End User License Agreement
Last updated: August 20, 2021
Cardata Consultants Inc. (“Cardata”, “we” or “us”) offers a software-as-a-service platform (the “Cardata Platform”) designed for corporate clients to manage business vehicle use. Cardata makes the Cardata Platform available to authorized end users (each, an “End User” or “you”) through the Cardata mobile application (the “App”) and Cardata’s website located at www.cardata.co (the “Website”). Your use of the Cardata Platform is subject at all times to this End User License Agreement (the “Agreement”).
When you access or use the Cardata Platform, whether on the Website or App, you agree to be bound by and comply with this Agreement. If you do not accept and agree to be bound by this Agreement, you may not access or use the Cardata Platform.
We reserve the right, in our sole discretion, to modify or update this Agreement from time to time, and we will notify you of any changes to this Agreement by posting a banner or other notice on the Website when we do so. Your continued use of the Cardata Platform following the posting of any changes to this Agreement will mean you accept such changes.
You understand and agree that Cardata and its affiliates do not provide legal, tax, or other professional advice, and that your use of the Cardata Platform is no substitute for such professional advice. You acknowledge and agree that your use of the Cardata Platform is at your own risk, and that this Agreement contains an agreement to resolve any disputes through binding arbitration, as well as important disclaimers, warranties, limitations on liability, and a class action waiver. Please read through this Agreement carefully before accessing or using the Cardata Platform.
2. Your Account
To use the Cardata Platform, you must have a user account (your “Account”). You agree to keep your Account login, password, and any other credentials secure and not share your Account with anyone. You acknowledge and agree that you will not provide any person with access to the Cardata Platform, or any portion of it, using your Account. You are responsible for all use of the Cardata Platform on your Account, whether or not authorized by you.
As a condition of your use of the Cardata Platform, you represent and warrant that:
(i) you have reached the age of majority in your jurisdiction of residence, and possess the legal authority to create a binding legal obligation;
(ii) you will use the Cardata Platform solely in accordance with this Agreement and for the Permitted Use (as defined below); and
(iii) all information you supply to Cardata through the Cardata Platform is, and will be, true, accurate, current, and complete.
You agree to notify Cardata immediately of any unauthorized access to or use of your Account, or if you become aware of any other breach of security affecting the Cardata Platform. You agree to exit your Account after each session, and to use particular caution when accessing your Account from a public or shared computer or smart device so that others are not able to view or record your Account password or other personal information.
If Cardata disables access to your Account, you will be prevented from accessing the Cardata Platform and any information that is associated with your Account. Cardata is not responsible for any loss of data resulting from the suspension or closure of your Account.
3. The Cardata Platform
The Cardata Platform allows you to access different platform functionalities based on role permissions that are assigned to you by your employer or organization. For example, if you are designated an “Admin” user, you may be able to add or remove drivers and managers, update company information, assign vehicle profiles, review and approve vehicle mileage and reimbursements, and view reporting. If you are designated a “Manager” user, you may be able to review and approve vehicle mileage. If you are designated a “Driver” user, you can submit and update your personal information to Cardata and record and submit mileage information.
You agree to use the Cardata Platform in accordance with this Agreement and the permissions assigned to you by your employer or organization (the “Permitted Use”). You shall not, without Cardata's prior written permission, use the Cardata Platform or any Content (as defined below) other than in accordance with the Permitted Use. Without limiting the generality of the foregoing, you agree that you will not, directly or indirectly, and will not permit anyone else to:
(a) “frame”, “mirror” or otherwise incorporate the Cardata Platform, Content, or any part thereof on any commercial or non-commercial website;
(b) access, monitor, or copy any part of the Cardata Platform or the Content using any robot, spider, scraper or other automated means or any manual process for any purpose without Cardata’s express written permission;
(c) violate the restrictions in any robot exclusion headers on the Content, the Cardata Platform, or bypass or circumvent other measures employed to prevent or limit access to the Cardata Platform;
(d) take any action that imposes, or may impose, in Cardata’s discretion, an unreasonable or disproportionately large load on the Cardata Platform;
(e) remove (or permit anyone else to remove) any watermarks, labels, or other legal or proprietary notices included in the Cardata Platform or the Content;
(f) modify or attempt to modify (or permit anyone else to modify or attempt to modify) the Cardata Platform, including any modification for the purpose of disguising or changing any indications of the ownership or source of the Cardata Platform;
(g) attempt to, assist, authorize, or encourage others to circumvent, disable, or defeat any security features or components that may protect the Cardata Platform, such as digital rights management software or encryption;
(h) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, publish, license or circulate in any form any part of the Cardata Platform or the Content;
(i) create derivative works based on the Cardata Platform or the Content, in whole or in part, or decompile, disassemble, reverse engineer or otherwise exploit any part of the Cardata Platform or the Content;
(j) use or access the Cardata Platform in a manner that, directly or indirectly, violates the rights (including, but not limited to intellectual property and privacy rights) of any third party; or
(k) upload to or transmit through the Cardata Platform any information, images, text, data, media or other content that is offensive, hateful, obscene, defamatory, or violates any laws, in each case as determined by Cardata in its sole discretion.
