Loopit Platform Terms & Conditions

1. ORDER FORMS

1.1 These terms will apply to all the Customer’s dealings with Loopit, including being incorporated in all agreements, quotations or orders under which Loopit is to provide services to the Customer (each a “Key Term”) together with any additional terms included in such Key Terms (provided such additional terms are recorded in writing).

1.2 In the event of any inconsistency between these terms and conditions and any Key Terms the clauses of these terms and conditions will prevail to the extent of such inconsistency, except that any “Special Conditions” (being specific terms set out and described as such in the Key Terms) will prevail over the other terms of this Agreement to the extent of any inconsistency.

2. TERM & RENEWAL TERM

2.1 This Agreement shall commence on the Commencement Date and shall continue in effect for successive Monthly Terms, each such Monthly Term commencing on the first day of a calendar month and ending on the last day of that calendar month (each, a “Monthly Term”),

2.2 Upon the expiration of the initial Monthly Term or any subsequent Monthly Term, this Agreement shall automatically renew for additional Monthly Terms (each, a “Renewal Term”), unless either party provides written notice of its intention not to renew subject to Section 16 prior to the end of the then-current Monthly Term. The terms and conditions of this Agreement during any Renewal Term shall be the same as the terms in effect immediately prior to such renewal, except as may be changed in accordance with the terms of this Agreement.

3. THE SOLUTION

3.1 SCOPE OF SOLUTION

1. The Solution includes the Software, Services and Support set out in the Key Terms (“Solution”). 
2. Loopit may from time to time in its absolute discretion install enhancements to the Solution, where enhancements mean any upgraded, improved, modified or new versions of the Solution (including any customisations made at the Customer’s request).
3. Subject to the terms of this Agreement, Loopit will use commercially reasonable efforts to provide Customer the Solution in accordance with applicable Laws and  prevailing industry standards.
4. Unless otherwise agreed, Loopit may, in its absolute discretion:
   1. not provide any part of the Solution until the Customer has paid any fees or deposit payable in respect of such Services; and
   2. withhold delivery of any part of or all of the Solution until the Customer has paid the invoice in respect of the Solution.

3.2 ACCESS AND USE

(a) Access and Use. Subject to and conditioned on Customer's compliance with the terms and conditions of this Agreement, Company hereby grants Customer a non-exclusive, non-transferable right to access and use the Solution during the Term, solely for use by Customer in accordance with the terms and conditions herein. Such use is limited to Customer's internal use.

(b) Documentation License. Company hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Solution.

3.3 HOSTED SERVICES 

2. We will store Customer Data you upload to the Software using a third-party hosting service selected by us, at our sole discretion (“Hosting Service”), subject to the following terms:
   1. Hosting Location. You acknowledge and agree that we may use storage servers to host the Software through cloud-based services, and potentially other locations outside of the United States.
   2. Service Quality. While we will use commercially reasonable efforts to select an appropriate hosting provider, we do not guarantee that the Hosting Service will be free from errors or defects or that Customer Data will be accessible or available at all times.
   3. Security. We will use our commercially reasonable efforts to ensure that Customer Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to Customer Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
   4. Backups & Disaster Recovery. In the event that Customer Data is lost due to a system failure (e.g., a database or web server crash), we cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.

4. THE CUSTOMER’S OBLIGATIONS

4.1 USE RESTRICTIONS 

The Customer shall not, and shall not permit any Licensed User, User, Personnel, or Person to, access or use the Solution or Documentation, except as expressly permitted by this Agreement and, in the case of any third party materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:

1. copy, modify, or create derivative works or improvements of the Solution or Documentation;
2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services, the Solution, or Documentation to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Solution or Documentation, in whole or in part;
4. bypass or breach any security device or protection used by the Solution or Documentation or access or use the Solution or Documentation;
5. input, upload, transmit, or otherwise provide to or through the Solution, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
6. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Solution, or Company's provision of services to any third party, in whole or in part;
7. remove, delete, alter, or obscure any trademarks, specifications, Documentation, EULA, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services, Solution, or Documentation, including any copy thereof;
8. access or use the Solution or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Company customer), or that violates any applicable Law;
9. access or use the Solution or Documentation for purposes of competitive analysis of the Solution or Documentation, the development, provision, or use of a competing software service or product or any other purpose that is to the Company's detriment or commercial disadvantage;
10. access or use the Solution or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
11. permit any person other than Licensed Users to use or access the Solution or Documentation.

