be terminated in the event of a default under Section 8 below, and immediately in the event that MasterCard prohibits the Service, the Issuing Bank ceases to be a network member or the Issuing Bank ceases to be the Card issuer, provided that Comdata shall endeavor to provide Customer with advance notice of any such event. Additionally, this Agreement may be terminated by Comdata if there has been no activity on Customers Account for a period of one year or longer. Customers obligation to pay for all outstanding amounts incurred before the date of termination shall survive termination.
7. Disputed Items. Customer must notify Comdata in writing of any disputed item on Customers billing statement within sixty (60) days from the date of the billing statement, or it will be deemed undisputed and accepted by Customer. Unless required by law, Comdata is not responsible for any problem Customer may have with any goods or services charged on the Account. If Customer has a dispute with a merchant, Customer must pay Comdata and attempt to resolve the dispute with the merchant prior to sending the dispute to Comdata. If Customer is unsuccessful in resolving the dispute directly with the merchant, Comdata will attempt to process the dispute through MasterCard subject to the MasterCard rules, as they may be changed from time to time in MasterCards sole discretion. Comdata is not responsible if any merchant refuses to honor Cards. Comdata shall be responsible for all payment items disputed by Customer to the extent caused by Comdatas processing errors, breach of this Agreement, negligence or intentional misconduct.
8. Default and Remedies. In the event of Customers default under this Agreement, including, without limitation, failure to comply with the credit limit and payment terms provisions hereof, Comdata shall have the right to immediately suspend the Account until such breach is cured. In the event any such breach or default is not cured within a reasonable period of time, then Comdata may thereafter terminate this Agreement. In the event of Comdatas default under this Agreement, Customer shall provide Comdata written notice of the nature of the default. Comdata shall have thirty (30) days from the date of the default notice to cure the default (if such default is capable of cure), and if the default is not cured within such time period, then the Customer may thereafter terminate this Agreement without further notice.
9. Account Access. (a) Access. Customers representatives shall access the Account only as required to administer Customers Card program and for no other purpose.
(b) Unauthorized Access to Account. Customer agrees to notify Comdata immediately of any unauthorized use of, or access to, the Account or any passwords or other security codes or procedures used to access the Account or Comdatas system. To the fullest extent permitted under applicable law, Customer acknowledges and agrees that it is liable for unauthorized or fraudulent use of the Account until it has notified Comdata of such unauthorized access or use.
(c) Lost or Stolen Cards. Customer will not be liable for unauthorized charges on a Card that occur after Customer notifies Comdata of the loss or theft of such Card
10. Limitation of Liability. Comdata shall not be liable for any failure to perform due to acts of God, acts of government or MasterCard or regulatory bodies which significantly inhibit or prohibit the Service, wars, acts of terrorism, fires, floods, explosions, natural catastrophes, civil disturbances, strikes, riots, unusually severe weather (such as tornadoes), or failures or fluctuations in electrical power, heat, light, air conditioning, computer or telecommunications services or equipment or any other cause not within the reasonable control of Comdata. COMDATAS SOLE RESPONSIBILITY, AND CUSTOMERS SOLE REMEDY, FOR DAMAGES FOR ERROR, DELAY, OR ANY ACTION OR FAILURE TO ACT SHALL BE LIMITED TO DIRECT MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL ISSUER REVENUE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE LOSS; PROVIDED, HOWEVER, THE FOREGOING, LIMITATION OF LIABILITY SHALL NOT APPLY TO COMDATAS FRAUD OR WILLFUL MISCONDUCT. EXCEPT AS OTHERWISE SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PARTY WAS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE SET FORTH HEREIN, COMDATA MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FOR THE PURPOSES OF THIS PROVISION, ISSUER REVENUE SHALL MEAN THE PORTION OF MASTERCARD INTERCHANGE RECEIVED AND RETAINED BY COMDATA WITH RESPECT TO CUSTOMERS SPEND UNDER THIS AGREEMENT EXCLUDING ANY INCENTIVE OR REBATE AMOUNTS PAID TO CUSTOMER, CHARGE BACKS, AND/OR CREDIT LOSSES.
