These Terms of Service (the “Agreement”) shall become effective date set forth in the Purchase Order on (the “Effective Date”) by and between TheBurritoLabs, Inc., d/b/a FleetPanda, a Delaware Corporation (“Fleetpanda”, “We” “Us” or “Our”) and the customer (“Customer”, “You” or “Your”).
This Agreement provides You with the right to access to and use the services available at FleetPanda’s online platform (the “Services”). Any use by You of the Services constitutes Your acceptance of the Agreement. Upon acceptance of the Agreement, You will create an account at FleetPanda’s online platform, accessing and/or using FleetPanda’s Services, as set forth herein.
These terms of service are intended to explain Our obligations as a service provider and Your obligations as Our customer. Please read them carefully and reach out to Us with any questions.
These terms are binding on any use of the Software (as defined herein) and apply to Customer from the time that Fleetpanda provides Customer with access to the Software.
Fleetpanda reserves the right to change these terms at any time, effective upon the posting of modified terms, and Fleetpanda will make every effort to communicate these changes to Customer via email or notification via the Fleetpanda website. It is likely these terms of use will change over time. It is Your obligation to ensure that You have read, understood and agree to the most recent terms available on the Fleetpanda website.
By accessing the Fleetpanda website and Software, on behalf of You or the entity that You represent, You represent and warrant that You have the right, authority, and capacity to enter into these terms (on behalf of You or the entity that You represent), in accordance with all applicable laws and regulations. If You do not agree with any of these terms, You are prohibited from using or accessing the Software and the Fleetpanda website.
DEFINITIONS
“Access Fee” means the fee (excluding any taxes and duties) payable by Customer in accordance with the fee schedule set out on the Fleetpanda website (which Fleetpanda may change from time to time on notice to You). This may also be called a subscription fee.
“Add-Ons” means add-ons, features, or additional features related to the Service which We may offer You for additional fees, as described on the Fleetpanda website, at which point they will become part of the Purchased Services.
“Agreement” means these Terms of Service.
“Confidential Information” includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Software but does not include information which is, or becomes, publicly available other than through unauthorized disclosure by the other party.
“Customer” means You and includes Your employees, consultants, representatives and agents.
“Customer Data” means any data inputted by Customer into the Software.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time.
“Fleetpanda” means TheBurritoLabs, Inc., dba FleetPanda, a Delaware Corporation, headquartered at 3141 Stevens Creek Blvd. #40324, San Jose, California 95117 U.S.A.
“FleetPanda Technology” means the technology and ant Intellectual Property Right licensed by Us, strictly to enable Users’ access to the Purchased Services, including computer software, websites, networks, and equipment.
“Hardware” means the equipment required to run the Software in the field, including the truck fuel controller system commonly referred as ‘Panda Box’ or any other hardware provided by FleetPanda. It does not include fuel meters or equipment Customer installed and owns on their vehicles.
“Intellectual Property Right” means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
“Invoice” means the document issued by Us, which may be in electronic form, through which the Services are charged to You.
“Non-FleetPanda Applications” means any cloud-based or other hosted software application, or offline software application, or hardware that is provided by Us or a third party and interoperates with the Purchased Services and is not FleetPanda Technology.
“Purchase Order” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of our affiliates, including any addenda and supplements thereto.
“Purchased Services” means the Services offered by Us to You or Your Affiliates pursuant to this Agreement, including by means of a Purchase Order or other means creating a binding obligation.
“Software” means the software available (as may be changed or updated from time to time by Fleetpanda) via the Fleetpanda website or via mobile devices.
“User” means an individual who is authorized by You to use a Purchased Services, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, contractors and agents, and third parties with which You transact business if you choose to provide access to the system.
“Website” means the Internet site at the domain www.fleetpanda.com or any other site operated by Fleetpanda.
