CAR IQ PLATFORM TERMS AND CONDITIONS
CAR IQ PLATFORM TERMS AND CONDITIONS
Effective Date: July 2, 2022
BY ACCESSING OR USING THE PLATFORM YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THESE PLATFORM TERMS AND CONDITIONS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THEM.
These Platform Terms and Conditions are an integral part of the Car IQ Fleet Master Services Agreement if entered into between Car IQ and you, and both documents are to be interpreted together in the event of any dispute. In the event of any conflict between these Platform Terms and Conditions and any applicable Car IQ Fleet Master Services Agreement, the Car IQ Fleet Master Services Agreement will govern.
IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE APP OR SERVICES.
1. ABOUT THE TERMS
1.1 Key Terms
As used in these Platform Terms and Conditions:
“Active Vehicle” refers to any Fleet vehicle activated on the Platform for which a Sub-Account has been created and which is authorized to transact.
“App” refers to the mobile application or API owned and operated by Company through which access to the Services is available. References to the “App” include any and all features, functionality, tools and content available on or through the application or API.
“Authorized User” means the driver of an Active Vehicle or any other designated person authorized to use a Card on Customer’s behalf.
“Bank” refers to Sutton Bank, member Federal Deposit Insurance Corporation (“FDIC”).
“Business Administrator” means any person you designate to administer the Card Account, authorize vehicles to transact, and/or act on your behalf in connection with these Terms, including without limitation designating Authorized Users, funding the Card Account, and setting Card Account limitations.
“Card” refers to the Visa, Mastercard or Discover branded Car IQ payment card account number issued by Issuer that allows you or your Authorized Users to access available funds loaded to your Card Account. Each reference to “Card” also shall include “Cards.” A Card will be a virtual card represented by a 16-digit account number linked to a specific Active Vehicle.
“Card Account” refers to the account between you and Issuer established and governed by the Car IQ Vehicle Payment Card Program Agreement.
“Company,” “we,” or “us” refer to Car IQ, Inc., our subsidiaries, officers, directors, employees, contractors and agents.
“Customer” or “you” refers to the customer defined in a Car IQ Fleet Master Services Agreement entered into between Car IQ and
“Discover” refers to Discover Financial Services and its subsidiaries, officers, directors, employees, contractors and agents.
“Fleet” refers to a vehicle fleet enabled with Car IQ’s vehicle payment technology that is owned or managed by the Customer.
“Initial Service Term” refers to the initial service term of the Agreement as defined in a Car IQ Fleet Master Services Agreement applicable to you.
“Issuer” refers to Discover, Bank and any other sponsor bank which issues or will issue Cards in connection with the Program.
“Platform” refers, collectively, to the Website, App, API and any and all other technology through which Company provides the Services.
“Services” refers to the vehicle payment services program provided by Company and its service providers, and any and all related services, either on or offline.
“Sub-Account” refers to that portion of the Card Account that the Business Administrator has given an Authorized User the ability to access pursuant to the procedures set forth in the Car IQ Vehicle Payment Card Program Agreement.
“Terms” refers to these Platform Terms and Conditions in effect with respect to each Customer, as amended from time to time.
“Website” refers to www.gocariq.com, the Car IQ mobile app, and the Car IQ administrative console through which access to the Services is available. References to the “Website” include any and all features, functionality, tools, and content available on or through each such website.
1.2 Platform and Service Rules and Supplemental Terms
Certain of the features, functionality, tools, content and promotions available on or through the Platform may be subject to additional or supplemental terms and conditions (“Supplemental Terms”). If you choose to access or use those features, functionality, tools or content or participate in those promotions, the applicable Supplemental Terms are also incorporated and deemed part of these Terms.
If there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will govern and control with respect to the applicable features, functionality, tools, content, pricing, and promotions.