4.2 CUSTOMER’S RESPONSIBILITIES

(a) You acknowledge and agree that Loopit has no part of and that it is solely your responsibility to:

12. provide the vehicles for which the Solution will be used to manage;
13. install the GPS Devices into the vehicles (in accordance with any of the manufacturer’s requirements and any guidelines provided by Loopit);
14. enter into commercial agreements with your customers, users, or Persons for the booking of vehicles;
15. enforce the collection of outstanding payments from your customers, users, or Persons in respect of the vehicles;
16. communicate with your customers, users, or Persons for the collection of overdue payments and repossession of vehicles; and
17. otherwise manage all aspects of the relationship with your customers, users, or Persons.

(b) For each customers, users, or Persons that engages you for a vehicle booking using the Solution, Customer may perform a DMV Customer Check and credit check and will be charged the associated fees as part of your Fees.

(c) You agree to display our logo and branding at the point of sale on your website in the manner directed by us to you, and in accordance with our reasonable instructions and guidelines. This includes, without limitation, providing an active link to loopit.co. 

(d) For clarity, you agree not to represent that the Solution and/or the GPS Device are a service or product provided by you, or to hide, obscure or otherwise alter our logo and branding in any way when presenting the Solution to Customers.

(e) You agree to comply with all applicable Laws regarding any sale or transfer of a vehicle in connection with use or access of the Solution.

4.3 COMMITTED VOLUME

Clause not applicable to this agreement

4.4 EXPORT CONTROLS

Customer may not remove or export from the United States or allow the export or re-export of the Services, Solution, Documentation, and the underlying Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and Documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.  Customer represents, covenants, and warrants that Customer will use the Solution and Documentation only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable Laws and regulations.  Although Company has no obligation to monitor Customer’s use of the Solution, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

4.5 SUSPENSION OR TERMINATION OF SERVICES

Company may, directly or indirectly, and by use of a Company Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer's, any Licensed User's, or any other Person's access to or use of all or any part of the Solution or Documentation, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its good faith and sole discretion, that: (i) Customer or any Licensed User has failed to comply with any material term of this Agreement, or accessed or used the Solution beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the specifications; (ii) Customer or any Licensed User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Solution; or (iii) this Agreement expires or is terminated. This Section 4.5 does not limit any of Company's other rights or remedies, whether at law, in equity, or under this Agreement.

4.6 EFFECT OF CUSTOMER FAILURE OR DELAY

2. Company is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure"). 
3. If Customer becomes aware of any actual or threatened activity prohibited by Section 4.1, Customer shall, and shall cause its Licensed Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Solution and Documentation and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Company of any such actual or threatened activity. 

‍5. THIRD PARTY TERMS & CONDITIONS

5. The Customer acknowledges and agrees that third party terms & conditions (“Third Party Terms”) may apply to the Customer’s use of the Solution, including without limitation the following (as updated from time to time): (i) AWS, whose terms are found here; (ii) GeoTab, whose terms are found here; 
6. The Customer agrees to any Third Party Terms applicable to any third party goods and services that are used in providing the Solution, and Loopit will not be liable for any loss or damage suffered by the Customer in connection with such Third Party Terms.
7. The Customer acknowledges and agrees that issues can arise with transferring data among and between software, and when integrating or implementing software. We cannot guarantee the integration or implementation processes to other Software will be free from errors, defects or delay. The Customer agrees that we will not be liable for the functionality, performance, warranty, results, or outcome of any third-party goods or services, including any software.

6. PAYMENT

6.1 FEES

1. The Customer must pay all fees and any other amounts payable to Loopit at the times and amounts set out in the Order Form, this Agreement, or as otherwise agreed in writing (“Fees”).
2. All Fees are paid in advance and non-refundable for change of mind.

6.2 TIME FOR PAYMENT

2. Unless otherwise agreed in writing:
   1. Loopit issues an invoice for the Fees to the Customer, payment must be made by the time(s) specified on such invoice; and
   2. in all other circumstances, the Customer must pay for all goods and services within 10 business days starting from the invoice date.
   3. If any payment has not been made in accordance with the Payment Terms we may (in our sole and good faith discretion):
      1. immediately cease or suspend performance of the Services or access to the Solution or Documentation, until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension;
      2. Company may charge interest on the past due amount at the rate of 5% calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
      3. Customer shall reimburse Company for all reasonable costs incurred by Company in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and
      4. if such failure continues for 30 days following written notice thereof, Company may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

4. If you rectify such non-payment after the Solution has been suspended, then we will, at our sole discretion, recommence the provision of the Solution as soon as reasonably practicable.