USE OF THE SOFTWARE
Fleetpanda grants Customer the right to access and use the Software via the Fleetpanda website and approved mobile devices with the user roles according to Your subscription type. This right is non-exclusive and non-transferable and limited by these terms. Use of the Software is made available on a limited-access basis, and no ownership right is conveyed to you. We and Our licensors have and retain all rights, titles, and interests, including all intellectual property rights, in and to the Service, including all modifications, updates, upgrades, extensions, components, and all derivative works to the Service.
Usage Limits. The use and access to the Purchased Services are subject to limits, including in relation to the number of Users specified in the Purchase Order, as applicable. Unless otherwise specified, (a) the quantity foreseen in the Purchase Order, as applicable, refer to the number of Users authorized to use the Purchased Services, and the use limits of any hired functionalities, being expressly agreed that the use of the Services by any other user in excess of the contracted number will be additionally charged by Us; b) the User identification cannot be shared with any other person.
Usage Restrictions. You will not (a) make any access available or use any Purchased Services for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, as well as offer any Service within the sphere of a service bureau or outsourcing offering (h) copy the Purchased Services or any part, feature, function or user interface thereof, as well as not reproduce, modify, create or prepare works deriving from any Documentation or FleetPanda Technology (i) copy the Purchased Services except as expressly permitted by Us, (j) frame or mirror any part of any of the Services, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Tool in order to build a competitive product or service, (l) carry out reverse engineering, reverse assembly or complication of any Services, including the FleetPanda Technology, or (m) attempt, in any way, to extract the source code of any FleetPanda Technology.
CUSTOMER OBLIGATIONS
Payment obligations. An invoice for the Access Fee will be issued to Your billing contact starting on the date on which service begins. All invoices will include the Access Fee for the following period of use. Fleetpanda will continue invoicing Customer monthly or annually, based on Your requested billing cycle, until this Agreement is terminated in accordance with the terms hereof. All Fleetpanda invoices will be sent to Customer by surface mail or email and are payable by the monthly or annual renewal date specified in the invoice.
Payment Terms. We rely on authorized third-party payment processors in order to bill You through a payment account linked to You, and henceforth You hereby authorize us to charge the applicable fees through Your indicated payment processing account. Sensitive financial details are stored only by Our payment providers. For more information, please refer to the terms of use of Our third party payment processing platform.
If We detect any chargeback or if any payment is not received by us or Our payment processors for any reason, You will promptly pay us any and all amounts due to us upon notice. Any failure or inability by us to process any payment hereunder does not relieve You from Your payment obligations.
A chargeback is typically caused when a customer disputes a charge that appears on their bank or payment processing statement. A charge-back may result in the reversal of a transaction, with the amount charged back to You. You can be assessed charge-backs for: (i) customer disputes; (ii) unauthorized or improperly authorized transactions; (iii) transactions that do not comply with payment processor network rules or are allegedly unlawful or suspicious; or (iv) any reversals for any reason by Our payment processor or the institutions handling the transaction.
When a chargeback is issued, You are immediately liable to Fleetpanda for the full amount of payment of the chargeback, plus any associated fees, fines, expenses or penalties (including those assessed by Our payment processor or the financial institutions handling the transaction). Accordingly, You hereby represent and warrant that You expressly appoint Fleetpanda as Your agent, with full power to recover these amounts by debiting Your account or setting off any amounts owed to You by us.
If We are unable to recover funds related to a charge-back for which You are liable, You will pay us the full amount of the chargeback immediately upon demand; thus, You agree to pay all costs and expenses, including without limitation, costs assessed by Our payment processor, reasonable attorneys and legal fees and other legal expenses, incurred by or on behalf of us in connection with the collection of any unpaid charge-backs unpaid by You.
General Obligations. Customer must only use the Software, Mobile Hardware and Website for Your own lawful internal business purposes, in accordance with these terms and any notice sent by Fleetpanda or condition posted on the Fleetpanda website.
Access conditions.
Customer will ensure that all usernames and passwords required to access the Software are kept secure and confidential. Customer will immediately notify Fleetpanda of any unauthorized use of Your passwords or any other breach of security.
