PLEASE READ THESE END USER TERMS AND CONDITIONS (“AGREEMENT”) CAREFULLY BEFORE USING THE INFORMATION SERVICES (DEFINED BELOW) PROVIDED TO YOU (“CUSTOMER”) ON BEHALF OF SAFETY HOLDINGS, INC. and its wholly owned subsidiaries, including SAMBA HOLDINGS, INC. (“SAMBASAFETY”) and AMERICAN DRIVING RECORDS, INC. (“ADR”) (collectively hereinafter referred to as “SAMBASAFETY/ADR”)
1. Definitions. The following terms, when capitalized, will have the meaning set forth in this section. All other capitalized terms when used shall have the meaning ascribed to them as set forth elsewhere in this Agreement.
“Data Provider” means any Federal or State agencies, private service providers, and other service bureaus that provide SAMBASAFETY/ADR with Information Services.
“Information Services” means any data, reports, indicators, products and/or services, including but not limited to Motor Vehicle Reports (“MVRs”), vehicle, title and registration histories, driver monitoring, database records, and analytic services provided to Customer by SAMBASAFETY/ADR or by Channel Partner on behalf of SAMBASAFETY/ADR.
“Personal Information” means (a) any information about an identifiable individual, and (b) information that is not specifically about an identifiable individual but, when combined with other information, may identify an individual. Personal Information includes, without limitation, names, email addresses, postal addresses, telephone numbers, government identification numbers, financial account numbers, payment card information, credit report information, biometric information, IP addresses, network and hardware identifiers, and geolocation information.
“Channel Partner” means the authorized Channel Partner of SAMBASAFETY/ADR from whom Customer purchases the Information Services.
“Term” means the term set forth in the order for Information Services that is submitted to SAMBASAFETY/ADR by Channel Partner on Customer’s behalf.
2. License Grant; Restrictions.
2.1 License Grant. Subject to the terms and conditions of this Agreement, during the Term, SAMBASAFETY/ADR hereby grants to Customer a limited, worldwide, enterprise-wide, royalty-free, non-exclusive, non-transferable right to use the Information Services solely for its internal business purposes. Exclusive proprietary ownership of MVRs remains with state Data Providers.
2.2 Restrictions on Use. Customer will not disclose, distribute, resell, and/or transfer any Information Services to any third party, nor provide any Information Services directly to individuals who are the subjects of Information Services, or to the general public except as required by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., nor permit any third party direct access to the SAMBASAFETY/ADR System except as expressly permitted by this Agreement. Customer shall not, nor allow or authorize any third party to remove or destroy any proprietary markings, confidential legends, or any trademarks or trade names of SAMBASAFETY/ADR or its licensors placed upon or contained within the Information Services.
2.3 Compliance with Laws. Customer represents, warrants, covenants, and certifies that it shall order, receive, disseminate, and otherwise use the Information Services in compliance with all applicable federal, state and local statutes, rules, codes, and regulations, including but not limited to, the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. (“FCRA”), the Driver’s Privacy Protection Act, 18 U.S.C. §2721 et seq. (“DPPA”), and their state equivalents, including any changes, supplements or amendments to such statutes, rules, codes and regulations (collectively, “Applicable Laws”). Customer further represents, warrants, covenants and certifies that before ordering Information Services, it will comply with any applicable consumer disclosure-authorization and adverse action requirements under the FCRA and will not use any information contained in the Information Services in violation of any applicable federal or state equal opportunity law or regulation. Customer understands that violators of the FCRA, the DPPA, and other federal and state laws governing protection of Personal Information are potentially subject to civil actions and penalties, including fines. Customer shall be responsible for understanding and for staying current with all of Applicable Laws.
2.4 Required Documents. Customer agrees to promptly execute and return to SAMBASAFETY/ADR all documentation required, now or in the future, by any Data Provider or SAMBASAFETY/ADR to permit release of information or to ensure compliance with any Applicable Laws or as part of SAMBASAFETY/ADR’s routine and specific audit requests in order to verify that requests are being sought for permissible purposes. Customer agrees to only use the information obtained as set forth in any applicable state-mandated forms, or that they will obtain approval from applicable state agencies prior to the release of any individual’s name and address. The failure to return such documentation will result in Customer being blocked from receiving the information related to the documentation, and may result in all Information Services being suspended or terminated.
