHORIZED TO PROVIDE ANY SUCH WARRANTY (EXCEPT IN A WRITTEN DOCUMENT IDENTIFIED AS AN AMENDMENT TO THE AGREEMENT AND EXECUTED BY AN AUTHORIZED REPRESENTATIVE OF PENNY AND AN AUTHORIZED REPRESENTATIVE OF COMPANY).
THIRD-PARTY SERVICES ARE NOT PROVIDED, CONTROLLED, RECOMMENDED OR ENDORSED BY PENNY. PENNY DOES NOT PROVIDE SUPPORT FOR AND DISCLAIMS ALL LIABILITY ARISING FROM FAILURES OR LOSSES CAUSED BY OR RELATING TO THIRD-PARTY SERVICES. IF A THIRD-PARTY SERVICE IS CONNECTED TO OR USED WITH YOUR PENNY ACCOUNT, COMPANY DATA AND PERSONAL DATA MAY BE ACCESSED AND RECEIVED BY PENNY AND SHARED WITH THE THIRD-PARTY SERVICE PROVIDER. WE ARE NOT RESPONSIBLE FOR THE THIRD-PARTY SERVICE PROVIDER’S USE, DISCLOSURE, MODIFICATION OR DELETION OF COMPANY DATA OR PERSONAL DATA.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PENNY DOES NOT GUARANTEE: (A) SERVICES OR DATA PROVIDED UNDER THE AGREEMENT WILL BE ACCURATE AND ERROR-FREE; (B) SERVICES WILL MEET YOUR SPECIFIC NEEDS OR REQUIREMENTS; (C) SERVICES WILL BE USABLE BY COMPANY, COMPANY AFFILIATES, ADMINISTRATORS, OR USERS AT ANY PARTICULAR TIME OR LOCATION; (D) SPECIFIC MERCHANTS HAVE PROVIDED CORRECT PAYMENT INFORMATION OR WILL PERMIT PURCHASES USING CARDS ISSUED BY A FINANCIAL INSTITUTION PARTNER; AND (E) SERVICES WILL BE SECURE OR FREE FROM HACKING, VIRUSES, OR MALICIOUS CODE.
Indemnification
You agree to indemnify, defend and hold harmless Penny, Financial Institution Partners and Third-Party Service Providers (including each such entity’s affiliates, directors, employees, contractors and agents) from and against any losses, liabilities, damages, claims, costs or expenses (including reasonable attorneys' fees) arising out of or relating to third-party claims, proceedings, suits, or actions arising from, related to or involving (i) a Company Affiliate’s, an Administrator’s or a User’s actual or alleged breach of any legal obligation owed to Penny or others, including obligations arising out of the Agreement or the Card Terms; (ii) amounts owed by Company to third parties; (iii) acts or omissions of Administrators, Users, or other Company or Company Affiliate employees or agents in connection with use of the Services, the Cards or any Third-Party Services; and (iv) disputes over Charges or other payments between Company or a Company Affiliate and payees. Penny may defend any claim subject to indemnification hereunder, using counsel of its choice, and you will pay or promptly reimburse Penny for the reasonable fees of such counsel and all related costs and reasonable expenses.
Governing Law
The Agreement, and any dispute or controversy arising from or related to it, will be governed by, and construed and enforced in accordance with the laws of the State of Nevada, without reference to any choice-of-law or conflict-of-law provisions of any jurisdiction, except as otherwise provided in the section titled Dispute Resolution and Arbitration with respect to the Federal Arbitration Act.
Dispute Resolution and Arbitration
Penny wants to address your concerns without the need for a formal legal dispute. Before filing any claim against the other (whether in court or arbitration), Company and Penny agree to try to first resolve the Dispute informally. To initiate such informal Dispute resolution, the party seeking to have its claim resolved (“Notifying Party”) will notify the other party (“Notified Party”) of the actual or potential Dispute (“Notice of Dispute”). If Company is the Notifying Party, you will notify Penny by email addressed to legal@thepennyinc.com. If Penny is the Notifying Party, Penny will provide Notice to you as set out in the Agreement or the contact information otherwise provided by the Company. The Notifying Party will include in its Notice of Dispute the name of each party, the Notifying Party's contact information for any communications relating to such Dispute, and sufficient details regarding such Dispute to enable the Notified Party to understand the basis of and evaluate the concerns raised. If the Notified Party responds to the Notifying Party within ten (10) Business Days after receiving the Notice of Dispute that it is ready and willing to engage in good faith discussions to informally resolve the Dispute, then each party shall promptly participate in such discussions in good faith.