As a condition of these terms, when accessing and using the Software, Customer must:
not attempt to undermine the security or integrity of Fleetpanda’s computing systems or networks or, where the Software is hosted by a third party, that third party’s computing systems and networks;
not use, or misuse, the Software in any way which may impair the functionality of the Software or Website, or impair the ability of any other user to use the Software or Website;
not attempt to gain unauthorized access to any materials other than those to which Customer have been given express permission to access or to the computer system on which the Software is hosted;
not transmit, or input into the Software, any: files that may damage any other user’s computing devices or software, content that may be offensive, or material or Customer Data in violation of any law (including Customer Data or other material protected by copyright or trade secrets which Customer do not have the right to use);
not modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the Software.
Other Usage Limitations. Use of the Software may be subject to limitations, including but not limited to monthly transaction volumes defined as the number of calls Customer are permitted to make against Fleetpanda’s application programming interface. Any such limitations will be specified within the Software.
Communication Conditions. As a condition of these terms, if Customer uses any communication tools available through the Fleetpanda website (such as automated emails or text messaging), Customer agrees only to use such communication tools for lawful and legitimate purposes. Customer must not use any such communication tool for posting or disseminating any material unrelated to the use of the Software including (but not limited to): files that may damage any other person’s computing devices or software, or material in violation of any law (including material that is protected by copyright, patent or trade secrets which Customer does not have the right to use).
When Customer makes any communication on the Fleetpanda website or using the Software, Customer represents that Customer owns the content of the communication. Fleetpanda is under no obligation to ensure that the communications on the Fleetpanda website are legitimate or that they are related only to the use of the Software. Customer must exercise caution when using the communication tools available on the Fleetpanda website. Fleetpanda reserves the right to remove any communication at any time in its sole discretion.
Customer will defend, indemnify and hold Fleetpanda harmless against all claims, costs, damages and loss arising from Your breach of any of these terms or any obligation Customer may have to Fleetpanda, including (but not limited to) any costs relating to the recovery of any Access Fees that have not been paid by You.
Confidentiality. Unless the relevant party has the prior written consent of the other or unless required to do so by law, each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these terms. Each party’s obligations under this clause will survive termination of this Agreement. These confidentiality obligations shall not apply to any information which: (i) is or becomes public knowledge other than by a breach of this clause; (ii) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; (iii) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or (iv) can be shown to have been developed independently without access to the Confidential Information.
Privacy. Fleetpanda maintains a privacy policy that sets out the parties’ obligations in respect of data. Customer should read that policy at https://www.fleetpanda.com/privacy-policy/ since such policy applies to Customer upon any use of the Software or the Fleetpanda website.
INTELLECTUAL PROPERTY
General. Title to, and all Intellectual Property Rights in the Software, Mobile Hardware, the Fleetpanda website and any documentation relating to the Software remain the property of Fleetpanda.
Data. Title to, and all Intellectual Property Rights in, the Customer Data remain Your property. However, Your access to the Customer Data is contingent on full payment of the Fleetpanda Access Fee. Customer must maintain copies of all Customer Data inputted into the Software. Fleetpanda adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. Fleetpanda expressly excludes liability for any loss of Customer Data however caused.
Third-party applications and Your Data. If Customer enables third-party applications for use with the Software, Customer acknowledges that Fleetpanda may allow providers of those third-party applications to access Your Customer Data as required for the interoperation of such third-party applications with the Software. We shall not be responsible for any disclosure, modification or deletion of Your Customer Data resulting from any such access by third-party application providers.
Copyright and Trademarks. The trademarks, copyright, service marks, trade names and other intellectual property rights and proprietary notices displayed on the Fleetpanda website and the Software are the property of or otherwise are licensed to Fleetpanda and its licensors and affiliates, whether acknowledged (or not), and which are protected under intellectual property laws, including copyright laws and treaties and other jurisdictions throughout the world.