6.3 STATE, FEDERAL TAXES AND CHARGES

All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company's income.

6.4 NO DEDUCTIONS OR SETOFFS; FEE INCREASES; AND EXPENSES

(a) All amounts payable to Company under this Agreement shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than Fee Credits issued pursuant to Section 3.4(f) or any deduction or withholding of tax as may be required by applicable Law).

(b) Company may increase Fees after the first contract year of the Term, including any contract year of any Renewal Term, by providing written notice to Customer at least 60 calendar days prior to the commencement of that contract year or such Renewal Term, and the Order Form will be deemed amended accordingly. 

(c) Customer shall reimburse Company for out-of-pocket expenses incurred by Company in connection with performing the Services ("Reimbursable Expenses").

6.5 CARD SURCHARGES

Loopit reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including without limitation, Visa, MasterCard or American Express).

7. CHANGE ORDERS

7.1 CHANGE ORDERS DURING TERM

1. Where there are any changes or additions to the Key Terms (including changes to the Solution) which alter the scope set out in the Key Terms (whether at the Customer’s request or Loopit’s suggestion) (“Change Orders”), the Customer must pay a ‘change in scope fee’, in an amount reasonably determined by Loopit (“Change Order Fee”).
2. Loopit may also determine, in its sole discretion, any other terms relating to the Change Fee, including the timing for which the Customer will be invoiced for the Change Order Fee (“Change Order Fee Terms”).
3. Loopit will only be required to perform Change Orders, if:
   1. both parties agree in writing for Loopit to perform the Change Orders; and
   2. the Customer confirms in writing that they accept the relevant Change Order Fee and the Change Order Fee Terms.
4. The same standards, warranties, and indemnities apply to the Change Orders as applied to the original Key Terms.
5. For the avoidance of doubt, any change to the Key Terms that is reasonably considered by Loopit to be a change in the scope of the Key Terms, will be considered a Change Order.

7.2 CHANGES AT RENEWAL

(a) Loopit may, from time to time, advise the Customer by way of the Renewal Notice of any applicable changes to the terms of this Agreement after a Renewal Date.

(b) Such modification may be made for various reasons, including to account for changes to the Consumer Price Index as most recently published by the Wall Street Journal at the time or changes in the genuine costs incurred by Loopit to supply the Solution.

(c) In the event the Customer does not agree to the modification or does not otherwise wish to renew this Agreement, the Customer must give Loopit written notice within 30 days of receiving the Renewal Notice (“Non-Renewal Notice”).

(d) Upon Loopit receiving a Non-Renewal Notice, unless otherwise agreed in writing by the parties, this Agreement will expire at the end of the then current Initial or Renewal Term.

(e) In the event that the Customer accepts the Renewal Notice in writing or does not otherwise respond within 10 Business Days of receiving the Renewal Notice, the Customer will be deemed to have accepted the modification and this Agreement will renew in accordance with Section 2.2.

8. GPS DEVICES

8. In order to track the location and usage of any vehicle using the Solution, a vehicle must be fitted with a telematic GPS device (“GPS Device”), pre-approved in writing by Loopit.
9. The Customer acknowledges and agrees that it is the Customer’s sole responsibility to purchase and install a GPS Device, and that the Customer will not be provided with GPS Devices as part of the Solution, unless otherwise agreed in writing.
10. If the Customer purchases a GPS Device from Loopit (“Order”), the following terms will apply:
    1. the Customer’s Order must be paid in advance and is non-refundable for change of mind.
    2. once Loopit confirms receipt of payment of the Order, the Order is binding and cannot be changed.
    3. Loopit may charge the Customer delivery costs which will be advised to the Customer prior to placing your Order.
    4. Loopit will endeavour to ensure that the GPS Devices provided will be substantially the same as the GPS Devices displayed on Loopit’s Website or as otherwise agreed with the Customer in writing prior to placing the Order. Due to screen display, colour and brightness, and image quality, GPS Devices may not exactly match an image provided by Loopit or shown on Loopit’s Website.
    5. Loopit reserves the right to charge the Customer a storage fee (at a rate to be determined by Loopit in its sole discretion) on GPS Devices not delivered within 7 days of Loopit notifying the Customer of its availability to be delivered.
    6. risk and title in the GPS Device will be passed to you upon payment of the Order for that GPS Device.
11. If: 

(i) a GPS Device is damaged, lost, stolen, or is otherwise rendered unusable; or 

(ii) the Customer wishes to install a new GPS Device into an existing or additional vehicle,

it is the Customer’s sole responsibility to purchase and install a new GPS Device, and Customer agrees that the preceding is the sole and exclusive remedy for Customer in such events outlined in Section 8(d)(i) and (ii).