If, notwithstanding the Notifying Party's compliance with all of its obligations under the preceding paragraph, a Dispute is not resolved within thirty (30) days after the Notice of Dispute is sent (or if the Notified Party fails to timely respond as provided above), the Notifying Party may initiate a proceeding with respect to the subject Dispute as described below.
Subject to the foregoing provisions regarding informal dispute resolution, each party to the Agreement agrees that any past, present or future Dispute, including those arising under or relating to breach of the Agreement, or any other transaction or matter involving you and Penny, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules (“Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof, unless the Dispute is subject to the Arbitration Exceptions below.
If either party brings an action or otherwise commences any proceeding in any court or administrative agency involving, with respect to, or relating to such a Dispute (other than for an Arbitration Exception), such court or agency shall (i) stay such action or proceeding pending arbitration thereof; and (ii) award the party seeking such stay all of its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding. Further, if either party to the Agreement purports to initiate arbitration with respect to any Dispute without first providing an applicable Notice of Dispute and otherwise complying with all of its obligations under the Agreement relating to the informal resolution of such Dispute, then, notwithstanding any other provision of the Agreement, the arbitrator(s) will promptly dismiss the claim(s) that is the subject of such Dispute and will award the other party all of its costs and expenses (including, without limitation, reasonable attorneys' fees) incurred in connection with such Dispute.
Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available in an individual lawsuit, subject to any effective and enforceable limitations of liability or exclusions of remedies set forth herein. Notwithstanding any language to the contrary in this paragraph, if a party seeks injunctive relief that would significantly impact other Penny customers or users as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may -- if selected by either party or as the chair by the two party-selected arbitrators -- participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential.
The arbitration will be held in Las Vegas, Nevada, or, if you or Penny so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If the value of the relief sought in arbitration is $100,000 or less, you or Penny may elect to have the arbitration based solely on written submissions, which election shall be binding, subject to the discretion of the arbitrator(s) to require an in-person hearing. Any such election by the petitioner must be made in or concurrently with the applicable Demand for Arbitration and any such election by the respondent must be made in or concurrently with the applicable answer.
Filing costs and administrative fees shall be paid in accordance with the AAA Rules; provided that the prevailing party will be entitled to recover its reasonable attorneys' fees, expert witness fees, and out-of-pocket costs incurred in connection with the arbitration proceeding, in addition to any other relief it may be awarded. All provisions of the Agreement that relate to arbitration shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in the Agreement.
Notwithstanding anything to the contrary in the Rules, the arbitration of any Dispute shall proceed on an individual basis and not as a class, group, or representative action (collectively, a “Class Action”). Further, neither you nor Penny may bring a claim as a part of a collective, coordinated, consolidated or mass arbitration (each, a "Collective Arbitration"). Without limiting the generality of the foregoing, a claim to resolve any Dispute against Penny will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. "Concurrently" for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
To the maximum extent permitted by Applicable Law, neither you nor Penny shall be entitled to consolidate, join or coordinate Disputes subject to arbitration hereunder with any disputes or claims by or against other individuals or entities, or to arbitrate any Dispute in a representative capacity, including as a representative member of a class or in a private attorney general capacity. In connection with any Dispute that is subject to arbitration hereunder, any and all such rights are hereby expressly and unconditionally waived. Without limiting the foregoing, any challenge to the validity of this paragraph shall be determined exclusively by the arbitrator.
