Terms & Conditions
1. SERVICES AND RESTRICTIONS
1.1 Not all of the Services are available in all jurisdictions. Nothing on the Cardata Platform constitutes an offer or solicitation to buy or sell any products or services to anyone in any jurisdiction in which such an offer or solicitation is prohibited by law. Cardata reserves the right to change any information, material or content (including, but not limited to, price and features contained on or provided through the Cardata Platform) (the “Content”) at any time, and from time to time, without notice.
Customer will use the Services only through its Users and only for Customer’s own internal business purposes in accordance with all applicable laws. Customer agrees not to (and will not allow any agent, employee, or third party to): (i) remove or otherwise alter any proprietary marks, notices or labels from the Services or any output thereof; (ii) reverse engineer, decompile, disassemble, attempt to create derivative works of or otherwise attempt to discover the underlying source code, structure, ideas, or algorithms of the Services or any software used to provide or make the Services available; (iii) use reimbursement rates provided in connection with the Services for any unauthorized purpose or disclose such rates to any third party; or (iv) rent, resell, sublicense, lease, time-share or otherwise allow any third party access to or use of the Services, provided that Customer may allow its third party service providers to access the Services solely in connection with such service provider’s delivery of services to Customer, and Customer remains responsible for any misuse of the Services by such service provider.
Cardata and its licensors retain all right, title, and interest in and to the Services, the Content, and any software, products, works or other intellectual property created, used, provided or made available by Cardata under or in connection with the Services (including, without limitation, all designs, infrastructure graphics, pictures, illustrations, software, artwork, video, music, sound, names, words, titles, phrases, logos, marks know-how, algorithms and methodology relating to the Services). Customer acknowledges that all right, title and interest in the Cardata Platform, all materials provided by Cardata in connection with the Agreement (including the Content), and any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Cardata (or third-party suppliers, if applicable), and that the Cardata Platform and all materials provided by Cardata hereunder are licensed and not sold.
Customer may from time to time provide suggestions, comments or other feedback to Cardata with respect to the Services (collectively, “Feedback”). Customer shall, and hereby does, grant to Cardata a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in the Agreement will impair Cardata’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
1.6 Not Professional Advice
From time to time, Cardata may recommend vehicle reimbursement program best practices. Notwithstanding these recommendations, Customer acknowledges and agrees that: (i) any such recommendations do not constitute legal or professional advice and Cardata shall have no liability with respect to any such recommendations; and (ii) Customer is solely responsible for implementing the vehicle reimbursement program which is best suited for it and for ensuring it complies with all applicable laws and regulations.
2. CUSTOMER OBLIGATIONS
2.1 Authorized Users
Unless otherwise specified in the applicable Order Form, Services are purchased on a per authorized user basis (each an “Authorized User Subscription”). Authorized User Subscriptions are personal to each designated User and cannot be shared or used by more than one User. In relation to the User, Customer understands and agrees that Customer is responsible for ensuring its Users comply with the terms of this Agreement and the End User License Agreement made available at https://www.cardata.co/eula (the “EULA”).
2.2 Customer Control and Responsibility
Customer has and will retain sole responsibility for: (a) all information, instructions and materials provided by or on behalf of Customer or any User in connection with the Services; (b) the security and use of any User’s access credentials; and (c) all access to and use of the Services and Content directly or indirectly by or through a User’s access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
2.3 Customer Data
(a) As between the parties, but subject to Section 2.3(b), Customer owns all data and information that (i) Customer or its Users load or input into the Cardata Platform; and (ii) the Cardata Platform generates from a User’s use of the Cardata Platform (collectively, “Customer Data”).
(b) Subject to the terms of this Agreement, Customer hereby grants to Cardata a perpetual, transferrable, irrevocable, royalty-free, fully paid-up, worldwide, and fully sublicensable license to access, collect, store, anonymize, aggregate, and use the Customer Data to Cardata as necessary or useful to: (i) perform the Services; (ii) generate aggregate or anonymize statistics and (iii) enforce this Agreement and exercise its rights and perform its obligations hereunder. Cardata shall be permitted to use aggregated or anonymized statistics derived form the Customer Data in any manner without restriction.