• IMPORTANT INFORMATION ABOUT THE FUNCTIONAL LIMITATIONS OF THE PLATFORM AND/OR THE SERVICES; • YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS; AND
• LIMITATIONS OF OUR LIABILITY TO YOU.
1.3 Amendment of Terms
Company reserves the right, in its sole discretion, to amend the Terms, at any time on thirty (30) days’ prior notice, including to change, modify, add to, update or remove terms and conditions (collectively “amend” or “update”). If we choose to amend the Terms, we will update the Effective Date at the beginning of these Terms. If we make material amendments to the Terms, we will notify you via email to your email address on file of the changes . By continuing to use the Platform and Services more than thirty (30) days after we have notified you in writing of any change, you are affirming that you agree to be bound by the amended Terms. This provision is subject to certain limitations described in the “Dispute Resolution” section below. If the amended Terms are not acceptable to you, your sole recourse is to stop using the Platform and Services.
1.4 Consequences of Non-Compliance
Your failure to comply with the Terms may result in the suspension or termination of your account and/or access to the Platform, and may subject you to civil and criminal penalties.
2. ABOUT THE PLATFORM
2.1 License to Use
Subject to your compliance with the Terms, Company grants you a limited, non-exclusive, non-transferable, non-assignable and non- sublicensable license to access and use the Platform and Services, including the right to download and install a copy of the App on each mobile device that you or your Authorized Users own or control, to be able to access the Platform and use the Services only, and not for any other business purpose or commercial activity. This license is granted for the sole purpose of enabling you and your Authorized Users to use the Platform and Services as provided by Company, in the manner permitted by the Terms.
YOU AFFIRM AND ACKNOWLEDGE THAT:
• THE APP AND CERTAIN FEATURES AND FUNCTIONALITIES OF THE PLATFORM ARE ONLY AVAILABLE FOR USE AT PARTICIPATING LOCATIONS.
• COMPANY DOES NOT AND CANNOT GUARANTEE THAT ACCESS TO THE PLATFORM AND SERVICES WILL BE CONTINUOUS OR ERROR-FREE.
• IF YOUR OR YOUR AUTHORIZED USERS’ MOBILE OR DATA PLAN SERVICES OR ACCESS TO THE INTERNET OR OUR PLATFORM IS/ARE SUSPENDED, CANCELLED OR TERMINATED (E.G., AS A RESULT OF BILLING ISSUES OR OTHER BREACH), YOU MAY NOT BE ABLE TO USE SOME OR ALL OF THE PLATFORM.
• YOU ARE EXCLUSIVELY RESPONSIBLE FOR YOUR AND YOUR AUTHORIZED USERS’ USE OF THE PLATFORM AND SERVICES THROUGH YOUR ACCOUNT. ABUSE OF THE SERVICES MAY SUBJECT YOU TO CIVIL AND CRIMINAL FINES AND PENALTIES.
2.3 Modifications and Updates to the Platform and Services
Company reserves the right, in its sole discretion, to modify or discontinue offering the Platform and/or Services, in whole or in part, or any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you. We also retain the right to impose limits on your use and storage of any Platform content at our sole discretion at any time without prior notice to you.
We may from time to time develop and provide updates for the App, which may include upgrades, bug fixes, patches and other error corrections and/or new features, functionality, tools or content (collectively, “Updates”). Updates may also modify or delete features, functionality, tools or content in their entirety. Based on your mobile device settings, when your mobile device is connected to the internet either: (a) the Updates will automatically download and install; or (b) you may receive notice of or be prompted to download and install available Updates. Please promptly download and install all Updates. If you do not, portions of the App may not properly operate. All Updates will be deemed part of the App and be subject to all terms and conditions of the Terms.
You agree that Company has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.
2.4 International Users
The Platform is controlled and operated within the United States and is not intended for use outside of the United States. You are hereby prohibited from accessing or using the Platform from any territory where the Platform or any of the features, functionality, tools, or content thereof, is illegal. If you choose to access the Platform from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.