Notwithstanding anything to the contrary herein, you and Penny each retain the right to bring either (i) an individual action in small claims court; or (ii) an individual debt collection action (the “Arbitration Exceptions”), even if the underlying Dispute is otherwise subject to arbitration hereunder. Either action may be brought in any court having jurisdiction. Additionally, if you breach any obligation to pay any amount owed to Penny when due, Penny retains the right to set off, collect or debit the amount owed as outlined in the sections titled Past Due Amounts and Collections and Authorization to Debit Linked Accounts above.
Except as otherwise required by Applicable Law or provided in the Agreement, if the agreement to arbitrate is found not to apply to you or your Dispute, a judicial proceeding may only be brought in a court of competent jurisdiction in Las Vegas, Nevada. Both you and Penny irrevocably consent to venue and personal jurisdiction there for any Dispute; provided that either party may bring any action to confirm an arbitral award in any court having jurisdiction.
The existence of and all information regarding any Dispute that is subject to arbitration hereunder will be held in strict confidence by you and Penny and will not be disclosed by either party hereto except as reasonably necessary in connection with the conduct of the arbitration or the confirmation or enforcement of any arbitral award. Any such permitted disclosure will, to the maximum extent reasonably practicable, be made subject to obligations of confidentiality at least as stringent as the provisions of this paragraph. If any disclosure of information regarding any such Dispute is required under Applicable Law, the parties shall reasonably cooperate with one another to obtain protective orders or otherwise to preserve the confidentiality of such information.
Legal Process
We may respond to and comply with any legal order we receive related to your Penny Account or use of the Services, including subpoenas, warrants, or liens. We are not responsible to you for any losses you incur due to our response to such legal order. We may take any actions we believe are required of us under legal orders including holding funds or providing information as required by the issuer of the legal order. Where permitted, we will provide you reasonable Notice that we have received such an order. Subject to applicable law, you agree to cooperate with us with respect to any investigations regarding your Penny Account or otherwise relating to the Agreement, including providing requested information and responses to subpoenas or other legal actions and court orders.
Assignment
Penny may assign, pledge, delegate or otherwise transfer the Agreement or its rights, powers, remedies, obligations, and duties of performance under the Agreement. Any such assignee will have all rights as if originally named in the Agreement instead of Penny. You may not assign the Agreement or any rights hereunder, or delegate any of your obligations or duties of performance, without Penny's express written consent.
Headings and Interpretation
Except where otherwise specified, all references to sections or provisions refer to this Platform Agreement or the applicable incorporated terms. The phrases “including”, “for example”, or “such as” do not limit the generality of the preceding provision; the word “or” will be read to mean “either… or…” or any combination of the proceeding items; and provisions listing items and using and require all listed items.
Changes to the Agreement
We may modify the Agreement, including by deleting, modifying or adding provisions to the Platform Agreement or the Penny Terms, by posting an amended version. The amended version will be effective at the time we post it, unless otherwise noted. If such modifications constitute a material change to the Agreement, we will provide you with reasonable prior Notice before the modifications become effective as to you; provided, however, the modified Agreement may take effect immediately in exigent circumstances, including where required to comply with Applicable Law, or to avoid or mitigate any material risk, loss or damage. If you do not accept any such modification, you must cancel your Penny Account. If you provide electronic acceptance of the modifications or continue to use the Services or Cards after any modification takes effect, you will be deemed to have consented to the revised Agreement.
Alternatively, and notwithstanding the foregoing, Penny may (but has no obligation to) provide in any such Notice of any modification to the Agreement that such modification will take effect only upon affirmative acceptance thereof by Company via email, the Services or another means of communicating such consent as described in such Notice. In that event, Penny may terminate your Penny Account and any further right to use any Services or Card upon Notice if you do not timely accept the proposed modification in accordance with the method described in the Notice.
Any waiver, modification, or indulgence that we provide to Company, of any kind or at any time, applies only to the specific instance involved and will not act as a general waiver or a waiver, modification, or indulgence under the Agreement for any other or future acts, events, or conditions. Further, any delay by a party in enforcing its rights under the Agreement does not constitute forfeiture of such rights.
