By consenting (and agreeing on behalf of the Client) to these Terms and Conditions (the “Terms and Conditions”), (which for the avoidance occurs upon an individual clicking submit on the Implementation Support Services enrollment page to which these Terms and Conditions are linked), the individual that consents (and agrees on behalf of the Client) to these Terms and Conditions represents that they have the full power and authority to bind the Client (as defined below) to these Terms and Conditions, and that the Client accepts and agrees to be bound by these Terms and Conditions as well as the terms and conditions set forth on the Implementation Support Services enrollment page to which these Terms and Conditions are linked. In these Terms and Conditions, “Client” shall mean the Affiliates that have enrolled in the service that will be conducted by Mastercard.
1. Products/Services
1.1. Mastercard International Incorporated (“Mastercard”) will provide to Client the products or services described on the Implementation Support Service enrollment page to which these Terms and Conditions are linked (such products or services, the “Services”), pursuant to these Terms and Conditions. “Affiliate” means, with respect to a party, a legal entity with regard to which such party controls, directly or indirectly, the management and policies or the appointment of the majority of the directors of such legal entity, or that such party is under such control by, or that is under such common control with such party.
1.2. Mastercard will ensure that all Services be performed by qualified individuals in a professional and workmanlike manner. Mastercard may also use the services of third parties (“Mastercard Suppliers”) or its Affiliates in providing the Services.
1.3. All insights, reports, and other materials provided by Mastercard in connection with the Services (“Deliverables”) may be developed using data, databases, systems, tools and information contained in the Mastercard Data Warehouse, which is comprised of information provided by third parties and may contain certain errors, omissions or inaccuracies. Mastercard shall have no responsibility for any errors, omissions or inaccuracies in the underlying data from the Mastercard Data Warehouse or data otherwise provided by or on behalf of Client or any third party
1.4. Mastercard is not providing the Deliverables as investment advice. Mastercard is not, and Client agrees that Mastercard is not, providing legal or financial advice in connection with any Services or Deliverables. Client acknowledges and agrees that Mastercard is not providing any legal advice in connection with any Service and is making no representation or warranty about Mastercard’s business operations. Mastercard may provide certain proposed materials and make certain recommendations in connection with these Terms and Conditions. Client acknowledges and agrees that the Deliverables, including the recommendations suggested by Mastercard in connection with these Terms and Conditions, do not constitute legal or investment advice and Mastercard does not otherwise warrant that execution of any recommendations or guidelines contained in the Deliverables will result in compliance with applicable laws or will be up to date, complete or accurate at the time of any such execution. Client is responsible for reviewing and evaluating the appropriateness of these same materials and recommendations, as well as any decisions made or actions taken by Client in response to such proposed materials and recommendations to Client, against Client’s risk-tolerances and/or other criteria.
1.5. Client is responsible for: (i) obtaining all consents, information and materials necessary from third parties for Mastercard to provide the Services; and (ii) Client’s use of and/or operation of all Deliverables as well as its implementation of any advice or recommendations provided in connection with the Services. Client represents and warrants that: (i) its provision of any data, including Personal Data further defined below (“Client Data”) to Mastercard or a Mastercard Supplier, or such party’s receipt of Client Data from the Client or another party, in connection with the Services, and (ii) the use, analysis, and processing of such Client Data by Mastercard (and Mastercard Suppliers) to perform the Services, are permitted under (x) all applicable laws and regulations, and privacy policies or other statement or disclosure to which such Client Data is subject, and (y) the terms of Client’s contracts with its customers, contractors, suppliers or other third parties.
2. License and Use of Deliverables
2.1. Mastercard hereby grants to Client a perpetual, fully paid-up, nontransferable, non-exclusive license to use the applicable Deliverables, in each case, (x) without the right to resell, assign, transfer or sublicense such Deliverables in any way, and (y) solely for Client’s internal business purposes, relinquishing Mastercard of any liability for Client’s use of such Deliverables.
2.2. Client retains ownership of Client Data and any other confidential information it provides to Mastercard. Mastercard shall be free to use for any purpose any ideas, concepts, general skills, know-how or techniques resulting from or acquired or used in the course of or arising out of the performance of the Services. All Deliverables provided by Mastercard to Client pursuant to the Services, as well as all materials, concepts, processes and methodologies employed by Mastercard or a Mastercard Supplier in connection with the Services, are and will remain the sole and exclusive property of Mastercard (or such Mastercard Supplier).
2.3. Client shall not use the data analytics or insights in the Deliverables in a manner so as to reverse engineer or aid any other party to reverse engineer the data contained in the Deliverables, and shall not remove any identification, copyright or proprietary or other notices from the Deliverables, or any copies thereof. Client shall not use any Deliverable in a manner that would violate any applicable law, regulation, or third-party rights.
