Terms of Service
This Agreement sets forth the terms and conditions that govern the provision and use of: (i) the SaaS Services for the provision of an employee spend management solution; (ii) the Charge Card Services, if you have been approved for such Services by Float; and (iii) consulting, training and other Professional Services made available by Float in connection with the SaaS Services. By applying for the Services, you agree to the terms and conditions set out in this Agreement so please read this Agreement carefully.
PLEASE READ THIS AGREEMENT CAREFULLY AS IT, TOGETHER WITH THE FLOAT ORDER FORM IN WHICH IT IS REFERENCED, CONSTITUTES A LEGALLY BINDING AGREEMENT AND GOVERNS YOUR USE OF THE SERVICES. BY ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU AGREE TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICES.
1. SaaS Services
- Provisioning of the SaaS Services: Subject to compliance with the terms and conditions of this Agreement, the applicable Order Form, and upon Customer’s payment of the applicable fees, Float will make the SaaS Services available to Customer on the terms and conditions set out in this Agreement during the Subscription Term. Customer agrees that its purchase of a subscription to the Services is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Float regarding future functionality or features.
- Card Terms: The SaaS Services include the access to and use of the Cards. As a condition to using the SaaS Services and the Charge Card Services, if applicable, you must agree to the Customer Cardholder Card Terms and you must ensure that each Permitted User is presented with and agrees to the Permitted User Card Terms. A failure to comply with the Customer Cardholder Card Terms or the Permitted User Card Terms is a breach of this Agreement.
- Card Use: You agree to establish and maintain controls designed to ensure that the Cards are only used for bona fide business-related Charges and in compliance with the Customer Cardholder Card Terms, the Permitted User Card Terms, and the Card Network rules. You are solely responsible for Charges made by any individuals given access to Cards even if they are not the person associated with or named on the Card. Float, Issuer, Card Networks, or other intermediary Third Party Service Providers (including merchant acquirers) may deny or reverse Charges for any reason. Float is not responsible for any Losses caused by or related to Charges that are denied or reversed. If you have a dispute with a merchant regarding a Charge, including delivery of the incorrect goods or services or being charged the wrong amount, you should first attempt to resolve the dispute with the merchant. Please also refer to the dispute resolution process set out in the Customer Cardholder Card Terms or the Permitted User Card Terms, as applicable.
- Linked Account: You must connect at least one Linked Account before we will provide you with the Services. We will use Financial Data from Linked Accounts as well as other Customer Data you supply to verify account balances and account information, establish spending limits, identify spending patterns and potential fraud, determine spending limits, analyze and report transactions, and provide Services to you. You must maintain at least one Linked Account at all times. Float may also require you to provide access to Customer Data, including details of Other Accounts, directly or through Third Party Services for the purpose of underwriting financial products.
- Rewards: We reserve the right to introduce Reward programs, including, but not limited to, Cashback, Yield and our referral programs, at our sole discretion. The terms and conditions governing these reward programs will be accessible on our website. Additionally, we may, at our sole discretion, present you with promotional offers from third parties. It is important to note that Float does not provide the services offered by these third parties, and their services may be subject to additional terms and conditions set forth by the third-party provider. We are not responsible for resolving any disputes you may have with a third party provider and we are not responsible for any losses related to or caused by such promotional offers and any services you choose to receive from a third party.These Rewards, including their nature, types, values, or any other element may be changed at any time without prior notice.
- Restrictions on Use: You will not and you will not permit others to: (i) sub-license, sell, rent, lend, lease or distribute the SaaS Services or any Intellectual Property Rights therein, or otherwise make the SaaS Services available to the parties other than Permitted Users; (ii) use the SaaS Services to permit timesharing, service bureau use or commercially exploit the SaaS Services; (iii) use or access the SaaS Services: (A) in violation of any Applicable Law or Intellectual Property Right; (B) in a manner that threatens the security or functionality of the SaaS Services; or (C) for any purpose or in any manner not expressly permitted in this Agreement; (iv) use the SaaS Services to create, collect, transmit, store, use or process any Customer Data: (A) that Customer does not have the lawful right to create, collect, transmit, store, use or process; (B) that violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); or (C) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (v) Modify the SaaS Services; (vi) attempt to reverse engineer, de-compile or disassemble the SaaS Services; (vii) access or use the SaaS Services for the purpose of building a similar or competitive product or service; or (viii) perform any vulnerability, penetration or similar testing of the SaaS Services.