3.1 Account Registration
You must be approved for an account before you are able to use any of the Services. You may apply for an account by contacting Car IQ at [email protected], or via the Website.
Your account and account profile page will be created based upon the information you provide to us. You agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date.
When you create your account, you will be asked to create a password or PIN, which you will be solely responsible for safeguarding. We encourage you to use “strong” passwords or PINs (passwords or PINs that use a combination of upper and lower case letters, numbers and symbols) with your Customer account or any other account that you may connect to your Customer account, including any Authorized User accounts. You agree not to disclose your password or PIN to any third party, and you agree to immediately notify Company of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, including by your Authorized Users, whether or not you have authorized such activities or actions. Company will not be liable for any loss or damage arising from your failure to comply with the above requirements.
If any Active Vehicle is lost, stolen, or used in any unauthorized manner, you must notify Company immediately so it can be marked as unable to transact. Company will not be responsible for unauthorized transactions related to such Active Vehicles. Until you report an Active Vehicle as lost or stolen or otherwise used in an unauthorized manner, you are fully responsible for all transactions. Contact Customer Service at (510) 560-5006, email [email protected] or log into the Website to deactivate the Active Vehicle.
You must designate Business Administrators to create accounts for your Authorized Users and authorize vehicles to transact. Business Administrators will have access to manage and view activities associated with Customer accounts.
You may designate Authorized Users and Business Administrators at any time. Authorized Users and Business Administrators must be eighteen (18) years of age or older at the time of registration. All activities conducted by Authorized Users and Business Administrators in connection with your account shall be deemed your activity for the purpose of these Terms.
3.2 Account Suspension and Cancellation
We may, in our discretion, without liability to you and without limiting our other remedies, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your account and take steps to prevent you from using our Platform and Services at any time for any reason. Company reserves the right to suspend or terminate your account or your access to the Platform if you create more than one account, or if any information provided during the registration process or thereafter is determined to be incomplete, inaccurate, outdated, deceptive or fraudulent.
We reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a prolonged period of time. We also reserve the right to cancel accounts of Customers who fail to comply with the Terms, including the terms and conditions regarding user conduct, as set forth in the “User Conduct Guidelines” section below and elsewhere in the Terms.
If Company has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to Company’s reasonable satisfaction.
We may refuse to process any transaction that we believe may violate the terms and conditions of this Agreement or that may be fraudulent or illegal.
4. PAYMENT TERMS
4.1 Payment of Fees
Customer will pay Company the fees set out in the applicable Car IQ Fleet Master Services Agreement, if any, for access to the Platform and the Services (the “Fees”).
The Set Up & Integration Fee shall become due and payable on the Effective Date. If the entire Setup & Integration Fee is not paid Company may suspend performance hereunder, or terminate the Agreement and any payments made for the Setup & Integration Fee prior thereto shall not be refunded. Company shall have no obligation to perform any work whatsoever unless or until the Setup & Integration Fee has been paid in full.
The Payment Platform Fee shall be calculated by Company on a monthly basis by multiplying the number of Active Vehicles during the month by the Standard Program Fee. Full Standard Program Fees shall be payable for the month even if the vehicle was only an Active Vehicle for a portion of the relevant month. The Payment Platform Fee shall be payable monthly in arrears and shall be charged to the Customer’s Card Account the following month.
Any additional Fees payable shall be billed to Customer on a monthly basis and shall be charged to the Customer’s Card Account the following month.
If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department at (510) 560-5006 or [email protected].
Any unpaid amounts are subject to a finance charge of 1.5% per month on the outstanding balance or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services.
Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
4.2 Prepaid Card
You acknowledge and agree that the Cards are prepaid and can only be used to access value that you or your Business Administrator have previously loaded onto your Card Account. The value available to your Authorized Users is limited to the funds that you or your Business Administrator have loaded onto your Card Account. The Cards are not connected in any way to any other card or bank account. The Cards are not credit cards and your use of the Cards will not affect your credit rating. You will not receive any interest on your funds in the Card Account.
