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Terms of Service

Last Updated: August 12th, 2022

These Terms of Service (the “Terms”) set forth the terms and conditions that govern access to, and use of, the websites and Onyx mobile applications (collectively, the “Site”, “website” or “app”) made available by Onyx Card, LLC (“Onyx”, “we,” or “us”) that enable a user to join the waitlist or sign up for an Onyx Card and receive the other services from Onyx as described herein (collectively, the “Services”). These Terms are a legal agreement between you (“you,” or “your”) and Onyx. By clicking to “Accept” these Terms where this option is made available to you and/or by using our Services, you agree to be bound by these Terms. These Terms do not alter in any way the terms or conditions of any other agreement you may have with any other party for products, services or otherwise.

Onyx reserves the right to change or modify these Terms at any time and in our sole discretion. If Onyx makes changes to these Terms, we will provide notice of such changes, by providing notice through the Services, by e-mail and/or by updating these Terms (as indicated by the “Last Updated” date found at the top of these Terms) on the Terms of Service page on the Onyx website. You agree to receive notifications through these means and your continued use of the Services will indicate your acceptance of the revised Terms. If you do not agree to any amended Terms, you must stop using the Services.

IF YOU DO NOT AGREE TO THESE TERMS, IMMEDIATELY STOP USING THE SITE AND AND DO NOT USE ANY SERVICE OR PURCHASE OR RECEIVE ANY PRODUCT, GOOD, OR SERVICE OFFERED THROUGH THE SITE.

PLEASE REVIEW THE FOLLOWING SECTIONS OF THESE TERMS OF SERVICE CAREFULLY: (A) LIMITATION OF LIABILITY, (B) INDEMNIFICATION, AND (C) ARBITRATION CLAUSE AND CLASS ACTION WAIVER DESCRIBED IN SECTION 16 BELOW TO RESOLVE ANY DISPUTES WITH ONYX WITH ONYX (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL-CLAIMS COURT).

1. Privacy Policy

Please refer to our Privacy Policy located at https://onyxcard.io/privacy-policy for information about how we collect, use and disclose information about our users. By agreeing to these Terms, you also agree to our Privacy Policy, incorporated herein by reference (“Privacy Policy”), and you acknowledge that you will regularly visit the Terms of Service and our Privacy Policy to familiarize yourself with any and all updates. The Privacy Policy, together with these Terms, and any other terms contained herein or incorporated herein by reference, are collectively referred to as “Terms”. The term “using” also includes any person or entity that access or uses the Services with crawlers, robots, data mining, or extraction tools or any other functionality.

2. Additional Terms

If you sign up for the Onyx Card credit card products, a separate Cardholder Agreement and other related terms will apply to your use of and access to the Services. Those terms are subject to change at any time and in our sole discretion, so you should review them before using the Services.

3. Eligibility, Registration and Account

Our Services are intended solely for users who are 18 years of age or older. If you are under the age of 18, then you are not permitted to register or have use of an account with Onyx. By using the Services, you represent and warrant that you are 18 years of age or older. 1 In order to use the Services, you will be required to create an account with Onyx. You may only register for one account and you agree to: (i) provide accurate, current and complete information; (ii) maintain and promptly update your account information to keep it accurate, current and complete; (iii) maintain the security of your account and accept all risks of unauthorized access to your account; and (iv) promptly notify Onyx if you discover or otherwise suspect that your account has been subject to hacking or other unauthorized use.

4. Access to the Services

Onyx retains the right, at our sole discretion, to deny service or use of the Services or an account to anyone at any time and for any reason. Although we use reasonable efforts to keep the Services and your account accessible, the Services and/or your enrollment may be unavailable from time to time. You understand and agree that there may be interruptions in service or events, Services access, or access to your enrollment due to circumstances both within our control (e.g., routine maintenance) and outside of our control. You agree that Onyx will not be liable to you or to any third party for any modification, suspension, disruption or discontinuance of the Site or the services offered through it.