2.4. Client grants Mastercard a worldwide, fully paid-up license to copy, display and use Client’s name and logo (“Client Marks”) as necessary (i) to perform Services; (ii) to identify Client as a customer of Mastercard and its Affiliates on its website and marketing materials; and (iii) with Client’s prior written approval, to issue publicity or announcements concerning Mastercard’s engagement with the Client for the purpose of a case study or investor relations announcements. Client warrants and represents to Mastercard that Client owns all right, title, and interest in and to Client’s Marks and has the authority to license to Mastercard the rights granted hereunder. Except as otherwise set out in these Terms and Conditions, each Party will obtain the written consent of the other Party prior to the issuance of any press release, announcement or any other form of publicity, concerning these Terms and Conditions and/or Services.
3. Compliance with Laws
3.1. The parties shall ensure that their respective obligations under these Terms and Conditions and business activities related thereto are performed in accordance with all applicable laws and regulations, including, but not limited to, all applicable anti-bribery and corruption laws including the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, and other applicable laws. Client shall not export, directly or indirectly, any Deliverables acquired from Mastercard under these Terms and Conditions to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval. Client represents and warrants that it is not a governmental, quasi-governmental or similar entity.
3.2. The parties will comply with: (i) all applicable international, federal, state, provincial and local laws, rules, regulations, directives and governmental requirements relating in any way to the privacy, confidentiality or security of Personal Data, as defined below, including, without limitation: EU General Data Protection Regulation 2016/679; California Consumer Privacy Act (Cal. Civ. Code 1798.100 et seq.); the Gramm-Leach-Bliley Act; laws regulating unsolicited email communications; security breach notification laws; laws imposing minimum security requirements; laws requiring the secure disposal of records containing certain Personal Data; and all other similar international, federal, state, provincial, and local requirements, and (ii) the Payment Card Industry Data Security Standards, in each case, to the extent they apply to the Services. Subject to any applicable law, Client agrees that Mastercard may transfer data to any country in which any Mastercard Affiliate does business.
4. Indemnification; Limitation of Liability
4.1. Each party shall defend, indemnify and hold harmless the other party, and its employees, officers, agents, Affiliates, representatives, and contractors from and against any claims, demands, loss, damage or expense (including reasonable attorneys’ fees) relating to or arising solely out of third party claims: (i) relating to such indemnifying party’s acts of gross negligence or willful misconduct in connection with its performance under these Terms and Conditions and/or the Service, or (ii) in the case of Client, third party claims relating to the use of Deliverables or combination, modification or use of the Deliverables with materials not provided by Mastercard or materials required by Client to be included in the Deliverables.
4.2. NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY LEGAL THEORY, TORT, CONTRACT, OR STRICT LIABILITY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, FOR LOSS OF PROFITS, GOODWILL, OR ECONOMIC LOSS, REGARDLESS OF WHETHER A PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT A PARTY’S WAIVER OF ITS RIGHT TO RECEIVE SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES SHALL NOT APPLY IN THE EVENT OF A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS DESCRIBED IN SECTION 6.
4.3. EXCEPT AS SPECIFICALLY DESCRIBED HEREIN, MASTERCARD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SERVICES AND THE DELIVERABLES AND WITHOUT LIMITATION, MASTERCARD HEREBY EXCLUDES AND DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS TO THE EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, COURSE OF DEALING, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
4.4. Except with respect to Client’s breach of the license in Section 2.1, the maximum aggregate liability of any party arising out of or relating to these Terms and Conditions and/or the Service, whether it arises by statute, contract, tort or otherwise, shall not exceed the value of the Services and Deliverables; provided, however that such limitation shall not apply to the indemnity provided by such party in Section 4.1. If no such fees or value is stated, then such maximum liability shall be limited in all respects to US$50,000.
5. Other Terms
5.1. Client agrees and acknowledges that Mastercard will not provide any legal, regulatory or compliance advice in the course of provision of Services, which shall be the sole responsibility of the Client.
5.2. Client is responsible for any taxes levied on the provision of Services, except taxes levied on Mastercard’s income.
5.3. Mastercard and Client acknowledge and agree that the analyses and data included in the Services shall be subject to all relevant laws and regulations for each applicable country, as well as Mastercard’s contractual obligations and internal confidentiality, privacy, and data analytics guidelines and policies (“Applicable Standards”). In no event will Mastercard be obligated to supply or share any information or data which Mastercard determines, in its sole discretion, would cause Mastercard to be in violation of any such Applicable Standards. Mastercard reserves the right, in its sole discretion, to apply adjustments in order to achieve conformance with such Applicable Standards.
6. Confidentiality
6.1. “Confidential Information” means any information, Deliverables, insights, Client Data, Mastercard Supplier data, reports, data, materials, processes, methodologies and concepts, in whatever form embodied (e.g., oral, written, electronic) owned by Mastercard or Client, including Personal Data and any non-public information about individuals or consumers of Mastercard or Client and/or their Affiliates, no matter how or by what party such information, materials, or concepts were transmitted, where such information is transmitted or collected in the course of the performance of a party’s obligations under these Terms and Conditions. “Personal Data” means any information relating to an identified or identifiable individual, regardless of the media in which it is contained.