5. The Customer acknowledges and agrees that if the Customer chooses to not install a GPS Device in a vehicle, the Customer will be unable to track the use of the vehicle and will not be able to track some aspects of a vehicle booking service that the Solution is designed to manage, such as distance travelled.
6. Loopit will provide the Customer with the required specifications for the GPS Devices to work with the Solution. It is the Customer’s responsibility however to ensure that the GPS Device meets the required specifications, so it is compatible with the Solution. Loopit will not be liable for any loss or damage the Customer may suffer as a result of purchasing a GPS Device that is not compatible with the Solution.
7. Customer agrees to indemnify Loopit from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of the use of the GPS Device by a User, Licensed User, Person, or third party in connection with the Services, Solution, or Documentation.

9. INTELLECTUAL PROPERTY

9.1 CUSTOMER MATERIALS

The Customer grants to Loopit and, including without limitation, Loopit’s Personnel, a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Customer Materials to the extent reasonably required to provide the Solution.  “Customer Materials” means any documents or materials supplied by the Customer to Loopit under or in connection with this Agreement or the Key Terms, including any Intellectual Property Rights attaching to those materials.

9.1 LOOPIT MATERIALS

All right, title, and interest in and to the Loopit Materials, including all Intellectual Property Rights therein, are and will remain with Loopit. Customer has no right, license, or authorization with respect to any of the Loopit Materials except as expressly set forth in Section 3.2 or the applicable third-party license. All other rights in and to the Loopit Materials are expressly reserved by Company. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Company an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto. “Loopit Materials” means any materials produced by Loopit in the course of providing the Solution including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Customer or others, and any Intellectual Property Rights attaching to those materials. 

9.2 CUSTOMER DATA

1. Customer shall own all right, title and interest in and to the Customer Data.  Company shall own and retain all right, title and interest in and to (a) the Services, Solution, Documentation, and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation services or support, and (c) all Intellectual Property Rights related to any of the foregoing.
2. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Company, its subcontractors, and the Company Personnel to enforce this Agreement and exercise Company's, its subcontractors', and the Company Personnel's rights and perform Company's, its subcontractors', and the Company Personnel's obligations hereunder.
3. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data, Resultant Data, and data derived therefrom), and  Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Solution, Services, or Software, and for other development, diagnostic and corrective purposes in connection with the Solution and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.  No rights or licenses are granted except as expressly set forth herein.   

‍

10. CONFIDENTIALITY; non-solicitation; non-circumvention

10. CONFIDENTIALITY

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service and Solution.  Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services, including without limitation the Customer Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or Solution, or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.  

2. NON-SOLICITATION; NON-CIRCUMVENTION

During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor, any Person then or within the prior 36 months employed or engaged by Company or any subcontractor and involved in any respect with the Services, Solution, or the performance of this Agreement. In the event of a violation of this Section 10(b), Company will be entitled to liquidated damages equal to the compensation paid by Company to the applicable employee or contractor during the prior 24 months as a reasonable measure of damages for the Company to market, recruit, hire, and train a replacement Person to fill the vacancy caused by a breach of this Section 10(b).

11. Terms of service and Privacy Policy

‍The Customer agrees, and will ensure its Users, Licensed Users, Personnel, and any Person accessing the Solution and Services agrees to Loopit’s Terms of Service and Privacy Policy, located at here and here, which is incorporated into this Agreement by reference. Please read the Privacy Policy carefully as it governs Loopit’s collection, use, and disclosure of personal information. Our Data Processing Agreement is available upon request.

12. Security 

1. Information Security. Company will employ security measures in accordance with Company's data privacy and security policy, as amended from time to time, a current copy of which is set forth in Exhibit B.
2. Data Breach Procedures. Company maintains a data breach plan in accordance with the criteria set forth in Exhibit B and shall implement the procedures required under such data breach plan on the occurrence of a data breach (as defined in such plan).
3. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Licensed User in connection with the Solution; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (d) the security and use of Customer's and its Licensed Users' access credentials; and (e) all access to and use of the Services and Loopit Materials directly or indirectly by or through the Customer Systems or its or its Licensed Users' access credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
4. Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Solution; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Solution.