Entire Agreement; Severability
The Agreement (including any terms or policies incorporated herein) constitutes the entire understanding between Company and Penny regarding the subject matter of the Agreement and supersedes all prior or contemporaneous proposals, agreements or understandings, written or oral, and including any non-disclosure or confidentiality agreements, regarding that subject. No other agreements, representations, or warranties other than those provided in the Agreement will be binding unless in writing and signed by Company and Penny. If any provision of the Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under Applicable Law and the remaining provisions will continue in full force and effect.
Confidential Information
Restrictions on Use. In connection with the Agreement, a party (“Recipient”) may receive Confidential Information from the other party (“Discloser”). Except as allowed in the Exceptions paragraph immediately below, Recipient shall hold Discloser’s Confidential Information in confidence and shall not disclose any such Confidential Information to any third party, other than (i) to its employees, contractors, service providers, advisors and affiliates who need to know such Confidential Information and who are bound by confidentiality restrictions comparable to and no less restrictive than those set forth herein; and (ii) as expressly set forth in the Agreement and/or Privacy Policy. To protect Discloser’s Confidential Information, Recipient shall take the same degree of care that it uses to protect its own confidential information of a similar nature and importance (but in no event less than reasonable care).
Exceptions. Recipient may disclose Discloser’s Confidential Information: (i) to the extent required by Applicable Law; (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory, or legislative body of competent jurisdiction; (iii) in connection with any regulatory report, audit, or inquiry; or (iv) where requested by a Financial Institution Partner.
DEFINITIONS
Capitalized terms in the Agreement are defined as follows:
Administrator means any User designated by Company as an administrator of Company's Penny Account.
Agreement means, collectively, the Platform Agreement, the Penny Client Agreement and all other Penny Terms applicable to the Services.
Applicable Law means all applicable laws, treaties, regulations, and conventions (including any laws governing the holding or transmitting of money) and all applicable rules, regulations, and requirements of any regulatory authorities (including, if and to the extent applicable, Payment Network rules and the PCI DSS) in any jurisdiction to which that Party is subject.
Application: Penny and Financial Institution Partner’s request for Client information which shall include a statement of Client’s financial condition, a description of the Client’s business or organization, and any other financial, organizational, or credit-related information requested by Penny or Financial Institution Partner.
Authorized User: The legal entity permitted solely by Penny and Financial Institution Partner to use the Services.
Beta Services means any products or services identified as beta, pre-release or similar.
Card Networks means the payment card networks, including Visa.
Card Terms means the agreement between Company and the applicable Financial Institution Partner for use of Cards.
Cards means physical or virtual payment cards issued by a Financial Institution Partner and managed through your Penny Account.
Charge means a payment for goods or services made using a Card to a merchant that accepts payments on the applicable Card Network.
Chargeback means a dispute that you initiate (i) against a merchant for an unresolved dispute with the merchant; or (ii) because a Charge is unauthorized.
Company, Client or you means the company that is applying for or has opened a Penny Account.
Company Affiliate means an affiliated legal entity of Company that (i) is controlled by or under common control with you; (ii) you have expressly authorized to access and use your Penny Account; and (iii) has satisfied any additional conditions imposed by Penny or its Financial Institution Partners for access to Services.
Company Data means information or documentation provided by or on behalf of Company or a Company Affiliate to Penny under the Agreement, including Financial Data.
Confidential Information means non-public information in any form that is designated as confidential prior to disclosure or should reasonably be understood to be confidential due to the nature of the information disclosed and/or the circumstances surrounding the disclosure. Confidential Information includes any non-public portions of the Agreement. Confidential Information shall not include information that: (i) is or becomes publicly available (other than by disclosure by Recipient in violation of the Agreement); (ii) is independently developed by Recipient without use of Discloser’s Confidential Information; (iii) is rightfully obtained by Recipient from third parties without an obligation of confidentiality; or (iv) is made available by or on behalf of Company or a Company Affiliate in connection with (x) an application for a Penny Account or features or Services available through a Penny Account, or (y) use of the Services.