6.2. During the Term and for a period of seven (7) years thereafter (except for non-public information about individuals or consumers of Mastercard and/or Client, which shall be maintained in confidence indefinitely), the party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) shall maintain the Confidential Information in strict confidence and shall: (i) use Confidential Information only as authorized in accordance with these Terms and Conditions; (ii) not copy any Confidential Information except as authorized in accordance with these Terms and Conditions; (iii) not disclose Confidential Information to any third party except as expressly permitted in writing by the Disclosing Party and then only if such third party has executed a confidentiality, privacy and data protection obligations no less restrictive than those set forth herein; and (iv) limit dissemination of Confidential Information to employees or Mastercard Supplier with a “need to know” and who are subject to confidentiality, privacy and data protection obligations no less restrictive than those set forth herein.
6.3. Except with respect to Personal Data, Confidential Information shall not include any information which: (i) is already in the public domain at the time of disclosure through a source other than the Receiving Party; (ii) enters the public domain after disclosure through no fault of the Receiving Party; (iii) is already known to the Receiving Party at the time of disclosure (as evidenced by written records); (iv) was independently developed by the Receiving Party without use of or reference to any Confidential Information (as evidenced by written records); or (v) is subsequently disclosed to the Receiving Party by third parties having no obligation of confidentiality to the Disclosing Party.
6.4. Upon the written request of the Disclosing Party, the Receiving Party shall securely destroy or render unreadable or undecipherable, each and every original and copy in every media of all Confidential Information in the Receiving Party’s possession, custody or control (with certification of destruction). The foregoing shall not apply to the extent information must be retained pursuant to applicable legal or regulatory requirements or for purposes of the Receiving Party’s commercially reasonable disaster recovery procedures, provided such information shall continue to be subject to Section 6.
7. General Terms
7.1. Notice. Any notice shall be in writing and shall be addressed to the party entitled to such notice at the party’s registered address and shall be given by an overnight courier delivery service. Written notice may include email notice (provided the party receiving such notice acknowledges receipt).
7.2. Force Majeure. Neither party shall be liable for loss or damage or be deemed to be in default under these Terms and Conditions if its failure to perform its obligations results from or is attributable to any act of God, natural disaster, fire, strike, embargo, war, threat of terrorism, insurrection, strike, riot or other cause or circumstance beyond the reasonable control of the party; provided however that the foregoing shall not excuse any failure to exercise diligence by a party to minimize the scope, extent, duration and adverse effect of any such delay in performance, on the other party.
7.3. Waiver. A failure or delay of either party to enforce any provision of or exercise any right under these Terms and Conditions shall not be construed to be a waiver..
7.4. Severability. If any provision of under these Terms and Conditions is held by a court of competent jurisdiction to be unenforceable or invalid in any respect, such unenforceability or invalidity shall not affect any other provision, and these Terms and Conditions shall then be construed as if such unenforceable or invalid provisions had never been part thereof.
7.5. Headings. The captions are included for convenience only and shall not affect the meaning or interpretation of the terms of these Terms and Conditions.
7.6. Survival. All representations and warranties, and all commitments: (i) to indemnify, defend, hold harmless, or (ii) relating to confidentiality, limitations on liability, rights and obligations upon termination, and jurisdiction, and any other provision by its nature that is meant to survive shall survive any termination of these Terms and Conditions.
7.7. Assignment. These Terms and Conditions cannot be assigned by the Client.
7.8. Entire Agreement. These Terms and Conditions, the provisions set forth on the Implementation Support Service enrollment page to which these Terms and Conditions are linked and any agreement or terms referenced therein constitute the entire agreement and understanding between Mastercard and Client with respect to the transactions contemplated and supersedes all prior agreements, representations, statements, negotiations and undertakings between the parties, whether oral or written, concerning such transactions, except in respect of any fraudulent misrepresentations made by either party.
7.9. Governing Law; Venue. These Terms and Conditions and the respective rights and obligations of the parties shall be governed by the laws of the State of New York without reference to its conflict-of-laws or similar provisions that would mandate or permit application of the substantive law of any other jurisdiction. The federal and state courts located in the State of New York shall have the exclusive jurisdiction over any actions or disputes related to these Terms and Conditions.
7.10. Remedies. Unless otherwise expressly provided herein, any remedies stated herein are non-exclusive. In addition to these remedies, the parties shall be entitled to pursue any other remedies that they may have at law or in equity.
7.11. Full Authority. Client and Mastercard hereby represent that they have the full right, power and authority to execute and deliver these Terms and Conditions and all other internal documents and instruments to be executed in connection herewith and perform its obligations hereunder and thereunder. The execution and delivery by Client and Mastercard of these Terms and Conditions and all other internal documents and instruments to be executed in connection herewith have been duly authorized and are in accordance with the applicable procurement laws and regulations.
As of October 2023.