3. FEES AND PAYMENT
Customer shall pay to Cardata the fees as set forth on the Order Form(s) (collectively, the “Fees”). Unless otherwise set forth in the applicable Order Form, all amounts payable to Cardata shall be paid in the currency specified in the Order Form and shall be due thirty (30) days from the date of invoice. The Fees are not refundable, except as expressly provided herein. Notwithstanding any other rights of Cardata, in the event of late payment by Customer, Cardata shall be entitled to interest on the amount owing at a rate of two percent (2%) per month (26.82 % compounded annually) or the highest rate allowed by applicable law, whichever is less. If Cardata is required to initiate legal action due to nonpayment of Fees, Customer shall bear all costs resulting from the collection of such Fees. On an annual basis the Fees shall be increased to reflect the greater of (i) the annually published Consumer Price Index (CPI), or (ii) three percent (3%).
The initial annual invoice will be issued on the first day of the month following the effective date stated in an Order Form based upon the initial estimated number of Users specified in the Order Form. Payment will be due thirty (30) days from receipt of invoice.
3.3 Revised Invoices
If Customer increases the number of Users between the effective date stated in an Order Form and the program implementation and launch date, a revised invoice will be issued to Customer upon completion of the program implementation and launch to account for such increase. Subsequent invoices will be issued on an annual basis, based on the number of Users pulled on the first day of previous month of the invoice issue date. The Total Price listed on the Order From shall be the minimum program fees for subsequent invoices. If Customer increases the number of Users at any point during the service period, Cardata reserves the right to invoice for the additional Users at a prorated basis.
Any and all payments made by Customer in accordance with this Agreement are exclusive of any taxes that might be assessed against Customer by any jurisdiction. Customer shall pay or reimburse Cardata for all: (i) value-added, sales, use, property and similar taxes; (ii) all customs duties, import fees, stamp duties, license fees and similar charges; and (iii) all other mandatory payments to government agencies of whatever kind; except taxes imposed on the net or gross income of Cardata. All amounts payable to Cardata under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax.
4. TERM AND TERMINATION
This Agreement shall commence on the effective date stated in an Order Form and shall remain in full force and effect for a period of three (3) years (the “Initial Term”), unless extended or terminated as follows:
(a) at the conclusion of the Initial Term this Agreement shall automatically extend for additional periods of one (1) year each thereafter (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless terminated by either party with written notice to that effect not less than ninety (90) days prior to the expiration of the existing term (whether the Initial Term or a Renewal Term); or
(b) upon any non-payment of sums due or material breach hereunder by any party (the “Breaching Party”), if the other party (the “Non-Breaching Party”) gives written notice of such breach to the Breaching Party and the same is not cured within thirty (30) days after delivery of such notice, then, in addition to any other remedy available hereunder, the Non-Breaching Party may terminate this Agreement by delivery of a written notice of termination at any time thereafter before such breach has been cured.
Termination of this Agreement shall not be construed to waive or release any claim that a party is entitled to assert at the time of such termination.
5. CONFIDENTIAL INFORMATION AND SECURITY
5.1 Confidential Information
Neither party shall use, or otherwise disclose to any third party, the other party’s Confidential Information without the prior written consent of the disclosing party; provided, however, that Cardata may use, retain and disclose Customer Confidential Information as necessary in order to perform the Services hereunder. For the purposes of this Agreement, “Confidential Information” means all information of a confidential nature provided by the disclosing party to the receiving party, which shall include, but not be limited to, Cardata’s pricing and product information and reimbursement rates (as Cardata Confidential Information). However, Confidential Information does not include any information that:
(i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public;
(ii) was acquired by the receiving party before receiving such information from the disclosing party and without restriction as to use or disclosure thereof;
(iii) is hereafter furnished to the receiving party by a third party without violating any restriction as to use or disclosure thereof; or
(iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
5.2 Return or Destruction
Following the expiration or termination of this Agreement, each party will promptly (but in any event within thirty (30) days of such expiration or termination), at its option, either (a) return all Confidential Information of the other party in its possession; or (b) destroy or permanently erase all copies of Confidential Information of the other party in its possession, power or control, and confirm to the other party in writing that this Section has been complied with. Notwithstanding the foregoing, Cardata may retain aggregate, anonymized data derived from Customer Confidential Information, and may also retain, subject to its obligations under this Section 5, data or electronic records containing the Confidential Information for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records, to the extent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not accessed except as required for backup, recovery, contingency planning or business continuity purposes. If such data or records are restored or otherwise become accessible, Cardata will permanently delete the data or record.