De-Identified Data means data derived from Company Data or Personal Data or otherwise relating to Company, Company Affiliate and/or User use of the Services that has been de-identified or aggregated.
Dispute means any dispute, claim, or controversy between you, including those involving any entity or person you authorize to access your Penny Account, and Penny that arises out of or relates to (i) the Agreement (including any addenda hereto or other terms incorporated herein by reference); (ii) the breach, termination, enforcement, interpretation or validity hereof, including the determination of the scope or applicability of the agreement to arbitrate hereunder; or (iii) any services we provide to you (including the Services) or your Penny Account.
Feedback means all feedback, suggestions, ideas, or requests you submit or otherwise communicate to us by any means.
Fees means charges we impose for use of Services or your Penny Account.
Financial Data means Company's or a Company Affiliate’s bank balance, transaction, and account information accessible to Penny through Linked Accounts or Third-Party Services.
Financial Institution Partner means each of our financial and payment institution partners, such as each issuing bank that is a member of a Card Network and is responsible for issuing Cards to you, and their assigns.
Fines means all fines, fees, penalties, or other charges arising from your breach or violation of the Agreement, any Card Terms, any other agreements you have with Penny or a Financial Institution Partner, any law, any regulation or any Payment Network rules.
Linked Account means any eligible deposit or other similar type of bank account that is held with a financial institution or other account type that provides financial data and is linked to or otherwise authorized for use through your Penny Account, which includes the accounts set up with Financial Institution Partners through your relationship with Penny.
Payment Network means each applicable Card Network, NACHA and any other domestic or international payment networks supported by us or our Financial Institution Partners.
Statement means the periodic statements identifying Charges, Fees, Fines, Reimbursements or other amounts charged to your Penny Account in connection with use of Cards, as well as any refunds, Chargebacks, payments, rebates or other amounts credited to your Penny Account in connection with use of Cards, during each billing cycle.
Penny Platform: The Penny software, APIs and related documentation made available to Client for the purposes of accessing the Penny Services.
Personal Data means data that identifies or could reasonably be used to identify a natural person.
Platform Agreement means this Penny Platform Agreement, as amended.
Prohibited Activities List means the list of prohibited business types and activities posted as Penny Terms (as updated from time-to-time) that may render Company ineligible for a Penny Account.
Penny or we means Penny Inc., a Nevada corporation, and its affiliates, unless otherwise stated.
Penny Account means your account with Penny that is used to access Services or other Penny Property, including reviewing charges and managing Cards.
Penny Data means all data generated, collected or logged by Penny through the development or provision of Services or Cards, or the connection of Third-Party Services.
Penny Property means the Services and related technology, including applications providing Users with access to the Services; Penny Data; and copyrights, patents, trade secrets, trade or service marks, brands, logos, and other intellectual property rights in or to any of the foregoing.
Penny Terms means the Penny Client Agreement (if applicable) and all other agreements, terms, addenda and supplements that are incorporated herein by reference and are (a) posted on our website; or (b) agreed to in writing by and between Penny and Company or a Company Affiliate, including electronically via the Services. Penny Terms do not include the Card Terms or other agreements by and between you and a Financial Institution Partner.
Services means the expense and corporate Card management services and all other services provided by Penny to business customers, as well as any support services we provide. For the avoidance of doubt, Third-Party Services are not part of the Services.
Third-Party Service Provider means any provider of any Third-Party Service and any affiliate or other third party that assists us in providing the Services to you, or that supports our internal operations.
Third-Party Services means services and data provided by third parties related or connected to, or provided through, the Services or your Penny Account.
United States Entities means companies organized and registered in the United States.
User Notifications means communications from us to Users, as described in the section titled Notice and User Notifications.
User Terms means the terms of service presented by or through Penny to each potential User.
Users means any employees, contractors, agents, or other individuals who are designated as users of the Services by Company.
VCC Program: Virtual credit card program.
PENNY CONTACT INFORMATION
If you have any questions regarding the Agreement, you may contact us by email at support@thepennyinc.com or by telephone at (702) 981-2968.