- Additional Obligations: You will, except to the extent due to Float’s breach of the Agreement, assume all risk and liability associated with transactions, including any risk of counterfeit, charged-back or fraudulent transactions; and (ii) have sole responsibility for verifying the accuracy, completeness or authenticity of any data furnished by you or a third party to Float or its partner financial institution.
- No Online Gambling: Company agrees not to use the SaaS Service in connection with any business of placing, receiving or otherwise knowingly transmitting bets or wagers by any means which involves the use, at least in part, of the Internet, or for any other transaction which is prohibited by Federal Reserve Regulation GG – Unlawful Internet Gambling Enforcement Act of 2006.
- Suspension of Access: Scheduled Downtime; Modifications: Float may, from time to time and in its discretion without limiting any of its other rights or remedies at law or in equity under this Agreement: (i) suspend your access to or use of the SaaS Services if you breach this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured seven (7) days after Float provides you with written notice of such breach; and (ii) make any Modifications to the SaaS Services provided the SaaS Services are not materially changed.
- Subcontracting: Float may engage Third Party Service Providers to provide the Services.
- Access to Customer Data. At any time during the Subscription Term, Customer retains full control and access to the Customer Data. Customer hereby authorizes Float, during the Subscription Term, to access, use and display Customer Data as requested by Customer solely for the purpose of providing Services under the terms and conditions of this Agreement for the benefit of Customer and for no other purpose.
- Additional Services. To the extent that Customer requires any additional products or services, such as customizations, program modifications or additions, professional services or professional consulting services, Customer may order such additional products and/or services pursuant to separate Order Form.
2. Proprietary Rights
- Ownership; Reservation of Rights. Except as specifically set forth in this Agreement, nothing in this Agreement assigns or grants to Float any right, title or interest including any Intellectual Property Rights in or to Customer Data. Customer grants to Float a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right during the Term to access, collect, use, process, store, disclose and transmit Customer Data to: (i) provide the Services; (ii) improve and enhance the Services and its other offerings; and (iii) produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). Float may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customers of any kind.
Float or its licensors retain all rights, title and interest including all Intellectual Property Rights in and to: (i) the Services; (ii) anything used, developed or delivered by or on behalf of Float under this Agreement; and (iii) any Modifications to the foregoing (i) and (ii).
- Operational Emails. Float may send operational emails including but not limited to: billing emails, account activity emails, and service updates. These are required to provide the Services.
- Scheduled Services Interruptions. Notwithstanding anything to the contrary in this Agreement, the Services may interrupt for maintenance and upgrades. Float will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Scheduled Services Interruptions.
3. Privacy and Electronic Communications
- Confidential Information. As used herein Confidential Information shall mean all confidential or proprietary information disclosed orally or in writing by one Party to the other that is identified as confidential or whose confidential nature is reasonably apparent. Confidential Information of Customer shall include Customer Data; Confidential Information of Float shall include the Services; and Confidential Information of each Party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no fault of the receiving Party; (b) was in the receiving Party’s lawful possession prior to the disclosure; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure or any breach of confidence; (d) is independently developed by the receiving Party; (e) is required to be disclosed by law; or (f) De-Identified Data.
- Protection of Confidential Information. Each Party agrees to (i) hold the other’s Confidential Information in confidence, (ii) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), and (iii) not use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder or as otherwise authorized by this Agreement.
- Protection of Customer Data. Without limiting the above, Float shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Float shall not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law in accordance with the “Compelled Disclosure” section below or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.
- Compelled Disclosure. The receiving Party may disclose the Confidential Information of the disclosing Party if it is compelled by law to do so, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure. If the receiving Party is compelled by law to disclose the disclosing Party’s Confidential Information as part of a civil proceeding to which the disclosing Party is a party, the disclosing Party will reimburse the receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
4. Customer User Account; Responsibility for Permitted Users
Upon Customer’s request, Float will issue one or more administrator accounts to Customer that provides Customer with the capability to create user accounts (each, a “Customer User Account”) for use by Customer and all individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the SaaS Services (each user, and each administrator, a “Permitted User”). Customer will ensure that each Permitted User only uses the SaaS Services through its assigned Customer User Account. Customer will not allow any Permitted User to share its Customer User Account with any other person.