Each party will maintain commercially reasonable physical, administrative, and technological security measures and back-up processes and procedures designed to protect Confidential Information of the other party in accordance with this Agreement.
5.4 Personal Information
Cardata acknowledges and agrees that in the course of providing Services it may receive, use or access personal information about Users. Cardata agrees that such personal information constitutes Confidential Information of Customer to which the provisions of Section 5.1 apply, except to the extent such provisions are inconsistent with this Section 5.4, which prevails with respect to personal information. In this context, Cardata will:
(b) promptly notify Customer if Cardata receives a request for access to such personal information, receives a complaint in relation to such personal information or receives any notice that Cardata has failed to comply with any applicable privacy laws;
(c) provide reasonable assistance to Customer in:
(i) responding to any access, amendment, correction or similar request in connection with any personal information in Cardata’s possession;
(ii) investigating, mitigating or responding to any complaint relating to the receipt, use or disclosure of personal information in the course of performance of the Services; and
(iii) responding to any requests or instructions issued by a governmental or regulatory authority in connection with such personal information.
5.5 Injunctive Relief
Each party acknowledges that any violation of the provisions of this Section 5 may cause irreparable damage or injury to the other party, the exact amount of which may be impossible to ascertain, and that, for this reason, in addition to any other remedies available to such party, each party is entitled to proceed immediately to court in order to obtain interim, interlocutory, and final injunctive relief restraining the other party from breaching, and requiring the other party to comply with, its obligations under this Section 5, without a requirement that a finding of irreparable harm, proof of actual damages or other criteria for the awarding of injunctive relief be made. Each party agrees not to plead sufficiency of damages as a defence and acknowledges the importance to the other party of its strict compliance with the terms of this Section 5.
6. REPRESENTATIONS AND WARRANTIES
Each party represents and warrants to the other party that it has all required corporate power and capacity to enter into this Agreement, to grant the rights and license granted under this Agreement and to perform its obligations under this Agreement, and when executed and delivered by each of the parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
7.1 Customer Indemnity
Customer will defend, indemnify and hold harmless Cardata, its affiliates and all of their respective officers, directors, employees, service providers, licensors and agents from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties, liabilities or other costs or expenses of any kind or nature including but not limited to reasonable legal fees, brought in connection with or as a result of:
(a) Customer’s breach of any of the Customer’s warranties, representations or obligations under this Agreement or any documents referenced herein;
(b) a User’s breach of the EULA;
(c) Customer’s or a User’s violation of any law or the rights of a third party (including, without limitation, privacy or intellectual property rights); and
(d) Customer’s or a User’s use of the Services.
7.2 Cardata Indemnity
Cardata will defend, indemnify and hold harmless Customer, its affiliates and all of their respective officers, directors, employees, service providers, licensors and agents from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties, liabilities or other costs or expenses of any kind or nature including but not limited to reasonable legal fees, arising out of (a) a third party claim that the Services violate or misappropriate any third party intellectual property rights; or (b) Cardata’s gross negligence, fraud, or wilful misconduct.
8. LIMITATIONS OF LIABILITY
(a) EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, THE SERVICES AND THE CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. USE OF THE SERVICES OR THE CONTENT IS AT CUSTOMER’S AND THE USER’S OWN RISK. CARDATA DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ABOUT THE QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE SERVICES OR THE CONTENT (INCLUDING WITHOUT LIMITATION ANY CALCULATIONS PERTAINING TO VEHICLE REIMBURSEMENT). THE SERVICES AND THE CONTENT MAY INCLUDE ERRORS, OMISSIONS AND INACCURACIES, INCLUDING, WITHOUT LIMITATION, AVAILABILITY OR PRICING ERRORS. CARDATA DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES IN THE SERVICES OR THE CONTENT (INCLUDING WITHOUT LIMITATION ANY CALCULATIONS PERTAINING TO VEHICLE REIMBURSEMENT). IN ADDITION, CARDATA EXPRESSLY RESERVES THE RIGHT TO CORRECT ANY PRICING ERRORS ON THE SERVICES AND THE CONTENT.