5. Intellectual Property and Limited License

Unless otherwise indicated by Onyx, the Services and all content and other materials therein, including, without limitation, the Onyx logo and all other designs, text, graphics, pictures, information, data, software, sound files, other files made available within the Services and the selection and arrangement thereof, and any documentation or other ancillary material provided to you by or behalf of Onyx (collectively, “Onyx Content”) are the proprietary property of Onyx or our licensors or users and are protected by U.S. and international intellectual property laws.

Onyx hereby grants you a limited, nonexclusive, non-sublicensable license to access and use the Services and Onyx Content solely for the purpose of receiving Services under these Terms; however, such license is subject to these Terms and you are not permitted to (a) sell, rent, lease, lend, redistribute, sublicense or make commercial use of the Services or the Onyx Content; (b) copy, reverse engineer, decompile, disassemble or attempt to discover the source code of our Services or Onyx Content; (c) modify, alter or otherwise make any derivative uses of the Services or the Onyx Content, or any portion thereof; (d) remove, alter or obscure any copyright, trademark or other proprietary rights notice included in the Services or Onyx Content; (e) use any data mining, robots or similar data gathering or extraction methods; (f) download (other than the page caching) any portion of the Services or the Onyx Content, except as expressly permitted via the Services; and (g) use the Services or the Onyx Content other than for their intended purposes. Any use of the Services or the Onyx Content other than as specifically authorized herein, without the prior written permission of Onyx, is strictly prohibited and will terminate the license granted in this Section 5. Such unauthorized use may also violate applicable laws, including without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by Onyx, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.

6. Trademarks

“Onyx” and the Onyx logo and any other Onyx product or service names, logos or slogans are Onyx’s trademarks in the United States and in other countries, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Onyx. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners and may not be used without permission of the applicable trademark holder. Reference to any 2 products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Onyx.

7. Repeat Infringer Policy; Copyright Complaints

In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, Onyx has adopted a policy of terminating, in appropriate circumstances and at Onyx’s sole discretion, users who are deemed to be repeat infringers. Onyx may also, in our sole discretion, limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. If you believe that anything on the Services infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below: Attn: Onyx Legal, Address 120 SW 8th St., Suite 229, Miami, FL 33130-3510. Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

8. Third-Party Services; Third-Party Materials

Onyx may provide links to third-party websites, apps, mobile services or other third-party services (“Third-Party Services”) and may also display, link to or otherwise make available third-party content, data, information, events, apps or materials (“Third-Party Materials”) on the Services. Terms of the Onyx concierge service (the “Onyx Concierge”) can be found

here

. If you were part of the Onyx Credit Card Account Pilot Program, you will have access to the Onyx Concierge for a period of twelve months beginning on the first day you logged in to the Onyx App during the Onyx Credit Card Account Pilot Program, and following the expiration of such twelve-month period, Onyx may cancel and terminate the Onyx Concierge Services in its sole discretion. Onyx does not endorse or control, and makes no representations or warranties of any kind, regarding any Third-Party Services or Third-Party Materials including, but not limited to, the content, accuracy, quality, nature, appropriateness, decency, functionality, performance, reliability, completeness, timeliness, validity, safety, legality or any other aspect thereof. Your use of Third-Party Services and Third-Party Materials is at your own risk. Onyx is not responsible for any issues, legal or otherwise, that may result from your use of the Third-Party Services or Third-Party Materials, including any loss, damage or harm of any sort incurred as a result of your use of Third-Party Services or Third-Party Materials. If you access or use any Third-Party Services or Third-Party Materials, Onyx’s terms and policies, including these Terms, no longer govern. You should review the applicable terms and policies including, but not limited to, privacy and data gathering practices, of any Third-Party Service to which you navigate from the Services. For the avoidance of doubt the terms and policies for Third-Party Services are solely between you and the Third-Party Services provider and not Onyx.