- You are responsible for identifying and authenticating all Permitted Users and for ensuring that the Permitted Users’ use of the SaaS Services and the Charge Card Services is in compliance with this Agreement. You are responsible for selecting who in your organization should have access to Cards. You agree to establish and maintain controls designed to ensure that all Permitted Users agree to the Permitted User Card Terms and that Permitted Users only use the Cards for Customer’s business purposes and in compliance with Card Network rules.
- You will, and you ensure that all Permitted Users will keep the Customer User Accounts and Cards secure and access is only provided to Permitted Users. You will immediately disable Permitted User access to the Services or reduce spending limits where you know or believe your Customer User Account or any Card has been compromised or stolen or may be misused. You will promptly notify Float of any actual or suspected unauthorized use of the SaaS Services or the Charge Card Services and you will follow the notification process set out in the Customer Cardholder User Terms for reporting a lost or stolen or compromised Card.
- You are ultimately responsible for Losses caused by Permitted Users, or other persons given access to the Charge Card Services, your Customer User Accounts, or Cards. We may suspend access to your Customer User Accounts or Cards if we believe your Customer User Accounts or Cards have been compromised, used for an unauthorized purpose or that not doing so may pose a risk to you, Float, Issuer, or any third parties.
- If Company and a merchant have a dispute regarding a Charge identified on Company’s Periodic Statement, including delivery of the incorrect goods or services or being charged the wrong amount, Company should first attempt to resolve the dispute with the merchant. If such a dispute is not resolved to Company’s satisfaction or if Company believes the Charge is unauthorized, Company may initiate a Chargeback by contacting email@example.com.
Float will provide customers with technical support for the SaaS Services (“Support Services”): (a) via email at firstname.lastname@example.org; and (b) via Float’s knowledge base and documentation available online at help.floatcard.com.
6. Third Party Content; Websites or Services
Customer’s access to and use of certain functionalities provided in or through the Services may provide links or access to third party content, websites, services or systems. Float does not endorse any third party content, websites, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third party content, websites, services, or systems are not under the control of Float, and if Customer chooses to access any such content, websites, services, or systems, Customer does so entirely at its own risk. Customer acknowledges that it may be required by to accept terms and conditions applicable to third party content, websites, services, or systems, that such terms may supersede the terms in this Agreement with respect to the use of such third party content, websites, services or systems, and Customer agrees to accept and comply with any such terms and conditions.
7. Charge Card Services
This Section 7 applies if you have applied for, and Float has approved you for the Charge Card Services and by submitting your application for the Charge Card Services, you accept and agree to the terms and conditions set out in this Agreement that apply to the Charge Card Services. Cards are issued to Permitted Users by the Issuer and you and Permitted Users are required to enter into relevant card terms and conditions with the Issuer in order to receive Charge Card Services.
- The Charge Card Services: Float will make funds available to the Issuer in advance, on your behalf and up to your spending limit, to settle the transactions you make using your Card, subject to the terms and conditions set out in this Agreement (the “Charge Card Services”).
- Spending Limits: Customer spending limits are set by Float and using Customer Data including available funds and spending patterns, unbilled volume, financial position including revenue, profitability and cash flow, the nature and history of your business, and anticipated use of Cards. We may not disclose exact spending limits but may provide guidance identifying whether specific transactions or monthly volumes may exceed any spending limits. Spending limits are dynamic and may be modified at any time with or without notice to you, including temporary increases or decreases to your spending limits or reducing spending limits to $0. Administrators may set Permitted User-specific limits or controls through your Customer User Account, but the aggregate spending limit for all Permitted Users may not exceed the total spending limit established for the Customer.
- Periodic Statements: We will provide you periodic statements identifying Charges, refunds, or other amounts owed or credited to your Customer User Accounts, together with Fees. You are responsible for payment in full of all amounts showing as due on your Periodic Statement. Your Designated Account will be automatically debited for the full amount identified in the Periodic Statement at the end of each billing cycle and your Customer User Accounts will show the credit the day after payment is received. Unless otherwise specified in writing by Float, Periodic Statements for standard usage are issued monthly.