(b) EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 6, TO THE FULLEST EXTENT PERMITTED BY LAW, CARDATA DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE SERVICES AND THE CONTENT WHETHER EXPRESS, IMPLIED, STATUTORY, COLLATERAL OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR THAT THE SERVICES OR THE CONTENT ARE OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IN NO EVENT WILL CARDATA OR ANY OF ITS AFFILIATES OR ITS OR THEIR RESPECTIVE LICENSORS, SUPPLIERS, AGENTS, OR SERVICE PROVIDERS BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), WHETHER OR NOT CARDATA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE USE OF, OR THE INABILITY TO MAKE USE OF, THE SERVICES (INCLUDING, BUT NOT LIMITED TO, REIMBURSEMENT RATES) OR THE CONTENT.
(c) TO THE EXTENT THAT THE FOREGOING LIMITATIONS DO NOT APPLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF CARDATA IN CONNECTION WITH OR UNDER THIS AGREEMENT, INCLUDING IN CONNECTION WITH THE USER’S USE OF, OR INABILITY TO MAKE USE OF, THE SERVICES OR THE CONTENT, EXCEED THE ACTUAL FEES PAID TO CARDATA BY CUSTOMER IN THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO THE LIABILITY. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.
(d) CUSTOMER AGREES THAT IT MAY BRING CLAIMS AGAINST CARDATA ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR A CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
(e) THE LIMITATIONS ABOVE REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Customer shall not transfer or assign its rights and obligations under this Agreement without the prior written consent of Cardata.
A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
9.3 No Agency
Both parties agree that no agency, partnership, joint venture, or employment is created as a result of this Agreement. Customer does not have any authority of any kind to bind Cardata.
Cardata may identify Customer as a Cardata customer and use Customer’s name and mark and/or logo on the Cardata Website and/or in Cardata’s marketing materials.
9.5 Force Majeure
Neither party shall be responsible for failure or delay in performance by events out of their reasonable control, including but not limited to, acts of God, Internet outage, terrorism, war, fires, earthquakes, pandemics, epidemics, government stay-at-home orders, natural disasters and emergencies (each a “Force Majeure Event”); provided that the non-performing party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance. Notwithstanding the foregoing: (i) Customer shall be liable for payment obligations for Services rendered; and (ii) if a Force Majeure Event continues for more than one-hundred and twenty (120) days, either party may terminate this Agreement by written notice to the other party. In the event that a Force Majeure Event delays performance under this Agreement, the Term shall be extended by the duration of the Force Majeure Event.
9.6 Governing Law
This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the State of Delaware without regard to its choice of law or conflict of law provisions.
9.7 Dispute Resolution
In the interest of resolving disputes between Customer and Cardata in the most expedient and cost-effective manner, Customer and Cardata agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Customer and Cardata agree that (i) any arbitration will occur in the State of Delaware; (ii) arbitration will be conducted confidentially in English with one arbitrator to be selected by the parties to the arbitration; and (iii) the courts situated in the State of Delaware shall have exclusive jurisdiction over any litigation in aid of arbitration. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. The arbitrator also has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
The provisions of Sections 5 (Confidentiality and Security), 7 (Indemnification), 8 (Limitations on Liability), 9 (General) and any other provisions which by their nature ought to survive termination will survive termination or expiry of this Agreement, however and whenever occurring.
9.10 Successors and Assigns
This Agreement shall enure to the benefit of the parties hereto and their respective successors and permitted assigns.
Each party represents and warrants that it has been duly authorized to execute and deliver the applicable Order Form and to perform its obligations hereunder, and the person signing on each party’s behalf has the power and authority to do so.
9.12 Entire Agreement
9.13 Export Controls
Customer acknowledges that the Cardata Platform may be subject to export controls under Canadian and United States laws and regulations, including the Export Administration Regulations, 15 C.F.R. Parts 730-774, and may be subject to other applicable laws and regulations in other jurisdictions relating to export, re-export, import, transfer or other disposition of software and other technology (collectively, “Export Control Laws”). Customer shall comply with any and all applicable Export Control Laws applicable to the Cardata Platform.
The following only applies to the extent the Customer is located in Canada: It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.