- Nature of Account and Card Use.
Comdata will provide Customer with one or more accounts through the use of which Customer may
access certain card networks (“Networks”), and the financial information and other services provided for in this Agreement and any Schedules
attached hereto (collectively, the “Account”). In connection with the Account, Comdata, in accordance with Customer’s request, will provide
special Comdata MasterCard Corporate Cards, which may include fleet, purchasing, T&E, multi cards and virtual cards (collectively, “Cards”),
and which are issued by National Bank of Canada, headquartered at 700 de la Gauchetiere Street West (7th Floor), Montreal, Quebec H3B 3B5,
or another financial institution (“Issuing Bank”). Comdata is an agent or representative of Issuing Bank or its affiliates. All Cards issued to
Customer shall remain the property of the Issuing Bank and must be returned or destroyed (with certification of destruction) upon request.
Comdata or the Issuing Bank may cancel, revoke, repossess or restrict the use of Cards at any time.
- Customer Representations and Warranties.
Customer represents and warrants the following:
- Customer is either a governmental, non-profit or commercial enterprise, and the Account and Cards will not be used for
personal, household or consumer purposes;
- the Account and Cards will be used for legitimate business charges only and Customer will have neither consumer law rights
nor remedies available to consumers associated with any purchases, charges or other activity associated with the Cards;
- the Account and cards will only be used to make payments on behalf of Customer and will not be used to make payments on
behalf of any third party;
- the Account and Cards will only be used for valid and lawful purposes and will not be used for gambling, online gaming, illicit
drug transactions, or any unlawful purposes including without limitation (i) other illegal purchases of goods or services,
regardless of whether such transaction violates the laws applicable in the territory where the transaction was initiated or
merchant is located, or (ii) purchases that are prohibited by local law; and
- the Account and Cards will not be used in any way that would cause Comdata or Issuing Bank to violate applicable Law.
If Customer uses, or allows someone else to use, the Account or Cards in violation of the above representations and warranties, Customer shall be
responsible for such use and may be required to reimburse Comdata, the Issuing Bank, and MasterCard International Incorporated
(“MasterCard”) for all amounts or expenses either Comdata, the Issuing Bank or MasterCard pays as a result of such use.
- Integration Partner; Authorization.
Customer has entered into a separate agreement with Klanto, Inc. (“Integration Partner”) pursuant
to which Integration Partner provides integration and Account Management services to Customer. In connection with such agreement with
Integration Partner and this Agreement, Customer authorizes Comdata to provide Integration Partner with (i) access to Customer’s Account,
including certain administrative functions, and (ii) Customer’s transaction data. Customer acknowledges and agrees that Comdata shall have no
liability for any actions of Integration Partner with respect to the Account(s) and Customer agrees to indemnify and hold harmless Comdata from
any damages, liabilities, costs or expenses (including reasonable attorneys’ fees and litigation costs) arising out of or in connection with any
action by Integration Partner with respect to the Account(s).
- Credit Limit; Credit Information.
If applicable, Comdata will establish a credit limit for the Account. The credit limit is subject to
periodic review and adjustment by Comdata in its sole discretion. Customer shall provide Comdata with such financial information as Comdata
may reasonably require, including, without limitation, annual financial statements within a reasonable time after Customer’s fiscal year-end and
interim financial statements as requested by Comdata. Customer authorizes Comdata to make any credit investigation Comdata deems necessary
and appropriate and to request reports from credit bureaus in connection with this Agreement or any update, renewal or extension of credit.
Comdata may furnish information with respect to Customer’s Account to credit bureaus or others who may properly receive such information.
Customer shall repay Comdata for all credit extended by Comdata and shall not allow its unpaid balance, including unbilled transactions, fees and
other charges on the Account, to exceed its credit limit at any time. If Customer exceeds its credit limit, then Comdata may require immediate
payment, suspend further Service, and assess additional fees.
From time to time Comdata may request Customer to provide security for the performance when due of Customer’s
obligations hereunder. Customer understands and agrees that it is under no obligation to provide Comdata with such security, but the refusal to
provide security when requested may result in adverse credit determinations by Comdata. Any security provided shall be in the amount and form
as required by Comdata in its reasonable discretion. The Account will not be available to Customer until such security is accepted by Comdata in
its sole discretion.