13. Representations and Warranties

1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
   1. it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
   2. it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
   3. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
   4. when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
2. Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Company that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Materials or Customer Data so that, as received by Company and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
3. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 13(a) AND SECTION 13(b), ALL SERVICES, GOODS (INCLUDING WITHOUT LIMITATATION THE GPS DEVICE), AND LOOPIT MATERIALS ARE PROVIDED "AS IS." COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, GOOD, LOOPIT MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

14. LIMITATION OF LIABILITY

14. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 15, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES

15. INDEMNITY

15.1 COMPANY INDEMNIFICATION 

Company shall indemnify, defend, and hold harmless Customer and Customer's officers, directors, employees, agents, permitted successors, and permitted assigns (each, a "Customer Indemnitee") from and against any and all Losses incurred by Customer resulting from any Action by a third party (other than an affiliate of a Customer Indemnitee) that Customer's or a Licensed User’s use of the Solution (excluding Customer Data and third-party materials) in accordance with this Agreement  infringes or misappropriates such third party's US Intellectual Property Rights in the Territory. The foregoing obligation does not apply to the extent that the alleged infringement arises from: 

1. Third-Party Materials, GPS Device, or Customer Data;
2. access to or use of the Loopit Materials in combination with any hardware, system, software, network, or other materials or service not provided by Company or specified for Customer's use in the Documentation, unless otherwise expressly permitted by Company in writing;
3. modification of the Loopit Materials other than: (i) by or on behalf of Company; or (ii) with Company's written approval in accordance with Company's written specification; 
4. failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Company; or
5. act, omission, or other matter described in Sections 15.2(a) through (e) below, whether or not the same results in any Action against or Losses by any Company Indemnitee.

15.2 CUSTOMER INDEMNIFICATION  

Customer shall indemnify, defend, and hold harmless Company and its subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a "Company Indemnitee") from and against any and all Losses incurred by such Company Indemnitee resulting from any Action by a third party (other than an Affiliate of a Company Indemnitee) that arise out of or result from, or are alleged to arise out of or result from: 

1. Customer Data, including any Processing of Customer Data by or on behalf of Company in accordance with this Agreement;
2. any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Licensed User, including Company's compliance with any specifications or directions provided by or on behalf of Customer or any Licensed User to the extent prepared without any contribution by Company; 
3. allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement; 
4. a Person’s use of the GPS Device, in connection with the Solution; or
5. the negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Licensed User, or any third party on behalf of Customer or any Licensed User, in connection with this Agreement.

15.3 INDEMNIFICATION PROCEDURE

Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 15.1 or Section 15.2 as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 15.3 will not relieve the Indemnitor of its obligations under this Section 15 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.

16. TERMINATION

16.1 TERMINATION FOR CONVENIENCE

1. Loopit may terminate this Agreement for convenience at any time by providing 30 calendar days written notice to the other party prior to the expiration of the Monthly Term.

16.2 TERMINATION FOR CAUSE

2. Either party (Non-Defaulting Party) may terminate this Agreement by written notice to the other party (Defaulting Party) if the Defaulting Party, or its Users, are in breach of this Agreement as follows:
   1.  fails to remedy such breach within 5 calendar days’ of receiving notice from the Non-Defaulting Party        requiring it to remedy such breach; or
   2. Within 1 calendar days’ notice if such breach is not capable of remedy, as solely determined in good faith by Loopit.

16.3   EFFECT OF TERMINATION

3. Upon termination of this Agreement:
   1. Loopit will refund any undisputed amounts paid by the Customer for goods or services not provided as at the date of termination less money owed to Loopit by Customer;
   2. the Customer must pay all amounts owed for goods or services already provided as at the date of termination;
   3. each party must return all property of other parties to those respective parties;
   4. each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party; and
   5. no rights, liabilities or remedies of any party will be invalidated by the termination.

16.4 DATE OF TERMINATION FOR NOTICE AFTER COMMENCEMENT OF A MONTHLY TERM

In the event that either party provides a notice of termination pursuant to Section 16.1, and such notice is given after the first calendar day of a Monthly Term such that the 30-day notice period extends into the next Monthly Term, the termination of this Agreement shall become effective on the last calendar day of the next successive Monthly Term, thereby allowing for the completion of any Monthly Term already commenced at the time of notice

16.5 SURVIVAL

4. Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this Agreement will survive and be enforceable after such termination or expiry.