For ease of understanding, ‘intellectual property rights’ shall mean any and all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of the United States and other applicable jurisdictions.
Digital Millennium Copyright Act (‘DMCA’) Notice. In compliance with the DMCA, We inform You that Fleetpanda is the Designated Copyright Agent for DMCA Takedown Notices and intellectual property rights infringement policing. For more information, including detailed information about how to submit a request for takedown if You believe content on Fleetpanda infringes Your intellectual property rights, please contact us. You can review the current DMCA text at the U.S. Copyright Office website.
Fleetpanda takes copyright infringement matters seriously and is ready to remove any allegedly or factually infringing content displayed on the Site upon due notice and request by the title holder.
The following procedure will apply for any content displayed through the Site that allegedly infringes the intellectual property rights of You or of any third party. You must notify us of Your claim with the email subject: “Takedown Request”. Once received, Fleetpanda will study and consider Your claim and, if it believes or has reason to believe any content on the Site infringes on another’s copyright, Fleetpanda may delete it, disable or otherwise stop displaying it.
Your notification claim must be in writing and must at least contain the following information: (i) Your signature and identification, or the ones of the person authorized to act on behalf of You or the title holder; (ii) a clear and concise description of the content of which its copyright has allegedly been infringed; (iii) contact information (e.g., address and email); and (iv) a statement, under penalty of perjury, indicating that You have a good faith belief that the information provided in Your claim is true and accurate.
WARRANTIES AND ACKNOWLEDGEMENTS.
Acknowledgement. Customer acknowledges that:
Customer is authorized to use the Software, Mobile Hardware and Website and is responsible for their employees or anyone else for whom they authorize access, including contractors or third
If Customer is using the Software and accessing the Fleetpanda website on behalf of or for the benefit of another organization (whether a body corporate or not) then Fleetpanda will assume that Customer has the right to do so and that organization will be liable for Your actions or omissions (including any breach of these terms).
The provision of, access to, and use of, the Software is on an “as is, where is” basis and at Your own risk.
Fleetpanda does not warrant that the use of the Software will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Software, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Software. Fleetpanda is not in any way responsible for any such interference or prevention of Your access or use of the Software.
It is Your sole responsibility to determine that the Software meets the needs of Your business.
Disclaimer of Warranties.
Fleetpanda gives no warranty about the Software. Without limiting the foregoing, Fleetpanda does not warrant that the Software will meet Your requirements or that it will be suitable for Your purposes. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
To the fullest extent permissible under applicable law, the Fleetpanda website, the Software and the Hardware are provided to You “as is,” with “all faults” and “as available,” without warranty of any kind. Fleetpanda, and its affiliates, clients, agents, officers, licensors and/or distributors do not make, and hereby disclaim, any and all express, implied or statutory warranties, either by statute, common law, custom or otherwise, however arising, including implied warranties of description, quality, fitness for a particular purpose, non-infringement, non-interference with use and/or enjoyment, peaceful enjoyment, and any warranties emanating out of course of dealing or trade usage.
Nothing in this disclaimer will limit or exclude Our or Your liability for death or personal injury resulting from negligence; limit or exclude Our or Your liability for fraud or fraudulent misrepresentation; limit any of Our or Your liabilities in any way that is not permitted under applicable law; or exclude any of Our or Your liabilities that may not be excluded under applicable law.
LIMITATIONS OF LIABILITY
In no event shall Fleetpanda, its affiliates, clients, agents, officers, licensors, distributors and/or any authorized third party, be held liable for any special, indirect, incidental or consequential damages, including losses, costs or expenses of any kind resulting from possession, access, use, inaccessibility or malfunction of the Fleetpanda website, the Software and the Hardware, including, but not limited to, loss of revenue, profits, business, loss of use or lack of availability of computer resources, business glitch, defamation, or loss of data (notwithstanding that We might have been advised of the possibility of such damages or such damages are foreseeable); whatsoever arising out of or related thereto, whether arising in tort (including negligence), contract, actions based on contract, strict liability, negligence or other tortuous conduct or other legal or equitable theory and whether or not Fleetpanda, its affiliates, clients, licensors and/or distributors have been advised of the possibility of such damages; emanating from or connected, in any way, with Your use of, or inability to use Fleetpanda. Your singular redress for dissatisfaction with Fleetpanda is Your prompt withdrawal from using Fleetpanda.