9. Banking Services

Banking services associated with the Services are provided by Piermont Bank, Member FDIC. Your transactions will be processed through an FBO account held by Piermont Bank for the benefit of our customers or users. We will provide you a monthly summary statement that describes your transactions. Your deposit balances held at Piermont Bank are insured by the Federal Deposit Insurance Corporation (FDIC) for up to the legal limit (currently $250,000 for each category of legal ownership).

10. Use of the Services

As conditions of your use of the Site, and in addition to other conditions set forth in these Terms, you agree that:

11. User Content

You are solely responsible for all content you post, upload to, transmit, distribute, store, create or otherwise publish through the Services (“User Content”). The User Content you provide must comply with the rules set forth below. These rules do not create any private right of action on the part of any third-party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.

You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Services any of the following:

Although Onyx does not control and has no obligation to screen, edit or monitor any of the User Content posted, stored or uploaded on (or otherwise made available via) the Services, Onyx reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted, stored or uploaded on the Services at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post, store or upload on (or otherwise make available via) the Services at your sole cost and expense. Onyx takes no responsibility and assumes no liability for any User Content posted, stored or uploaded on (or otherwise made available via) the Services.

Except for any Feedback you provide with respect to the Services, you retain ownership of the User Content you post, store or upload on (or otherwise make available via) the Services. You hereby grant Onyx and our affiliates a non-exclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, translate, create derivative works from, distribute, perform and display such User Content throughout the world in any manner or media, on or off the Services. You represent and warrant that: (i) you own and control all of the rights to the User Content that you post, store or upload on (or otherwise make available via) the Services or you otherwise have the right to make available such User Content via the Services and grant the rights granted in these Terms; (ii) the User Content that you post, store or upload on (or otherwise make available via) the Services is accurate and not misleading; and (iii) Onyx’s use of the User Content you supply does not violate these Terms and will not violate any rights of, or cause injury to, any person or entity.

12. User Conduct

You are solely responsible for your conduct and the conduct of anyone who uses your account with respect to the Services, and you agree that you will not and will not permit anyone using your account to do any of the following in connection with the Services:

If your account is disabled, you, or anyone acting under your discretion, is/are strictly prohibited from creating another account with Onyx.

Onyx takes no responsibility and assumes no liability for any user conduct, mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter while using the Services. Your use of the Services is at your own risk. Any use of the Services in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Services.

13. Feedback

You can submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information or materials about Onyx and the Services (collectively, “Feedback”). Feedback, whether submitted through the Services or otherwise, is non-confidential and shall become the sole property of Onyx. Onyx shall own exclusive rights, including all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

13. Disclaimers

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES AND ONYX CONTENT IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, SAFETY, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ONYX CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ONYX DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES AND THE ONYX CONTENT CONTAINED THEREIN, INCLUDING ANY AND ALL: (I) IMPLIED WARRANTIES OF MERCHANTABILITY; (II) IMPLIED WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT ONYX KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NON- INFRINGEMENT OR CONDITION OF TITLE. ONYX DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY ONYX OR OUR AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION 13 MAY NOT APPLY TO YOU.

15. Indemnification and Release

You agree, at your sole expense, to defend, indemnify and hold us, our parent company and its subsidiaries, our merchants, payment processors, payment card networks, financial institutions, our service providers, commercial partners and consultants, and our and their respective directors, employees and agents, harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and 6 disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to: (i) your use of the Services or Onyx Content; (ii) your violation of these Terms or the rights of any third- party; or (iii) any User Content you post, upload, use, distribute, store or otherwise transmit on or through the Services.

If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

16. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL ONYX BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE SERVICES AND THE CONTENT THEREIN, INCLUDING BUT NOT LIMITED TO, USER CONTENT, ONYX CONTENT, THIRD-PARTY SERVICES AND/OR THIRD-PARTY MATERIALS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF ONYX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL ONYX’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED FIFTY DOLLARS ($50.00) (AS OPPOSED TO ANY OTHER FEES/COSTS INCLUDING, BUT NOT LIMITED TO, ANY FEES ASSOCIATED WITH YOUR DEVICE OR THE COST TO PURCHASE AND OPERATE YOUR DEVICE).