11. Confidentiality; Proprietary Rights; Security. Comdata and Customer agree and covenant to each other that they shall not, during the performance of this Agreement or at any time after the termination or expiration hereof, use or disclose to any third party, other than during the proper performance of their duties hereunder and subject to commercially reasonable obligations of confidentiality, the confidential and proprietary information of the other party hereto (Confidential Information), including but not limited to the rates, terms and conditions of this Agreement; technical information; financial information; transaction information; or any of the procedures, practices or confidential dealings of the other party hereto. Confidential Information that is not marked as such is nonetheless subject to this provision if a reasonable person would consider the information to be confidential or proprietary given the nature or type of information or circumstances of disclosure. Confidential Information does not include information that: (i) is or becomes a part of the public domain without the fault of the receiving party; (ii) is provided to the receiving party by a third party on a non-confidential basis; or (iii) is independently developed by the receiving party without the benefit of the Confidential Information. Notwithstanding the foregoing, the parties agree that the receiving party may disclose the Confidential Information of the disclosing party to the extent required to comply with applicable law, rule, regulation, listing exchange requirement or legal process or by a governmental or other regulatory body having jurisdiction, provided each party takes reasonable steps, when permissible, to notify the other party prior to such disclosure. Customer acknowledges and agrees that the application software developed, utilized and maintained by Comdata, the internal hardware utilized by Comdata, the internal operating procedures employed by Comdata, technical information, such as file record layouts, and transaction information, including without limitation Comdata card numbers and any data or information gathered by Comdata, whether at the point-of-sale or otherwise, are solely Comdatas Confidential Information and as such are the exclusive and proprietary property of Comdata. Comdata acknowledges that all information disclosed by Customer concerning its technology; security; business, computing and operational processes; and financials are Customers Confidential Information and as between Customer and Comdata, constitute the sole and exclusive property of Customer. Comdata further acknowledges that Customers Confidential Information also includes information concerning its customers and such information is expressly subject to these obligations of confidentiality. For clarification, vendor/acceptor/supplier information is not Customers Confidential Information provided that it is not identified with any Client obtaining Cards. The BINs (Bank Identification Numbers) assigned to the Cards are the property of the Issuing Bank. Promptly upon expiration or termination of this Agreement, the receiving party shall return or destroy all of the disclosing partys Confidential Information and any materials in which it is embodied except as may be required for the receiving party to comply with applicable law and/or its compliance obligations (including compliance obligations imposed by its partner banks or Networks), subject to these ongoing obligations of confidentiality; and further provided that, Confidential Information or materials containing Confidential Information in electronic form within the receiving partys computing environment may be retained, subject to the terms and conditions of this Agreement, until destroyed in the ordinary course of business in accordance with the receiving partys document retention and destruction policies. Except as otherwise required herein, these obligations of confidentiality shall survive expiration or termination of the Agreement for a period of five (5) years or for such longer period as may be permitted or required by applicable law. Notwithstanding anything to the contrary herein, any cardholder records (including cardholder transactional data) are records of the Issuing Bank and Customer may not place restrictions/requirements herein on their use, retention, disclosure, destruction or deletion on the Issuing Bank or its service providers, including Comdata. Any cardholder records which are shared with Customer shall remain confidential after the termination/expiration of this Agreement. Each party will promptly notify the other party in the event there is an unauthorized disclosure of cardholder records in violation of this Agreement.
Comdata shall at all times maintain administrative, physical and technical safeguards consistent with industry standards for the confidentiality, integrity, security, availability, retention and disposal of all data of Customer. Comdata agrees to provide to Customer upon request, but not more than once annually, the most recent PCI-DSS attestation of compliance and SOC 2 Type II audit report and to complete a vendor questionnaire to enable Customer to conduct its standard vendor due diligence.
12. Intellectual Property. Comdata acknowledges and agrees that Customer owns certain proprietary technology and other intellectual property rights related to Customers business (the Customer Technology). Nothing in this Agreement will be deemed to constitute or result in an assignment or a license to Comdata of any of the Customer Technology or in the creation of any equitable right or interest therein or to grant Comdata any right to use the Customer