To the maximum extent permitted by law, Fleetpanda excludes all liability and responsibility to Customer (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of Data, profits and savings) or damage resulting, directly or indirectly, from the use of, or reliance on, the Software. If Customer suffers loss or damage as a result of Fleetpanda’s negligence or failure to comply with these terms, and claim by Customer against Fleetpanda arising from Fleetpanda’s negligence or failure will be limited in respect of any one incident, or series of connected incidents to the access fees paid by Customer in the previous 3 months, whether based in contract, tort, equity or on other grounds or theories, and regardless of the circumstances. These terms provide Customer with specific legal rights, and You may have other rights that may vary from jurisdiction to jurisdiction. Legislation of some states/countries does not allow certain limitations of liability, and henceforth this limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction. If Customer is not satisfied with the Software, Your sole and exclusive remedy is to terminate these terms in accordance with Clause 8.
Customer Warranties. Customer represents and warrants to Fleetpanda that Customer is acquiring the right to access and use the Software and agreeing to these terms for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Software, the website or these terms.
TERMINATION
Prepaid Subscriptions. There will be no refund for any remaining prepaid period for a prepaid Access Fee subscription, unless that subscription is cancelled within the trial period.
Cancellation During Service Term. Customer may cancel during their contracted service term (36 months for leased equipment, 12 months for software only). Customer is responsible for the first 12 months of fees related to their term, plus one half of the remaining term. After month 12, Customer is responsible for one half of the remaining term. For example, cancelling in month 24 of a 36 month term, Customer is responsible for 6 months of service fees.
No-fault Termination. These terms will continue for the period covered by the Access Fee. These terms will automatically continue for the same period unless either party terminates these terms by giving notice to the other party at least 30 days before the end of the relevant payment period.
Termination for Breach. If You (i) breach any of these terms and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied; (ii) breach any of these terms and the breach is not capable of being remedied (which includes (without limitation) any breach for payment more than 30 days overdue); or (iii) the paying subscriber goes into liquidation or has a receiver or manager appointed of any of its assets or becomes insolvent, or makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction, then Fleetpanda may take any or all of the following actions, at its entire discretion:
Terminate these terms and Your use of the Software and the Fleetpanda website;
Request Customer return all hardware associated with Your service term. Customer is responsible for shipping.
Suspend for any definite or indefinite period of time, Your use of the Software and the Fleetpanda website;
Take these actions in respect to any other persons in Your organization or who have access to Your information or that of Your organization.
Accrued Rights. Termination of these terms is without prejudice to the rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement, Customer will: (i) remain liable for any accrued charges and amounts which become due for payment before or after termination per the cancellation terms; and (ii) Immediately cease to use the Software, mobile hardware and Website.
HARDWARE
Depending on your intended use of the Products, you may require professional installation of the Hardware. If you are unable to install the Hardware, or if you are uncertain that you have the requisite skills and understanding, you agree to consult with a qualified installer. Improper installation can lead to damage of the equipment into which you are installing the hardware or dangerous or life-threatening conditions, which can cause property damage, bodily injury, or death. FleetPanda’s liability is limited under these Terms as described below. FleetPanda may from time to time update the Software, cause firmware updates to be automatically installed onto your FleetPanda Hardware, and update the Apps installed on your mobile devices and available for download via Google Play and the Apple App Store. These updates may include security or bug fixes, performance enhancements, or new functionality, and may be issued with or without prior notification to you. You hereby consent to such automatic updates.