2.5 Public Record Indicators. Customer elects to receive public record indicators. Due to the limited nature of public record indicators, Customer acknowledges that these public record indicators shall only be used as pointers of possible records. Customer represents and warrants that (a) it will not knowingly use public record indicators to deny insurance coverage or to take an adverse action against any individual; and (b) prior to making any decisions to deny insurance coverage or take an adverse action against any individual, Customer will verify the activity on a public record indicator directly with a current, up-to-date MVR.
3. Confidentiality and Treatment of Information.
3.1 Personal Information. Customer acknowledges that in connection with this Agreement, it may receive Personal Information from SAMBASAFETY/ADR and/or Data Providers. Customer agrees to treat as confidential all Personal Information received from or through SAMBASAFETY/ADR and to use such information only as permitted under this Agreement and all Applicable Laws and to disclose Personal Information only to those authorized and who have a need to know such information to accomplish their duties in accordance with this Agreement and all Applicable Laws. Customer shall not use Personal Information for any purpose except the purpose permitted by this Agreement.
3.2 Confidential Information. “Confidential Information” means information that one party, or a party’s affiliate, discloses to the other party or its affiliate(s) under this Agreement, and that is marked as confidential or a reasonable person would believe to be considered confidential information given the nature of the information and the circumstances under which such information is disclosed; provided, however, neither party shall have any obligation to maintain the confidentiality of any Confidential Information which is not Personal Information to the extent it: (a) is or becomes publicly available by other than unauthorized disclosure by the recipient; (b) is independently developed by the recipient; or (c) is received from a third party who has lawfully obtained such Confidential Information without a confidentiality restriction.
3.3 Reciprocal Obligations. Without limiting Customer’s obligations with regards to Personal Information, the recipient will not disclose Confidential Information of the discloser, except to recipient’s affiliates, employees, agents, or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities to whom and which it transfers any Confidential Information of the discloser shall only use such information as permitted under this Agreement and that such individuals and entities shall keep it confidential in accordance with this Agreement. Notwithstanding the foregoing, if required by any court of competent jurisdiction or other governmental authority, the recipient may disclose to such authority, data, information or materials involving or pertaining to Confidential Information to the extent required by such order or authority; provided that the recipient shall have given reasonable notice to the discloser prior to such disclosure.
3.4 No Rights. Except for the limited use rights under this Agreement, neither party acquires any right, title, or interest in the other party’s Confidential Information.
3.5 Credentialing. Credentialing is the process for verifying that entities are legitimate and their purpose for the use of Information Services is authorized. Customer agrees to cooperate fully with continued monitoring of Customer credentials. Monitoring includes the recertification of credentials (i.e., business license) and update of this Agreement. SAMBASAFETY/ADR reserves the right to make credentialing requests as it deems necessary.
3.6 Information Security. Customer shall make commercially reasonable efforts to: (a) implement reasonable data security procedures that meet or exceed current industry standards to protect Information Services provided to Customer from unauthorized disclosure, which shall include, but are not limited to, user name and password access policies, firewalls, background investigations of employees or any other individuals authorized to access Information Services; (b) physically secure and tightly control all Customer information technology assets that store, house or process Information Services in order to prevent unauthorized access; (c) employ adequate measures to insure that unauthorized users cannot successfully attack Customer information technology assets in a manner that allows the Information Services to be compromised; (d) periodically scan Customer information technology hosts and networks that hold or process Information Services for known vulnerabilities to search for exploits; (e) have a formal process in place to install vendor-recommended security patches in a timely manner for all information technology assets, hosts and networks that process Information Services; (f) provide periodic, but minimally annual, security training to employees on best security practices and the practices of the Customer; (g) ensure that each Customer employee or other individuals who will have access from Customer to the Information Services execute an SAMBASAFETY/ADR User Statement of Confidentiality in a form directed by SAMBASAFETY/ADR from time-to-time; and (h) have a reasonable computer incident policy and procedure program in place; and (i) not disseminate any unsecured or unencrypted Information Services over the Internet.
3.7 Authorized Users. Customer agrees to limit access to Information Services only to its current employees whose responsibilities require such access (“Authorized Users”) and only to the extent necessary for its proper use in accordance with Applicable Law and as authorized by this Agreement. Customer shall be responsible and liable for any Authorized User’s non-compliance with the terms and conditions of this Agreement that apply to Customer. Customer agrees that its Authorized Users shall be forbidden to attempt to obtain Information Services on themselves, associates, or any other persons, except in the exercise of their official duties for Customer.