- Overdue Amounts; Set-off: We may, at any time, without notice or demand, set off any credit you have with us, including any funds loaded onto a Card, or amounts we owe to you against any amount you owe us until everything you owe us has been fully repaid.
- Suspension: We may suspend the Charge Card Services for any reason at any time, including where the Customer Data is incomplete, inaccurate or out of date, you cancel your PAD authorization without providing us with a substitute authorization or if you no longer have a Linked Account.
8. PAD Authorization
THIS SECTION PROVIDES AUTHORIZATION TO DEBIT YOUR BANK ACCOUNTS FOR AMOUNTS YOU OWE UNDER THIS AGREEMENT INCLUDING LINKED ACCOUNTS AND OTHER ACCOUNTS. PLEASE READ IT THOROUGHLY.
- You authorize Float, and any financial institution designated by Float, to issue and process pre-authorized debits (“PADs”) and debit and credit the bank account you have designated for such purpose (“Designated Account”) for: (i) in respect of the Charge Card Services, the full amount owing under each Periodic Statement on the due date set out on the Periodic Statement; (ii) Fees invoiced to you on the due date set out on the applicable invoice; (iii) any other amounts that may become due and payable under this Agreement, including any overdue amounts, interest, Fees and other charges, on the next regularly scheduled debit date; and (iv) in the event that this Agreement is terminated, all outstanding amounts will be debited on the termination date. In the event that we are unable to debit the Designated Account for amounts described above we may debit other Linked Accounts or Other Accounts to satisfy such amounts. Except where required by applicable law or the NACHA Rules, you waive your right to receive pre-notification of the amounts of the PADs or any change in the amounts of the PADs and agree that you do not require advance notice of the amounts of PADs or any change in the amounts of the PADs before the debits are processed. Such waiver of notification is not applicable to any one-time or sporadic debits for which Float is required to obtain your authorization in accordance with Rule H1 of the Canadian Payments Association.
- For transactions governed under Payments Canada regulations, this is a business PAD. You must promptly tell Float, in writing, of any change to the Designated Account. You have certain recourse rights if any PAD does not comply with this authorization. For example, you have the right to receive reimbursement for any PAD that is not authorized or is not consistent with this authorization. To obtain more information on your recourse rights, you may contact your financial institution or visit www.payments.ca. You may revoke this authorization at any time, upon providing 30 days’ notice, in writing, to Float or as Float may advise from time to time. You may obtain a sample cancellation form or further information on your right to cancel a PAD agreement at your financial institution, by contacting Float or by visiting www.payments.ca. This authorization applies only to the method of payment and you agree that cancellation of this authorization does not terminate or otherwise have any effect on any contract that exists between you and Float, including this Agreement.
- For transactions governed under NACHA rules, both parties agree to be bound by NACHA Operating Rules as they pertain to these transactions. You acknowledge that the origination of ACH transactions to your account must comply with the provisions of U.S. law. You agree not to dispute these scheduled transactions with your bank provided the transactions correspond to the terms indicated in this authorization.
- You understand that this authorization will remain in effect until it is canceled in writing, and you agree to notify Float in writing of any changes in its account information or termination of this authorization at least 30 days prior to the next billing date. You acknowledge that any changes an authorized representative makes to account information via an online customer portal will be considered written notice of change and will constitute authorization to charge the new account in place of the account previously identified.
- If the above noted payment dates fall on a weekend or holiday, you understand that the payments may be executed on the next business day. You understand that because these are electronic transactions, these funds may be withdrawn from your account as soon as the above noted transaction dates, and that you will have limited time to report and dispute errors. In the case the transaction is returned for Non-Sufficient Funds (NSF) you understand that Float may at its discretion attempt to process the charge again within 30 days, and you agree to an additional charge for each attempt returned NSF, which will be initiated as a separate transaction from the authorized payment. You have certified that the provided business bank account is enabled for ACH transactions, and agree to reimburse Float for all penalties and fees incurred as a result of your bank rejecting ACH debits or credits as a result of the account not being properly configured for ACH transactions.
9. Beta Services
We may, but do not have to, make Beta Services available to you. Any Beta Services are provided to you AS IS and AS AVAILABLE, without any warranty. We may use any Feedback about the Services or Beta Services freely and without restriction. Except where specifically agreed to by us in writing, we will not compensate or credit you for Feedback you provide to us.