- Payment Terms.
(a) Non-Revolving. Customer shall be responsible for credit extended on the Account. This is not a revolving credit
account and the total amount shown on each Account statement (the “Total Amount Due”) is due and payable by the date shown on the Account
statement. This amount includes transactions posted since the last statement date, applicable account and service fees, amounts past due, late
payment charges, charges for returned checks and other applicable charges. For international transactions, the transaction amount includes a
MasterCard cross-border fee (currently 90 basis points) and a MasterCard currency conversion assessment fee (currently 20 basis points), which
are subject to change in MasterCard’s sole discretion.
(b) Late Fee and Default Interest. If Customer does not make full payment of the Total Amount Due on the due date, then Customer shall pay a
late payment fee equal to the greater of: (i) $150 or (ii) 9.99% of the past due portion of the Total Amount Due (excluding any previous late fees
and any default interest charges). In no event will such late charge exceed the lesser of $5,000 or the maximum amount permitted by applicable
law. In addition, in the event the Total Amount Due is not paid by the due date, then Comdata may assess a default interest charge at a rate equal
to the weekly average prime loan rate as published by the Federal Reserve plus 4% per annum. The default interest is assessed on the Total
Amount Due (excluding any late fees and any previous default interest charges) for the period of time such amount remains unpaid beyond the
due date. In no event will the default interest rate exceed the greater of 8% per annum or the maximum rate permitted by applicable law.
Notwithstanding anything to the contrary contained herein, no late fee or default interest charge will be applicable if the unpaid amount on the
Account is less than $75.
(c) Returned Payment. Comdata reserves the right to charge a returned payment fee of twenty dollars ($20) or the maximum amount permitted
under applicable law, whichever is less.
- Statements; Reporting
Billing statements and reports are available on-line. Customer understands and agrees that Comdata may filter
data received from merchants from time to time as necessary to provide complete reporting information to Customer when the merchant is unable
to deliver complete purchase detail.
- Term; Termination.
This Agreement is for an initial term of three (3) years commencing on the date this Agreement is executed by
Comdata. After the initial term, this Agreement shall continue until one party provides the other party with thirty (30) days written notice of
Comdata may immediately terminate this Agreement and the Account in the event the Network prohibits the Account, the Issuing Bank ceases to
be a network member or the Issuing Bank ceases to be the Card issuer, provided that Comdata shall endeavor to provide Customer with advance
notice of any such event. In the event of Customer’s breach or default under the credit limit and payment terms of this Agreement, Comdata shall
have the right to immediately suspend the Account until such breach is cured. In the event such breach or default is not cured within a reasonable
period of time, Comdata may thereafter terminate the Agreement. In the event of any other default under this Agreement by either party, the non-
defaulting party shall provide the defaulting party written notice of the nature of the default. The defaulting party shall have thirty (30) days from
the date of the default notice to cure the default, and if the default is not cured within such time period, then the non-defaulting party may
thereafter terminate this Agreement with written notice. In addition to any other rights of termination, either party may terminate this Agreement
upon prior written notice with respect to any individual state or jurisdiction if the terminating party can demonstrate, with documentary support,
that changes in applicable laws or regulations or the interpretation thereof will make the performance of such party’s obligations hereunder not
commercially feasible. The effective date of termination under the preceding sentence will be ninety (90) days from the date notice is delivered,
or upon the effective date of the new law or regulation, whichever occurs sooner. Customer’s obligation to pay for all outstanding amounts
incurred before the effective date of termination shall survive termination. The effective date of termination under the preceding sentence will be
ninety (90) days from the date notice is delivered, or upon the effective date of the new law or regulation, whichever occurs sooner. Customer’s
obligation to pay for all outstanding amounts incurred before the effective date of termination shall survive termination.
- Disputed Items.
Customer must notify Comdata in writing of any disputed item on Customer’s billing statement within sixty (60) days
from the date of the billing statement, or it will be deemed undisputed and accepted by Customer. Unless required by law, Comdata is not
responsible for any problem Customer may have with any goods or services charged on the Account. If Customer has a dispute with a merchant,
Customer must pay Comdata and attempt to resolve the dispute with the merchant prior to sending the dispute to Comdata. If Customer is
unsuccessful in resolving the dispute directly with the merchant, Comdata will attempt to process the dispute through MasterCard subject to the
MasterCard rules, as they may be changed from time to time in MasterCard’s sole discretion. Comdata is not responsible if any merchant refuses
to honor Cards.