4.3 Minimum Prepaid Balance
All Card Accounts are required to have a minimum prepaid balance. If any transactions cause the available balance in your Card Account to go below the required minimum balance or as otherwise instructed by you on the Platform to maintain the required minimum balance, Company is hereby authorized to issue instructions to your Issuer to replenish the balance of your Card Account by deducting such amount from your designated funding account. If there are not sufficient funds in your designated funding account or we are unable to replenish the balance of your Card Account for any other reason, Company may suspend your Card Account until such time as your Card Account is funded to the required minimum balance.
4.4 Negative Balance
If the balance on your Card Account goes negative, including through any purchase transactions where the retailer or merchant does not request authorization, you shall remain fully liable for the amount of any negative balance and any corresponding transaction fees. You agree to pay promptly for the negative balance. If you do not promptly add sufficient funds to your Card Account to cover the negative balance, Issuer may cancel your Cards and pursue collection. Issuer further reserves the right to offset any negative balance by any current or future funds you may load to or maintain in your Card Account or funds in any other Card Account you maintain with Issuer now or in the future.
4.5 Transaction Limits
Company reserves the right to set transaction velocity limits and individual transaction limits. Customer may also choose to set transaction frequency and amount limits for its Authorized Users on the Website.
4.6 Business Transactions
Transactions approved and processed with the Card may only be used to purchase goods and services for business purposes of Customer and cannot be used for personal, family or household purposes.
If you would like to dispute any transactions made on the Platform, please contact customer service by emailing [email protected].
4.8 Third Party Charges and Mobile Alerts
You are solely responsible for any fees or charges incurred to access the App through an internet access provider or other third party, including without limitation data charges incurred if you are not connected to WiFi access, charges to receive SMS messages or other mobile access, which may be billed to you by your mobile provider. You agree that Company is not liable in any way for any third party charges.
5. TERM AND TERMINATION
5.1 In the event the applicable Car IQ Fleet Master Services Agreement is terminated, you will cease all use of the Platform and Services. Customer will pay all Fees in full for the Services up to and including the last day on which the Services are provided. No prepaid Fees shall be refunded by in the event of termination. All sections of these Terms that by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. USER CONDUCT GUIDELINES
Any time you access or use the Platform you are required to comply with our user conduct guidelines as set forth below. You are not authorized to access or use the Platform:
• to impersonate any person or entity, or falsify or otherwise misrepresent your identity, credentials, affiliations or intentions;
• to systematically retrieve information or content to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
• if you are a person barred from receiving services under the laws of the United States or other applicable jurisdiction; or
• for any other purposes that are not expressly permitted by the Terms. Further, you may not:
• access, copy, distribute, share, publish, use or store any Platform content, including by disclosing, selling, renting, distributing or exposing any Platform content to a third party, using it for marketing purposes, or otherwise using it for any purposes unrelated to the Platform;
• access, copy, distribute, share, publish, use or store, or prepare derivative works from any Platform content that belongs to Company or any third party, including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of the person or entity party holding the rights to license such use;
• transfer your account to another party without our consent;
• circumvent our systems, policies, determinations as to your account status, including by attempting to access or use the Platform if your account has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the Platform;
• access, search, collect information from, or otherwise interact with the Platform by “scraping,” “crawling” or “spidering” the Platform, by the use of any software, device, script or robot, or by any other means (automated or otherwise) other than through the currently available, published interfaces that are provided by Company, unless you have been specifically authorized to do so in a separate agreement with Company;
• use, display, mirror or frame the Platform, or any feature, functionality, tool or content of the Platform, Company’s name, any Company trademark, logo or other proprietary information, without Company’s express written consent;
• interfere with, disrupt, damage or compromise the Platform or our systems or the access of any Customer, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Platform or otherwise imposing an unreasonable or disproportionately large load on the Platform;
• attempt to decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the Platform;
• export or re-export the Platform, except in compliance with the export control laws and regulations of any relevant jurisdictions;
• otherwise abuse the Platform or breach the Terms; or
• attempt to do any of the foregoing, or advocate, encourage or assist any third party in doing any of the foregoing.