17. Applicable Law

The validity, construction, and interpretation of these Terms, and the rights and duties of the parties hereto, will be governed by and construed in accordance with the laws of the State of Delaware in the United States, excluding its conflicts of laws principles. However, as explained below, the agreement to arbitrate in the following paragraph is governed by United States federal law.

You agree that any dispute, claim or controversy arising out of or in connection with Onyx’s business or these Terms or relating in any way to the Services shall be determined by binding arbitration. You further agree that the U.S. Federal Arbitration Act and federal arbitration law shall govern the interpretation and enforcement of this Agreement to arbitrate, and any such arbitration hearing shall be heard in Miami, Florida.

Arbitration uses a neutral arbitrator instead of a judge or jury, and is more informal than a lawsuit in state or federal court. Discovery in arbitration is more limited than is generally available in the courts and the arbitrator’s decision is also subject to very limited appellate review by the courts.

You also agree to waive the right to a trial by jury or to participate in a class action. These waivers are mutual as between you and Onyx, and Onyx waives its right to a trial by jury or to participate in a class 7 action against you. This means that neither you nor Onyx can seek to assert class or representative claims against each other either in court or in arbitration and no relief can be awarded on a class or representative basis. The arbitrator also may not consolidate or join another person’s claim with your claim or issue an order that would achieve the same result. You and Onyx further agree that if the provisions of this paragraph are found to be unenforceable, then the entire provision compelling arbitration shall be null and void.

You also agree that all issues are for the arbitrator to decide. This includes all issues related to the scope, application, interpretation and enforceability of this Agreement and this arbitration provision. The arbitrator shall also decide whether any claim is subject to arbitration.

The arbitration will be governed by the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.com. The arbitrator is bound by the terms of this Agreement. If your claim in arbitration is for less than $10,000, Onyx will reimburse you for filing fees at the conclusion of the proceeding unless your claim is found to be frivolous by the arbitrator.

In lieu of arbitration, you may also elect to have your claims decided in small-claims court, so long as the small-claims court does not permit class, representative, or consolidated actions, or the award of relief in favor of any person or entity that is not a named party to the small-claims action.

18. Termination or Modification of Services

Onyx reserves the right to change, suspend, remove, discontinue or disable access to the Services at any time and without notice. In no event will Onyx be liable for the removal of or disabling of access to any portion or feature of the Services.

19. Severability

If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

20. Waiver

Enforcement of the Terms is solely in our discretion and our failure to enforce a provision in some instances does not constitute a waiver of our right to enforce such provision in other instances.

21. Assignment

Onyx may assign these Terms and its rights or delegate its obligations under without your consent. All provisions contained in these Terms shall extend to and be binding upon you and Onyx’s successors and assigns. You may not assign these Terms to another person or entity.

22. SPECIAL PROVISIONS FOR MOBILE APP USERS

Onyx hereby grants you a nonexclusive, nontransferable, limited license to install and use Onyx’s mobile applications on any iOS device that you own or control, solely as permitted by the terms of the applicable third-party platform from where you received such license, e.g., the Apple iTunes, Google Play, or other App stores (“App Store”). You acknowledge and agree that the availability of the Services is dependent on the availability and terms of the App Store. You acknowledge that these Terms are between you and Onyx and not with the App Store. Onyx, not the App Store, is solely responsible for its Services, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating 8 thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Services, you may be required to have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services. You agree to comply with, and your license to use the Services is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Services. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.

23. Contact Us

If you have any questions or concerns regarding these Terms or our Services, please contact us at info@onyxcard.io or: Onyx Card, LLC, Attn: COO, 120 SW 8th St., Suite 229, Miami, FL 33130-3510.