10. Fees And Payment
- Subscription Fees. In consideration for the Services and rights granted herein, commencing on the Effective Date, Customer shall regularly pay Float during the initial subscription period, the fee listed in the applicable Order Form. All Fees shall be payable in advance, based on the Services identified in the applicable Order Form. Fees are subject to change upon subscription renewal. Fees are non-refundable and payment obligations are non-cancellable. In the event of termination for cause, the forgoing shall not apply to the amount paid for the Services in advance, but which are unused on the date of termination.
- Changes to the Fees. Float reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 60 days prior notice to Customer.
- Invoicing. Fees will be invoiced in advance in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due thirty (30) days from the invoice date. Customer is responsible for providing accurate billing and contact information to Float and such other information required by the Order Form.
- Disputed Invoices or Charges. If Customer believes Float has charged or invoiced Customer incorrectly, Customer must contact Float no later than 45 days after having been charged by Float or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the parties will discuss the disputed amounts in good faith in order to resolve the dispute.
- Late Payment. Customers may not withhold or set off any amounts due under this Agreement. Float reserves the right to suspend Customer’s access to the Services until all due and undisputed amounts are paid in full. Any failure to pay the full amount owed to Float when required is a breach of this Agreement. You are responsible for all costs or expenses that we incur collecting amounts owed but not timely paid, including legal or collections fees. If a payment you make is returned to us for any reason, you must pay us an NSF fee of $125, and if the reason is due to insufficient funds in your Designated Account, you must immediately, and in any event within three business days, deposit sufficient funds into the Designated Account in order for us to collect the overdue payment. In addition to any other rights we may have under this Agreement or at law, late payments will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
- Taxes. The Fees set out in this Agreement do not include applicable sales, use, excise, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Float.
- Suspension of the Services. If any charge owing by Customer is thirty (30) days or more overdue, Float may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full.
11. Confidential Information
- Definitions: For the purposes of this Agreement, a party receiving Confidential Information (as defined below) will be the “Recipient”, the party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is Customer includes Customer Data; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
- Confidentiality Covenants: Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its rights or perform its obligations under this Agreement: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates that have a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each party will take industry standard precautions to safeguard the other party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
- Exceptions to Confidentiality: Notwithstanding subsection 11 (Confidentiality Covenants), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the party’s business; or (iii) in the case of Float, to potential assignees, acquirers or successors of Float if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Float.
- Publicity: We may identify you as a customer on the Website or on other promotional communications during the term of this Agreement and you grant us rights to use your trademarks and business name for such limited purpose. Please notify us if you prefer that we not identify you as a Float customer and we will remove references to you on our Website and promotional communications.
12. Warranty; Disclaimer
- Customer Warranty. Customer represents and warrants to, and covenants with Float that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by Applicable Laws, to enable Float to provide the Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Float and to or from all applicable third parties.
- GENERAL DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, FLOAT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY FLOAT TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND FLOAT DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY LICENSED THIRD-PARTY TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, FLOAT HEREBY DISCLAIMS ALL IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
- Float Indemnity. (i) Float will indemnify, defend, and hold harmless Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an Affiliate of a Customer Indemnitee) that arise from or relate to any allegation that the SaaS Services infringe any third-party Intellectual Property Right in Canada or the United States. (ii) Float’s obligations under Section 8(a)(i) do not apply to any Action or Losses arising out of or relating to any of the following (“Excluded Claims”): (A) incorporation of any SaaS Services into, or any combination, operation, or use of any SaaS Services with, any products or services not provided or authorized by Float, unless such infringement would also have resulted solely from the use of the SaaS Services without their incorporation in, or combination, operation or use, with such other products or services; (B) Modification of any SaaS Services other than by Float or with Float’s express written approval; or (C) unauthorized use of the SaaS Services. (iii) If the SaaS Service is, or in Float’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of any SaaS Service is enjoined or threatened to be enjoined, Float may, at its option and sole cost and expense:
(A) obtain the right for Customer to continue to use the affected SaaS Services materially as contemplated by this Agreement;
(B) Modify or replace SaaS Services, in whole or in part, to seek to make the SaaS Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such Modifications or replacements will constitute SaaS Services under this Agreement; or
(C) if Float determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate this Agreement and require Customer to immediately cease all use of the SaaS Services or part or feature thereof.