Cardata retains the right, in its sole discretion, to deny anyone access to the Cardata Platform, at any time and for any reason (or no reason at all), including, but not limited to, for violation of this Agreement or use other than the Permitted Use. In such case, you agree that you must immediately stop using the Cardata Platform.
4. Intellectual Property Rights
All content including (without limitation) all designs, infrastructure, graphics, pictures, illustrations, software, artwork, video, music, sound, names, words, titles, phrases, logos and marks displayed on the Cardata Platform (the “Content”), is owned or licensed by Cardata and protected by copyright, trademark, and other intellectual property laws.
Subject to the terms of this Agreement, Cardata grants you a personal, revocable, non-exclusive and non-transferable license to access and use the Cardata Platform and Content in accordance with this Agreement and for the Permitted Use only.
Cardata expressly reserves all rights in and to the Cardata Platform, Website, App, and Content, and any other materials provided to you by Cardata in connection with this Agreement. You acknowledge that all right, title, and interest in and to the Cardata Platform, all materials provided by Cardata in connection with this 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 its licensors, if applicable), and that the Cardata Platform and all materials provided by Cardata hereunder are licensed to you and not sold.
In connection with your use of the Cardata Platform, you may choose to provide Cardata with information or materials such as feedback, questions, comments, or suggestions for features, functionalities, or the like (collectively, “Feedback”). To the extent that Feedback does not contain information that identifies you, or otherwise cannot reasonably be used to identify you (including information or materials that Cardata has de-identified), such Feedback shall be the exclusive property of Cardata, and you unconditionally waive all “moral rights” that your may now have or have in the future relating to such Feedback.
5. Your Data
You are responsible for ensuring that all information that you provide or make available to Cardata, on or through the Cardata Platform, is true, accurate, current, and complete. Cardata shall have no obligation to validate or confirm any information that you provide to Cardata and, without limiting Section 10 below, Cardata shall have no liability resulting from any inaccurate information.
Either you or Cardata may terminate this relationship with or without cause at any time with notice or otherwise in accordance with this Agreement. This Agreement will continue to apply to all past use of the Website, App, and Cardata Platform by you. You agree that Cardata may, in its sole discretion, terminate or suspend your access to the Cardata Platform for any reason, including, without limitation, for breach of this Agreement. Any actual or suspected fraudulent, abusive, or illegal activity may be grounds for terminating this relationship.
Should you object to this Agreement or any subsequent modifications to it, or become dissatisfied with the Cardata Platform in any way, your only recourse is to immediately discontinue your use of the Cardata Platform.
7. Third Party Websites
Certain links provided on the Website, App, or Cardata Platform may take you to websites that are owned and operated by third parties (“Third Party Sites”). We provide these links as a convenience only, and do not endorse or have any control over any Third Party Sites or their content, or any products, services, or information they provide. If you decide to visit any Third Party Site, you do so at your own risk and waive any claims against Cardata.
8. Security and Confidentiality
Your use of the Cardata Platform is at your own risk. Cardata cannot and does not guarantee or warrant that the Cardata Platform or Content are compatible with your computer system or smart device or that the Cardata Platform, or the Content, or any links from the Cardata Platform, or the Content, will be free of viruses, worms, malware, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system or smart devices, and you are responsible for the entire cost of any services, repairs, or connections of and to your computer system or smart devices that may be necessary as a result of your use of the Cardata Platform.
Although Cardata generally adheres to accepted industry practices in securing the transmission of data to, from, and through the Cardata Platform, you understand, agree, and acknowledge that Cardata cannot and does not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Cardata Platform, Website, or App.
9. Payment Processing Services
If you use payment processing services made available in the Cardata Platform, such as Direct Pay, you acknowledge and agree that such payment processing services may be provided by a third-party payment processor (the “Payment Processor”). By submitting reimbursements through the Cardata Platform, you acknowledge and agree that you are legally authorized to use the bank details you provide to the Payment Processor to complete each reimbursement transaction. You hereby authorize Cardata to allow the Payment Processor to collect your financial information, including banking details and transaction information related to your use of the payment processing services and the Cardata Platform. You also agree that Cardata is not responsible for the use or misuse of such financial information, banking details and transaction information by the Payment Processor or any third party.