3.8 Notification in Event of Breach or Misuse of Information. Customer will promptly (but in any event within 72 hours of any inadvertent or unauthorized release) notify SAMBASAFETY/ADR of any inadvertent or unauthorized release of any Information Service or other security breach of Personal Information contained in any Information Service. To the extent required by Applicable Law, Customer agrees to notify all affected consumers in writing that their Personal Information has been potentially compromised in the event of the Customer’s or its Authorized Users’ inadvertent or unauthorized release, misuse, or other security breach of Personal Information contained in the Information Services supplied to Customer. Customer shall retain documentation of such notification and provide it to SAMBASAFETY/ADR and any governmental representatives immediately upon request.
3.9 Archiving. Customer and its Authorized Users shall not use any Information Services, or data derived from them, including any MVR data, to directly or indirectly compile, store, or maintain the Information Services or derivative data to develop its own source or database of such services or data. Customer agrees that use of Information Services is restricted to use, one time, for the permissible purpose referenced in the Account Information Sheet completed by the Customer. Customer shall accurately complete the Account Information Sheet upon request of SAMBASAFETY/ADR and prior to accessing the Information Services.
3.10 Retention of Information Services. Customer shall make commercially reasonable efforts to promptly and adequately destroy any Information Services in its possession when the Information Services are no longer required for the purpose authorized in this Agreement, or sooner, if required by any Applicable Law.
3.11 No Solicitations. Customer shall not, and shall not permit others to, use any Information Services for any solicitations, direct mail advertising, or any other mailings or communications.
3.12 Audits. Beginning on the Effective Date of this Agreement, Customer must maintain all records related to its ordering and using Information Services, for a period of five (5) years from the date each Information Services report is ordered. The information retained pursuant to this section must include without limitation the: request date, requested individual, requestor, and permissible purpose for each Information Services report, a signed release from the prospective or current employee each time a request is made for employment purposes, and any other information sufficient to verify that the ordering and use of the Information Services complies with the terms of this Agreement and Applicable Laws. Upon receipt of written SAMBASAFETY/ADR audit requests, Customer agrees to respond with all documentation as requested within the time period specified in the audit notice or request for information. Access privileges to the Information Services may be suspended upon failure to comply with such requests.
3.13 Failure to Comply. Failure of Customer to fully comply with the requirements of all of this Section 3 shall be a material breach of this Agreement and shall permit SAMBASAFETY/ADR to immediately terminate this Agreement and the delivery of any Information Services to Customer without notice or delay.
4. Availability of Information Services.
4.1 No Availability Guarantee. Customer acknowledges that SAMBASAFETY/ADR relies totally on the information contained in the records and/or information provided by various Data Providers for its Information Services and response times for fulfillment of Information Services. SAMBASAFETY/ADR does not guarantee availability of any Information Services from any particular Data Provider. SAMBASAFETY/ADR makes no representation or warranty whatsoever regarding anticipated response times for retrieval or delivery of Information Services.
4.2 Records Not Available. Data Providers may offer multiple types of records, including records that are not available to SAMBASAFETY/ADR and/or not provided by SAMBASAFETY/ADR as part of the Information Services. Customer is responsible for accessing and using the appropriate record type for Customer’s particular use. If Customer requires Information Services not provided by SAMBASAFETY/ADR (such as a certified copy of a driving record), Customer is responsible for contacting the appropriate Data Provider directly.
5. Term and Termination.
5.1 Term. This Agreement shall remain in effect for the Term, unless terminated earlier as expressly permitted by this Agreement.
5.2 Termination. SAMBASAFETY/ADR may immediately terminate this Agreement upon the occurrence of the following events: (a) Customer files a petition in bankruptcy, files a petition seeking any reorganization, arrangement, composition or similar relief under any law regarding insolvency or relief for debtors or makes an assignment for the benefit of creditors; (b) any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against Customer and is not staid, enjoined or discharged within 60 days; (c) Customer adopts a resolution for discontinuance of its business; (d) default in payment of any fees or other related amounts for the Information Services under Customer’s agreement with Channel Partner (the “Customer Agreement”); (e) misuse of Information Services; (f) uncured (after 30 days written notice by SAMBASAFETY/ADR to Customer) material breach of this Agreement; or (g) unauthorized release or use of any information contained or related to the Information Services.