17. DISPUTE RESOLUTION

17. Any dispute, controversy, or claim arising out of or relating to this Agreement or its breach, termination, or invalidity shall be resolved by arbitration in accordance with the rules of the American Arbitration Association (AAA), and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be held in Los Angeles, California, and conducted by a single arbitrator selected in accordance with the rules of the AAA. The parties agree to submit to the jurisdiction of the courts of Los Angeles, California, for the purpose of enforcing any arbitration award.
18. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
19. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9, Section 10, and Section 15, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

18. NOTICES

17. A notice or other communication to a party under this Agreement must be:
    1. in writing and in English; and
    2. delivered via email to the other party, to the email address specified in this Agreement, or if no email address is specified in this Agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this Agreement as at the date of this Agreement (“Email Address”). The parties may update their Email Address by notice to the other party.
18. Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
    1. 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this Agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
    2. when replied to by the other party,

whichever is earlier.

19. FORCE MAJEURE

If a party (“Affected Party”) becomes unable, wholly or in part, to carry out an obligation under this Agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:

1. reasonable details of the Force Majeure Event; and
2. so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation. 

2. Subject to compliance with Section 21(a) the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
3. The Affected Party must use commercially reasonable efforts to overcome or remove the Force Majeure Event as quickly as possible.
4. For the purposes of this Agreement, a “Force Majeure Event” means any:

1. act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
2. strikes or other industrial action outside of the control of the Affected Party; 
3. war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic;
4. civil or governmental orders to shut-down business operations; or
5. any decision of a government or civil authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.

20. PUBLIC RELATIONS

The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.

21. GENERAL

21. GOVERNING LAW AND JURISDICTION
    1. This agreement is governed by the law applying in the State of California. Each party irrevocably submits to the exclusive jurisdiction of the courts of the County of Los Angeles and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
22. AMENDMENTS
    1. This agreement may only be amended in accordance with a written agreement between the parties.
23. WAIVER
    1. No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
24. SEVERANCE
    1. Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this Agreement is not limited or otherwise affected.
25. JOINT AND SEVERAL LIABILITY
    1. An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
26. ASSIGNMENT
    1. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Company's prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Company's prior written consent is required. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 20(f) is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
27. COUNTERPARTS
    1. This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one agreement.
28. COSTS
    1. Except as otherwise provided in this Agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this Agreement.
29. ENTIRE AGREEMENT
    1. This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.
30. INTERPRETATION
    1. Singular and plural words in the singular includes the plural (and vice versa);
    2. a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
    3. a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;
    4. a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
    5. headings and words in bold type are for convenience only and do not affect interpretation;
    6. the word “includes” and similar words in any form is not a word of limitation; 
    7. no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision; and
    8. reference to $, or “dollar”, is to American currency, unless otherwise agreed in writing.

22. DEFINITIONS

21. In this Agreement, capitalised terms have the meaning given to them in the Key Terms, and the following phrases have the meaning set out below.

‍Action

means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

Customer Data

means any documents or materials supplied by the Customer to Loopit under or in connection with this Agreement, including any Intellectual Property Rights attaching to those materials.

Committed Volume

has the meaning given in these Key Terms.

Company Disabling Device

means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Company or its designee to disable Customer's or any Licensed User's access to or use of the Services automatically with the passage of time or under the positive control of Company or its designee.

Confidential Information

means information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.

Customer

means each of your customers that enters into a vehicle booking in connection with the Solution.

Customer Fees

means the amount payable by the Customer for the use of the Customer’s vehicles.

Customer Data

means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or a Licensed User by or through the Solution or that incorporates or is derived from the Processing of such information, data, or content by or through the Solution. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Licensed User.

Documentation

means all manuals, help files and other documents supplied by Loopit to the Customer relating to the Solution, whether in electronic or hardcopy form.

DMV Customer Check

means a check performed into a Person’s driver’s license with a state’s relevant Department of Motor Vehicle system, by Customer facilitated through the Solution.

Harmful Code

means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any User or Person from accessing or using the Solution as intended by this Agreement. Harmful Code does not include any Company Disabling Device.

Hosted Services

has the meaning given in Section  3.3.