Provisioning. Mobile hardware provided with a service agreement may be new or refurbished. All equipment will be inspected and tested prior to shipping to Customer, and in working condition. Customer may elect to purchase equipment. If purchased, Customer must purchase through an approved reseller or through Fleetpanda.
Warranty. Hardware provided as part of a service term includes a warranty only for normal wear and tear as per industry standard regulations and parameters. If a device breaks due to normal use, Customer will pay for shipping to return to Fleetpanda. Fleetpanda will repair or replace the returned equipment and ship back to Customer. Fleetpanda will pay to ship the replacement Hardware to Customer. If Fleetpanda replaces the device, the replacement will be comparable but may not be the same device model and manufacturer. It is Fleetpanda’s discretion to provide the most suitable replacement unit. Customer acknowledges that Fleetpanda does not warrant Customer-owned equipment. For equipment not provided to Customer by Fleetpanda, Customer will work with the third party manufacturer or reseller to manage the applicable warranty items.
Installation. Unless ordered in the service agreement, Customer is responsible for installing equipment in their vehicles according to Fleetpanda outlined installation instructions. If equipment is NOT installed according to Fleetpanda guidelines, Fleetpanda does not warrant or guarantee it will function as designed. For example, if equipment is installed in the rear of the truck near meters where the temperatures are not regulated (versus the cab), then equipment may not function when operated below or above rated operating temperatures.
If Customer does not install equipment according to the installation instructions and damages the equipment, Customer is responsible for the repair costs.
Return of Equipment. Upon termination of the Services, for whatever reason, You must return the Equipment, undamaged, in good working order, within twenty one (21) calendar days to Fleetpanda. If the Equipment is not returned within twenty one (21) calendar days, or is returned damaged, Customer will be charged for the value of the Equipment or the cost to repair, whichever is less, based on Fleetpanda’s sole determination. If You fail to return the Equipment within this time period, Fleetpanda may retain any advance payment or deposit. No refunds will be made for Equipment returned more than twenty one (21) days after termination.
Equipment Management. Fleetpanda reserves the right to manage Equipment provided by Fleetpanda during the time You are a customer. Management includes installing a device agent that allows sending software updates and remote control of the device. Neither Customer nor a third party may change, interfere with, or block access to the Equipment data or settings. Fleetpanda will repair or replace damaged Equipment as Fleetpanda deems necessary. You understand that repair or replacement of the Equipment may delete stored content, reset personal settings, or otherwise alter the Equipment. If the Equipment was damaged due to Your intentional acts or negligence as determined by Fleetpanda, You will be responsible for the price of repair or replacement. Any tampering with the Equipment, including, for example, opening and attempting to modify the Equipment, unless directed by Fleetpanda for support purposes, or attempting to connect the Equipment to other hardware, will be treated as damage due to Your intentional acts or negligence. You agree that You will use the Equipment only for its intended business use.
TECHNICAL SUPPORT
Technical Problems. In the case of technical problems Customer must make all reasonable efforts to investigate and diagnose problems before contacting Fleetpanda. If Customer still needs technical help, please check the support provided online by Fleetpanda or email us at info@fleetpanda.com.
GENERAL TERMS
Assignment. These terms will inure to the benefit of any successors of the parties. Fleetpanda may assign any rights or obligations hereunder to any current or future affiliated company and to any successor in interest. Any rights not expressly granted herein are thereby reserved. Fleetpanda reserves the right, at any time, to transfer some or all of Fleetpanda’s assets in connection with a merger, acquisition, reorganization or sale of assets or in the event of bankruptcy. Customer may not assign or transfer any rights to any other person without Fleetpanda’s prior written consent.
Entire agreement. These terms, together with the Fleetpanda Privacy Policy and the terms of any other notices or instructions given to Customer under these terms, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between Customer and Fleetpanda relating to the Software and the other matters dealt with in these terms.