- Account Access.
(a) Access. Customer’s representatives shall access the Account only as required to administer Customer’s Card
program and for no other purpose.
(b) Unauthorized Access to Account. Customer agrees to notify Comdata immediately of any unauthorized use of, or access to, the Account or
any passwords or other security codes or procedures used to access the Account or Comdata’s system. Customer acknowledges and agrees that it
is liable for unauthorized or fraudulent use of the Account until it has notified Comdata of such unauthorized access or use.
(c) Lost or Stolen Cards. Customer will not be liable for unauthorized charges on a Card that occur after Customer notifies Comdata of the loss
or theft of such Card.
- Limitation of Liability.
Comdata shall not be liable for any failure to perform due to acts of God, acts of government or MasterCard or
regulatory bodies which significantly inhibit or prohibit the Service, wars, acts of terrorism, fires, floods, explosions, natural catastrophes, civil
disturbances, strikes, riots, unusually severe weather (such as tornadoes), or failures or fluctuations in electrical power, heat, light, air
conditioning, computer or telecommunications services or equipment or any other cause not within the reasonable control of Comdata.
COMDATA’S SOLE RESPONSIBILITY, AND CUSTOMER’S SOLE REMEDY, FOR DAMAGES FOR ERROR, DELAY, OR ANY
ACTION OR FAILURE TO ACT SHALL BE LIMITED TO DIRECT MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE
TOTAL ISSUER REVENUE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE LOSS. EXCEPT AS
OTHERWISE SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR INDIRECT, CONSEQUENTIAL,
SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PARTY WAS MADE AWARE OF THE
POSSIBILITY OF SUCH DAMAGES. COMDATA MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FOR THE
PURPOSES OF THIS PROVISION, “ISSUER REVENUE” SHALL MEAN THE PORTION OF MASTERCARD INTERCHANGE
RECEIVED AND RETAINED BY COMDATA FROM CUSTOMER’S SPEND USING THE ACCOUNT EXCLUDING ANY INCENTIVE
OR REBATE AMOUNTS PAID TO CUSTOMER, CHARGE BACKS, AND/OR CREDIT LOSSES.
- Confidentiality; Proprietary Rights.
Comdata and Customer agree and covenant to each other that they shall not, during the
performance of this Agreement or at any time after the termination or expiration hereof, use or disclose to any third party, other than during the
proper performance of their duties hereunder, the confidential and proprietary information of the other party hereto (“Confidential Information”),
including but not limited to the rates, terms and conditions of this Agreement; technical information; transaction information; or any of the
procedures, practices or confidential dealings of the other party hereto. The foregoing shall not apply to a disclosure required by law provided
each party takes reasonable steps, when permissible, to notify the other party prior to such disclosure. Customer acknowledges and agrees that
the application software developed, utilized and maintained by Comdata, the internal hardware utilized by Comdata, the internal operating
procedures employed by Comdata, technical information, such as file record layouts, and transaction information, including without limitation
Comdata card numbers and data gathered at the point-of-sale by Comdata, are Confidential Information and the exclusive and proprietary
property of Comdata. The BINs (Bank Identification Numbers) assigned to the Cards are the property of the Issuing Bank.
- Liability of Acts of Customers, Employees and Agents.
Customer agrees to hold Comdata harmless from any and all liability resulting
from the acts of any employees or agents of Customer, which acts shall include but are not limited to negligent acts and willful misconduct of
such persons, or from the breach by Customer of its obligations under this Agreement. For purposes hereof, any person who is given
authorization by Customer to use Cards, Express Checks, codes, passwords or other security codes or procedures shall be deemed an employee or
agent of Customer.
- Right of Setoff and Recoupment.
Comdata shall have the right to setoff and apply any amounts owing by Comdata to Customer against
any amounts owing from Customer to Comdata pursuant to any Agreement between Comdata and Customer or any amounts in the possession of
or under the control of Comdata.
- Monitoring and/or Recording Communication.