Company reserves the right to investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law to the fullest extent of the law. Without limiting the foregoing, you acknowledge that Company has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Platform and Services by any Customer if we believe in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against Company, (iii) to enforce and to ensure Customer’s compliance with the Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of Company, Customers or members of the public, and (vi) for the purpose of operating and improving the Platform and Services (including for customer support purposes).
“Confidential Information” shall mean any and all non-public confidential and proprietary information of either Party or its corporate clients or vendors, affiliates, subsidiaries, employees, agents, subcontractors, users or parent companies provided to the other Party or its representatives, whether disclosed orally or disclosed, or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” including but not limited to: proprietary information, ideas, techniques, works of authorship, inventions, data, databases, know-how, processes, software programs, algorithms, ideas, specifications, source code developed from such specifications, all derivative and reverse-engineered works of the specifications, source code documentation, information related to current, future, and proposed products and services, pricing terms, business forecasts, business plans, sales, marketing plans and similar information. For the avoidance of doubt, the Car IQ Fleet Master Services Agreement including any attachments thereto shall constitute Confidential Information of Company. Confidential Information does not include information that, at the time of disclosure is, or thereafter becomes: (a) available and known to the public other than as a result of, directly or indirectly, a violation of this Agreement by the receiving Party; (b) available to the receiving Party from a third party source on a non-confidential basis provided that so far as the receiving Party is aware such third Party is not prohibited from disclosing such information to the receiving Party by a contractual, legal or fiduciary obligation to the disclosing Party, its representatives or another party; (c) independently developed by the receiving Party without violation of the receiving Party’s obligations under this Agreement and without reference to, in whole or in part, any of the disclosing Party’s Confidential Information; or (d) independently in the receiving Party’s possession, before being disclosed by or on behalf of the disclosing Party.
For a period of three (3) years from the date hereof, each Party will hold the other’s Confidential Information in confidence and will not make the other Party’s Confidential Information available in any form to any third party or use the other Party’s Confidential Information for any purpose other than for the performance of its obligations hereunder. Each Party shall only permit access to the other Party’s Confidential Information to those of its agents, employees, officers, directors, subcontractors and representatives (together the “Representatives”) having a need to know such Confidential Information: (i) for the purpose of performing its obligations under and in accordance with these Terms; (ii) that have been informed of the confidential nature of the Confidential Information and the receiving Party’s obligations; and (iii) that are bound by confidentiality obligations at least as protective of the Confidential Information as the terms set forth herein. Each Party shall be responsible for ensuring that their Representatives do not disclose, use or distribute Confidential Information in violation of these Terms. Each Party will undertake commercially reasonable efforts to protect the other Party’s Confidential Information, which efforts shall mean in all cases exercising at least the degree of care that the receiving Party uses to prevent disclosure, publication or dissemination of its own Confidential Information, and in no event less than reasonable care. Notwithstanding any other provisions of these Terms, the receiving Party’s obligations with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws.
8. CONSENT TO ELECTRONIC DISCLOSURES
8.1. Your Consent to Electronic Disclosures.
To the extent permitted by applicable law, you consent to use electronic signatures and to electronically receive all records, notices, statements, communications, and other items for all services provided to you under this Agreement and in connection with your relationship with us (collectively, “Communications”) that we may otherwise be required to send or provide you in paper form (e.g., by mail). By accepting and agreeing to this Agreement, you represent that: (1) you have read and understand this consent to use electronic signatures and to receive Communications electronically; (2) you satisfy the minimum hardware and software requirements specified below; and (3) your consent will remain in effect until you withdraw your consent as specified below.