Force Majeure. Fleetpanda is not liable for any failure of performance on its obligations as set forth herein, where such failure arises from any cause beyond Fleetpanda’s reasonable control, including but not limiting to, electronic, power, mechanic or Internet failure, from acts of nature, forces or causes beyond Our control, including without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, government mandated lockdowns, pandemics, orders of domestic or foreign courts or tribunals, or non-performance of third parties.
Interpretation. For the understanding or interpreting the terms of these terms: (i) the headings in this Agreement are for convenience only, and are not to be considered, and (ii) no presumption is to operate in either party’s favor as a result of its counsel’s role in drafting these terms.
Notices. Any notice given under these terms by either party to the other must be in writing by email or letter and will be deemed to have been given on transmission. Notices to Fleetpanda must be sent to the address identified in the Definitions section. Notices to Customer will be sent to the email address which Customer provided when setting up access to the Software or to Your invoicing address.
Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by these terms.
Severability. If any provision of these terms is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of these terms will remain in full force and effect.
Taxes. Both parties hereto are responsible for complying with all tax obligations associated with this Agreement. Customer must maintain complete and accurate contact details in order for Fleetpanda to remit invoices, including but not limited to payment processing account details.
Amendments. Fleetpanda reserves the right to modify, amend, suspend, terminate, upgrade, update, or otherwise modify these terms, at any time and without notice. Any changes will be displayed in the Fleetpanda website, and We may notify You by email. Please refer to the last effective date where changes were last undertaken by us. Your use of Our Software after the effective date of any update– either by an account registration or simple use – thereby indicates Your acceptance thereof.
No Waiver. If either party waives any breach of these terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Governing Law and Venue. This Agreement shall be governed by the laws of the State of California and the United States of America (USA), excluding choice of law principles. For the application of the arbitration agreement, and of other matters appertaining these terms, the parties hereto agree to submit to the personal jurisdiction of the state and federal courts located in the County of Santa Clara, California, United States of America. If Customer files a claim in a manner other than in accordance with this section, You agree that We may move to have it dismissed, and that You will be responsible for Our reasonable attorney’s fees, court costs, and disbursements in doing so.
Dispute Resolution.
Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with these terms or the use of any product or service provided by Fleetpanda that cannot be resolved informally shall be resolved by binding arbitration on an individual basis under the terms of these terms. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This arbitration applies to You and Fleetpanda, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under these terms.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (a “Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Fleetpanda should be sent to Our address as indicated in Our contact section. After the Notice is received, You and Fleetpanda may attempt to resolve the claim or dispute informally. If You and Fleetpanda do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled. The amount of the award shall also be limited by the Limitation of Liability section of these terms, to the extent applicable.
Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (AAA) Rules, an established alternative dispute resolution provider (the “ADR Provider”) that offers arbitration as set forth in this section. The AAA Consumer Arbitration Rules (the “ADR Provider Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. If the AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The ADR Provider Rules shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with these terms.
The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (USD $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (USD $10,000.00) or more, the right to a hearing will be determined by the ADR Provider Rules.
Any hearing will be held in San Jose, California, unless the parties agree otherwise. The arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings, as detailed below. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, reputable video conference based tools and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
Time Limits. If You or Fleetpanda elect to pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e. the legal deadline for filing a claim) and within any deadline imposed under the ADR Provider Rules for the pertinent claim.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of You and Fleetpanda, and the dispute will not be consolidated with any other matters or joined with any other cases or parties.
The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the ADR Provider Rules, and these terms. The award of the arbitrator is final and binding upon You and Fleetpanda. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and these terms.
The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim.
Contacts. If You have any questions or queries about us, the Fleetpanda website, Our Software, Hardware or these terms, please contact us via info@fleetpanda.com. Note that communications made by email or the “Contact Us” page does not constitute legal notice to the Fleetpanda Inc. entity. Official communications should be sent via registered mail or similar trackable service such as FedEx or UPS to the following address:
Attn: FleetPanda
Address: 3141 Stevens Creek Blvd. #40324
San Jose, California 95117 U.S.A.
