Master Subscription Agreement
Last revised on: October 10, 2023
This Agreement shall become effective date set forth in the Purchase Order on (the “Effective Date”) by and between TheBurritoLabs,
Inc., dba FleetPanda, a Delaware Corporation (“We” “Us” or “Our”) and Customer (“You” or “Your”).
This FleetPanda Master Subscription Agreement (this “Agreement”) provides access to and use of the services available at FleetPanda’s online platform. By acceptance of this agreement, you will be setting up an account at FleetPanda’s online platform, accessing and/or using FleetPanda’s Services, as set hereunder.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Agreement” means this Master Services Agreement.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time.
“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 a Web-based or other hosted software application, or offline software application, or hardware that is provided by Us or a third party and interoperates with a Service 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.
Intellectual Property” means all the trade secrets, patents and patent applications, trademarks (either registered or not registered and including any goodwill acquired in these trademarks), service trademarks, commercial names, copyrights, moral rights, rights on inventions and all the other intellectual property rights and property rights (either registered or not registered, any prior application and all the rights to enforce the precedent one), and all the other equivalent rights which can exist in any part of the world.
“Services” means the functionalities made available within the sphere of the Online Platform in consideration to the contracting of subscription of the “Purchased Services”. components we might make available, as described in the Documentation.
“FleetPanda Technology” means the technology and Intellectual Property licensed by Us, strictly to enable Users’ access to the Purchased Services, including computer programs (software), websites, networks, and equipment.
User” means an individual who is authorized by You to use a Service, 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.
“Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Content and Non-FleetPanda Applications.
“Add-Ons” means add-ons, features, or additional features related to the Service (“Add-Ons”), which We may offer You for additional fees, as described on the Site, at which point they will become part of the “Purchased Solutions”.
2. Our responsibilities
2.1. Availability of Purchased Services. Upon the subscription of our Services, we will (a) make the Purchased Services available to You pursuant to this Agreement and the respective Purchase Order (b) provide Our standard support for the Purchased Services to You at no additional charge, and (c) use commercially reasonable efforts to make the online Purchased Services available on-line 24 hours a day, 7 days a week, except for (i) planned downtime, and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, Internet service provider failure or delay, internet connection, Non-FleetPanda Applications, or service blocking.
2.2 Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations in accordance with this Agreement, except as otherwise specified herein.
2.3. Treatment of Personal Data. The parties undertake to treat information classified legally as personal data, due to the present contractual relationship, in compliance with the applicable legislation, under penalty of liability for non-compliance with the contract, without prejudice to losses and damages. The processing of personal data will only take place in compliance with the purpose established in this Agreement.
3. Use of Services
3.1 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;
3.2 Usage Restrictions. You will not (a) make any access available or use any Service 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 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 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.
4. Values and Payment for Purchased Services
4.1. Fees. You will pay the fees specified in fleetPanda proposals/approved email correspondence and/or in the Purchase Order in American Dollars related to the subscription of the Purchased Services and Add-ons, as applicable. Except as otherwise specified herein or in a Purchase Order (i) payment obligations are non-cancelable and the values paid are non-refundable, and (ii) any potential request to exclude User, or downgrade the initial amount of functionalities acquired, causing reduction of the quantities purchased during the period of the subscription in question, will not imply reimbursement of any value paid or to be paid under the terms of the Agreement.
4.2. Invoicing and Payment. You will provide Us with all valid, updated, and necessary payment information for the billing of the subscription fees of all Purchased Services via electronic transfer, check or an agreed upon payment method by both parties.
4.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting our rights and remedies, we may condition future subscription renewals to payment terms shorter than those specified in Section 5.2 (Invoicing and Payment) and (c) We may disregard the application of any business conditions granted at the time of the subscription, upon a 30-day delay in the payment.
4.4. Suspension of Access and Acceleration. If you fail to respect the obligations You took under this Agreement, We can suspend access to the Services
5. Proprietary Rights and Licenses
5.1. Reservation of Rights. Subject to the terms and conditions are expressly foreseen hereunder, We reserve all the rights, title, and interest relative to the Services, including all Our related intellectual property rights.
5.2. License by Us to Use FleetPanda Technology. The Service 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.
6. Representations, warranties, exclusive remedies, and disclaimers
6.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
6.2. Our Warranties. We warrant that (a) this Agreement, the Purchase Order, and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Services during the subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, , We will not materially decrease the functionality of the Purchased Services during the subscription term, and (e) the Purchased Services will not introduce Malicious Code into Your systems. For any breach of the above warranty, Your exclusive remedies are those described in Sections 11.3 (Termination) and 11.4 (Refund or Payment upon Termination).
7. General Provisions
7.1 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter.
7.2. Applicable Law and Jurisdiction. You agree to the governing law of the State of Delaware, USA, without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of federal and state courts sitting in Wilmington, Delaware, for any actions, suits, or proceedings arising out of or relating to this Agreement.
7.3. Arbitrage. All disputes arising out of or relating to this Agreement shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect and the further procedures set forth herein. (For information on the AAA and its rules, see www.adr.org.)
Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and YOU HEREBY WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto.
In connection with any arbitration proceeding pursuant to these terms and conditions, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses.Following confirmation of an arbitration award in a state or federal court in the State of Delaware, a judgment arising therefrom may be executed in any court of competent jurisdiction. Notwithstanding the above, this section shall not prevent Us from seeking an injunction, or other equitable relief, in any court of competent jurisdiction.
7.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and insure to the benefit of the parties, their respective successors, and permitted assigns.
7.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.