- Customer Indemnity. Customer will defend, indemnify and hold harmless Float, and its officers, directors, employees and agents (each, an “Float Indemnitee”) from and against any and all Losses incurred by a Float Indemnitees arising out of or relating to any Action by a third party (other than an Affiliate of a Float Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of Terms and Agreements; (iii) unauthorized use Services by Customer or any Permitted User; or (iv) Excluded Claims.
- Indemnification Procedure. Each party will promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to this Section 12. The party seeking indemnification (the “Indemnitee”) will cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 13(c) will not relieve the Indemnitor of its indemnity obligations under this Section 8 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
13. Limitation of Liabilities
- AMOUNT. EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION 14 (EXCEPTIONS), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
- TYPE. EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION 13 (EXCEPTIONS), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES OR THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
- Exceptions. The exclusions and limitations in Subsections 14 (Amount) and (Type) do not apply to: (i) either party’s obligations under Section 11; (ii) Losses arising out of or relating to Customer’s breach of its obligations under Subsection 1 (Restrictions on Use) or Section 10 (Fees and Payment); or (iii) Losses arising out of or relating to a party’s gross negligence or more culpable conduct, including any willful misconduct or intentionally wrongful acts.
15. Term and Termination
- Term. Subject to Section 9.2 below, this Agreement commences on the Effective Date and continues until the expiration of the Subscription Term specified in the Order Form. Except if the Parties have agreed and stated otherwise in an Order Form, this Agreement and the Order Form shall automatically renew.
- Termination for Cause. Either party may terminate this Agreement by giving to the other party written notice of termination upon the occurrence of any of the following events: (i) the other party breaches or defaults on any of the material terms or conditions of this Agreement (including Customer’s payment obligations) and fails to cure such breach or default within thirty (30) days of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately; (ii) the other party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or (iii) any proceedings are instituted by or against the other party under any insolvency laws or for reorganization, receivership or dissolution.
- Effect of Termination; Transition. Upon expiration or termination of this Agreement: (i) Customer will immediately cease accessing or using the Services. Within thirty (30) calendar days following termination, Float will, at Customer’s option, return to Customer or delete or otherwise render inaccessible any Customer Data that remains in the hardware or systems used by Float to provide the SaaS Services. In addition, Float will perform additional transition services that are set forth in an Order Form.
- Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Fees and Payment), Section 4 (Privacy), Section 7 (Warranty; Disclaimer), Section 9 (Limitation of Liabilities), Section 10(e) (Survival), and Section 11 (General Provisions).
16. General Provisions
- Notices. Notices sent to either party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the party to whom a notice is being given. Notices must be sent: (i) if to Float, to the following address:
116 Spadina Ave, 6th Floor, Toronto, Ontario, M5V 2K6
Attention: Float Financial Solutions Inc.
and (ii) if to Customer, to the current postal or email address that Float has on file with respect to Customer. Float may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Float current at all times during the Term.
- Assignment. Float may, upon giving written notice to Customer, assign its rights and obligations under this Agreement to any of its affiliates or pursuant to a merger, amalgamation or other corporate reorganization or a sale of substantially all of its assets relating to that portion of its business that delivers the Services. In this case, such assignee will have and may exercise all the rights, and will assume all of the obligations, of Float under this Agreement, except that the assignment will not release Float from liability for Float’s obligations under this Agreement. Except for such permitted assignment, neither party may assign this Agreement or any rights or obligations under this Agreement without the prior written consent of each of the other party. This Agreement ensures to the benefit of and is binding upon the parties and their respective successors and permitted assigns.
- Governing Law and Attornment. This Agreement is governed by the law, jurisdiction, and venue set out in the table below, without regard to conflict of laws principles that would require the application of the laws of another jurisdiction. You submit to the exclusive jurisdiction of the courts set out in that table.
|Courts having exclusive jurisdiction and venue
|Float Financial Solutions Inc.(Canadian Corporation)
|Send to Ruslan Nikolaev via both:
(a) Email to email@example.com
(b) Registered mail to:600-116 Spadina AveToronto, ON M5V 2K6 Canada
|Province of Ontario and the federal laws of Canada applicable therein.
|The parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing,
|Float Financial Solutions US Inc.(US Corporation)
|Send to Ruslan Nikolaev via both:
(a) Email to firstname.lastname@example.org
(b) Registered mail to:600-116 Spadina AveToronto, ON M5V 2K6 Canada
|State of Delaware and the federal laws of the United States of America applicable therein.
|The parties will initiate any lawsuits in connection with this agreement in Delaware, United States of America.