Customer understands and agrees that Comdata may in its discretion, but is not
obligated to, monitor and/or record any telephone calls by Customer or its employees and/or agents without any further notice for quality control
purposes and for its own protection. Comdata may also monitor, record, and/or make a record of any other communications between Customer or
its employees and/or agents and Comdata without any further notice, and Comdata may use the resulting information for internal purposes or as
may be required by applicable law. Customer hereby consents to Comdata’s monitoring and/or recording of any telephone calls and
communications with Customer or its employees and/or agents. Customer acknowledges and understands Comdata may not record all telephone
calls or communications, and Comdata does not guarantee that recordings of any particular telephone calls or communications will be retained or
be capable of being retrieved.
Customer is solely responsible for any and all tax related obligations in connection with using the Account or Cards or related
services, including, without limitation, proper withholding and reporting, and Customer agrees to indemnify and hold Comdata and its affiliates
harmless from any and all liabilities, including interest and penalties, which are or may be imposed on Comdata or any of its affiliates pursuant to
any such federal, state and local tax laws and regulations.
- Press Releases, Publicity, Etc.
Customer shall not issue any press release or disseminate similar publicity or other information
regarding this Agreement or the Service for Customer or utilizing the trademarks, service marks, trade names or logos of Customer, Comdata,
Issuing Bank or the Networks, including, without limitation, web site information instructional or marketing materials or brochures, without the
express prior written approval of Comdata, Issuing Bank or the Networks, as appropriate.
- Independent Contractors.
None of the provisions of this Agreement is intended to create nor shall be deemed or construed to create any
relationship between the parties hereto other than that of independent entities contracting with each other hereunder solely for the purpose of
effecting the provisions of this Agreement. Neither of the parties hereto, nor any of their respective employees, shall be construed to be the
employer of the other. Customer and Comdata agree that Comdata is only providing services under this Agreement as an independent contractor.
All written notices required to be given by this Agreement shall be deemed to be duly given if delivered personally or sent by
U.S. certified mail, facsimile or overnight courier to Comdata, 5301 Maryland Way, Brentwood, TN 37027, attn: President, or to Customer at the
address listed on the Cover Page of this Agreement.
- Custom Services.
To the extent Customer requires custom services, including, without limitation, custom reporting, data loads,
dashboards, report distribution, training and other custom development work, Comdata may provide such custom services pursuant to a statement
of work agreed to and executed by the parties. Such statement of work will include a description of the scope of services to be performed by
Comdata and an estimated cost for such custom services based on Comdata’s applicable standard hourly rates in effect at the time of service.
- Government Regulation.
IMPORTANT INFORMATION ABOUT PROCEDURES FOR BEING A COMDATA CUSTOMER-
Legislation requires issuing banks to obtain, verify and record information that identifies the Customer (and any person to whom the Customer
provides a Card) as part of Comdata’s initial and on-going customer review process. Therefore, Comdata requires various identifying information
about the Customer (including name, corporate address, telephone number, and name of each director) and any person to whom the Customer
provides a Card (including name, address, telephone number and date of birth). The Customer consents to the storing and processing of such
personal information in the United States of America and acknowledges that access to such personal information shall be subject to applicable
laws in Canada. The Customer represents, warrants and covenants to Comdata that the Customer:
- has obtained, and will maintain throughout the term of this Agreement, the full right and authority (including by way of any
consents required under privacy law and other applicable law) for any (i) transfer of personal information from the Customer to
Comdata, including personal information about any persons to whom the Customer provides a Card; and (ii) any other collection,
use, transfer, disclosure or other processing by Comdata of such information for the purposes contemplated under this Agreement;
- is not currently and shall not become subject to any law, regulation or list of any government agency (including, without limitation,
any designated persons listing maintained by the Office of the Superintendent of Financial Institutions or the Department of
Foreign Affairs and Trade with respect to: (i) the United Nations Act; (ii) the Criminal Code; or (iii) any regulations made under
either (i) or (ii) related to the prevention of money laundering and terrorist financing) that prohibits Comdata from making any
advance or extension of credit to the Customer or from otherwise conducting business with the Customer, and
shall provide to Comdata, MasterCard and Issuing Bank, when requested, documentary and other evidence of Customer’s identity
or the identity of any person to whom Customer provides a Card, as required for appropriate parties to comply with any applicable
law or regulation, including, without limitation: (i) the Proceeds of Crime (Money Laundering) and Terrorist Financing Act; (ii)
any regulations made thereunder; and (iii) Comdata’s Anti-Money Laundering & Terrorist Financing Compliance Manual for
- Intentionally Omitted.