10. DISCLAIMER AND EXCLUSION OF LIABILITY
THE CARDATA PLATFORM, WEBSITE, APP, AND CONTENT ARE PROVIDED "AS IS'' WITHOUT WARRANTY OR CONDITION OF ANY KIND. USE OF THE CARDATA PLATFORM, WEBSITE, APP, OR CONTENT IS AT YOUR OWN RISK. CARDATA DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ABOUT THE QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE CARDATA PLATFORM, WEBSITE, APP, OR CONTENT (INCLUDING WITHOUT LIMITATION ANY CALCULATIONS PERTAINING TO VEHICLE REIMBURSEMENT). THE CARDATA PLATFORM, WEBSITE, APP, AND/OR 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 CARDATA PLATFORM, WEBSITE, APP, OR CONTENT (INCLUDING WITHOUT LIMITATION ANY CALCULATIONS PERTAINING TO VEHICLE REIMBURSEMENT). IN ADDITION, CARDATA EXPRESSLY RESERVES THE RIGHT TO CORRECT ANY PRICING ERRORS ON THE CARDATA PLATFORM, WEBSITE, APP, AND/OR CONTENT.
TO THE FULLEST EXTENT PERMITTED BY LAW, CARDATA DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE CARDATA PLATFORM, WEBSITE, APP, AND 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 CARDATA PLATFORM, WEBSITE, APP, AND/OR 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 THE CARDATA PLATFORM, WEBSITE, APP, OR CONTENT.
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 YOUR USE OF, OR INABILITY TO MAKE USE OF, THE CARDATA PLATFORM, WEBSITE, APP, OR CONTENT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO CARDATA’S SERVICES OR PRODUCTS, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE CARDATA PLATFORM OR THE CONTENT EXCEED CDN$ 100.00 (ONE HUNDRED CANADIAN DOLLARS). FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST CARDATA ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR A CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
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 THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
You will defend, indemnify and hold harmless Cardata, its affiliates, and all of its or their officers, directors, employees and agents from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, brought in connection with or as a result of: (a) your breach of any of your warranties, representations or obligations under this Agreement or any documents referenced herein; (b) your violation of any law or the rights of a third party (including, without limitation, intellectual property rights); or (c) your use of the Cardata Platform.
12. Geographic Application of the Cardata Platform
Cardata’s products and services are not available in all jurisdictions. The Cardata Platform and Content are intended for use only in jurisdictions where they may lawfully be offered for use. 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.
a. Force Majeure. Cardata will not be liable to you for any failure of or delay in the performance of its obligations under this Agreement for the period that such failure or delay is due to causes beyond Cardata’s reasonable control, including but not limited to acts of God, war, epidemic, pandemic (or any worsening thereof), strikes or labor disputes, embargoes, government orders or any other force majeure event.
b. Governing Law. This Agreement will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein.
c. Dispute Resolution. In the interest of resolving disputes between you and Cardata in the most expedient and cost-effective manner, you and Cardata agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. You and Cardata agree that (i) any arbitration will occur in Toronto, Ontario; (ii) arbitration will be conducted confidentially in English with one arbitrator to be selected by the parties to the arbitration; and (iii) the Ontario courts situated in the city of Toronto 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.
d. Entire Agreement. This Agreement constitutes the entire agreement between you and Cardata pertaining to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Cardata with respect to the Cardata Platform, Website, App, or Content. A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
e. Benefit of the Agreement. This Agreement is binding upon and will enure to the benefit of the parties and their respective successors, heirs, executors, administrators, personal representatives and permitted assigns. You may not assign or transfer your rights or obligations under this Agreement without Cardata’s prior written consent, which consent will be at our sole discretion. Cardata may assign this Agreement to any party at any time without notice to you.
f. Notices. Cardata may, in its sole discretion, provide any notices to you in connection with this Agreement through the Cardata Platform or by email at the then-current email address for you on file with Cardata. You may provide notices to Cardata by writing to the following address: email@example.com. Cardata may change its notice contact information from time to time by posting updated contact details on the Cardata Platform.
g. Waiver. Cardata's failure to insist upon or enforce strict performance of any provision of this Agreement will not be construed as a waiver of any provisions or rights.
h. Severability. If any of the provisions contained in this Agreement are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination will not affect the remaining provisions contained herein.
i. Language. 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.