5.3 Survival. Termination or expiration of this Agreement shall not impair either party’s then accrued rights, obligations, liabilities, or remedies. The terms and conditions of Sections 1, 2, 3, 4, 5.3, 5.4, 6, and 7, and any other provision which by its nature is intended to survive, shall survive the termination or expiration of this Agreement.
5.4 Effect of Termination of Relationship with Channel Partner. In the event the relationship between SAMBASAFETY/ADR and Channel Partner is terminated, then (a) conditioned upon Customer’s compliance with its payment obligations to SAMBASAFETY/ADR pursuant to clause (b) below, Customer’s right to access and use the Information Services shall continue in effect in accordance with, and subject, to the terms of this Agreement, and (b) Customer agrees to pay all amounts due as of the date of such termination and all charges which are subsequently incurred under the Customer Agreement directly to SAMBASAFETY/ADR in accordance with the terms of the Customer Agreement and SAMBASAFETY/ADR’s written instructions.
6. Disclaimer of Warranty; Limitation of Liability; Indemnity.
6.1 Disclaimer of Warranty. EXCEPT AS SET FORTH HEREIN, SAMBASAFETY/ADR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND ABOUT THE AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ANY INFORMATION SERVICES, ANY DATA PROVIDER’S DATABASE, OR ANY INFORMATION CONTAINED THEREIN, OR ABOUT ANY RESULTS TO BE OBTAINED FROM USING ANY INFORMATION SERVICES OR ANY DATA PROVIDER’S DATABASE, USE OF ANY OF WHICH IS AT CUSTOMER’S OWN RISK. THE INFORMATION SERVICES, ANY DATA PROVIDER’S DATABASE, AND ANY INFORMATION CONTAINED THEREIN IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. WHERE PERMITTED, PUBLIC RECORD INDICATORS USED FOR DRIVING MONITORING SERVICES MAY BE SUPPLIED FROM DATABASE FILES OF VARIOUS PRIVATE DATA PROVIDERS. THESE PUBLIC RECORD INDICATORS MAY PRODUCE DATA NOT CONTAINED IN A MVR PROVIDED BY A STATE AGENCY DATABASE. EXCEPT AS SET FORTH HEREIN, SAMBASAFETY/ADR AND ITS DATA PROVIDERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE INFORMATION SERVICES, ANY DATA PROVIDER’S DATABASE, OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF CONDITIONS OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SAMBASAFETY/ADR KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE. SAMBASAFETY/ADR FURTHERMORE EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY THIRD PARTY WITH RESPECT TO THE SAMBASAFETY/ADR SYSTEM, INFORMATION SERVICES, ANY DATA PROVIDER’S DATABASE, OR ANY PART THEREOF.
6.2 Limitation of Liability. REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, WHETHER IN CONTRACT, TORT, STATUTORY, WARRANTY OR OTHERWISE, IN NO EVENT SHALL SAMBASAFETY/ADR BE LIABLE OR RESPONSIBLE FOR: (a) INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, MULTIPLE OR EXEMPLARY DAMAGES, REGARDLESS OF ITS AWARENESS OF THESE RISKS; AND/OR (b) LOST PROFITS, LOST REVENUES, LOST DATA, LOSS OF BUSINESS EXPECTANCY, BUSINESS INTERRUPTION LOSSES, OR BENEFIT OF THE BARGAIN DAMAGES. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, IN NO EVENT WILL SAMBASAFETY/ADR’S AGGREGATE LIABILITY FOR DAMAGES EXCEED THE GREATER OF THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SAMBASAFETY/ADR HEREUNDER OR U.S. $1.00.