8.2. Your Right to Withdraw Your Consent.
Your consent to receive Communications electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further Communications electronically at any time by calling (510) 560-5006. If you withdraw your consent to receive Communications electronically, we will close your Card Account and you will no longer be able to access the Platform or use the Services. Any withdrawal of your consent to receive Communications electronically will be effective only after we have a reasonable period of time to process your withdrawal. Please note that your withdrawal of consent to receive Communications electronically will not apply to Communications electronically provided by us to you before the withdrawal of your consent becomes effective.
8.3. Hardware and Software Requirements.
In order to access and retain Communications provided to you electronically, you must have: (1) a valid email address; (2) a computer or other mobile device (such as tablet or smart phone) that operates on a platform like Windows or a Mac environment; (3) a connection to the Internet; (4) a Current Version web browser, at minimum Chrome 92, Mozilla Firefox 90, or Safari 14; (5) a Current Version of a program that accurately reads and displays PDF files, such as Adobe Acrobat Reader DC; (6) a computer or device and an operating system capable of supporting all of the above; and (7) a printer to print out and save Communications in paper form or electronic storage to retain Communications in an electronic form. “Current Version” means a version of the software that is currently being supported by its publisher.
8.4. Copies of Communications.
You should print and save and/or electronically store a copy of all Communications that we send to you electronically.
8.5. Address or Name Changes.
You are responsible for notifying us of any change in your name, physical address, mailing address, email address, or phone number. Requests for address or name changes may be subject to additional verification requirements.
We will attempt to communicate with you only by use of the most recent contact information you have provided to us. You agree that any notice or communication sent to you at an address noted in our records shall be effective unless we have received an address change notice from you.
We cannot accept responsibility for any email messages not received by you or for any delay in the receipt or delivery of any email notification. If you make your email account available to any other individual, you agree that you are responsible for any release of any account information to such individual.
9. INTELLECTUAL PROPERTY OWNERSHIP
9.1 The Platform
The Platform and Services, and all features, functionality, tools and content thereof, are protected by copyright, trademark and other laws of the United States and foreign countries. You acknowledge and agree that the Platform and Services, and all intellectual property rights therein are the exclusive property of Company and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Platform or Services.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Company (the “Company Marks”) are the property of Company, and that you are not permitted to use the Company Marks without our prior written consent.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Platform or Services in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Company or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at Company’s sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Company or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Platform (“Feedback”). You may submit Feedback by e-mailing us, at [email protected]. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Company. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Company or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to Company all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Company’s rights in such improvements, enhancements and modifications.
10. THIRD PARTY TERMS
Our App may be available for download from third party app stores which are not owned or operated by Company. When downloading, installing, accessing, using or browsing the App, you must comply with any applicable third party terms and conditions, including any End User License Agreement, your mobile device agreement or any wireless data service agreement, and ensure that your use of the App is not in violation of any such terms or conditions.
11. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
11.1 Warranties by Customer
You represent and warrant to Company that:
(i) you have the power and authority to accept and agree to the Terms on your own behalf and on behalf of your Authorized Users; (ii) you own or control all of the rights necessary to grant the rights and licenses granted herein;
(iii) you will not violate any federal, state or local laws, rules or regulations or infringe the rights of any third party, including, any intellectual property, privacy or publicity-related rights, in connection with your access to or use of the Platform and Services;
(iv) the exercise by Company of the rights granted by you hereunder will not cause Company to violate any applicable laws, rules or regulations, to infringe the rights of any third party; and
(v) all account information provided by you and your Authorized Users will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE PLATFORM AND SERVICES, OR THAT USE OF THE PLATFORM AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, AND WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY PLATFORM CONTENT.
11.3 Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
• THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE PLATFORM AND SERVICES AND ANY AUTHORIZED USERS’ USE OF THE PLATFORM AND SERVICES UNDER YOUR ACCOUNT IS AND REMAINS WITH YOU.