Float may: (i) commence lawsuits to collect unpaid fees from Customer; and (ii) seek injunctive relief with respect to a violation of Float’s Intellectual Property Rights; in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- Export Restrictions. Customer agrees not to directly or indirectly export or re-export any of the Services without first obtaining all required licenses, permits and permissions required under Applicable Law. Float makes no representation or warranty that the Services may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
- Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
- Force Majeure. Neither party will be liable for delays caused by any event or circumstances beyond that party’s reasonable control, including acts of God, pandemics, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”).
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
- Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Independent Contractors. Float’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and neither party will represent to any third party that it has, any authority to act on behalf of the other party.
- Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby.
As used in this Agreement, the following capitalized words have the meaning set out below:
- “Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.
- “Affiliate” means, with respect to a party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
- “Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.
- “Beta Services” means beta or pre-release products or services, which may contain features and functionality that are incomplete or subject to substantial change or discontinuation.
- “Cards” means the pre-paid physical or virtual payment cards issued by the Issuer and managed through your Customer User Accounts
- “Card Networks” means the payment card networks such as Visa or Mastercard.
- “Charge” means a payment for goods or services made to a merchant that accepts payments on the applicable Card Network.
- “Customer”, “you” or “your” means the entity that has one or more Customer User Accounts.
- “Customer Data” means any data, information, content, records, and files that you or any of your Permitted Users loads into, transmits to or enters into the SaaS Services or that is provided via a Linked Account, other information disclosed to us, or Third Party Services, including but not limited to Personal Information and Financial Data.
- “Effective Date” means the date that appears on the Order Form.
- “Feedback” means all feedback, suggestions, ideas, or enhancement requests you submit to us.
- “Financial Data” means Customer’s bank balance, transaction information, internal or accounting statements, and other account information accessible to Float through Linked Accounts, Other Accounts, Third Party Services, or the Charge Card Services application process.
- “Fines” means all fines, fees, penalties, or other charges imposed by the Issuer or a Governmental or Regulatory Authority arising from your breaching of this Agreement, any other agreement between you and us, the Customer Cardholder Card Terms or a breach of the Permitted User Cardholder Terms by a Permitted User.
- “Float”, “we”, “us” or “our” means Float Financial Solutions Inc.
- “Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity having jurisdiction over Float, Customer, the Services, the Customer Data or any other person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of and other entities created by, such entities.
- “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.
- “Issuer” means Peoples Trust Company, the issuer of the Cards in Canada or Thread Bank, the issuer of Cards in the United States, as applicable.
- “Linked Account” means any account that is held with a financial institution or that provides Financial Data and is linked to or authorized for use through your Customer User Accounts..
- “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
- “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
- “Order Form” means any attachments thereto, or any additional order form that references this Agreement and that is agreed to by the parties.
- “Permitted User(s)” means those employees authorized by Customer to access and use the Float platform on Customer’s behalf.
- “Personal Information” means information about an identifiable individual or information that is subject to applicable privacy or data protection laws.
- “Professional Services” mean the consulting, training and other professional services set out in an Order Form.
- “Rewards” refer to incentives and benefits provided by Float to customers for specific actions, engagements, or transactions conducted within the platform. Rewards may encompass various forms, including but not limited to Cashback, Yield, promotional items, access to exclusive features, or other tangible or intangible benefits, as determined by Float.
- “SaaS Services” means: (i) services through which Float hosts and makes available the Float employee spend management solution for issuing and managing Float cards as described in an Order Form; (ii) any component or Modification of the services referred to in (i); and (iii) the Support Services.
- “Services” means the SaaS Services, Charge Card Services, and the Professional Services (or any part thereof).
- “Third Party Service Provider” means an affiliate or other third party that assists us in providing the Services to you, that supports our internal operations, or that provides other services related or connected to, or provided through the Services and a Customer User Account.