(a) This Agreement shall be exclusively governed by the laws of the Province of Ontario and the laws of Canada
without regard to the choice of law rules of such state. (b) Upon Comdata’s reasonable request, Customer agrees to promptly complete and deliver
such further documents as necessary or appropriate in connection with this Agreement. (c) Failure to insist upon strict compliance with any of the
terms or conditions of this Agreement shall not be deemed a waiver of such term or condition, nor shall waiver or relinquishment of any right or
power hereunder at any time be deemed a subsequent waiver or relinquishment of such right or power. (d) In addition to its rights under Sections
3 and 4, Comdata may change the terms of this Agreement at any time, including, without limitation, in the event of any future changes to
applicable law or the interpretation thereof or changes in the Network rules, and will notify Customer of any such changes at least thirty (30) days
prior to the effective date of the change, unless a shorter notice period is required by applicable law or Network rules. If Customer does not agree
to any such change, it may provide written notice to Comdata of its objection to such change within ten (10) days of receipt of notice from
Comdata of the change, and upon receipt of such objection, Comdata may withdraw the change by written notice to Customer. If Comdata does
not withdraw the change, it will become effective on the date provided in the original notice of change to Customer, provided that Customer may
terminate the Agreement with written notice to Comdata within fifteen (15) days of the effective date of such change. Unless Customer provides
notice of its objection as set forth above and exercises its right to terminate in the event Comdata does not withdraw such change, retention or use
of the Account after the effective date of any such change will constitute acceptance of the new terms. (e) This Agreement, including the Cover
Page, these General Terms and Conditions, and any other exhibits, schedules or addenda attached hereto and made a part hereof, constitutes the
entire agreement of the parties with respect to its subject matter; supersedes all prior agreements and understandings, oral or written, of the parties
with respect to this subject matter; and except as expressly set forth herein, may only be modified by a writing signed by Comdata and Customer.
(f) Customer shall be bound by and comply with all applicable laws and regulations (“applicable law”) and all payment network rules, guidelines,
requirements, and prohibitions (“network rules”) regarding Customer’s use of the Account and Card(s). Customer shall permit Comdata to
reasonably investigate or audit Customer’s compliance with applicable law and network rules regarding Customer’s use of the Account and
Card(s). (g) In the event of any conflict between the provisions of the General Terms and Conditions and any Service Schedule, the provisions of
the applicable Service Schedule shall control with respect to the applicable service. (h) Any provision of this Agreement that by its nature is
intended to survive termination of this Agreement shall so survive and shall remain enforceable after such termination. (i) The section and other
headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. j) In
case one or more of the provisions contained in this Agreement or any application thereof shall be invalid, illegal, or unenforceable in any respect,
the validity, legality, and enforceability of the remaining provisions contained herein and any other application thereof shall not in any way be
affected or impaired hereby. k) No provision of this Agreement shall be construed in favor of, or against, any particular party by reason of any
presumption with respect to the drafting of this Agreement; both parties, having fully participated in the negotiation of this Agreement, hereby
agree that this Agreement shall not be subject to the principle that a contract would be construed against the party which drafted the same. (l)
Customer may not transfer or assign this Agreement without the prior written consent of Comdata. (m) Customer acknowledges and agrees that
electronic records and signatures shall have the full legal effect of a writing. (n) In the event that the Account is turned over to a collection
agency or an attorney for collection of unpaid amounts or otherwise to enforce this Agreement, Customer agrees to pay all costs, fees and
expenses of such agency or attorney, including, without limitation, court costs and out-of-pocket expenses. (o) Unless otherwise stated, any
reference to dollars means Canadian dollars. (p) It is the express wish of the parties that this document and any related documents be drawn up
and executed in English. Les Parties aux présentes ont expressément demandé que ce document et tous les documents s’y rattachant soient
rédigés et signés en anglais.