• WITHOUT LIMITING THE FOREGOING, COMPANY DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) YOUR USE OF OR INABILITY TO USE THE PLATFORM AND SERVICES, AND (II) ANY AUTHORIZED USERS’ USE OF THE PLATFORM AND SERVICES.
• IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE PLATFORM AND SERVICES, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
• IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM AND THE SERVICES SHALL BE LIMITED TO THE BALANCE OF THE RELEVANT CARD ACCOUNT AT THE TIME THE CAUSE OF ACTION AROSE.
To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold Company, its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Platform, including any and all features, functionality, tools, content and Services available on and through the Platform, (ii) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (iii) your negligence or willful misconduct.
11.5 Obligation to Defend
You agree that, at Company’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you to conduct the defense, (i) Company may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Company (which approval shall not be unreasonably withheld or delayed), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action and does not admit any fault on behalf of Company.
11.6 No Implied Indemnity
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
12. GOVERNING LAW & DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND COMPANY HAVE AGAINST EACH OTHER ARE RESOLVED.
12.1 Governing Law
The Terms shall be governed by and interpreted in accordance with the laws of the State of California without regard to conflict of law principles.
Notwithstanding any contrary provision of these Terms, all disputes, claims, controversies and matters relating to or in connection with these Terms (or the breach thereof) or any transactions hereunder (a “Dispute”) shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Either Party may initiate arbitration by filing a claim in accordance with the AAA Rules. Any issue concerning the extent to which any Dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of these procedures, including any contention that all or part of these procedures are invalid or unenforceable, shall be governed by the Federal Arbitration Act and resolved by the arbitrator(s). The arbitration shall take place in or around San Francisco, California before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. For Disputes involving a claim of $500,000 or more in relief, a panel of three arbitrators shall be selected to hear the Dispute. In such case, each Party shall select one arbitrator who shall be independent and unaffiliated with such Party, and the two arbitrators shall then select the third arbitrator. If the two arbitrators are unable to agree upon the third arbitrator, then the AAA shall select the third arbitrator. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity. The arbitrator(s) shall have no power to award (i) damages inconsistent with the Agreement, (ii) punitive damages or any other damages not measured by the prevailing Party’s actual damages or (iii) damages in excess of the limitations set forth in the Agreement.
12.3 Future Amendments to this Section
Both of us agree that if we make any amendment to this Dispute Resolution section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Company. We will notify you of amendments to this section by email. If you do not agree to the amended Terms, you may close your Card Account within 30 days and you will not be bound by the amended dispute resolution terms. If you do not have a Card Account (or once you have closed your Card Account, if applicable), you must cease using the Platform immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Company in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).
As part of providing you the Platform, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services, which you may not be able to opt-out from receiving.
13.2 Entire Agreement
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense by you without the foregoing consent will be null and void. Company may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
13.4 No Agency
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
13.5 Survival of Terms
Any provisions of the Terms that contemplate performance or observance subsequent to the expiration or termination of these Terms shall survive such expiration or termination.
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by Company via e-mail (in each case to the address that you provide). The date on which such notice is transmitted will be deemed the date of receipt.
Our failure to exercise any right or enforce any obligation under these Terms or to take action with respect to a breach by you or others will not constitute a waiver of such right, obligation or breach. The waiver of any right, obligation or breach will be effective only if in writing and signed by a duly authorized representative of Company. In addition, no waiver granted in any instance shall constitute a waiver in any other instance.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
13.11 Third Party Beneficiaries
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
13.12 Contact Us
If you have any questions or concerns, please contact Company at: [email protected].
You can also write to us at: 150 California Street, Suite 1025, San Francisco, CA 94111 or call us at: 510-560-5006.
13.13 California Residents
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice: Complaints regarding the Platform or Services or requests to receive further information regarding use of the Platform or Services may be sent to the above address or to [email protected].
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
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