Intellectual Property Rights

means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

Fees

has the meaning given in Section 6.1(a) and includes the Setup Fee and Annual Fee set out in the Key Terms.

Key Terms

has meaning given in Section 1.

Law

means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

Licensed User

means a user of the Solution and Documentation who has been validly granted access to the Solution and Documentation by the Customer in accordance this Agreement.

Losses

means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

Number of Licenced Users

has the meaning given in the Key Terms.

Person

means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

Personnel

means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.

Processes

means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. "Processing" and "Processed" have correlative meanings.

Resultant Data

means data and information related to Customer's use of the Solution that is used by Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Solution.

Software

means the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, Solution, or any software, documentation or data related to the Services or Solution.

Software Content

means all materials owned or licensed by Loopit in connection with the Software and any Intellectual Property Rights attaching to those materials.

Solution

has the meaning given in Section 3.

User

means the Customer’s Licensed Users, its Personnel, and any other third-party Person who are granted access to the Software or Documentation by the Customer, its Licensed Users or its Personnel.

User Data

means files, data, materials or any other information, which is uploaded to the Software by the Customer or a User, including any Intellectual Property Rights attaching to those materials.

Website

means http://www.loopit.co.

‍

EXHIBIT A

PROFESSIONAL SERVICES

This Exhibit A Professional Services Terms is an exhibit to the SaaS Services Agreement (the "Agreement").  All undefined capitalized terms shall have the meaning ascribed to them in the Agreement, and all terms and conditions of the Agreement shall be incorporated into this Professional Services Terms.

1. Work Orders. Company may provide Customer with Professional Services as set forth in a Work Order. Company is under no obligation to perform any Professional Services other than pursuant to a Work Order. However, if Company performs Professional Services at the direction of Customer and the parties have not signed a Work Order for such Professional Services, then such Professional Services shall be subject to all terms and conditions in the Agreement and Company’s then-current rates for such Professional Services shall apply. 

2. Scheduling and Cancellation of Scheduled Professional Services. While Company will try to schedule Professional Services on the date(s) requested by Customer, Customer should make staffing requests at least thirty (30) days in advance to increase the likelihood the requested date(s) can be reserved. Once Professional Services have been scheduled, Customer will be obligated to pay for such Professional Services as if Company had performed such Professional Services on the scheduled date(s) and any related travel, transportation, and lodging expenses to the extent such expenses are non-refundable, unless Customer has notified Company at least fourteen (14) days prior to the scheduled date(s) that it wishes to reschedule or cancel such Professional Services. 

3. Conditions on Providing Professional Services. Unless otherwise stated in the applicable Work Order or Order Form, Customer must assign a project manager who will assume responsibility for the management of the project for which the Professional Services are provided. Customer will establish the overall project direction, including assigning and managing the Customer’s project personnel team. Customer must provide Infor with such cooperation, information, facilities, equipment and support as are reasonably necessary for Infor to provide the Professional Services. Unless otherwise stated in a Work Order, Company shall own all proprietary rights to any work product generated from the Professional Services (the “Work Product”); provided that to the extent such Work product contains Customer Data or Customer Confidential Information, Customer shall continue to own all proprietary rights in such Customer Data, Customer Materials, or Customer Confidential Information. Company grants Customer a non-exclusive, non-sublicensable, non-transferable license to use the Work Product for the Customer to use the Services. 

4. Payment of Professional Services Fees. Unless otherwise stated in the applicable Work Order or Order Form, Company will invoice Customer for all Professional Services Fees and applicable taxes and charges on a monthly basis, as Company renders the Professional Services or Customer incurs the charges, as applicable. Customer will reimburse Company for actual travel, transportation and lodging expenses that Company incurs in providing Professional Services. Unless otherwise stated in the applicable Work Order, invoices are payable within thirty (30) days of invoice date. 

EXHIBIT B

DATA SECURITY POLICY

This Exhibit B Data Security Policy is an exhibit to the SaaS Services Agreement (the "Agreement").  All undefined capitalized terms shall have the meaning ascribed to them in the Agreement, and all terms and conditions of the Agreement shall be incorporated into this Data Security Policy.