6.3 Reliance on Information. In providing the Information Services, SAMBASAFETY/ADR shall be entitled to rely upon and act in accordance with any instructions, guidelines, data or information provided by Customer, and shall incur no liability in doing so. Customer shall indemnify and hold harmless, SAMBASAFETY/ADR and its affiliates and its and their third party vendors, shareholders, directors, officers and employees (“SAMBASAFETY/ADR Indemnitees”) from any and all claims, losses, actions, suits, proceedings or judgments, including, without limitation, costs and reasonable attorneys’ fees, incurred by or assessed against such parties resulting, in whole or in part from (a) any action or failure to act by a SAMBASAFETY/ADR Indemnitee in reliance on any instruction, approval, election, decision, action, inaction, omission or nonperformance by Customer, its officers, directors, shareholders, employees and agents relating to the Information Services, (b) any information or data provided to SAMBASAFETY/ADR by any Customer personnel in connection with the Information Services, (c) any decision made by Customer or any third party based upon the Information Services requested or provided by or on behalf of Customer, or (d) any breach of any term or condition of the Agreement by Customer.
7. General Provisions.
7.1 Electronic Signature. If Customer elects to obtain a signed release, authorization, or consent in the form of an electronic signature, the electronic signature shall meet the standards defined under ESIGN and UETA. SAMBASAFETY/ADR shall have the right to audit and request any documentation regarding the Customer’s compliance with the requirements regulating electronic signatures. Furthermore, upon written notice SAMBASAFETY/ADR may require Customer to cease using electronic signatures for a particular Data Provider. Customer shall assume full responsibility for obtaining signatures in electronic format and shall hold harmless SAMBASAFETY/ADR from any damages, losses or claims related to the validity of an electronic signature.
7.2 Entire Agreement. This Agreement (and the Customer Agreement, subject to Section 5.4 above), constitutes the entire agreement and understanding between SAMBASAFETY/ADR and Customer concerning its subject matter, and supersedes in full all prior and contemporaneous written and oral agreements, understandings, proposals, promises and representations of SAMBASAFETY/ADR and Customer concerning its subject matter and its terms.
7.3 Assignment. Customer may not assign or otherwise transfer any of its rights or obligations under this Agreement without SAMBASAFETY/ADR’s prior written consent. The terms and conditions of this Agreement shall apply to and be binding upon the permitted successors and assigns of the parties hereto.
7.4 Invalid Provision. If any part of this Agreement, for any reason, is declared by a court of competent Jurisdiction to be invalid or unenforceable, then: (a) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable, will be unaffected; (b) the effect of the ruling will be limited to the jurisdiction of the court making the ruling; (c) the provision(s) held wholly or partly invalid or unenforceable will be deemed amended, and the court is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein; and (d) if the ruling, or the controlling principal of law or equity leading to the ruling is subsequently overruled, modified, or amended by legislative, judicial, or administrative action, then the provision(s) in question as originally set forth in this Agreement will be deemed valid and enforceable to the maximum extent permitted by the new controlling principal of law or equity.
7.5 No Waiver. The failure of SAMBASAFETY/ADR at any time to require performance of any provision of this Agreement in no way affects the right of SAMBASAFETY/ADR to require performance of that provision at any time. Any waiver by either party of any breach of any provision of this Agreement is not a waiver of any continuing or succeeding breach of that provision, a waiver of the provision itself, or a waiver of any right under this Agreement.
7.6 Force Majeure. Neither party shall be liable for any failure or delay in performance directly or indirectly caused by any act or omissions beyond its reasonable control.
7.7 Governing Law. This Agreement is made under and will be construed in accordance with the laws of the State of Colorado, other than such laws, rules, regulations, and case law that would result in the application of the laws of a jurisdiction other than the State of Colorado. Except as permitted under Section 7.8, any suit to enforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the state courts of the State of Colorado and the federal courts of the United States, located in Denver, Colorado. Each party hereby agrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam jurisdiction and venue of such courts and waives any objection based on inconvenient forum.
7.8 Injunctive Relief. The parties agree that any violation or breach of this Agreement by Customer may cause SAMBASAFETY/ADR irreparable harm. Accordingly, in addition to any other remedies available at law or equity, SAMBASAFETY/ADR shall be entitled to an injunction or other decree of specific performance with respect to any violation or explicit threat thereof in any court of competent jurisdiction, without any bond or other security being required and without the necessity of demonstrating actual damages.
7.9 Construction. The captions and headings contained herein are for purposes of convenience only and are not a part of this Agreement; all references to this Agreement and the words “herein,” “hereof,” “hereto,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section or other subdivision unless expressly specified otherwise; and the words “including,” “included,” and “includes” mean inclusion without limitation. In the event of any ambiguities in the language hereof, there shall be no inference drawn in favor of or against either party.