1. Definitions. Capitalized terms used herein shall have the meanings set forth in this Section 1.
   1. "Authorized Persons" means Company's employees, contractors, agents, and auditors who have a need to know or otherwise access Personal Information to enable Company to perform its obligations under this Agreement, and who are bound by confidentiality and other obligations sufficient to protect Personal Information in accordance with the terms and conditions of this Agreement.
   2. "Data Breach or Security Incident" means any unauthorized access to or disclosure or acquisition of Personal Information; any act or omission that materially compromises the security, confidentiality, or integrity of Personal Information or the physical, technical, administrative, or organizational safeguards put in place by Company (or any Authorized Persons), or by Customer should Company have access to Customer's systems, that relate to the protection of the security, confidentiality, availability, or integrity of Personal Information, or (ii) receipt of a complaint in relation to the privacy and data security practices of Company (or any Authorized Persons) or a breach or alleged breach of this Agreement relating to such privacy and data security practices].
2. Company and Customer Obligations.
   1. Company will:
      1. comply with the terms and conditions set forth in this Agreement.
      2. be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under its control or in its possession by all Authorized Persons. 
      3. not disclose Personal Information to any person other than its Authorized Persons without Customer's prior written consent unless required by applicable law, in which case, Company will use reasonable efforts and to the extent permitted by applicable law notify Customer before such disclosure or as soon thereafter as reasonably possible.
      4. use and disclose Personal Information only for the purposes for which Customer provides the Personal Information, or access to it, pursuant to the terms and conditions of this Agreement, and not use or otherwise disclose or make available Personal Information for Company's own purposes without Customer's prior written consent. Company may aggregate, de-identify, or anonymize Personal Information, and use such aggregated, de-identified, or anonymized data, which shall no longer be considered Personal Information, for its own research and development purposes. 
   2. Customer will:
      1. comply with the terms and conditions set forth in this Agreement.
      2. be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under its control or in its possession.
      3. comply with any applicable laws and regulations and use only secure methods, according to accepted industry standards, when transferring or otherwise making available Personal Information to Company.
      4. treat Company's Information Security Policy, as defined in Section 10(a) as Confidential Information under this Agreement.
      5. provide written notice to Company if any information Customer provides to Company under this Agreement contains Personal Information. Company will not be responsible for determining on its own that any information Customer provides under this Agreement qualifies as Personal Information. 
3. Information Security.
   1. Company will comply with applicable Laws and regulations in its creation, collection, receipt, access, use, storage, disposal, and disclosure of Personal Information. 
   2. Company will employ reasonable security measures to protect Personal Information in accordance with accepted industry standards.  Company will employ additional security measures to protect Sensitive Personal Information, including industry standard data encryption.
   3. If, in the course of its performance under this Agreement, Company has access to or will collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information on Customer's behalf, Company will comply with the Payment Card Industry Data Security Standard ("PCI DSS") requirements, as applicable.
4. Data Breach or Security Incident Procedures.
   1. Company maintains a cyber incident breach response plan, a current copy of which will be provided to Customer upon request, in accordance with accepted industry standards ("Cyber Incident Response Plan") and will implement the procedures required under such plan on the occurrence of a Data Breach or Security Incident.
   2. Company will notify Customer of a Data Breach or Security Incident as soon as reasonably practicable, but no later than two (2) calendar days, after Company becomes aware of it.
   3. Immediately following Company's notification to Customer of a Data Breach or Security Incident, the parties will coordinate with each other, as necessary, to investigate the Data Breach or Security Incident in accordance with Company's current Cyber Incident Response Plan.
   4. Company will reimburse Customer for actual reasonable costs incurred by Customer to provide any legally required notice or services to individuals affected by a Data Breach or Security Incident.
   5. Company agrees that it will not inform any third party of any Data Breach or Security Incident without Customer's prior consent, other than to inform a complainant that the matter has been forwarded to Customer's legal counsel.
5. Security Controls Review or Audit. At least every other calendar year, Company will obtain a security controls review or audit performed by an independent third party based on recognized industry standards.  Company will make results of such controls review or audit available to Customer upon request and will timely address any noted exceptions.
6. Return or Disposal of Personal Information. At any time during the term of this Agreement at Customer's written request or on the termination or expiration of this Agreement, Company will promptly return to Customer or securely dispose of all Personal Information in its possession or in the possession of Authorized Persons and notify Customer that such Personal Information has been returned to Customer or disposed of securely. If Company is not reasonably able to return or securely dispose of Personal Information, including, but not limited to, Personal Information stored on backup media, Company will continue to protect such Personal Information in accordance with the terms of this Agreement until such time that it can reasonably return or securely dispose of such Personal Information.